Unauthorized Aliens: Policy Options for Providing Targeted Immigration Relief

Andorra Bruno
Specialist in Immigration Policy

The 113th Congress is expected to consider comprehensive immigration reform legislation. If and when it does, a key challenge will be how to address the unauthorized alien population, estimated to number some 11 million. The unauthorized alien population is often treated as if it were monolithic, but it is, in fact, quite diverse. It includes individuals who entered the United States in different ways, for different reasons, and who have different types of connections to the United States. The circumstances of individuals who compose the unauthorized alien population affect their treatment under immigration law, especially with respect to prospects for obtaining legal status in the United States. Relevant immigration status-related factors include mode of entry into the United States, length of unlawful presence in the country, and the existence of family or employment connections.

The differences in circumstances among unauthorized aliens are particularly relevant in the context of current discussions about how to address this population. In past years, immigration proposals on unauthorized aliens often called for the establishment of broad legalization programs to enable large numbers of unauthorized aliens to become U.S. legal permanent residents (LPRs) or, conversely, included provisions aimed at promoting the departure of large numbers of unauthorized aliens from the country over time. More recently, there has been discussion of developing policies to provide targeted immigration relief to unauthorized aliens. Immigration relief is a broad term that encompasses relief from removal from the United States without the granting of a legal immigration status as well as relief in the form of a legal immigration status.

A main focus of recent discussions has been making eligibility for legal status available to certain segments of the unauthorized population. Aliens with approved immigrant visa petitions, especially those with U.S. citizen or LPR family members, seem to be of particular interest. Selected segments of the unauthorized alien population without an affirmative pathway to legal status, such as students who entered the United States as children and beneficiaries of long-term humanitarian relief, have also been the subject of policy proposals.

Policies to provide targeted relief to unauthorized aliens could be legislative or administrative. Legislative options could include amending existing statutory provisions to make it easier for certain unauthorized aliens to obtain LPR status. They also could include establishing statutory mechanisms to enable certain subgroups of unauthorized aliens to become LPRs who may not have pathways to do so under current law, as in the case of the Development, Relief, and Education for Alien Minors (DREAM) Act.

Unauthorized aliens also could receive temporary relief from removal through administrative action. The Department of Homeland Security’s Deferred Action for Childhood Arrivals (DACA) program, which was established in the absence of congressional action on DREAM Act legislation and includes similar eligibility criteria, provides a recent example. Such administrative actions can provide temporary relief, but, unlike legislative enactments, cannot provide beneficiaries with a legal immigration status.


Date of Report: February 13, 2013
Number of Pages: 24
Order Number: R42958
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Immigration Provisions of the Violence Against Women Act (VAWA)

William A. Kandel
Analyst in Immigration Policy

The Immigration and Nationality Act (INA) includes provisions to assist foreign nationals who have been victims of domestic abuse. These provisions, initially enacted by Congress with the Immigration Act of 1990 and the Violence Against Women Act (VAWA) of 1994, afford benefits to abused foreign nationals and allow them to self-petition for lawful permanent resident (LPR) status independently of the U.S. citizen or LPR relatives who originally sponsored them. Congress reauthorized VAWA with the Battered Immigrant Women Protection Act of 2000, which also created the U visa for foreign national victims of a range of crimes—including domestic abuse—who assisted law enforcement. A second reauthorization in 2005 added protections and expanded eligibility for abused foreign nationals.

Authorization for appropriations for the programs under VAWA expired in 2011. The 112th Congress passed two bills, S. 1925 and H.R. 4970, reauthorizing most VAWA programs, among other provisions. Despite containing some related immigration provisions, H.R. 4970 differed in substantive ways from S. 1925. It did not extend protections to new groups to the same extent as S. 1925 and included more restrictions with the purpose of curtailing immigration fraud. Most notably, it maintained the annual number of U visas at its current limit of 10,000, in contrast with S. 1925 which would have increased the number to 15,000. To fund the increase in U visas, S. 1925 included a revenue provision that created a “blue slip” procedural complication. Negotiations stalled between the chambers, and neither bill was enacted into law.

In the 113th Congress, S. 47 and H.R. 11 have been introduced. S. 47 was placed on the Senate Legislative Calendar and H.R. 11 was referred to committee. The VAWA-related immigration provisions, similar in both bills, are comparable to those found in S. 1925 from the previous Congress. However, in contrast to that bill, S. 47 and H.R. 11 would maintain the annual number of U visas at 10,000, thereby eliminating the associated “blue slip” procedural complication.

Two potential concerns for Congress have been emphasized regarding the immigration provisions of VAWA. The first is whether the proposed VAWA reauthorization provides sufficient relief to foreign nationals abused by their U.S. citizen or LPR sponsoring relatives. Advocates for battered foreign nationals suggest that additional provisions are needed to assist this population in obtaining legal and economic footing independently of their original sponsors for legal immigrant status. Critics of expanding immigration, however, question the extent to which these provisions may increase the number of legal immigrants, thereby incurring costs to U.S. taxpayers.

