Immigration Legislation and Issues in the 108th Congress
CRS Report for Congress
Immigration Legislation and Issues
in the 108 Congress
Updated October 6, 2004
Andorra Bruno, Coordinator,
Ruth Ellen Wasem, Alison Siskin,
Domestic Social Policy Division
Margaret Mikyung Lee,
Stephen R. Viña
American Law Division
Office of Legislative Information
Congressional Research Service ˜ The Library of Congress
Immigration Legislation and Issues
in the 108th Congress
The 108th Congress has considered and is considering legislation on a wide
range of immigration issues. Chief among these are the immigration-related
recommendations of the National Commission on Terrorist Attacks Upon the United
States (also known as the 9/11 Commission), expedited naturalization through
military service, and foreign temporary workers and business personnel.
Several major bills that seek to implement recommendations of the 9/11
Commission propose significant revisions to U.S. immigration law: H.R. 10, S.
2845, S. 2774/H.R. 5040, and H.R. 5024. Of these bills, H.R. 10 proposes the most
extensive revisions of the Immigration and Nationality Act (INA). The major
immigration areas under consideration in these comprehensive 9/11 Commission
bills include: asylum, biometric tracking systems, border security, document
security, exclusion, and visa issuances.
The 108th Congress has enacted a measure on expedited naturalization through
military service. P.L. 108-136, the FY2004 Defense Department Authorization bill,
amends military naturalization and posthumous citizenship statutes and provides
immigration benefits for immediate relatives of U.S. citizen servicemembers who die
as a result of actual combat service.
In the area of foreign temporary workers and business personnel, the 108th
Congress has enacted legislation to implement the Chile (P.L. 108-77) and Singapore
(P.L. 108-78) Free Trade Agreements. These agreements address several categories
of temporary workers and business personnel currently governed by the Immigration
and Nationality Act (INA), including professional workers. Separate legislation on
H-1B professional workers (S. 1452/H.R. 2849, H.R. 2235, H.R. 2688, H.R. 3534,
and H.R. 4166) and L intracompany transfers (S. 1452/H.R. 2849, S. 1635, H.R.
2154, H.R. 2702, H.R. 4415, and H.R. 4166) has also been introduced. Also pending
are proposals to reform existing guest worker visas (S. 1645/H.R. 3142, S. 2010, S.
2185, S. 2381/H.R. 4262, H.R. 3534, and H.R. 3604) and establish new guest worker
visas (S. 1387, S. 1461/H.R. 2899, S. 2010, S. 2381/H.R. 4262, and H.R. 3651).
Since the Homeland Security Act of 2002 (P.L. 107-296) created the
Department of Homeland Security (DHS), Congress has considered legislation to
clarify the allocation of immigration authorities between the Secretary of DHS and
the Attorney General. P.L. 108-7 amended the INA in an apparent effort to clarify
the authority that was to remain with the Attorney General. H.R. 1416, as passed by
the House and reported by the Senate Governmental Affairs Committee, would
further amend the INA to remove certain references to the Attorney General.
Among other immigration-related legislation receiving action are adjustment of
status of unauthorized alien students (S. 1545), noncitizen eligibility for Medicaid
(P.L. 108-173), consular identification cards (H.R. 1950), elimination of the diversity
visa lottery (H.R. 775) and employment eligibility verification pilot programs (P.L.
