Immigration Legislation and Issues in the 111th Congress

Andorra Bruno, Coordinator
Specialist in Immigration Policy

Karma Ester
Information Research Specialist

Chad C. Haddal
Analyst in Immigration Policy

Yule Kim
Legislative Attorney

Margaret Mikyung Lee
Legislative Attorney

Alison Siskin
Specialist in Immigration Policy

Ruth Ellen Wasem
Specialist in Immigration Policy

The Speaker of the House and the Senate Majority Leader have pledged to take up

comprehensive immigration reform legislation at some point in the 111th Congress. It is unclear

what the components of any immigration reform proposals that Congress may consider will be. In

the past, comprehensive bills have addressed border security, enforcement of immigration laws

within the United States (interior enforcement), employment eligibility verification, temporary

worker programs, permanent admissions and, most controversially, unauthorized aliens in the

United States.

The 111th Congress has considered various immigration issues and has enacted a number of

targeted immigration provisions. It has passed legislation (P.L. 111-8, P.L. 111-9, P.L. 111-68,

P.L. 111-83) to extend the life of several immigration programs—the E-Verify electronic

employment eligibility verification system, the Immigrant Investor Regional Center Program, the

Conrad State J-1 Waiver Program, and the special immigrant visa for religious workers—all of

which are currently authorized until September 30, 2012. Among the other subjects of legislation

enacted by this Congress are refugees (P.L. 111-8, P.L. 111-17) and border security (P.L. 111-5,

P.L. 111-32, P.L. 111-83).

This report discusses these and other immigration-related issues that have seen legislative action

or are of significant congressional interest. Department of Homeland Security (DHS)

appropriations are addressed in CRS Report R40642, Homeland Security Department: FY2010

Appropriations, and, for the most part, are not covered here.


Date of Report: May 6, 2010
Number of Pages: 16
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People Crossing Borders: An Analysis of U.S. Border Protection Policies

Chad C. Haddal
Analyst in Immigration Policy

Since at least the 1980s, the border has played a central role in U.S. policy discussions. Policymakers have for years debated the best strategy for providing border protection. What has emerged from these efforts has been a generally agreed upon framework of mission and goals. However, some question whether the strategy has been sufficiently mapped out in a comprehensive fashion. The broad framework currently in place is generally supported by a collection of agency or function-specific strategic elements that show some commonalities. 

For congressional policymakers, the current state of border protection strategy presents at least three questions: (1) What does the current border protection framework consist of? (2) Is it working? and (3) Are there more effective alternatives to achieve border protection? This report addresses these three questions through two competing models for conceptualizing a border protection system, through the analysis of existing documentation and data, and through the presentation of various legislative options. 

For critics and advocates of U.S. border protection policy, there are a host of competing policy alternatives for how to effectively protect the border. While some individuals want more enforcement and stricter admission criteria, others want to lessen these restrictions. Ultimately, the policy choices are rooted in competing visions of what U.S. border policy should look like. These visions can be grouped into at least two camps: (1) the unilateral security model based on a metaphorical "fortress" and (2) an interdependence (or cooperation-based) model based on a metaphorical "complex organism." 

The current border protection framework can be understood as consisting of a mission, three goals, and five strategic elements. The mission is securing and managing the U.S. border. The current border protection framework can be summarized as obtaining effective control of the borders, safeguarding lawful trade and travel, and identifying and disrupting transnational criminal organizations. Finally, the five strategic elements to achieve these goals consist of Department of Homeland Security leadership, deployment of layered security, maximizing domain awareness, promotion of a shared agency culture, and expansion of the border through international and domestic partnerships. 

Analysis of available data suggests that despite some support for the viability of the current border protection approach in its present state, it is not seemingly providing sufficient deterrence to overcome labor market demand for illegal workers. Yet, definitive conclusions of effectiveness cannot be made because the current border protection operation is an incomplete version of what policymakers envisioned. 

The border protection framework goals are necessarily vague, as the breadth of the threats and activities at the border are wide. But these goals are rooted in the notion that a strategy based on enforcement can ultimately prevent or deter most actions that are undesirable. This assumption has been the source of much debate and continues to be the source of skepticism in certain circles. As suggested above, few conclusive claims about the effectiveness of the current border protection framework can be made. Yet, even if enforcement-only measures do provide some level of deterrence and prevention against border violations, these efforts are both costly and do not necessarily address the underlying causes of such activities. Moreover, they can have unintended consequences. This report will not be updated.


Date of Report: May 13, 2010
Number of Pages: 58
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State Efforts to Deter Unauthorized Aliens: Legal Analysis of Arizona’s S.B. 1070

Michael John Garcia
Legislative Attorney

Larry M. Eig
Specialist in American Public Law

Yule Kim
Legislative Attorney

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 

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.