The second related concern is the degree to which VAWA provisions unintentionally facilitate immigration fraud. This may occur through what some perceive as relatively lenient standards of evidence to demonstrate abuse; as the unintended result of processing procedures between the District Offices of the U.S. Citizenship and Immigration Services (USCIS), which adjudicate most immigration applications, and the USCIS Vermont Service Center, which adjudicates VAWA petitions; or as an unintended consequence of the structure of current law. While some suggest that VAWA provides opportunities for dishonest and enterprising foreign nationals to circumvent U.S. immigration laws, empirical evidence offers minimal support for these assertions.


Date of Report: February 1, 2013
Number of Pages: 38
Order Number: R42477
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Prosecutorial Discretion in Immigration Enforcement: Legal Issues

Kate M. Manuel
Legislative Attorney

Todd Garvey
Legislative Attorney

The term prosecutorial discretion is commonly used to describe the wide latitude that prosecutors have in determining when, whom, how, and even whether to prosecute apparent violations of the law. The Immigration and Naturalization Service (INS) and, later, the Department of Homeland Security (DHS) and its components have historically described themselves as exercising prosecutorial discretion in immigration enforcement. Some commentators have recently challenged this characterization on the grounds that DHS enforces primarily civil violations, and some of its components cannot be said to engage in “law enforcement,” as that term is conventionally understood. However, even agencies that do not prosecute or engage in law enforcement have been recognized as having discretion (sometimes referred to as enforcement discretion) in determining whether to enforce particular violations.

Federal regulation of immigration is commonly said to arise from various powers enumerated in the Constitution (e.g., naturalization, commerce), as well as the federal government’s inherent power to control and conduct foreign relations. Some, although not all, of these powers belong exclusively to Congress, and courts have sometimes described Congress as having “plenary power” over immigration. However, few courts or commentators have addressed the separation of powers between Congress and the President in the field of immigration, and the executive has sometimes been said to share plenary power over immigration with Congress as one of the “political branches.” Moreover, the authority to exercise prosecutorial or enforcement discretion has traditionally been understood to arise from the Constitution, not from any congressional delegation of power.

Certain decisions have been widely recognized as within the prosecutorial discretion of immigration officers. These include deciding whether to initiate removal proceedings and what charges to lodge against the respondent; canceling a Notice to Appear or other charging document before jurisdiction vests with an immigration judge; granting deferred action or extended voluntary departure to an alien otherwise subject to removal (deportation); appealing particular decisions or orders; and imposing fines for particular offenses, among other things. Enforcement priorities and resources, as well as humanitarian concerns, have typically played a role in determining whether to exercise discretion in individual cases. For example, the George W. Bush Administration temporarily suspended employer sanctions in areas affected by Hurricane Katrina, and the Obama Administration recently began granting deferred action to certain unauthorized aliens brought to the United States as children.

While the executive branch’s prosecutorial or enforcement discretion is broad, it is not unfettered, and particular exercises of discretion could potentially be checked by the Constitution, statute, or agency directives. Selective prosecution, or prosecution based on race, religion, or the exercise of constitutional rights, is prohibited, although aliens generally cannot assert selective prosecution as a defense to removal. A policy of non-enforcement that amounts to an abdication of an agency’s statutory responsibilities could potentially be said to violate the Take Care Clause. However, standing to challenge alleged violations of the Take Care Clause may be limited, and no court appears to have invalidated a policy of non-enforcement founded upon prosecutorial discretion on the grounds that the policy violated the Take Care Clause. Non-enforcement of particular laws could also potentially be challenged under the Administrative Procedure Act if a statute provides specific guidelines for the agency to follow in exercising its enforcement powers. In addition, an agency could potentially be found to have constrained its own discretion, as some courts found that the INS had done in the 1970s with its operating instruction on deferred action.


Date of Report: January 17, 2013
Number of Pages: 30
Order Number: R42924
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Immigration and Border Security: A Compendium

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 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 Compendium contains reports focusing on immigration and border security laws and policy including 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 113th Congress, even if legislative action on such contentious issues appears daunting.

Date of Report: January 17, 2013
Number of Pages: 484
Order Number: C12003
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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 climate 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 December 2012, 37 countries participate in the VWP. Taiwan, the most recent entrant, was designated a program country on October 2, 2012.

In FY2011, there were 18.3 million visitors who entered the United States under this program, constituting 40% 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, machinereadable 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 contain 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.

Under statute, the Secretary of the Department of Homeland Security (DHS) has the authority to waive the nonimmigrant refusal rate requirement, provided certain conditions are met. The waiver became available in October 2008; however, it was suspended on July 1, 2009, because DHS did not implement an air-exit system that incorporates biometric identifiers. The waiver will not be available until such a system is implemented, and it is unknown when and if a biometric exit system will be implemented. 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, Chile) that have expressed interest in being a part of the VWP who would need a waiver of the nonimmigrant refusal rate. Legislation was introduced in the 112th Congress that would have reinstated the waiver authority and made other changes to the VWP, such as allowing DHS to use overstay rates to determine program eligibility. It is possible that the 113th Congress will consider similar legislation.


Date of Report: January 15, 2013
Number of Pages: 25
Order Number: RL32221
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