A Line in the Sand: Assessing Dangerous Threats to Our Nation's Borders Committee on Homeland Security, Subcommittee on Oversight, Investigations and Management

Marc R. Rosenblum
Specialist in Immigration Policy

Chairman McCaul, Ranking Member Keating, Members of the Committee: Thank you for the opportunity to testify today on behalf of the Congressional Research Service. My statement draws on a new report that I am coauthoring with my CRS colleagues Jerome Bjelopera and Kristin Finklea; and I want to thank them and acknowledge their role, along with several other colleagues at CRS, in preparing this statement.

Pursuant to the Committee’s request, my statement today will consist of three parts. First, I will discuss key threats to U.S. borders. Second, I will describe selected threat scenarios. Third, I will discuss some policy options Members of Congress may consider with respect to border security in the next four years and beyond.


Date of Report: November 16, 2012
Number of Pages: 15
Order Number: T-111612
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Noncitizen Eligibility for Public Benefits: Legal Issues

Kate M. Manuel
Legislative Attorney

Whether and when noncitizens may receive particular types of government assistance can be difficult to ascertain because of the various federal, state, and local laws governing their eligibility for such assistance. The Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) of 1996 was enacted to establish “national policy with respect to welfare and immigration.” With certain exceptions, PRWORA bars aliens who are not “qualified aliens” from receiving federal, state, or local “public benefits,” and also precludes qualified aliens from receiving “federal means-tested public benefits” for five or more years after they enter the United States in a qualified status. However, there are also a number of federal, state, and local measures adopted prior to, or after, PRWORA, some of which make different provisions for noncitizens’ eligibility for particular benefits. The application of these measures can raise complicated issues of constitutional law, statutory interpretation, and administrative law.

The constitutional guarantee of equal protection applies to all “persons” within the United States, including aliens. Thus, measures governing eligibility for public benefits could be subject to legal challenge if they treat aliens differently than citizens. Because of Congress’s plenary power over immigration, federal measures that distinguish between aliens and citizens will generally be upheld so long as they are rationally related to a legitimate government interest. State and local measures, in contrast, are generally subject to some type of heightened scrutiny, the degree of which can vary depending upon the benefit involved and the aliens’ status. However, state and local measures that follow a “uniform rule” established by Congress could potentially receive the same deferential review afforded to federal measures. Courts have reached differing conclusions as to whether PRWORA establishes such a uniform rule. Courts have also disagreed as to whether measures that treat lawful nonimmigrant aliens differently from citizens are subject to the same level of scrutiny as those that distinguish between lawful immigrant aliens and citizens.

Questions can also arise as to whether particular state and local measures are preempted by federal law. Some states and localities, concerned about the presence of unauthorized aliens within their jurisdiction, have recently enacted measures which would define benefits or related terms more broadly than PRWORA does, and further restrict aliens’ eligibility for them. Such measures could potentially be challenged on preemption grounds because the Constitution grants Congress the power to regulate immigration. State and local measures that purport to determine the conditions upon which aliens may enter or remain in the United States are, per se, preempted. Federal statutes can also preempt state and local measures by expressly prohibiting them, containing conflicting requirements, or occupying the field.

Moreover, in the application of particular measures, there have been questions about whether particular government programs, services, or types of assistance are benefits. For example, although PRWORA includes certain types of assistance within its definitions of public benefit, it also refers to “any other similar benefit.” Parties have litigated whether particular assistance constitutes a benefit “similar” to those governed by PRWORA. They have also litigated whether PRWORA bars aliens from receiving benefits whose provision entails the expenditure of appropriated funds, even if the aliens themselves must pay a fee for the benefit; as well as what it means for a state to “affirmatively provide” for eligibility. Similarly, because PRWORA does not affirmatively define “federal means-tested public benefits,” there has been debate about the degree of deference to be accorded to agency interpretations of this term as encompassing only five mandatory spending programs (e.g., Medicaid), and no discretionary spending programs.


Date of Report: September 9, 2013
Number of Pages: 32
Order Number: R43221
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Public Charge Grounds of Inadmissibility and Deportability: Legal Overview

Kate M. Manuel
Legislative Attorney

The Immigration and Nationality Act (INA) has long provided for aliens’ exclusion and deportation from the United States on “public charge” grounds. Under current law, aliens outside the United States who seek to obtain visas at U.S. consulates overseas, or admission at U.S. ports of entry, are generally denied entry if they are deemed “likely at any time to become a public charge.” Aliens within the United States who seek to adjust their status to that of lawful permanent resident (LPR), or who entered the United States without inspection, are also generally subject to this ground of inadmissibility. Similarly, LPRs and other aliens who have been admitted to the United States are removable if they become a public charge within five years after the date of their entry due to causes that pre-existed their entry. These public charge grounds have recently been of interest because of concerns, among some Members of Congress and the public, regarding noncitizens’ receipt of public assistance.