In troduction ......................................................1
Transfer of Immigration Authorities...................................2
Expedited Naturalization Through Military Service.......................3
9/11 Commission Recommendations..................................5
Temporary Workers and Business Personnel............................6
Professional Workers (H-1B Visas)................................6
Intracompany Transfers (L Visas).................................7
Free Trade Agreements.........................................8
Guest Worker Programs.........................................9
Legal Permanent Residence for Unauthorized Aliens.....................10
Adjustment of Alien Workers...................................10
Adjustment of Alien Students...................................11
Noncitizen Eligibility for Public Benefits..............................11
Higher Education Benefits......................................12
Biometric Deadlines for Travel Documents............................12
Consular Identification Cards.......................................13
Employment Eligibility Verification Pilot Programs......................14
Other Legislation and Issues........................................15
North Korean Refugees....................................16
Victims of Trafficking.........................................17
Diversity Visa Lottery.........................................18
Unaccompanied Alien Children..................................19
Other Legislation Receiving Action...............................19
Irish Peace Process Program................................20
Immigrant Investor Pilot Program............................20
State Criminal Alien Assistance Program (SCAAP)..............20
Waivers for Nonimmigrant Physicians........................20
Nonpayment of Child Support...............................21
Immigration Legislation and Issues
in the 108 Congress
The 108th Congress has considered and is considering legislation on a wide
range of immigration issues. Two of these issues — the transfer of immigration
authorities and expedited naturalization through military service — relate directly to
post-September 11, 2001 U.S. efforts to improve national security. In the aftermath
of the terrorist attacks, the 107th Congress established a new Department of
Homeland Security (DHS) as part of the Homeland Security Act of 2002 (P.L. 107-
296). DHS was tasked with preventing terrorist attacks in the United States and
reducing the nation’s vulnerability to terrorism, among other responsibilities.
Effective March 1, 2003, P.L. 107-296 abolished the Immigration and Naturalization
Service (INS) of the Department of Justice (DOJ), the agency which had
administered and enforced the Immigration and Nationality Act (INA),1 and
transferred most immigration-related functions to the newly created DHS. Lingering
questions remain, however, about the division of authorities between DOJ and DHS
in some areas. Pending legislation would amend the INA to explicitly transfer certain
authorities to DHS. Like the establishment of DHS, Operation Iraqi Freedom had a
goal of protecting U.S. national security. This operation prompted congressional
interest in legislation to expand the citizenship benefits of aliens serving in theth
military. The 108 Congress has enacted a measure (P.L. 108-136) that amends
military naturalization and posthumous citizenship statutes and provides immigration
benefits for immediate relatives of U.S. citizen servicemembers who die as a result
of actual combat service.
The 108th Congress is currently debating legislation that would implement
recommendations of the National Commission on Terrorist Attacks Upon the United
States (also known as the 9/11 Commission). The 9/11 Commission’s immigration-
related recommendations focused primarily on targeting terrorist travel through an
intelligence and security strategy based on reliable identification systems and
effective, integrated information-sharing. As Congress has considered these
recommendations, however, possible legislative responses have broadened to include
significant and possibly far-reaching changes in the substantive law governing
immigration and how that law is enforced, both at the border and in the interior of the
1 Act of June 27, 1952, ch. 477; 66 Stat. 163; 8 U.S.C. 1101 et seq. The INA is the basis of
current immigration law.
Other measures before the 108th Congress — such as those on temporary
workers and business personnel, adjustment of status for unauthorized aliens, and
noncitizen eligibility for public benefits — concern more perennial immigration-
related questions. These include how to use the immigration system to meet U.S.
labor needs, how to address unauthorized immigration to the United States, and what
types of benefits to provide to noncitizens. Of course, today’s heightened security
concerns have likewise added new dimensions to these old questions. In the current
debate over consular identification cards, for example, issues of unauthorized
immigration and security have been raised. This report discusses these and other
immigration-related issues that have seen legislative action or are of significant
congressional interest.2 The final section of the report lists enacted legislation and
selected bills receiving action.
Transfer of Immigration Authorities
For decades, the administrative authority to interpret, implement, enforce, and
adjudicate immigration law within the United States lay almost exclusively with one
officer: the Attorney General. The most general statement of this power was found
in §103(a)(1) of the INA, the fundamental statute regulating the entry and stay of
aliens. With some exceptions, immigration functions were delegated to INS, which
was headed by a Commissioner who reported to the Attorney General.
