Immigration-Related Detention: Current Legislative Issues

Alison Siskin
Specialist in Immigration Policy

As Congress considers addressing some of the problems in the nation’s immigration system, the detention of noncitizens in the United States may be an issue as Congress may chose to reevaluate detention priorities (i.e., who should be detained) and resources. Under the law, there is broad authority to detain aliens while awaiting a determination of whether the noncitizen should be removed from the United States. The law also mandates that certain categories of aliens are subject to mandatory detention (i.e., the aliens must be detained). Aliens subject to mandatory detention include those arriving without documentation or with fraudulent documentation, those who are inadmissable or deportable on criminal grounds, those who are inadmissable or deportable on national security grounds, those certified as terrorist suspects, and those who have final orders of deportation. Aliens not subject to mandatory detention may be detained, paroled, or released on bond. The priorities for detention of these aliens are specified in statute and regulations. As of December 13, 2011, on an average day in FY2012, 32,953 noncitizens were in Department of Homeland Security (DHS) custody.

There are many policy issues surrounding detention of aliens. The Illegal Immigrant Reform and Immigrant Responsibility Act of 1996 (IIRIRA) increased the number of aliens subject to mandatory detention, and raised concerns about the justness of mandatory detention, especially as it is applied to asylum seekers arriving without proper documentation. Additionally, as DHS increases its ability to identify aliens who are subject to removal from local jails in more remote locations, the nationwide allocation of detention space may become an issue.

The 108th Congress passed P.L. 108-458, the Intelligence Reform and Terrorism Prevention Act of 2004, directing the Secretary of DHS to increase the amount of detention bed space by not less than 8,000 beds for each year, FY2006 through FY2010; a total of 40,000 beds. Although Congress increased the bed space between FY2006 and FY2010, the number of beds only increased by approximately 12,000.

One bill related to immigration detention has received Congressional action in the 112th Congress. H.R. 1932 was placed on the Union Calendar on October 17, 2011. After a removal order has been issued against an alien, the law provides that the alien subject to a final removal order be removed within 90 days, except as otherwise provided in the statute. Certain aliens subject to a removal order “may be detained beyond the removal period and, if released, shall be subject to [certain] terms of supervision.” This provision had been interpreted as permitting indefinite detention where removal was not reasonably foreseeable, but in 2001, the U.S. Supreme Court in Zadvydas v. Davis, interpreted it as only permitting detention for up to six months where removal was not reasonably foreseeable. Nonetheless, the U.S. Supreme Court ruled absent clear guidance from Congress. H.R. 1932 as reported by the House Judiciary Committee, would amend the Immigration and Nationality Act to allow DHS to indefinitely detain, subject to six-month reviews, aliens under orders of removal who could not be removed if certain conditions were met.

In addition, in the 112th Congress, other bills have been introduced covering a range of provisions and perspectives concerning the detention of noncitizens. Several bills—including H.R. 100 and H.R. 1274—would mandate that DHS increase the amount of detention space. In addition, other bills (e.g., H.R. 933 and S. 1258) would mandate the propagation of regulations concerning detainee care, and expand the alternatives to detention program. Other proposed legislation, such as H.R. 713, would make changes to the mandatory detention provisions, lessening the categories of aliens required to be detained.


Date of Report: January 12, 2012
Number of Pages: 20
Order Number: RL32369
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Unauthorized Aliens’ Access to Federal Benefits: Policy and Issues

Ruth Ellen Wasem
Specialist in Immigration Policy

Federal law bars aliens residing without authorization in the United States from most federal benefits; however, there is a widely held perception that many unauthorized aliens obtain such benefits. The degree to which unauthorized resident aliens should be accorded certain rights and privileges as a result of their residence in the United States, along with the duties owed by such aliens given their presence, remains the subject of debate in Congress. This report focuses on the policy and legislative debate surrounding unauthorized aliens’ access to federal benefits.

Except for a narrow set of specified emergency services and programs, unauthorized aliens are not eligible for federal public benefits. The law (§401(c) of P.L. 104-193) defines federal public benefit as 

any grant, contract, loan, professional license, or commercial license provided by an agency of the United States or by appropriated funds of the United States; and any retirement, welfare, health, disability, public or assisted housing, postsecondary education, food assistance, unemployment benefit, or any other similar benefit for which payments or assistance are provided to an individual, household, or family eligibility unit by an agency of the United States or by appropriated funds of the United States. 

The actual number of unauthorized aliens in the United States is unknown. Researchers at the Pew Hispanic Center estimate that there were 11.2 million unauthorized immigrants living in the United States in March 2010. Calculations by Pew Hispanic Center demographer Jeffrey Passel based on the 2008 March Current Population Survey (CPS) estimated that the number of persons living in families in which the head of the household or the spouse was an unauthorized alien was 16.6 million. There were 8.8 million unauthorized families, which he defines as a family unit or solo individual in which the head or spouse is unauthorized. A noteworthy portion of the households headed by unauthorized aliens are likely to have U.S. citizen children, as well as spouses who may be legal permanent residents (LPRs), and are referred to as “mixed status” families. The number of U.S. citizen children in “mixed status” families has grown from 2.7 million in 2003 to 4.5 million in 2010. Passel estimates that one in three children who have a parent who is unauthorized is also considered poor according to the federal poverty rate.

Although the law appears straightforward, the policy on unauthorized aliens’ access to federal benefits is peppered with ongoing controversies and debates. Some center on demographic issues (e.g., how to treat mixed-immigration status families). Others explore unintended consequences, most notably when tightening up the identification requirements results in denying benefits to U.S. citizens. Still others are debates about how broadly the clause “federal public benefit” should be implemented, particularly regarding tax credits and refunds.


Date of Report: December 9, 2011
Number of Pages: 25
Order Number: RL34500
Price: $29.95

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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
Price: $29.95

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