The INA does not expressly define what it means for an alien to be a public charge, and, prior to 1996, there was no statutory guidance on what was to be considered in determining whether an alien is inadmissible or deportable (removable) on public charge grounds. Then, in 1996, the INA was amended to require that certain factors be taken into account when determining whether aliens are inadmissible on public charge grounds, including the alien’s age, health, family status, financial resources, education, and skills. There still is no similar guidance on the public charge ground of deportability.

Given this general lack of statutory guidance, the executive and judicial branches initially construed the meaning of public charge in adjudicating cases involving individual aliens. In so doing, administrative authorities interpreted public charge differently for purposes of the grounds of inadmissibility than for the grounds of deportability. Specifically, public charge was construed broadly in the context of admissibility, with determinations based on a “totality of the circumstances” test that considered factors like those codified in the INA in 1996. In contrast, in the context of deportability, “public charge” was construed more narrowly. Aliens could only be found to be deportable on public charge grounds if (1) they received government assistance that they were legally obligated to repay, (2) the government entity providing the assistance demanded repayment, and (3) the alien or the alien’s sponsor was unable to pay.

Following the enactment of the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) of 1996, executive agencies issued guidance regarding the public charge grounds. While PRWORA generally restricts noncitizens’ eligibility for “public benefits,” it permits them to receive specified benefits, and its enactment raised questions about whether aliens who receive benefits for which they are eligible under PRWORA could potentially be removable on public charge grounds. Immigration officials addressed these questions in a 1999 policy letter that defined public charge, and identified which benefits are considered in public charge determinations. This policy letter underlies current regulations and other guidance on the public charge grounds of inadmissibility and deportability.

Collectively, the various sources addressing the meaning of public charge suggest that an alien’s receipt of public benefits, per se, is unlikely to result in the alien being deemed removable on public charge grounds. Neither the INA nor implementing regulations address the role that receipt of public benefits plays in public charge determinations. Other agency guidance and court decisions indicate that, while receipt of certain public benefits could be considered in public charge determinations, other factors are also considered (e.g., age, obligation to repay).


Date of Report: September 9, 2013
Number of Pages: 17
Order Number: R43220
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The Framework for Foreign Workers’ Labor Protections Under Federal Law

Margaret Mikyung Lee
Legislative Attorney

Jon O. Shimabukuro
Legislative Attorney

One challenge of immigration law has been to balance the interests of the domestic workforce with employer interests in hiring foreign workers who are not already authorized to work in the United States while preventing the exploitation of foreign workers. There are three main sources of labor protections for foreign workers in the United States: (1) the conditions imposed on employers hiring foreign workers through the Department of Labor (DOL) labor certification/attestation and DHS petition process; (2) federal labor laws stipulating that employers adhere to certain requirements governing wages and other conditions; and (3) worker rights under state and local laws regarding labor, contracts, and torts.

Streamlining and easing certain labor and immigration requirements that are perceived as unnecessarily onerous and insufficiently flexible may benefit certain employers with immediate labor needs. On the other hand, stronger protections for foreign workers may not only guard those workers from exploitation and abuse but may also serve to protect the interests of the domestic workforce by reducing to some employers the attractiveness of hiring foreign workers who are not already authorized to work in the United States. Legislative proposals to reform employmentbased visa programs in the current Congress reflect some of these tensions.

This report will discuss the DOL labor certification/attestation and Department of Homeland Security (DHS) petition process as well as aspects of the applicability of federal labor laws to foreign workers. It will also briefly address state and local laws regarding labor, contract, and torts that sometimes provide foreign workers with additional rights. Federal labor laws that apply regardless of immigration status, including those concerning health and safety and employment discrimination, as well as state occupational certification and licensing requirements are outside the scope of this report.

For a comprehensive look at employment-based immigration and related federal labor policies and programs, see CRS Report RL33977, Immigration of Foreign Workers: Labor Market Tests and Protections, by Ruth Ellen Wasem; CRS Report RL32044, Immigration: Policy Considerations Related to Guest Worker Programs, by Andorra Bruno; CRS Report R42434, Immigration of Temporary Lower-Skilled Workers: Current Policy and Related Issues, by Andorra Bruno; CRS Report R43161, Agricultural Guest Workers: Legislative Activity in the 113th Congress, by Andorra Bruno; CRS Report RL34739, Temporary Farm Labor: The H-2A Program and the U.S. Department of Labor’s Proposed Changes in the Adverse Effect Wage Rate (AEWR), by Gerald Mayer; and CRS Report RS21186, Hoffman Plastic Compounds v. NLRB and Backpay Awards to Undocumented Aliens, by Jon O. Shimabukuro.


Date of Report: September 11, 2013
Number of Pages: 12
Order Number: R43223
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