Ruth Ellen Wasem
Specialist in Immigration Policy
U.S. law provides for the temporary admission of various categories of foreign nationals, who are known as nonimmigrants. Nonimmigrants are admitted for a designated period of time and a specific purpose. They include a wide range of visitors, including tourists, foreign students, diplomats, and temporary workers. There are 24 major nonimmigrant visa categories. These visa categories are commonly referred to by the letter and numeral that denotes their subsection in the Immigration and Nationality Act (INA); for example, B-2 tourists, E-2 treaty investors, F-1 foreign students, H-1B temporary professional workers, J-1 cultural exchange participants, or S-4 terrorist informants.
The U.S. Department of State (DOS) consular officer, at the time of application for a visa, as well as the Department of Homeland Security (DHS) inspectors, at the time of application for admission, must be satisfied that the alien is entitled to nonimmigrant status. The burden of proof is on the applicant to establish eligibility for nonimmigrant status and the type of nonimmigrant visa for which the application is made. Both DOS consular officers (when the alien is petitioning abroad) and DHS inspectors (when the alien is entering the United States) must confirm that the alien is not ineligible for a visa under the so-called “grounds for inadmissibility” of the INA, which include criminal, terrorist, and public health grounds for exclusion.
U.S. Customs and Border Protection (CBP) inspectors in DHS tallied 163 million temporary admissions of foreign nationals to the United States during 2009.Mexican nationals with border crossing cards and Canadian nationals traveling for business or tourist purposes accounted for the vast majority of admissions to the United States, with approximately 126.8 million entries in FY2009. The remaining categories and countries of the world contributed 36.2 million admissions in FY2009. Since many types of visas allow people to depart and re-enter the United States, the CBP data record multiple admissions during the same year.
In FY2009, DOS’s consular officers issued 5.8 million nonimmigrant visas. Nonimmigrant visas issued abroad had dipped to 5.0 million in FY2004 after peaking at 7.6 million in FY2001. Combined, visitor visas issued for tourism and business comprised the largest group of nonimmigrant visas in FY2009, with about 4.1 million, down from 5.7 million in FY2000. Other notable groups were 0.7 million students and exchange visitors (12.3%) and 0.5 million temporary workers, managers, executives, and investors (8.7%).
According to the most recent analysis, there were 1.8 million nonimmigrants who maintained a residence in the United States in 2008. Of the 1.8 million nonimmigrants, 50.8% (0.93 million) were temporary workers and their families, 32.2% (0.59 million) were students and their families, 13.1% (0.24 million) were exchange visitors and families, and 3.8% (0.07 million) were diplomats, other representatives, and their families. Although most nonimmigrants must demonstrate that they are not coming to reside permanently in the United States, many ultimately adjust their status to become legal permanent residents.
The law and regulations set terms for nonimmigrant lengths of stay in the United States, typically have foreign residency requirements, and often limit what aliens are permitted to do in the United States (e.g., gain employment or enroll in school), but many observers assert that the policies are not uniformly or rigorously enforced. Achieving an optimal balance among major policy priorities, such as ensuring national security, facilitating trade and commerce, protecting public health and safety, and fostering international cooperation, remains a challenge.
Date of Report: February 28, 2011
Number of Pages: 45
Order Number: RL31381
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Andorra Bruno
Specialist in Immigration Policy
In the spring of 2009, the Department of Homeland Security (DHS) issued new guidance on immigration-related worksite enforcement. Under the guidelines, DHS “will use all available civil and administrative tools, including civil fines and debarment, to penalize and deter illegal employment.” According to 2010 estimates, there are some 8.0 million unauthorized workers in the U.S. civilian labor force.
DHS’s U.S. Immigration and Customs Enforcement (ICE) is responsible for immigration-related worksite enforcement, or enforcement of the prohibitions on unauthorized employment in Section 274A of the Immigration and Nationality Act (INA). The INA §274A provisions, sometimes referred to as employer sanctions, make it unlawful for an employer to knowingly hire, recruit or refer for a fee, or continue to employ an alien who is not authorized to be so employed. Today, ICE’s worksite enforcement program is focused primarily on cases that involve critical infrastructure facilities and cases involving employers who commit “egregious violations” of criminal statutes and engage in worker exploitation.
Employers who violate INA prohibitions on the unlawful employment of aliens may be subject to civil monetary penalties and/or criminal penalties. Criminal investigations may result in defendants being charged with crimes beyond unlawful employment and being subject to the relevant penalties for those violations.
Various measures are available to examine the performance of ICE’s worksite enforcement program. They include Final Orders for civil monetary penalties, administrative fines, administrative arrests, criminal arrests, criminal indictments and convictions, and criminal fines and forfeitures. In addition to examining annual changes and trends in the various performance measure data, these data can be considered in relation to the estimated size of the unauthorized workforce or the potential number of employers employing these workers. When considered in this context, ICE’s worksite enforcement program can seem quite limited.
Enforcement activity by the Department of Labor (DOL) is also relevant to a discussion of federal efforts to curtail unauthorized employment. DOL, which is responsible for enforcing minimum wage, overtime pay, and related requirements, focuses a significant percentage of its enforcement resources on a group of low-wage industries that employ large numbers of immigrant—and presumably large numbers of unauthorized—workers.
Date of Report: March 1, 2011
Number of Pages: 16
Order Number: R40002
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Ruth Ellen Wasem
Specialist in Immigration Policy
The environmental, social, and political conditions in Haiti have long prompted congressional interest in U.S. policy on Haitian migrants, particularly those attempting to reach the United States by boat. While some observers assert that such arrivals by Haitians are a breach in border security, others maintain that these Haitians are asylum seekers following a decades old practice of Haitians coming by boat without legal immigration documents. Migrant interdiction and mandatory detention are key components of U.S. policy toward Haitian migrants, but human rights advocates express concern that Haitians are not afforded the same treatment as other asylum seekers.