Date of Report: May 3, 2010
Number of Pages: 27
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Noncitizen Eligibility and Verification Issues in the Health Care Reform Legislation

Ruth Ellen Wasem
Specialist in Immigration Policy

Health care reform legislation raises a significant set of complex issues, and among the thornier for policy makers are the noncitizen eligibility and verification issues. That the treatment of foreign nationals complicates health care reform legislation is not surprising given that reform of immigration policy poses its own constellation of controversial policy options. This report focuses on this nexus of immigration law and health care reform in the major health care reform bills that are receiving action. These are the America's Affordable Health Choices Act of 2009 (H.R. 3200), as reported by the House Committees on Energy and Commerce, Ways and Means, and Education and Labor on October 14, 2009, and folded into the Affordable Health Care for America Act (H.R. 3962), which passed on November 7, 2009; the Affordable Health Choices Act (S. 1679), as reported by the Senate Committee on Health, Education, Labor, and Pensions (HELP) on September 17, 2009; the America's Healthy Future Act (S. 1796), as ordered reported by the Senate Committee on Finance on October 13, 2009; and the Patient Protection and Affordable Care Act (H.R. 3590 as amended), which passed the Senate on December 24, 2009. 

Legal permanent residents (LPRs) are treated similarly to U.S. citizens under all the major health care reform bills. They are mandated to obtain health insurance, are eligible to purchase insurance through the exchange, and are eligible for the premium and cost-sharing subsidies if they meet the other eligibility requirements. This consistency of treatment holds regardless of when they entered the United States or whether they came initially as refugees or asylees. 

The proposed policies toward non immigrants (i.e., those in the United States temporarily, such as students and temporary workers) are more nuanced in large part because some classes of non immigrants reside legally in the United States for extended periods of time, some are employed and taxed as a result of those earnings, and some are on a track to become LPRs. 

The treatment of unauthorized aliens varies across bills and across the three elements (the individual mandate, eligibility for the exchange, and eligibility for subsidies). Unauthorized aliens would not be eligible for the premium and cost-sharing credits in any of the bills. The Senate passed H.R. 3590 and the Senate Finance bill expressly exempt them from the mandate to have health coverage and bar them from the health insurance exchange. 

Another aspect of the legislation germane to the issue of noncitizens is the immigration and citizenship verification provisions of the bills. Under Senate-passed H.R. 3590, three pieces of personal data would be used to verify citizenship and immigration status. The Social Security Administration would verify the name, social security number, and date of birth of the individual, and the Department of Homeland Security (DHS) would verify an individual's immigration status. While the Senate-passed H.R. 3590 has requirements similar to and compatible with the DHS Systematic Alien Verification for Entitlements (SAVE) system established by §1137(d) of the Social Security Act (SSA), H.R. 3962 would expressly build on the statutory authority of the SAVE system to verify citizenship and immigration status. 

None of the major health care reform bills would alter the noncitizen eligibility laws pertaining to Medicaid or CHIP. Moreover, none of the major health care reform bills would alter the Internal Revenue Code on the definitions of resident or nonresident aliens.


Date of Report: April 20, 2010
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Unauthorized Aliens in the United States

Andorra Bruno
Specialist in Immigration Policy

The unauthorized alien (illegal alien) population in the United States is a key and controversial immigration issue. In recent years, competing views on how to address this population have proved to be a major obstacle to enacting comprehensive immigration reform legislation. The unauthorized alien issue is likely to be a key challenge if, as the Senate Majority Leader and the Speaker of the House have indicated, the 111th Congress takes up immigration reform legislation this year. 

It is unknown, at any point in time, how many unauthorized aliens are in the United States, what countries they are from, when they came to the United States, where they are living, and what their demographic, family, and other characteristics are. Demographers develop estimates about unauthorized aliens using available survey data on the U.S. foreign-born population. These estimates can help inform possible policy options to address the unauthorized alien population. According to recent estimates by the Department of Homeland Security (DHS), approximately 10.8 million unauthorized aliens were living in the United States in January 2009. Using different sources, the Pew Hispanic Center has estimated the March 2008 unauthorized resident population at about 11.9 million. 

The Immigration and Nationality Act (INA) and other federal laws place various restrictions on unauthorized aliens. They have no legal right to live or work in the United States and are subject to removal from the country. At the same time, the INA provides limited avenues for certain unauthorized aliens to obtain legal permanent residence. 

Over the years, a range of options has been offered for addressing the unauthorized resident alien population. In most cases, the ultimate goal is to reduce the number of aliens in the United States who lack legal status. One set of options centers on requiring or encouraging illegal aliens to depart the country. Those who support this approach argue that these aliens are in the United States in violation of the law and that their presence variously threatens social order, national security, and economic prosperity. One departure strategy is to locate and deport unauthorized aliens from the United States. Another departure strategy, known as attrition through enforcement, seeks to significantly reduce the size of the unauthorized alien population by across-the-board enforcement of immigration laws. 

One of the basic tenets of the departure approach is that unauthorized aliens in the United States should not be granted benefits. An opposing strategy would grant qualifying unauthorized aliens various benefits, including an opportunity to obtain legal status. Supporters of this type of approach do not characterize unauthorized aliens in the United States as lawbreakers, but rather as contributors to the economy and society at large. A variety of proposals have been put forth over the years to grant some type of legal status to some portion of the unauthorized population. Some of these options would use existing mechanisms under immigration law to grant legal status. Others would establish new legalization programs. Some would benefit a particular subset of the unauthorized population, such as students or agricultural workers, while others would make relief available more broadly.


Date of Report: April 27, 2010
Number of Pages: 26
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