State and Local Restrictions on Employing Unauthorized Aliens

Kate M. Manuel
Legislative Attorney

In May 2011, the Supreme Court ruled in Chamber of Commerce of the United States of America v. Whiting that federal immigration law did not preempt an Arizona statute that authorized or required the suspension or termination of the licenses of businesses that knowingly or intentionally hire unauthorized aliens, and also required that employers within Arizona use the federal government’s E-Verify database to check employees’ work authorization.

The doctrine of preemption derives from the Supremacy Clause of the U.S. Constitution, which establishes that federal law, treaties, and the Constitution itself are “the supreme Law of the Land.” Thus, one essential aspect of the federal structure of government is that states can be precluded from taking actions that are otherwise within their authority if federal law is thereby thwarted. An act of Congress may preempt state or local action in a given area in any one of three ways: (1) the statute expressly states preemptive intent (express preemption); (2) a court concludes that Congress intended to occupy the regulatory field, thereby implicitly precluding state or local action in that area (field preemption); or (3) state or local action directly conflicts with or otherwise frustrates the purpose of the federal scheme (conflict preemption).

When it was enacted in 1952, the Immigration and Nationality Act (INA) did not regulate the employment of unauthorized aliens, and several states subsequently enacted measures prohibiting the employment of individuals who were not lawful residents of the United States. In a 1976 decision declining to find one such measure preempted, the Supreme Court recognized that it was “within the mainstream of [a state’s] police power” to restrict the employment of aliens within their jurisdiction whose presence in the United States was not authorized by the federal government. However, in 1986, Congress enacted the Immigration Reform and Control Act (IRCA), which amended the INA to sanction employers of unauthorized aliens and expressly preempt states and localities from sanctioning employers other than through “licensing and similar laws.” Then, in 1996, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), which authorized the creation of a pilot program for verifying work authorization that ultimately developed into the program known as E-Verify. Under federal law, use of E-Verify by private entities is generally voluntary, and the Secretary of Homeland Security may not require persons or entities not specified in IIRIRA to participate.

Prior to the Supreme Court’s decision in Whiting, the federal courts of appeals had disagreed as to whether IRCA and IIRIRA preempted state and local measures like the Arizona statute. Some courts found that state licensing measures were within IRCA’s “savings clause” even when the state independently determined whether an employer employed unauthorized aliens, and that IIRIRA did not prohibit states from requiring use of E-Verify. Others found that such measures were preempted because the licensing provisions disrupted the balance struck by Congress between deterring illegal immigration, minimizing burdens on employers, and preventing discrimination, and Congress did not want use of E-Verify to be mandatory.

In reaching its decision, the majority in Whiting relied primarily upon the “plain meaning” of IRCA and IIRIRA, while two dissents relied more heavily upon the legislative history and overall purpose of IRCA, in particular. The majority’s decision apparently opens the door to additional state and local restrictions upon employing unauthorized aliens. However, it is unclear how closely such measures must parallel federal law to avoid being found to be preempted because they conflict with federal law, or how courts may apply the Whiting decision when reviewing other state and local immigration measures, such as those restricting access to housing or benefits.


Date of Report: September 9, 2011
Number of Pages: 17
Order Number: R41991
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Noncitizen Eligibility for Federal Public Assistance: Policy Overview and Trends

Ruth Ellen Wasem
Specialist in Immigration Policy

The extent to which residents of the United States who are not U.S. citizens should be eligible for federally funded public aid has been a contentious issue for more than a decade. This issue meets at the intersection of two major policy areas: immigration policy and welfare policy. The eligibility of noncitizens for public assistance programs is based on a complex set of rules that are determined largely by the type of noncitizen in question and the nature of services being offered. Over the past 15 years, Congress has enacted significant changes in U.S. immigration policy and welfare policy. Congress has exercised oversight of revisions made by the 1996 welfare reform law (the Personal Responsibility and Work Opportunity Reconciliation Act, P.L. 104-193)— including the rules governing noncitizen eligibility for public assistance that it established—and legislation covering programs with major restrictions on noncitizens’ eligibility (e.g., food stamps/SNAP, Medicaid).

This report deals with the four major federal means-tested benefit programs: the Supplemental Nutrition Assistance Program (SNAP, formerly food stamps), the Supplemental Security Income (SSI) program, Temporary Assistance for Needy Families (TANF) block grant programs, and Medicaid. Laws in place for the past 15 years restrict the eligibility of legal permanent residents (LPRs), refugees, asylees, and other noncitizens for most means-tested public aid. Noncitizens’ eligibility for major federal means-tested benefits largely depends on their immigration status; whether they arrived (or were on a program’s rolls) before August 22, 1996, the enactment date of P.L. 104-193; and how long they have lived and worked in the United States.

LPRs with a substantial work history or military connection are eligible for the full range of programs, as are asylees, refugees, and other humanitarian cases (for at least five to seven years after entry). Other LPRs must meet additional eligibility requirements. For SNAP, they generally must have been legally resident for five years or be under age 18. Under TANF and SSI, they generally are ineligible for five years after entry and then eligible at state option. States have the option of providing Medicaid to pregnant LPRs and children within the five-year bar. Unauthorized aliens (often referred to as illegal aliens) are not eligible for most federal benefits, regardless of whether they are means tested, with notable exceptions for emergency services, (e.g., Medicaid emergency medical care or Federal Emergency Management Agency disaster services).

