Visa Waiver Program

Alison Siskin
Specialist in Immigration Policy

The visa waiver program (VWP) allows nationals from certain countries to enter the United States as temporary visitors (nonimmigrants) for business or pleasure without first obtaining a visa from a U.S. consulate abroad. Temporary visitors for business or pleasure from non-VWP countries must obtain a visa from Department of State (DOS) officers at a consular post abroad before coming to the United States. Concerns have been raised about the ability of terrorists to enter the United States under the VWP, because the VWP bypasses the first step by which foreign visitors are screened for admissibility to enter the United States. Nonetheless, the current economic recession has heightened interest in the VWP as a mechanism to promote tourism and commerce. In addition to increasing tourism, the inclusion of countries in the VWP may help foster positive relations between the United States and those countries, facilitate information sharing, and ease consular office workloads abroad. As of January 2011, 36 countries participate in the VWP.

In FY2010, 17.8 million visitors entered the United States under this program, constituting 44% of all overseas visitors. To qualify for the VWP, statute specifies that a country must offer reciprocal privileges to U.S. citizens; have had a nonimmigrant refusal rate of less than 3% for the previous year or an average of no more than 2% over the past two fiscal years with neither year going above 2.5%; issue their nationals machine-readable passports that incorporate biometric identifiers; certify that it is developing a program to issue tamper-resident, machine-readable visa documents that incorporate biometric identifiers which are verifiable at the country’s port of entry; and not compromise the law enforcement or security interests of the United States by its inclusion in the program. Countries can be terminated from the VWP if an emergency occurs that threatens the United States’ security interests.

All aliens entering under the VWP must present machine-readable passports. In addition, passports issued between October 26, 2005, and October 25, 2006, must have a digitized photo on the data page, while passports issued after October 25, 2006, must contained electronic data chips (e-passports). Under DHS regulations, travelers who seek to enter the United States through the VWP are subject to the biometric requirements of the United States Visitor and Immigrant Status Indicator Technology (US-VISIT) program. In addition, aliens entering under the VWP must get an approval from the Electronic System for Travel Authorization (ESTA), a web-based system that checks the alien’s information against relevant law enforcement and security databases, before they can board a plane to the United States. ESTA became operational for all VWP countries on January 12, 2009.

P.L. 110-53 added new requirements to participate in the VWP and provided the Secretary of the Department of Homeland Security (DHS) with the authority to waive the nonimmigrant refusal rate requirement. The waiver became available in October 2008; however, it was suspended on July 1, 2009. In 2008, eight new countries were added to the VWP who needed the nonimmigrant refusal rate waiver to be part of the program. There are other countries (e.g., Poland, Romania, Taiwan) that have expressed interest in being a part of the VWP. The nonimmigrant refusal rate waiver authority was suspended on June 30, 2009, because DHS did not implement an air-exit system that incorporates biometric identifiers. It is unknown when a biometric exit system will be implemented.

In the 112th Congress, legislation has been introduced to use the overstay rate rather than the refusal rate as the criteria for admission into the VWP (H.R. 959/S. 497) and to make Taiwan a program country (H.R. 2918 and S. 1545).


Date of Report: December 2, 2011
Number of Pages: 26
Order Number: RL32221
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. 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: December 13, 2011
Number of Pages: 11
Order Number: RS20844
Price: $29.95

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Numerical Limits on Employment-Based Immigration: Analysis of the Per-Country Ceilings

Ruth Ellen Wasem
Specialist in Immigration Policy

The Immigration and Nationality Act (INA) specifies a complex set of numerical limits and preference categories that include economic priorities among the criteria for admission. The INA allocates 140,000 visas annually for employment-based legal permanent residents (LPRs), and they were 14.2% of the total 1.0 million LPRs in FY2010. The INA further specifies that each year, countries are held to a numerical limit of 7% of the worldwide level of U.S. immigrant admissions, known as per-country limits or country caps.