On March 1, 2003, primary responsibility for securing our borders and
managing the immigration process shifted to DHS. This transfer was effectuated
through general language in the Homeland Security Act (HSA; P.L. 107-296):
Congress did not amend every affected section of the INA to change all references
to the Attorney General that were effectively superceded by the general transfer of
authority. However, Congress did amend the language of §103(a) of the INA, first
in §1102 of the HSA and later in Division L, §105, of the Consolidated
Appropriations Resolution of 2003 (P.L. 108-7). This section now states:
The Secretary of Homeland Security shall be charged with the administration and
enforcement of [the INA] and all other laws relating to the immigration and
naturalization of aliens, except insofar as this chapter or such laws relate to the
powers, functions, and duties conferred upon the President, Attorney General,
the Secretary of State .... Provided, however, That determination and ruling by
the Attorney General with respect to all questions of law shall be controlling.
The revised language reflects the transfer of general authority, but may leave
certain issues unresolved. First, exactly what immigration powers and functions are
to be retained by the Attorney General? Laws to date make clear that the Attorney
General is to remain responsible for administrative adjudications by immigration
judges and the Board of Immigration Appeals, and that determinations and rulings
by the Attorney General on questions of law are to be controlling. However, the
intended extent of these and possible other retained powers may not be altogether
2 For a basic introduction to immigration, see CRS Report RS20916, Immigration and
Naturalization Fundamentals, by Ruth Wasem.
clear at the operational level. Second, to the degree that authority over immigration
is now fragmented or overlapping, how are the respective authorities of DHS and the
Attorney General to be coordinated and reconciled?
It has been argued that only a section-by-section revision of the INA, replacing
references to the Attorney General with references to the Secretary of Homeland
Security where appropriate, will truly clarify the allocation of authorities between the
two departments.3 A bill to replace certain INA references to the Attorney General
with references to the Secretary of Homeland Security (H.R. 1416) was adopted by
the House on June 24, 2003, and reported by the Senate Governmental Affairs
Committee on November 25, 2003. As passed by the House and reported by the
Senate Committee, this bill, the “Homeland Security Technical Corrections Act of
2003,” would remove specified references to the Attorney General, INS, and the INS
Commissioner in INA §103 (leaving intact the controlling nature of the Attorney
General’s determinations of law) and in INA §287(g), which concerns acceptance of
state services to carry out immigration enforcement. According to the House Select
Committee on Homeland Security report on H.R. 1416 (H.Rept. 108-104), the bill
“improves the Homeland Security Act of 2002 and honors the original intentions of
the drafters by making grammatical and technical corrections.” Nonetheless,
questions may remain as to how far this provision would fully clarify and resolve
outstanding issues of authority.4
Expedited Naturalization Through Military Service
Since the beginning of Operation Iraqi Freedom in March 2003 there has been
considerable interest in legislation to expand the citizenship benefits of aliens serving
in the military. The reported deaths in action of noncitizen soldiers have drawn
attention to provisions of the INA that grant posthumous citizenship to those who die
as a result of active-duty service during a period of hostilities. The INA also provides
for expedited naturalization for noncitizens serving in the United States military.
During peacetime, noncitizens in the military may petition to naturalize after three
years aggregate military service rather than the requisite five years of legal permanent
residence. During periods of military hostilities, noncitizens serving in the armed
forces can naturalize immediately.
In the wake of September 11, 2001, and the war against terrorism, President
George W. Bush officially designated the period beginning on September 11, 2001,
as a “period of hostilities,” which triggered immediate naturalization eligibility for
active-duty U.S. military servicemembers. At the time of the designation (July 3,
2002), the Department of Defense and the former INS announced that they would
work together to ensure that military naturalization applications were processed
expeditiously. As of February 2003, there were 37,000 noncitizens serving in active
3 David A. Martin, “Immigration Policy and the Homeland Security Act Reorganization: An
Early Agenda for Practical Improvements,” Interpreter Releases, vol. 80, Apr. 28, 2003.
pp. 601, 613 (note 66).
4 See CRS Report RL31997, Authority to Enforce the Immigration and Nationality Act (INA)
in the Wake of the Homeland Security Act: Legal Issues, by Stephen R. Viña.
duty in the U.S. armed forces, almost 12,000 noncitizens serving in the selected
reserves, and another 8,000 serving in the inactive national guard and ready reserves.