The devastation caused last year by the January 12, 2010, earthquake in Haiti led Department of Homeland Security (DHS) Secretary Janet Napolitano to grant Temporary Protected Status (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—resulted in this TPS announcement on January 15, 2010.
Secretary Napolitano gave humanitarian parole to Haitian children who were legally confirmed as orphans eligible for intercountry adoption by the government of Haiti and who were in the process of being adopted by U.S. residents prior to the earthquake. P.L. 111-293, the Help HAITI Act of 2010, authorizes the DHS Secretary to adjust to legal permanent residence (LPR) status those Haitian orphans who were granted parole from January 18, 2010, through April 15, 2010.
Those Haitians who are deemed Cuban-Haitian Entrants are among the subset of foreign nationals who are eligible for federal benefits and cash assistance. Those Haitians who are newly arriving legal permanent residents, however, are barred from the major federal benefits and cash assistance for the first five years after entry. The Supplemental Appropriations Act, 2010 (H.R. 4899, P.L. 111-212), includes funding to cover additional costs for federal benefits and cash assistance resulting from Haitian evacuees.
According to the U.S. Department of State (DOS), there were 54,716 Haitians who had approved petitions to immigrate to the United States at the time of the earthquake and who were waiting for visas to become available. Advocates for Haitians continue to request that Secretary Napolitano give humanitarian parole to those Haitians with approved petitions for visas. Proponents of expediting the admission of Haitians with family in the United States maintain that it would relieve at least some of the humanitarian burden in Haiti and would increase the remittances sent back to Haiti to provide critical help as the nation tries to rebuild. Those opposed to expediting the admission of Haitians assert that it would not be in the national interest, nor would it be fair to other foreign nationals waiting to reunite with their families.
More broadly, there are concerns that the crisis conditions in Haiti—most recently, the outbreak of cholera and the unexpected return of deposed dictator Jean-Claude “Baby Doc” Duvalier— may trigger mass migration from the island. Agencies within DHS that are the leads in handling a potential mass migration include the U.S. Coast Guard (interdiction); Customs and Border Protection (apprehensions and inspections); Immigration and Customs Enforcement (detention and removal); and the U.S. Citizenship and Immigration Services (credible fear determinations). The balancing of DHS’s border security and immigration control responsibilities during an ongoing humanitarian crisis poses a challenge.
Date of Report: January 21, 2011
Number of Pages: 22
Order Number: RS21349
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Andorra Bruno, Coordinator
Specialist in Immigration Policy
Karma Ester
Information Research Specialist
Margaret Mikyung Lee
Legislative Attorney
Alison Siskin
Specialist in Immigration Policy
Ruth Ellen Wasem
Specialist in Immigration Policy
The Speaker of the House and the Senate majority leader of the 111th Congress pledged to take up comprehensive immigration reform legislation, the most controversial piece of which concerns unauthorized aliens in the United States. Although the 111th Congress did not take up a comprehensive immigration bill, it did consider a narrower DREAM Act proposal to legalize the status of certain unauthorized alien students. On December 8, 2010, the House approved a version of the DREAM Act as an amendment to an unrelated bill, the Removal Clarification Act of 2010 (H.R. 5281). A cloture motion in the Senate to agree to the House DREAM Act amendment failed on a 55-41 vote on December 18, 2010.
The 111th Congress also considered other immigration issues and enacted a number of targeted immigration provisions. It passed legislation (P.L. 111-8, P.L. 111-9, P.L. 111-68, P.L. 111-83) to extend the life of several immigration programs—the E-Verify electronic employment eligibility verification system, the Immigrant Investor Regional Center Program, the Conrad State J-1 Waiver Program, and the special immigrant visa for religious workers—until September 30, 2012. Among the other subjects of legislation enacted by the 111th Congress were border security (P.L. 111-5, P.L. 111-32, P.L. 111-83, P.L. 111-230, P.L. 111-281, P.L. 111-376), refugees (P.L. 111-8, P.L. 111-117), and Haitian migrants (P.L. 111-212, P.L. 111-293).
This report discusses these and other immigration-related issues that have received legislative action or are of significant congressional interest. Department of Homeland Security (DHS) appropriations are addressed in CRS Report R40642, Homeland Security Department: FY2010 Appropriations, and, for the most part, are not covered here.
Date of Report: January 18, 2011
Number of Pages: 20
Order Number: R40848
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Alison Siskin
Specialist in Immigration Policy
Since the events of September 11, 2001, concerns have been raised about the ability of terrorists to enter the United States under the visa waiver program (VWP), because the VWP bypasses the first step by which foreign visitors are screened for admissibility to enter the United States. Nonetheless, the inclusion of countries in the VWP may help foster positive relations between the United States and those countries, promote tourism and commerce, facilitate information sharing, and ease consular office workloads abroad. The 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. As of January 2011, 36 countries participate in the VWP.
In FY2009, 16.2 million visitors entered the United States under this program, constituting 50.5% 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.
P.L. 110-53 added new requirements to participate in the VWP, and provided the Secretary of the Department of Homeland Security (DHS) the authority to waive the nonimmigrant refusal rate requirement. The waiver became available in October 2008; however, it was suspended on July 1, 2009.
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 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.
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.
Date of Report: January 4, 2011
Number of Pages: 24
Order Number: RL32221
Price: $29.95
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