Kate M. Manuel
Legislative Attorney
Jody Feder
Legislative Attorney
Alison M. Smith
Legislative Attorney
An estimated 37 million foreign-born persons currently reside in the United States, almost a third of whom may be present without legal authorization. The reaction of state and local jurisdictions to unauthorized immigration has varied. In some cases, states and localities have adopted measures intended to deter unlawfully present aliens from arriving and settling within their jurisdictions, including by restricting such aliens’ access to work, housing, and benefits. Typically, such measures have sought to (1) limit the hiring and employment of unauthorized aliens, including through the denial of permits to persons that employ unauthorized aliens and the regulation of day labor centers; (2) restrict the ability of unlawfully present aliens to rent or occupy dwellings within the state or locality; and/or (3) deny unlawfully present aliens access to state or local services or benefits.
State or local restrictions upon unlawfully present aliens’ access to employment or housing and eligibility for public benefits have been challenged on various grounds, including on the grounds that they (1) are preempted by federal law, including the Immigration and Nationality Act (INA), and thus unenforceable by federal or state courts; (2) deprive persons of equal protection of the law in violation of the Fourteenth Amendment to the U.S. Constitution; (3) deprive persons of property or liberty interests without providing them due process in violation of the Fourteenth Amendment; and (4) run afoul of federal civil rights statutes, including the Fair Housing Act, Title VII of the Civil Rights Act, and 42 U.S.C. § 1981. The outcomes of such challenges have varied, depending upon the specific restrictions at issue and the jurisdiction of the courts reviewing the restrictions. However, based upon the cases decided to date, these challenges appear to be more significant with regard to state and local restrictions on employing or renting property to unlawfully present aliens than they are with regard to state and local restrictions on unlawfully present aliens’ access to public services and benefits. This term, the Supreme Court is considering the case of Chamber of Commerce v. Whiting, which involves arguments as to whether federal law preempts a 2007 Arizona statute that requires employers to use the federal government’s E-Verify system to determine the work eligibility of employees and suspends or revokes the business licenses of entities found to have hired unauthorized aliens.
This report discusses the constitutional issues raised by state and local laws intended to deter the presence of unauthorized aliens by limiting their access to housing, employment, and public benefits, as well as the implications that federal civil rights statutes might have for the implementation and enforcement of these laws. It also discusses recent federal court cases addressing the constitutionality of such measures. The report does not discuss recent state laws that seek to deter the presence of unauthorized aliens by requiring state law enforcement to enforce federal immigration law, or that criminalize conduct that may facilitate the presence of unauthorized aliens within the state. Such laws are discussed in a separate report, CRS Report R41221, State Efforts to Deter Unauthorized Aliens: Legal Analysis of Arizona’s S.B. 1070, by Kate M. Manuel, Michael John Garcia, and Larry M. Eig.
Date of Report: December 20, 2010
Number of Pages: 28
Order Number: RL34345
Price: $29.95
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Alison Siskin
Specialist in Immigration Policy
Liana Sun Wyler
Analyst in International Crime and Narcotics
Trafficking in persons (TIP) for the purposes of exploitation is believed to be one of the most prolific areas of international criminal activity and is of significant concern to the United States and the international community. According to Department of State estimates, roughly 800,000 people are trafficked across borders each year. If trafficking within countries is included in the total world figures, official U.S. estimates indicate that some 2 to 4 million people are trafficked annually. As many as 17,500 people are believed to be trafficked into the United States each year and some have estimated that 100,000 U.S. citizen (USC) children are victims of trafficking within the United States..
Since enactment of the Victims of Trafficking and Violence Protection Act of 2000 (TVPA, P.L. 106-386), the Administration and Congress have aimed to address TIP by authorizing new programs and reauthorizing existing ones, appropriating funds, creating new criminal laws, and conducting oversight on the effectiveness and implications of U.S. anti-TIP policy. Most recently, the TVPA was reauthorized through FY2011 in the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (P.L. 110-457). Obligations for global and domestic anti- TIP programs, not including operations and law enforcement investigations, totaled approximately $103.5 million in FY2009.
Activity on combating TIP may continue into the 112th Congress, particularly related to efforts to reauthorize the TVPA. Ongoing international policy issues include how to measure the effectiveness of the U.S. and international responses to TIP, including the State Department’s annual TIP rankings and the use of unilateral sanctions; and how to prevent known sex offenders from engaging in child sex tourism. Domestic issues that may arise include whether there is equal treatment of all victims—both foreign nationals and U.S. citizens, as well as victims of labor and sex trafficking; and whether current law and services are adequate to deal with the emerging issue of domestic minor sex trafficking (i.e., the prostitution of children in the United States). Other issues are whether to include all forms of prostitution (i.e., children and adults) in the definition of TIP, and whether sufficient efforts are applied to addressing all forms of TIP, including not only sexual exploitation, but also forced labor and child soldiers.
On June 14, 2010, the State Department issued its 10th annual, congressionally mandated report on human trafficking. In addition to outlining major trends and ongoing challenges in combating TIP, the report provides a country-by-country analysis and ranking, based on what progress foreign countries have made in their efforts to prosecute traffickers, protect victims, and prevent TIP. For the first time, the United States was included as one of the ranked countries. The report categorizes countries into four tiers according to the government’s efforts to combat trafficking. Those countries that do not cooperate in the fight against trafficking (Tier 3) may be subject to U.S. foreign assistance sanctions. On September 13, 2010, President Barack Obama determined that two Tier 3 countries will be sanctioned for FY2011 without exemption (Eritrea and North Korea). In addition, he determined that four Tier 3 countries will be partially sanctioned (Burma, Cuba, Iran, and Zimbabwe).