Of the many pending bills containing provisions concerning expedited or
posthumous citizenship as the result of military service, H.R. 1588, the “National
Defense Authorization Act for Fiscal Year 2004,” became P.L. 108-136 on
November 24, 2003. Title XVII of H.R. 1588, entitled “Naturalization and Other
Immigration Benefits for Military Personnel and Families,” amends existing military
naturalization statutes by: reducing the period of service required for naturalization
based on peacetime service from three years to one year; waiving fees for
naturalization based on military service during peacetime or wartime; permitting
discretionary revocation of naturalization granted on or after the date of enactment
through peacetime or wartime service if the citizen were discharged from military
service under other than honorable conditions before serving honorably for an
aggregate period of five years; permitting naturalization processing overseas in U.S.
embassies, consulates, and military bases; providing for priority consideration for
military leave and transport to finalize naturalization; and extending naturalization
based on wartime service to members of the Selected Reserve of the Ready Reserve.
Additionally, the Secretary of Defense or the Secretary’s designee within the DHS
Bureau of Citizenship and Immigration Services is authorized to request posthumous
citizenship immediately upon obtaining permission from the next-of-kin.
P.L. 108-136 expands immigration benefits available to the immediate relatives
(spouses, children, and parents) of citizens, including posthumous citizens, who die
from injuries or illnesses resulting from or aggravated by serving in combat. Such
relatives would remain classified as immediate relatives of a U.S. citizen for
immigration purposes, notwithstanding the death of the servicemember, and could
self-petition for immigrant status. Certain adjustment requirements and the public
charge ground of inadmissibility would be waived. In addition, children and parents,
as well as spouses, of U.S. citizens who die during honorable active-duty service
would be eligible to naturalize without prior residence or a specified period of
physical presence in the United States. This includes survivors of posthumous
citizens who died on or after September 11, 2001.
P.L. 108-136 also amends the relevant sections of the INA to change references
to the Attorney General to references to the Secretary of Homeland Security. The
effective date of the provisions in P.L. 108-136 would be retroactive to September
11, 2001, except for the fee waivers and provision for naturalization proceedings
abroad, which shall take effect on October 1, 2004.5
5 For further information, see CRS Report RL31884, Expedited Citizenship Through
Military Service: Policy and Issues, by Margaret Mikyung Lee and Ruth Ellen Wasem.
9/11 Commission Recommendations
The report of 9/11 Commission concluded that the key officials responsible for
determining alien admissions (consular officers abroad and immigration inspectors
in the United States) were not considered full partners in counterterrorism efforts
prior to September 11, 2001, and as a result, opportunities to intercept the September
11 terrorists were missed. The 9/11 Commission contended that “(t)here were
opportunities for intelligence and law enforcement to exploit al Qaeda’s travel
The 9/11 Commission’s immigration-related recommendations focused
primarily on targeting terrorist travel through an intelligence and security strategy
based on reliable identification systems and effective, integrated information-sharing.
As Congress has considered these recommendations, however, possible legislative
responses have broadened to include significant and possibly far-reaching changes
in the substantive law governing immigration and how that law is enforced, both at
the border and in the interior of the United States.7
There are several major bills that seek to implement recommendations of the
9/11 Commission, and some propose significant revisions to U.S. immigration law
and policy. The bills that would revise immigration law include H.R. 10, to provide
for reform of the intelligence community, terrorism prevention and prosecution,
border security, and international cooperation and coordination, and for other
purposes; S. 2845, the National Intelligence Reform Act of 2004; S. 2774/H.R. 5040,
the 9/11 Commission Report Implementation Act of 2004; and H.R. 5024, the 9/11
Commission Recommendations Implementation Act of 2004. Of these bills, H.R.
proposes the most extensive revisions of the INA. During the Senate floor debate on
S. 2845, S.Amdt. 3807, which added a title on “terrorist travel and effective
screening,” was accepted on October 1, 2004. The major immigration areas under
consideration in these comprehensive 9/11 Commission bills include: asylum,
biometric tracking systems, border security, document security, exclusion,
immigration enforcement, and visa issuances.8
6 U.S. National Commission on Terrorist Attacks upon the United States, The 9/11
Commission Report, Executive Summary, pp. 13-14, July 2004.
