Immigration of Foreign Workers: Labor Market Tests and Protections

Ruth Ellen Wasem
Specialist in Immigration Policy

Economic indicators confirm that the U.S. economy sunk into a recession in December 2007. Although some economic indicators suggest that growth has resumed, unemployment remains high and is projected to remain so for some time. Historically, international migration ebbs during economic crises; for example, immigration to the United States was at its lowest levels during the Great Depression. While preliminary statistical trends hint at a slowing of migration pressures, it remains unclear how the current economic recession will affect immigration. Addressing these contentious policy reforms against the backdrop of economic crisis sharpens the social and business cleavages and narrows the range of options.

Some employers maintain that they continue to need the “best and the brightest” workers, regardless of their country of birth, to remain competitive in a worldwide market and to keep their firms in the United States. While support for increasing employment-based immigration may be dampened by the high levels of unemployment, proponents argue that the ability to hire foreign workers is an essential ingredient for economic growth.

Those opposing increases in foreign workers assert that such expansions—particularly during a period of high unemployment—would have a deleterious effect on salaries, compensation, and working conditions of U.S. workers. Others question whether the United States should continue to issue foreign worker visas (particularly temporary visas) during a recession and suggest that a moratorium on such visas might be prudent.

The number of foreign workers entering the United States legally has notably increased over the past decade. The number of employment-based legal permanent residents (LPRs) grew from under 100,000 in FY1994 to over 250,000 in FY2005, and dipped to 126,874 in 2009. The number of visas issued to employment-based temporary nonimmigrants rose from just under 600,000 in FY1994 to approximately 1.3 million in FY2007. In FY2009, the number of visas issued to employment-based temporary nonimmigrants dropped slightly to 1.1 million.

The Immigration and Nationality Act (INA) bars the admission of any alien who seeks to enter the U.S. to perform skilled or unskilled labor, unless it is determined that (1) there are not sufficient U.S. workers who are able, willing, qualified, and available; and (2) the employment of the alien will not adversely affect the wages and working conditions of similarly employed workers in the United States. The foreign labor certification program in the U.S. Department of Labor (DOL) is responsible for ensuring that foreign workers do not displace or adversely affect working conditions of U.S. workers.

The 111th Congress has addressed one element of the labor market test for foreign workers issue in §1611 of P.L. 111-5, the American Recovery and Reinvestment Act of 2009, which requires companies receiving Troubled Asset Relief Program (TARP) funding to comply with the more rigorous labor market rules of H-1B dependent companies if they hire foreign workers on H-1B visas. Also, §524 of division D of the Consolidated Appropriations Act, 2010 (P.L. 111-117) authorized the Department of Labor to use its share of the H-1B, H-2B, and L Fraud Prevention and Detection fees to conduct wage and hour enforcement of industries more likely to employ any type of nonimmigrants (not just H-1B, H-2B or L visaholders). Most recently, P.L. 111-230 (H.R. 6080) authorizes additional fees on firms who have more than 50% of their employees on H-1B or L visas.

This report does not track legislation and will be updated if policies are revised.


Date of Report: August 27, 2010
Number of Pages: 34
Order Number: RL33977
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Immigration Legislation and Issues in the 111th Congress

Andorra Bruno, Coordinator
Specialist in Immigration Policy

Karma Ester
Information Research Specialist

Chad C. Haddal
Specialist 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. 111-117) and border security (P.L. 111-5, P.L. 111-32, P.L. 111-83, P.L. 111-230).

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: August 31, 2010
Number of Pages: 19
Order Number: R40848
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U.S. Immigration Policy on Haitian Migrants

Ruth Ellen Wasem
Specialist in Immigration Policy

The environmental, social, and political conditions in Haiti have long prompted congressional interest in U.S. policy on Haitian migrants, particularly those attempting to reach the United States by boat. While some observers assert that such arrivals by Haitians are a breach in border security, others maintain that these Haitians are asylum seekers following a decades old practice of Haitians coming by boat without legal immigration documents. Migrant interdiction and mandatory detention are key components of U.S. policy toward Haitian migrants, but human rights advocates express concern that Haitians are not afforded the same treatment as other asylum seekers. 

