Ruth Ellen Wasem
Specialist in Immigration Policy
Foreign nationals (i.e., aliens) not already legally residing in the United States who wish to come to the United States generally must obtain a visa to be admitted, with certain exceptions noted in law. The Departments of State (DOS) and Homeland Security (DHS) each play key roles in administering the law and policies on the admission of aliens. Although the DOS’s Consular Affairs is responsible for issuing visas, the U.S. Citizenship and Immigrant Services (USCIS) in DHS approves immigrant petitions, the Immigration and Customs Enforcement (ICE) in DHS operates the Visa Security Program in selected embassies abroad, and the Customs and Border Protection (CBP) in DHS inspects all people who enter the United States. In addition, the Executive Office for Immigration Review (EOIR) in the U.S. Department of Justice (DOJ) has a significant policy role through its adjudicatory decisions on specific immigration cases.
Although there was a discussion of assigning all visa issuance responsibilities to DHS when the department was being created, the Homeland Security Act of 2002 (P.L. 107-296) opted not to do so. Rather, P.L. 107-296 drew on compromise language stating that DHS issues regulations regarding visa issuances and assigns staff to consular posts abroad to advise, review, and conduct investigations, and that DOS’s Consular Affairs continues to issue visas.
The case of Umar Farouk Abdulmutallab, who allegedly attempted to ignite an explosive device on Northwest Airlines Flight 253 on December 25, 2009, refocused attention on the responsibilities of the Departments of State and Homeland Security for the visa process. He was traveling on a multi-year, multiple-entry tourist visa issued to him in June 2008. State Department officials have acknowledged that Abdulmutallab’s father came into the Embassy in Abuja, Nigeria, on November 19, 2009, to express his concerns about his son, and that those officials at the Embassy in Abuja sent a cable to the National Counterterrorism Center. State Department officials maintain they had insufficient information to revoke his visa at that time. In the aftermath of the Abdulmutallab case, policymakers explored what went wrong and whether statutory and procedural revisions were needed.
Some have expressed the view that DOS has too much control over visas, maintaining that the Homeland Security Act intended DHS to be the lead department and DOS to merely administer the visa process. Proponents of DOS playing the principal role in visa issuances assert that only consular officers in the field have the country-specific knowledge to make decisions about whether an alien is admissible and that staffing 250 diplomatic and consular posts around the world would stretch DHS beyond its capacity. Whether the visa security roles and procedures are adequately funded may arise as the budget issues are considered.
Date of Report: December 16, 2010
Number of Pages: 24
Order Number: R41093
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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 economic recession of the past two years has affected 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 period of high unemployment 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). Finally, P.L. 111-230 (H.R. 6080) authorized additional fees on firms who have more than 50% of their employees on H-1B or L visas.
Date of Report: December 20, 2010
Number of Pages: 34
Order Number: RL33977
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Kate M. Manuel
Legislative Attorney
Jody Feder
Legislative Attorney
Alison M. Smith
Legislative Attorney
An estimated 37 million foreign-born persons currently reside in the United States, almost a third of whom may be present without legal authorization. The reaction of state and local jurisdictions to unauthorized immigration has varied. In some cases, states and localities have adopted measures intended to deter unlawfully present aliens from arriving and settling within their jurisdictions, including by restricting such aliens’ access to work, housing, and benefits. Typically, such measures have sought to (1) limit the hiring and employment of unauthorized aliens, including through the denial of permits to persons that employ unauthorized aliens and the regulation of day labor centers; (2) restrict the ability of unlawfully present aliens to rent or occupy dwellings within the state or locality; and/or (3) deny unlawfully present aliens access to state or local services or benefits.
State or local restrictions upon unlawfully present aliens’ access to employment or housing and eligibility for public benefits have been challenged on various grounds, including on the grounds that they (1) are preempted by federal law, including the Immigration and Nationality Act (INA), and thus unenforceable by federal or state courts; (2) deprive persons of equal protection of the law in violation of the Fourteenth Amendment to the U.S. Constitution; (3) deprive persons of property or liberty interests without providing them due process in violation of the Fourteenth Amendment; and (4) run afoul of federal civil rights statutes, including the Fair Housing Act, Title VII of the Civil Rights Act, and 42 U.S.C. § 1981. The outcomes of such challenges have varied, depending upon the specific restrictions at issue and the jurisdiction of the courts reviewing the restrictions. However, based upon the cases decided to date, these challenges appear to be more significant with regard to state and local restrictions on employing or renting property to unlawfully present aliens than they are with regard to state and local restrictions on unlawfully present aliens’ access to public services and benefits. This term, the Supreme Court is considering the case of Chamber of Commerce v. Whiting, which involves arguments as to whether federal law preempts a 2007 Arizona statute that requires employers to use the federal government’s E-Verify system to determine the work eligibility of employees and suspends or revokes the business licenses of entities found to have hired unauthorized aliens.
This report discusses the constitutional issues raised by state and local laws intended to deter the presence of unauthorized aliens by limiting their access to housing, employment, and public benefits, as well as the implications that federal civil rights statutes might have for the implementation and enforcement of these laws. It also discusses recent federal court cases addressing the constitutionality of such measures. The report does not discuss recent state laws that seek to deter the presence of unauthorized aliens by requiring state law enforcement to enforce federal immigration law, or that criminalize conduct that may facilitate the presence of unauthorized aliens within the state. Such laws are discussed in a separate report, 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.