7 For a full discussion of the anti-terrorism features of the INA, see CRS Report RL32564,
Immigration: Terrorist Grounds for Exclusion of Aliens, by Michael John Garcia and Ruth
8 For more background and analysis, see CRS Report RL32616, 9/11 Commission:
Implications for U.S. Immigration Law and Policy, by Michael John Garcia and Ruth Ellen
Wasem; CRS Report RL32234, U.S. Visitor and Immigrant Status Indicator Technology
Program (US-VISIT), by Lisa M. Seghetti and Stephen R. Viña; CRS Report RL32564,
Immigration: Terrorist Grounds for Exclusion of Aliens, by Michael John Garcia and Ruth
Ellen Wasem; CRS Report RL32276, The U.N. Convention Against Torture: Overview of
U.S. Implementation Policy Concerning the Removal of Aliens, by Michael John Garcia; and
CRS Report RL32621, U.S. Immigration Policy on Asylum Seekers, by Ruth Ellen Wasem.
Temporary Workers and Business Personnel
The INA provides for the temporary admission of various categories of foreign
workers and business personnel. Foreign nationals admitted to the United States on
a temporary basis are known as nonimmigrants. The major nonimmigrant category
for temporary workers is the H visa. The H visa category includes the H-1B visa for
professional specialty workers, the H-2A visa for agricultural workers, and the H-2B
visa for nonagricultural workers, among other visa classifications. Foreign nationals
also may be temporarily admitted to the United States for work- or business-related
purposes under other nonimmigrant categories, including the B-1 visa for business
visitors, the E visa for treaty traders and investors, and the L-1 visa for intracompany9
Professional Workers (H-1B Visas)
The economic prosperity of the 1990s fueled a drive to increase the levels of
employment-based immigration. Both Congress and the Federal Reserve Board
expressed concern at that time that a scarcity of labor could curtail the pace of
economic growth. A primary response was to increase the supply of foreign
temporary professional (H-1B) workers through FY2003. The 108th Congress now
weighs whether to renew these increased H-1B visa ceilings or keep the statutory
limit of 65,000. The FY2004 cap was reached in March 2004, and DHS recently
announced that the FY2005 cap was reached on the first day of the fiscal year —
October 1, 2004.
The 106th Congress enacted the American Competitiveness in the Twenty-first
Century Act of 2000 (P.L. 106-313) with bipartisan support in October 2000. That
law raised the number of H-1B visas by 297,500 over three years. It also made
changes in the use of H-1B fees for the education and training of U.S. residents,
notably earmarking a portion of training funds for skills that are in information
technology shortage areas and adding a math, science, and technology education
grant program. Separate legislation (P.L. 106-311) increased the H-1B fee,
authorized through FY2003, from $500 to $1,000. The 107th Congress enacted
provisions that allow H-1B workers to remain beyond the six-year statutory limit if
their employers have petitioned for them to become legal permanent residents.
Certain labor market protections aimed at firms whose workforce is more than 15%
H-1B workers (known as H-1B dependent employers) lapsed at the end of FY2003.
Those opposing any extension of the increased H-1B visa ceilings or an easing
of admissions requirements assert that there is no compelling evidence of a labor
shortage in these professional areas that cannot be met by newly graduating students
and the retraining of the existing U.S. work force. They argue further that the
education of U.S. students and training of U.S. workers should be given priority over
fostering a reliance on foreign workers.
9 For an overview of nonimmigrant admissions, see CRS Report RL31381, U.S. Immigration
Policy on Temporary Admissions, by Ruth Ellen Wasem.