The devastation caused by the January 12, 2010, earthquake in Haiti has led Department of Homeland Security (DHS) Secretary Janet Napolitano to grant Temporary Protected Status (TPS) to Haitians in the United States at the time of the earthquake. The scale of current humanitarian crisis—estimated thousands of Haitians dead and reported total collapse of the infrastructure in the capital city of Port au Prince—resulted in this TPS announcement on January 15, 2010. 

Secretary Napolitano gave humanitarian parole to Haitian children who were legally confirmed as orphans eligible for intercountry adoption by the government of Haiti and who were in the process of being adopted by U.S. residents prior to the earthquake. The House passed the Help HAITI Act of 2010 (H.R. 5283) authorizing the DHS Secretary to adjust to legal permanent residence (LPR) status those Haitian orphans who were granted parole from January 18, 2010, through April 15, 2010. The Senate passed H.R. 5283 with an amendment on August 4, 2010. 

Those Haitians who are deemed Cuban-Haitian Entrants are among the subset of foreign nationals who are eligible for federal benefits and cash assistance. Those Haitians who are newly arriving legal permanent residents, however, are barred from the major federal benefits and cash assistance for the first five years after entry. The Supplemental Appropriations Act, 2010 (H.R. 4899, P.L. 111-212), includes funding to cover additional costs for federal benefits and cash assistance resulting from Haitian evacuees. 

According to the U.S. Department of State (DOS), there are 54,716 Haitians who have approved petitions to immigrate to the United States and who are waiting for visas to become available. Advocates for Haitians are asking Secretary Napolitano to give humanitarian parole to those Haitians with approved petitions for visas. Proponents of expediting the admission of Haitians with family in the United States maintain that it would relieve at least some of the humanitarian burden in Haiti and would increase the remittances sent back to Haiti to provide critical help as the nation tries to rebuild. Those opposed to expediting the admission of Haitians assert that it would not be in the national interest, nor would it be fair to other foreign nationals waiting to reunite with their families. 

More broadly, there are concerns that the crisis conditions in Haiti may result in mass migration from the island. Agencies within DHS that are the leads in handling a potential mass migration include the U.S. Coast Guard (interdiction); Customs and Border Protection (apprehensions and inspections); Immigration and Customs Enforcement (detention and removal); and the U.S. Citizenship and Immigration Services (credible fear determinations). The balancing of DHS's border security and immigration control responsibilities in the midst of a humanitarian disaster poses a challenge.


Date of Report: August 26, 2010
Number of Pages: 19
Order Number: RS21349
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Birthright Citizenship Under the14th Amendment of Persons Born in the United States to Alien Parents

Margaret Mikyung Lee
Legislative Attorney

Over the last decade or so, concern about illegal immigration has sporadically led to a reexamination of a long-established tenet of U.S. citizenship, codified in the Citizenship Clause of the Fourteenth Amendment of the U.S. Constitution and §301(a) of the Immigration and Nationality Act (INA) (8 U.S.C. §1401(a)), that a person who is born in the United States, subject to its jurisdiction, is a citizen of the United States regardless of the race, ethnicity, or alienage of the parents. The war on terror and the case of Yaser Esam Hamdi, a U.S.-Saudi dual national captured in Afghanistan fighting with Taliban forces, further heightened attention and interest in restricting automatic birthright citizenship, after the revelation that Hamdi was a U.S. citizen by birth in Louisiana to parents who were Saudi nationals in the United States on non-immigrant work visas and arguably entitled to rights not available to foreign enemy combatants. More recently, some congressional Members have supported a revision of the Citizenship Clause or at least holding hearings for a serious consideration of it. An Arizona state legislator has voiced support for state legislation that would deny birth certificates to persons born to undocumented aliens. This report traces the history of this principle under U.S. law and discusses some of the legislation in recent Congresses intended to alter it. 