Date of Report: December 20, 2010
Number of Pages: 28
Order Number: RL34345
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Alison Siskin
Specialist in Immigration Policy
Liana Sun Wyler
Analyst in International Crime and Narcotics
Trafficking in persons (TIP) for the purposes of exploitation is believed to be one of the most prolific areas of international criminal activity and is of significant concern to the United States and the international community. According to Department of State estimates, roughly 800,000 people are trafficked across borders each year. If trafficking within countries is included in the total world figures, official U.S. estimates indicate that some 2 to 4 million people are trafficked annually. As many as 17,500 people are believed to be trafficked into the United States each year and some have estimated that 100,000 U.S. citizen (USC) children are victims of trafficking within the United States..
Since enactment of the Victims of Trafficking and Violence Protection Act of 2000 (TVPA, P.L. 106-386), the Administration and Congress have aimed to address TIP by authorizing new programs and reauthorizing existing ones, appropriating funds, creating new criminal laws, and conducting oversight on the effectiveness and implications of U.S. anti-TIP policy. Most recently, the TVPA was reauthorized through FY2011 in the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (P.L. 110-457). Obligations for global and domestic anti- TIP programs, not including operations and law enforcement investigations, totaled approximately $103.5 million in FY2009.
Activity on combating TIP may continue into the 112th Congress, particularly related to efforts to reauthorize the TVPA. Ongoing international policy issues include how to measure the effectiveness of the U.S. and international responses to TIP, including the State Department’s annual TIP rankings and the use of unilateral sanctions; and how to prevent known sex offenders from engaging in child sex tourism. Domestic issues that may arise include whether there is equal treatment of all victims—both foreign nationals and U.S. citizens, as well as victims of labor and sex trafficking; and whether current law and services are adequate to deal with the emerging issue of domestic minor sex trafficking (i.e., the prostitution of children in the United States). Other issues are whether to include all forms of prostitution (i.e., children and adults) in the definition of TIP, and whether sufficient efforts are applied to addressing all forms of TIP, including not only sexual exploitation, but also forced labor and child soldiers.
On June 14, 2010, the State Department issued its 10th annual, congressionally mandated report on human trafficking. In addition to outlining major trends and ongoing challenges in combating TIP, the report provides a country-by-country analysis and ranking, based on what progress foreign countries have made in their efforts to prosecute traffickers, protect victims, and prevent TIP. For the first time, the United States was included as one of the ranked countries. The report categorizes countries into four tiers according to the government’s efforts to combat trafficking. Those countries that do not cooperate in the fight against trafficking (Tier 3) may be subject to U.S. foreign assistance sanctions. On September 13, 2010, President Barack Obama determined that two Tier 3 countries will be sanctioned for FY2011 without exemption (Eritrea and North Korea). In addition, he determined that four Tier 3 countries will be partially sanctioned (Burma, Cuba, Iran, and Zimbabwe).
The 2010 TIP report also included for the first time, a list of six countries that recruit, use, or harbor child soldiers. Inclusion on this list subjects these countries to possible U.S. assistance sanctions.
Date of Report: December 23, 2010
Number of Pages: 62
Order Number: RL34317
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Ruth Ellen Wasem
Specialist in Immigration Policy
Four major principles underlie current U.S. policy on permanent immigration: the reunification of families, the admission of immigrants with needed skills, the protection of refugees, and the diversity of admissions by country of origin. These principles are embodied in the Immigration and Nationality Act (INA). The INA specifies a complex set of numerical limits and preference categories that give priorities for permanent immigration reflecting these principles. Legal permanent residents (LPRs) refer to foreign nationals who live permanently in the United States.
During FY2009, a total of 1.1 million aliens became LPRs in the United States. Of this total, 66.1% entered on the basis of family ties. Other major categories in FY2009 were employmentbased LPRs (including spouses and children) at 12.7%, and refugees/asylees adjusting to LPR status at 15.7%. About 14.6 of all LPRs come from Mexico, which sent 164,920 LPRs in FY2009.
Substantial efforts to reform legal immigration have failed in the recent past, prompting some to characterize the issue as a “zero-sum game” or a “third rail.” The challenge inherent in reforming legal immigration is balancing employers’ hopes to increase the supply of legally present foreign workers, families’ longing to re-unite and live together, and a widely shared wish among the various stakeholders to improve the policies governing legal immigration into the country. Whether the Congress will act to alter immigration policies—either in the form of comprehensive immigration reform or in the form of incremental revisions aimed at strategic changes—is at the crux of the debate. Addressing these contentious policy reforms against the backdrop of high unemployment sharpens the social and business cleavages and may narrow the range of options.
Even as U.S. unemployment levels remain high, employers assert 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 the option of increasing employment-based immigration may be dampened by the level of unemployment, proponents argue it is an essential ingredient for economic growth. Other possible options are to admit LPRs on the basis of a point system comprised of education and needed skills or to establish a independent agency or commission that would set the levels and types of employmentbased immigrants.
Proponents of family-based migration alternatively point to the significant backlogs in family based immigration due to the sheer volume of aliens eligible to immigrate to the United States and maintain that any proposal to increase immigration levels should also include the option of family-based backlog reduction. Citizens and LPRs often wait years for their relatives’ petitions to be processed and visa numbers to become available. Possible options include treating the immediate relatives of LPRs as immediate relatives of U.S. citizens are treated under the INA, i.e., not held to numerical limits or per-country ceilings.
Against these competing priorities for increased immigration are those who offer options to scale back immigration levels, with options ranging from limiting family-based LPRs to the immediate relatives of U.S. citizens to confining employment-based LPRs exceptional, extraordinary, or outstanding individuals.
Date of Report: December 20, 2010
Number of Pages: 42
Order Number: RL32235
Price: $29.95
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