Proponents of maintaining current H-1B levels assert that the education of
students and the retraining of the current workforce are long-term responses to
potential labor shortages, and that H-1B workers are essential if the United States is
to remain globally competitive. Some proponents argue that employers should be
free to hire the best people for the jobs, maintaining that market forces should
regulate H-1B visas, not an arbitrary ceiling.
Pending bills would make various changes to current law on H-1B visas.
S. 1452/H.R. 2849 would broaden the lay-off protection provisions pertaining to H-
1B dependent employers to cover all H-1B employers, and would give the
Department of Labor the authority to initiate investigations of H-1B employers if
there is reasonable cause. H.R. 4166 would make the following provisions
permanent: the attestation requirement concerning nondisplacement of U.S. workers
applicable to H-1B-dependent employers and willful violators; the filing fee
applicable to H-1B petitioners; and the Secretary of Labor’s authority to investigate
an employer’s alleged failure to meet specified labor attestation conditions. Two
other bills (H.R. 2235 and H.R. 2688) would suspend or eliminate H-1B visas. H.R.
3534 would amend the H visa category more generally. It would eliminate the
current subcategories, including the H-1B visa, and replace them with a single
category covering aliens coming temporarily to the United States to perform skilled
or unskilled work.10
Intracompany Transfers (L Visas)
Concerns have been voiced that the L visa category, which allows executives
and managers of multinational corporations to work temporarily in the United States,
is being misused. This visa category permits multinational firms to transfer top-level
personnel to their locations in the United States for five to seven years. Intracompany
transfers enter on L-1 visas, and their spouses and children enter on L-2 visas.
Although the number of L visas (L-1s and L-2s combined) issued has tripled in the
past 20 years, the number of L visas that the Department of State issued in FY2002
(112,624) is down from a high of 120,538 in FY2001.
Some are now charging that firms are using the L visa to transfer “rank and file”
professional employees rather than limiting these transfers to top-level personnel,
thus circumventing immigration laws aimed at protecting U.S. employees from the
potential adverse employment effects associated with an increase in the number of
foreign workers. Proponents of current law maintain that any restrictions on L visas
would prompt many multinational firms to leave the United States, as well as
undermine reciprocal agreements that currently permit U.S. corporations to transfer
their employees abroad.
Legislation that would amend the L-1 visa is before the 108th Congress (S.
1452/H.R. 2849, S. 1635, H.R. 2154, H.R. 2702, H.R. 4166, and H.R. 4415). All of
these bills have provisions aimed at restricting the outsourcing of U.S. jobs to L-1
visa holders (that is, the importing of L-1 workers to perform U.S. jobs). On October
10 See CRS Report RL30498, Immigration: Legislative Issues on Nonimmigrant
Professional Specialty (H-1B) Workers, by Ruth Ellen Wasem.
4, 2004, the Senate Judiciary committee reported S. 1635, which was introduced by
Senator Saxby Chambliss, chair of the Senate Judiciary Subcommittee on
Immigration, Border Security and Citizenship. As reported, S. 1635 would amend the
INA to prohibit under certain circumstances entry of an alien with specialized
knowledge who will be stationed primarily at the worksite of an employer other than
the petitioning employer. S. 1635 also would eliminate the six-month requirement
of prior continuous overseas employment for blanket petitions (thus subjecting all L-
H.R. 4166 has similar provisions revising the L visa. Among the other pending bills,
H.R. 4415 would eliminate specialized knowledge as a basis for obtaining an L visa
and would limit the number of L-1 visas to 35,000 annually. Several of the bills (S.
1452/H.R. 2849 and H.R. 2702) include labor attestation requirements designed to
protect U.S. workers from displacement or other potentially adverse effects on the
labor market brought on by importing L-1 visa holders.11
Free Trade Agreements
The U.S.-Chile Free Trade Agreement (FTA) and the U.S.-Singapore FTA
create separate categories of entry for citizens of each country to engage in a wide
range of business and investment activities as nonimmigrants. Chapter 14 of the
U.S.-Chile FTA and Chapter 11 of the U.S.-Singapore FTA address four specific
categories of nonimmigrant admissions currently governed by U.S. immigration law:
business visitors (parallel to the INA’s B-1 visa category); treaty traders and investors
(parallel to the E visa category); intracompany transfers (parallel to the L visa
category); and professional workers (parallel to the H-1B visa category).