The traditional English common-law followed the doctrine of jus soli, under which persons born within the dominions of and with allegiance to the English sovereign were subjects of the sovereign regardless of the alienage status of their parents. The exceptions to this rule are persons born to diplomats, who are born subjects of the sovereign whom the parents represent abroad, and persons born to citizens of a hostile occupying force, who are born subjects of the invading sovereign. Although the states and courts in the United States apparently adopted the jus soli doctrine, there still was confusion about whether persons born in the United States to alien parents were U.S. citizens. This arose because citizenship by birth in the United States was not defined in the Constitution nor in the federal statutes. Legal scholars and law makers were torn between a "consensualist" doctrine of citizenship, by which a person and a government consent to be mutually obligated, and an "ascriptive" doctrine by which a person is ascribed citizenship by virtue of circumstances beyond his control, such as birth within a particular territory or birth to parents with a particular citizenship. Additionally, African Americans were not considered citizens of the United States, even if they were free. Native Americans also were not considered U.S. citizens because they were members of dependent sovereign Indian nations. The Civil Rights Act of 1866 and the Fourteenth Amendment, ratified in 1868, extended birthright citizenship to African Americans and also to most persons born in the United States. In an 1898 decision, United States v. Wong Kim Ark, the United States Supreme Court made clear that U.S.-born children of aliens were U.S. citizens regardless of the alienage and national origin of their parents, with narrow exceptions for the children of foreign diplomats and hostile invasion and occupation forces of a foreign nation. However, in the 1884 decision Elk v. Wilkins, the Supreme Court held that Native Americans were not U.S. citizens under the terms of the Citizenship Clause. Native Americans were U.S. citizens by treaties or statutes granting U.S. citizenship to members of specific tribes. Immigration statutes enacted in 1924, 1940, and 1952 granted U.S. citizenship to all Native Americans. 

In the 111th Congress, H.R. 126, §301 of H.R. 994, H.R. 1868, §7 of H.R. 5002, and S.J.Res. 6 would amend the Constitution and/or the INA to exclude from citizenship at birth persons born in the United States whose parents are unlawfully present in the United States or are nonimmigrant aliens.


Date of Report: August 12, 2010
Number of Pages: 21
Order Number: RL33079
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Border Security: The Role of the U.S. Border Patrol

Chad C. Haddal
Specialist in Immigration Policy

The United States Border Patrol (USBP) has a long and storied history as our nation's first line of defense against unauthorized migration. Today, the USBP's primary mission is to detect and prevent the entry of terrorists, weapons of mass destruction, and illegal aliens into the country, and to interdict drug smugglers and other criminals along the border. The Homeland Security Act of 2002 dissolved the Immigration and Naturalization Service and placed the USBP within the Department of Homeland Security (DHS). Within DHS, the USBP forms a part of the Bureau of Customs and Border Protection under the Directorate of Border and Transportation Security. 

During the last decade, the USBP has seen its budget and manpower more than triple. This expansion was the direct result of congressional concerns about illegal immigration and the agency's adoption of "Prevention Through Deterrence" as its chief operational strategy in 1994. The strategy called for placing USBP resources and manpower directly at the areas of greatest illegal immigration in order to detect, deter, and apprehend aliens attempting to cross the border between official points of entry. Post 9/11, the USBP refocused its strategy on preventing the entry of terrorists and weapons of mass destruction, as laid out in its recently released National Strategy. In addition to a workforce of over 20,000 agents, the USBP deploys vehicles, aircraft, watercraft, and many different technologies to defend the border. 

In the course of discharging its duties, the USBP patrols 8,000 miles of American international borders with Mexico and Canada and the coastal waters around Florida and Puerto Rico. However, there are significant geographic, political, and immigration-related differences between the northern border with Canada and the Southwest border with Mexico. Accordingly, the USBP deploys a different mix of personnel and resources along the two borders. Due to the fact that approximately 98.7% of unauthorized migrant apprehensions by the USBP occur along the Southwest border, the USBP deploys over 85% of its agents there to deter illegal immigration. The northern border is more than two times longer than the Southwest border, and features far lower numbers of aliens attempting to enter illegally, but may be more vulnerable to terrorist infiltration. As a consequence of this, the USBP has focused its northern border efforts on deploying technology and cooperating closely with Canadian authorities through the creation of International Border Enforcement Teams. 

Some issues for Congress to consider could include the slow rate of integration between the USBP's biometric database of illegal aliens and the Federal Bureau of Investigation's (FBI) biometric database of criminals and terrorists; the number of unauthorized aliens who die attempting to enter the country each year; the increasing attacks on Border Patrol agents, and the threat posed by terrorists along the sparsely defended northern border as well as the more porous Southwest border.


Date of Report: August 11, 2010
Number of Pages: 40
Order Number: RL32562
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