Even as U.S. unemployment levels remain high, some 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 economic conditions, proponents argue it is an essential ingredient for economic growth. Those opposing increases in employment-based LPRs assert that there is no compelling evidence of labor shortages and cite the rate of unemployment across various occupations and labor markets.

With this economic and political backdrop, the option of lifting the per-country caps on employment-based LPRs has become increasingly popular. Some theorize that the elimination of the per-country caps would increase the flow of high-skilled immigrants without increasing the total annual admission of employment-based LPRs. The presumption is that many high-skilled people (proponents cite those from India and China, in particular) would then move closer to the head of the line to become LPRs.

To explore this policy option, analyses of approved pending employment-based petitions are performed on two different sets of data: approved pending cases with the Department of State National Visa Center, and approved pending cases with U.S. Citizenship and Immigrant Services (USCIS). The overwhelming number of approved employment-based LPR visas pending at the National Visa Center at the close of FY2010 were those of professional and skilled workers— 102,395. There were also 16,788 approved visas pending for unskilled workers. In terms of those with advanced degrees, another 6,738 visas were pending. There were also 2,961 approved visas pending in the “extraordinary” category. In terms of the USCIS data, most of the approved I-485 petitions pending are professional, skilled, and unskilled workers (114,442). There were 7,545 approved I-485 petitions pending in the “extraordinary” category and 45,573 approved I-485 petitions pending in the “advanced degree” category. The extent that these two sets of data overlap—and thus may be counting the same petitions twice—is not known, but substantial duplication is presumed to exist.

The top four countries in both the National Visa Center and USCIS data sets are (in rank order) India, the Philippines, the Peoples’ Republic of China, and Mexico. The data analyses suggest that the vast number of Indians are waiting to adjust status in the United States, while the vast number of Filipinos are waiting to immigrate from abroad. Those with approved pending cases from China seem to be more evenly split among new arrivals and those seeking to adjust status.

Some argue that the per-country ceilings are arbitrary and observe that employability has nothing to do with country of birth. Others maintain that the statutory per-country ceilings restrain the dominance of high-demand countries and preserve the diversity of the immigrant flows. Legislation to revise the per-country ceilings on LPRs passed the House (H.R. 3012) on November 29, 2011.


Date of Report: December 6, 2011
Number of Pages: 31
Order Number: R42048
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Interior Immigration Enforcement: Programs Targeting Criminal Aliens

Marc R. Rosenblum
Specialist in Immigration Policy

William A. Kandel
Analyst in Immigration Policy

Congress has a long-standing interest in seeing that immigration enforcement agencies identify and deport serious criminal aliens. The expeditious removal of such aliens has been a statutory priority since 1986, and the Department of Homeland Security (DHS) and its predecessor agency have operated programs targeting criminal aliens for removal since 1988. These programs have grown substantially since FY2005.

Despite the interest in criminal aliens, inconsistencies in data quality, data collection, and definitions make it impossible to precisely enumerate the criminal alien population, defined in this report as all noncitizens ever convicted of a crime. CRS estimates the number of noncitizens incarcerated in federal and state prisons and local jails—a subset of all criminal aliens—at 173,000 in 2009, with state prisons and local jails accounting for somewhat more incarcerations than federal prisons. The overall proportion of noncitizens in federal and state prisons and local jails corresponds closely to the proportion of noncitizens in the total U.S. population.

DHS operates four programs designed in whole or in part to target criminal aliens: the Criminal Alien Program (CAP), Secure Communities, the § 287(g) program, and the National Fugitive Operations Program (NFOP). The CAP, Secure Communities, and certain § 287(g) programs are jail enforcement programs that screen individuals for immigration-related violations as they are being booked into jail and while they are incarcerated; the NFOP and some other § 287(g) programs are task force programs that target at-large criminal aliens. This report describes how these programs work and identifies their common features and key differences among them.

