Authority of State and Local Police to Enforce Federal Immigration Law

Michael John Garcia
Legislative Attorney

Kate M. Manuel
Legislative Attorney

The power to prescribe rules as to which aliens may enter the United States and which aliens may be removed resides solely with the federal government, and in particular with Congress. Concomitant to its exclusive power to establish rules which determine which aliens may enter and which may stay in the country, the federal government also has the power to sanction activities that subvert this system. Congress has defined our nation’s immigration laws in the Immigration and Nationality Act (INA), a comprehensive set of rules for legal immigration, naturalization, work authorization, and the entry and removal of aliens. These requirements are bolstered by an enforcement regime containing both civil and criminal provisions. Deportation and associated administrative processes related to the removal of aliens are civil in nature, while certain violations of federal immigration law, such as smuggling unauthorized aliens into the country, carry criminal penalties.

Congressional authority to prescribe rules on immigration does not necessarily imply exclusive authority to enforce those rules. In certain circumstances, Congress has expressly authorized states and localities to assist in enforcing federal immigration law. Moreover, there is a notion that has been articulated in some federal courts and by the executive branch that states may possess “inherent” authority to assist in the enforcement of federal immigration law, even in the absence of clear authorization by federal statute. Nonetheless, states may be precluded from taking actions that are otherwise within their authority if federal law would thereby be thwarted.

The ability of state and local police to make arrests for federal immigration violations is a subject of legal debate and conflicting jurisprudence. Traditionally, the prevailing view has been that state and local police are permitted, to the extent allowed under state and local law, to enforce the criminal provisions of the INA. By contrast, the enforcement of the civil provisions, including the apprehension of deportable aliens, was viewed as a federal responsibility, with state and local police playing, at most, a supporting role. This view may be changing, however, as the executive branch and some courts have concluded that, at least in some instances, state and local police are not preempted from arresting persons on the grounds that they are deportable, even in the absence of express authorization by federal statute.

This report discusses the authority of state and local law enforcement to assist in the enforcement of federal immigration law through the investigation and arrest of persons believed to have violated such laws. It describes current provisions in federal law that permit state and local police to enforce immigration law directly, analyzes major cases concerning the ability of states and localities to assist in immigration enforcement, and briefly examines opinions on the issue by the Office of Legal Counsel (OLC) within the Department of Justice. This report does not discuss legal issues raised by states and localities enacting their own immigration-related laws, including measures intended to supplement federal law through the imposition of additional criminal or civil penalties. The legal implications of such measures are discussed in CRS Report R41221, State Efforts to Deter Unauthorized Aliens: Legal Analysis of Arizona’s S.B. 1070, by Kate M. Manuel, Michael John Garcia, and Larry M. Eig; and CRS Report RL34345, State and Local Restrictions on Employing, Renting Property to, or Providing Services for Unauthorized Aliens: Legal Issues and Recent Judicial Developments, by Jody Feder and Alison M. Smith.


Date of Report: September 17, 2010
Number of Pages: 23
Order Number: R41423
Price: $29.95

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Temporary Protected Status: Current Immigration Policy and Issues

Ruth Ellen Wasem
Specialist in Immigration Policy

Karma Ester
Information Research Specialist

When civil unrest, violence, or natural disasters erupt in spots around the world, concerns arise over the safety of foreign nationals from these troubled places who are in the United States. Provisions exist in the Immigration and Nationality Act (INA) to offer temporary protected status (TPS) or relief from removal under specified circumstances. A foreign national who is granted TPS receives a registration document and an employment authorization for the duration of TPS.

The United States currently provides TPS or deferred enforced departure (DED) to over 300,000 foreign nationals from a total of seven countries: El Salvador, Haiti, Honduras, Liberia, Nicaragua, Somalia, and Sudan. Liberians have had relief from removal for the longest period, first receiving TPS in March 1991 following the outbreak of civil war.

The devastation caused by the January 12, 2010, earthquake in Haiti prompted calls for the Administration of President Barrack Obama to grant 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—led the Department of Homeland Security (DHS) to announce on January 13, 2010, that it is temporarily halting the deportation of Haitians. On January 15, 2010, DHS Secretary Janet Napolitano granted TPS to Haitians in the United States at the time of the earthquake.

Under the INA, the executive branch grants TPS or relief from removal. Congress, however, has also provided TPS legislatively. Legislation pertaining to TPS has been introduced in the 111th Congress.


Date of Report: September 9, 2010
Number of Pages: 10
Order Number: RS20844
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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
Price: $29.95

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