Immigration Legislation and Issues in the 112th Congress

Andorra Bruno, Coordinator
Specialist in Immigration Policy

Despite President Obama’s calls for a national conversation on immigration reform, immigration has not been a front-burner issue for the 112th Congress. The 112th Congress, however, has taken legislative action on some measures containing provisions on a range of immigration-related topics. The Department of Defense and Full-Year Continuing Appropriations Act, 2011 (P.L. 112- 10) terminated a special refugee provision known as the Lautenberg amendment. This amendment was subsequently re-enacted for FY2012 by the Consolidated Appropriations Act, 2012 (P.L. 112- 74). P.L. 112-74 also contains provisions on border security and other issues. P.L. 112-58, a narrow immigration law, concerns military service-based immigration benefits.

The House has passed the Fairness for High-Skilled Immigrants Act of 2011 (H.R. 3012), which would make changes to permanent employment-based and family-based admissions. It also has passed legislation to reauthorize the H-1C temporary worker category for nurses coming to work in medically underserved areas in the United States (H.R. 1933).

In other action on immigration-related legislation, the House Judiciary Committee has reported or ordered reported bills on electronic employment eligibility verification (H.R. 2885), immigrant detention (H.R. 1932), visa security (H.R. 1741), and the diversity visa (H.R. 704). Both the House Foreign Affairs Committee and the Senate Judiciary Committee have reported bills on victims of trafficking (H.R. 2830, S. 1301), and the House Natural Resources Committee has reported a bill concerning foreign residents of the Commonwealth of the Northern Mariana Islands (CNMI), a U.S. territory in the Pacific. In addition, House and Senate committees and subcommittees have held hearings on a number of immigration-related issues.

This report discusses immigration-related issues that have received legislative action or are of significant congressional interest in the 112th Congress. Department of Homeland Security (DHS) appropriations are addressed in CRS Report R41982, Homeland Security Department: FY2012 Appropriations, and, for the most part, are not covered here.


Date of Report: January 12, 2012
Number of Pages: 27
Order Number: R42036
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Immigration: Noncitizen Eligibility for Needs-Based Housing Programs

Alison Siskin
Specialist in Immigration Policy

Maggie McCarty
Specialist in Housing Policy

The issue of noncitizen eligibility for federally funded programs, including needs-based housing programs, is a perennial issue in Congress. Noncitizen eligibility varies among the needs-based housing programs administered by the U.S. Department of Housing and Urban Development (HUD), such as Public Housing, Section 8 vouchers and project-based rental assistance, homeless assistance programs, housing for the elderly (Section 202) and the disabled (Section 811), the HOME program, and the Community Development Block Grants (CDBG) program. Two laws govern noncitizen eligibility for housing programs: Title IV of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (Welfare Reform) and Section 214 of the Housing and Community Development Act of 1980, as amended.

The Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA) explicitly states that aliens, unless they are qualified aliens, are not eligible for “federal public benefits,” a term defined in the law to include public and assisted housing. Under the statute, unauthorized (illegal) aliens do not meet the definition of qualified aliens, and as a result, they are ineligible for “federal public benefits.” However, PRWORA did not make those who had been receiving housing benefits before the date of enactment (August 22, 1996) ineligible for housing benefits. Likewise, PRWORA exempts certain types of programs that are usually thought of as emergency programs from the alien eligibility restrictions. HUD has not issued guidance implementing the PRWORA provisions.

Section 214 of the Housing and Community Development Act of 1980 states that only certain categories of noncitizens are eligible for benefits under the housing programs covered by Section 214. Unauthorized aliens are not eligible for benefits under Section 214. The aliens eligible for housing assistance under Section 214 are similar to those eligible for federal public benefits under PRWORA, with some exceptions.

There is uncertainty surrounding how the eligibility requirements of PRWORA and Section 214 interact, leading to conflicting interpretations of the categories of noncitizens eligible for housing programs. A provision addressing this issue was considered during the FY2003 appropriations debate, but not included in the final bill.

There has been congressional interest regarding the implementation of the eligibility requirements for housing programs. Specifically, questions have been raised as to the documentation requirements placed on both citizens and noncitizens in determining eligibility for housing programs. The documentation requirements are dependent on (1) the housing program, (2) the citizenship status of the applicant, and (3) the age of the applicant.


Date of Report: January 23, 2012
Number of Pages: 15
Order Number: RL31753
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Overview of Immigration Issues in the 112th Congress

Ruth Ellen Wasem
Specialist in Immigration Policy

There is a broad-based consensus that the U.S. immigration system is broken. This consensus erodes, however, as soon as the options to reform the U.S. immigration system are debated. Substantial efforts to comprehensively reform immigration law failed in the 109th and 110th Congresses. Whether and how the 112th Congress will address immigration reform in the midst of historically high levels of unemployment and budgetary constrictions is difficult to project.

The number of foreign-born people residing in the United States is at the highest level in U.S. history and has reached a proportion of the U.S. population—12.5%—not seen since the early 20th century. Of the 38 million foreign-born residents in the United States, approximately 16.4 million are naturalized citizens. The remaining 21.6 million foreign-born residents are noncitizens. According to the latest estimates by the Department of Homeland Security (DHS), about 10.8 million of the 21.6 million noncitizens were unauthorized aliens living in the United States in January 2010, down from a peak of 11.8 million in January 2007. Some observers and policy experts maintain that the presence of millions of unauthorized residents is evidence of inadequacies in the legal immigration system as well as failures of immigration control policies and practices.

This report synthesizes immigration issues as a multi-tiered debate. It breaks down the U.S. immigration law and policy into key elements: border control and visa security; legal immigration; documentation and verification; interior immigration enforcement; integration, status, and benefits; and refugees and other humanitarian populations. It delineates the debate in the 112th Congress for a range of issues, including border security, criminal aliens, worksite enforcement, employment eligibility verification, permanent admissions, temporary workers, legalization, noncitizen eligibility for federal benefits, birthright citizenship, and the role of state and local law enforcement in enforcing immigration laws.

Current circumstances may sharpen the social and business cleavages as well as narrow the range of options. Nonetheless, selected immigration issues are likely to be a major concern for the 112th Congress, even if legislative action on such contentious issues appears daunting. For a discussion of legislative action on immigration issues, see CRS Report R42036, Immigration Legislation and Issues in the 112th Congress.


Date of Report: January 12, 2012
Number of Pages: 20
Order Number: R41704
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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
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