While consensus exists on the overarching goal to identify and remove serious criminal aliens, these programs have generated controversy, particularly Secure Communities and the § 287(g) program. On one hand, the Obama Administration and other supporters of jail enforcement programs see them as efficient and even-handed ways to identify criminal aliens. The Administration has taken steps to strengthen and expand Secure Communities and plans to implement the program in every law enforcement jurisdiction in the country by 2013. On the other hand, some lawmakers and advocacy groups have raised concerns that Secure Communities and the § 287(g) program have not been narrowly targeted at serious criminal offenders and that the programs may have adverse impacts on police-community relations, may result in racial profiling, and may result in the detention of people who have not been convicted of criminal offenses and may not be subject to removal.

Disagreements about the merits of jail enforcement programs overlap with a separate set of questions about the role of states and localities in immigration enforcement. These jurisdictional questions have focused in particular on Secure Communities, in part because the Administration initially appeared to present it as a discretionary program but now takes the position that states and localities may not “opt out” of Secure Communities.


Date of Report: October 21, 2011
Number of Pages: 49
Order Number: R42057
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Fiscal Impacts of the Foreign-Born Population

William A. Kandel
Analyst in Immigration Policy

This report reviews estimates of fiscal impacts to the federal, state, and local governments of the foreign born who reside in the United States. It examines the academic and policy literature on fiscal impacts of two populations: all U.S. foreign born and unauthorized aliens. Computing such fiscal impacts involves numerous methodological and conceptual challenges, and resulting estimates vary considerably according to the assumptions used, including those about the time frame considered, the treatment of U.S.-born children, the unit of analysis used, and which costs and revenues are included.

For the total foreign-born population, the findings of a 1996 analysis commissioned by the National Research Council entitled The New Americans remain authoritative and relevant. The report estimated that each new immigrant at that time, with his or her descendents, would generate an average net fiscal surplus. The authors illustrated how their estimate varied according to foreign-born residents’ age composition and educational attainment. Varied assumptions about education generated substantially different impacts. For instance, immigrants with above-average education generated a considerably larger than average net fiscal surplus; those with belowaverage education levels generated a net fiscal deficit. Reducing the time frame of the analysis to fewer generations changes the average net fiscal surplus into an average net fiscal deficit.

This study and others confirm that the foreign born, like the native born, impose their largest costs on U.S. taxpayers as children, through their consumption of public education, and as the elderly, through their consumption of government-funded public health programs. Yet, the majority of the foreign born come to the United State as young adults, where they pay taxes and contribute to programs like Social Security for most of their working lives. Relatively young ages at arrival for most foreign born helps explain why many fiscal impact studies found that foreignborn residents generated net fiscal surpluses over the long term.

Findings from all of the studies reviewed in this report indicate different impacts at the state and federal levels. Many federal programs such as Social Security and Medicaid are oriented toward assisting the elderly, while many state and local level jurisdictions are responsible for services consumed by younger persons, such as public education and criminal justice administration. Foreign-born residents’ relatively young age distribution thus accentuates the degree to which states and localities incur greater fiscal costs from the foreign born than the federal government. Fiscal impact studies of unauthorized aliens reach less consensus than those of the total foreignborn population. Three national estimates evaluated in a 1995 General Accounting Office (GAO) report varied considerably and left the agency unable to definitively quantify such fiscal impacts. Subsequent state-level studies emphasized fiscal impacts of costly public services: public education, health care, and law enforcement. Many estimated tax and other fiscal contributions.

Studies estimating fiscal impacts for unauthorized aliens are more likely to yield estimated net fiscal deficits than those estimating fiscal impacts for all foreign born, because unauthorized aliens, on average, tend to be younger and less educated. Consequently, they are more likely to use public education for their children and contribute relatively less in tax revenues compared to all foreign born. Given their unauthorized status, they are also less likely themselves to receive public benefits, although their U.S. born children may be more likely to qualify for such benefits. However, deriving more specific conclusions or estimates from studies of unauthorized aliens reviewed in this report remains elusive due to variation in study design and methodology.


Date of Report: October 19, 2011
Number of Pages: 57
Order Number: R42053
Price: $29.95

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