The 2010 TIP report also included for the first time, a list of six countries that recruit, use, or harbor child soldiers. Inclusion on this list subjects these countries to possible U.S. assistance sanctions.
Date of Report: December 23, 2010
Number of Pages: 62
Order Number: RL34317
Price: $29.95
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Ruth Ellen Wasem
Specialist in Immigration Policy
Four major principles underlie current U.S. policy on permanent immigration: the reunification of families, the admission of immigrants with needed skills, the protection of refugees, and the diversity of admissions by country of origin. These principles are embodied in the Immigration and Nationality Act (INA). The INA specifies a complex set of numerical limits and preference categories that give priorities for permanent immigration reflecting these principles. Legal permanent residents (LPRs) refer to foreign nationals who live permanently in the United States.
During FY2009, a total of 1.1 million aliens became LPRs in the United States. Of this total, 66.1% entered on the basis of family ties. Other major categories in FY2009 were employmentbased LPRs (including spouses and children) at 12.7%, and refugees/asylees adjusting to LPR status at 15.7%. About 14.6 of all LPRs come from Mexico, which sent 164,920 LPRs in FY2009.
Substantial efforts to reform legal immigration have failed in the recent past, prompting some to characterize the issue as a “zero-sum game” or a “third rail.” The challenge inherent in reforming legal immigration is balancing employers’ hopes to increase the supply of legally present foreign workers, families’ longing to re-unite and live together, and a widely shared wish among the various stakeholders to improve the policies governing legal immigration into the country. Whether the Congress will act to alter immigration policies—either in the form of comprehensive immigration reform or in the form of incremental revisions aimed at strategic changes—is at the crux of the debate. Addressing these contentious policy reforms against the backdrop of high unemployment sharpens the social and business cleavages and may narrow the range of options.
Even as U.S. unemployment levels remain high, 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 the level of unemployment, proponents argue it is an essential ingredient for economic growth. Other possible options are to admit LPRs on the basis of a point system comprised of education and needed skills or to establish a independent agency or commission that would set the levels and types of employmentbased immigrants.
Proponents of family-based migration alternatively point to the significant backlogs in family based immigration due to the sheer volume of aliens eligible to immigrate to the United States and maintain that any proposal to increase immigration levels should also include the option of family-based backlog reduction. Citizens and LPRs often wait years for their relatives’ petitions to be processed and visa numbers to become available. Possible options include treating the immediate relatives of LPRs as immediate relatives of U.S. citizens are treated under the INA, i.e., not held to numerical limits or per-country ceilings.
Against these competing priorities for increased immigration are those who offer options to scale back immigration levels, with options ranging from limiting family-based LPRs to the immediate relatives of U.S. citizens to confining employment-based LPRs exceptional, extraordinary, or outstanding individuals.
Date of Report: December 20, 2010
Number of Pages: 42
Order Number: RL32235
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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 children. For SSI benefits, they must have been recipients as of August 22, 1996, or resident as of that date and disabled. 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.
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.
Date of Report: December 14, 2010
Number of Pages: 28
Order Number: RL33809
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Andorra Bruno
Specialist in Immigration Policy
Supporters of comprehensive immigration reform have urged the President and Congress to pursue reform legislation. While legislative action on comprehensive reform does not appear likely during the remainder of the 111th Congress, there may be an effort to enact a measure, commonly referred to as the “DREAM Act,” to enable certain unauthorized alien students to legalize their status.
Unauthorized aliens in the United States are able to receive free public education through high school. They may experience difficulty obtaining higher education, however, for several reasons. Among these reasons is a provision enacted in 1996 that prohibits states from granting unauthorized aliens certain postsecondary educational benefits on the basis of state residence, unless equal benefits are made available to all U.S. citizens. This prohibition is commonly understood to apply to the granting of “in-state” residency status for tuition purposes. Unauthorized alien students also are not eligible for federal student financial aid. More broadly, as unauthorized aliens, they are not legally allowed to work and are subject to being removed from the country.
Multiple bills have been introduced in recent Congresses to address the unauthorized student population. Most have proposed a two-prong approach of repealing the 1996 provision and enabling some unauthorized alien students to become U.S. legal permanent residents (LPRs) through an immigration procedure known as cancellation of removal. Bills proposing this type of relief for unauthorized students are commonly referred to as the DREAM Act. While there are other options for dealing with this population, this report deals exclusively with the DREAM Act approach in light of the widespread congressional interest in it.
A number of stand-alone DREAM Act bills have been introduced in the 111th Congress in the House and the Senate. Some of these bills (H.R. 1751, S. 729, S. 3827), like most DREAM Act bills introduced in prior Congresses, would repeal the 1996 provision and enable eligible unauthorized students to adjust to LPR status through a two-stage process. Other bills (H.R. 6327, S. 3962, S. 3963) would establish a two-stage adjustment of status mechanism for unauthorized students, but would not repeal the 1996 provision. Under all six bills, aliens granted cancellation of removal would be adjusted initially to conditional permanent resident status. To have the condition removed and become full-fledged LPRs, the aliens would need to meet additional requirements.
Date of Report: November 18, 2010
Number of Pages: 19
Order Number: RL33863
Price: $29.95
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