TANF, SSI, food stamp, and Medicaid recipiency among noncitizens decreased over the 1995- 2005 period, but appears to have inched upwards in 2009. While the 10-year decrease was affected by the statutory changes, the poverty rate of noncitizens has also diminished over the 1995-2005 decade. The poverty rate for noncitizens residing in the United States fell from 27.8% in 1995 to 20.4% in 2005. It has risen to 25.1% in 2009. Noncitizens are disproportionately poorer than native-born residents of the United States.

This report does not track legislation and is updated as policy changes warrant.


Date of Report: August 24, 2011
Number of Pages: 29
Order Number: RL33809
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Asylum and “Credible Fear” Issues in U.S. Immigration Policy

Ruth Ellen Wasem
Specialist in Immigration Policy

Foreign nationals seeking asylum must demonstrate a well-founded fear that if returned home, they will be persecuted based upon one of five characteristics: race, religion, nationality, membership in a particular social group, or political opinion. Foreign nationals arriving or present in the United States may apply for asylum affirmatively with the United States Citizenship and Immigration Services (USCIS) in the Department of Homeland Security after arrival into the country, or they may seek asylum defensively before a Department of Justice Executive Office for Immigration Review (EOIR) immigration judge during removal proceedings.

Asylum claims ebbed and flowed in the 1980s and peaked in FY1996. Since FY997, affirmative asylum cases decreased by 79% and defensive asylum claims dropped by 53% by FY2009. Asylum seekers from the People’s Republic of China (PRC) dominated both the affirmative and defensive asylum caseload in FY2009. Five of the top 10 source countries of asylum seekers were Western Hemisphere nations in FY2009: Haiti, Mexico, Guatemala, El Salvador, and Colombia. Ethiopia was the only African nation that was a top source country for asylum seekers in FY2009. Despite the general decrease in asylum cases since the enactment of the Illegal Immigrant Reform and Immigrant Responsibility Act (IIRIRA ) in 1996, data analysis of six selected countries (the PRC, Colombia, El Salvador, Ethiopia, Haiti, and Mexico) suggests that conditions in the source countries are likely the driving force behind asylum seekers.

Roughly 30% of all asylum cases that worked through USCIS and EOIR in recent years have been approved. Affirmative asylum cases approved by USCIS more than doubled from 13,532 in FY1996 to 31,202 in FY2002, and then fell to the lowest point over the 14-year period—9,614— in FY2009. The number of defensive asylum cases that EOIR judges have approved has risen by 99% from FY1996 through FY2009. The PRC led in the number of asylum cases approved by USCIS and EOIR over the decade of FY2000-FY2009.

Despite national data trends that appeared to be consistent, approval rates for asylum seekers differ strikingly across regions and jurisdictions. For example, a study of 290 asylum officers who decided at least 100 cases from the PRC from FY1999 through FY2005 found that the approval rate of PRC claimants spanned from zero to over 90% during this period. In a separate study, the U.S. Government Accountability Office (GAO) analyzed asylum decisions from 19 immigration courts that handled almost 90% of the cases from October 1994 through April 2007 and found that “significant variation existed.”

At the crux of the issue is the extent to which an asylum policy forged during the Cold War is adapting to the competing priorities and turbulence of the 21st century. Some assert that asylum has become an alternative pathway for immigration rather than humanitarian protection. Others argue that—given the religious, ethnic, and political violence in various countries around the world—it has become more difficult to differentiate the persecuted from the persecutors. Some express concern that U.S. sympathies for the asylum seekers caught up in the democratic political uprisings in the Middle East, northern Africa, and south Asia could inadvertently facilitate the entry of terrorists. Others maintain that current law does not offer adequate protections for people fleeing human rights violations or gender-based abuses that occur around the world. Some cite the disparities in asylum approvals rates and urge broad-based administrative reforms. The Refugee Protection Act of 2011 (S. 1202/H.R. 2185) would make significant revisions to asylum policy.


Date of Report: June 29, 2011
Number of Pages: 40
Order Number: R41753
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Visa Security Policy: Roles of the Departments of State and Homeland Security

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.

The House Committee on the Judiciary has reported legislation (H.R. 1741) that would give the Secretary of Homeland Security “exclusive authority to issue regulations, establish policy, and administer and enforce the provisions of the Immigration and Nationality Act (8 U.S.C. 1101 et seq.) and all other immigration or nationality laws relating to the functions of consular officers of the United States in connection with the granting and refusal of a visa.”


Date of Report: June 30, 2011
Number of Pages: 28
Order Number: R41093
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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. On May 17, 2011, TPS for Haitians was extended until January 22, 2013.

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 112th Congress.


Date of Report: June 30, 2011
Number of Pages: 10
Order Number: RS20844
Price: $29.95

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