Legislation to implement the Chile and Singapore FTAs was introduced on July
15, 2003, as S. 1416/H.R. 2738 and S. 1417/H.R. 2739, respectively. The House
passed H.R. 2738 and H.R. 2739 on July 24, 2003, and the Senate passed them on
July 31,2003. The Chile FTA implementing law is P.L. 108-77, and the Singapore
FTA implementing law is P.L. 108-78. These laws amend several sections of the
INA. Foremost, the laws amend INA §101(a)(15)(H) to carve out a portion of the H-
1B visas — designated as the H-1B-1 visa — for professional workers entering
through the FTAs. In many ways the FTA professional worker visa requirements
parallel the H-1B visa requirements, notably having similar educational requirements.
The H-1B visa, however, specifies that the occupation require highly specialized
knowledge, while the FTA professional worker visa specifies that the occupation
require only specialized knowledge.
P.L. 108-77 contains a numerical limit of 1,400 new entries under the FTA
professional worker visa from Chile, and P.L. 108-78 contains a limit of 5,400 for
Singapore. Under the laws, the FTA professional visa is initially issued for one year,
but can be renewed without limit; by comparison, an H-1B worker is limited to a
total stay of six years. The laws count an FTA professional worker against the H-1B
cap the first year he or she enters and again after the fifth year he or she seeks
renewal. Although the FTA professional worker would remain a temporary resident
11 See CRS Report RL32030, Immigration Policy for Intracompany Transfers (L Visa):
Issues and Legislation, by Ruth Ellen Wasem.
and would only be permitted to work for an employer who had met the applicable
labor attestation requirements, he or she could legally remain in the United States
These FTA provisions on the temporary entry of business personnel and
professional workers are raising concerns among many in the field of immigration
because immigration law traditionally is spelled out by Congress, not the executive
branch. Some assert that the U.S. Trade Representative (USTR) negotiated these
immigration provisions without any authority or direction from Congress. This
assertion implies that the USTR did not honor its obligations of the “fast track
authority,” found in the Trade Promotion Authority objectives of the Trade Act of
2002 (P.L. 107-210), to regularly and formally consult with Congress during the FTA
negotiations in return for expedited legislative procedures, which among other things
bar amendments to the FTA enabling legislation. More generally, some point out
that these provisions would constrain current and future Congresses when they
consider revising immigration law on business personnel, treaty investors and traders,
intracompany transfers, and professional workers because the United States would
run the risk of violating the FTAs.
The USTR maintains that the temporary entry of professionals falls within Trade
Promotion Authority objectives regarding the opening of foreign country markets for
U.S. services and investment, and that ensuring cross-border mobility of
professionals and other business persons is critical for U.S. companies in developing
new markets and business opportunities abroad. The USTR further argues that the
temporary business personnel provisions in the FTAs are not immigration policy
because they only affect temporary entry. The USTR points out that it issued a notice
of intent to negotiate provisions to facilitate the temporary entry of business persons
in October 2001 and that it briefed congressional staff on the FTA provisions on
Guest Worker Programs
Currently, the United States has two main programs for temporarily importing
low-skilled workers, sometimes referred to as guest workers. Agricultural workers
enter through the H-2A program and nonagricultural workers enter through the H-2B
program. Pending bills (S. 1645/H.R. 3142, S. 2185, and H.R. 3604) propose to
overhaul the H-2A program. Among other provisions, these bills would streamline
the process of importing H-2A workers and make changes to existing H-2A
requirements regarding minimum benefits, wages, and working conditions. With
respect to agricultural guest worker proposals, the House Agriculture Committee held
a hearing in January 2004 to review the potential impact of such proposals on the
agricultural sector. S. 2010 and S. 2381/H.R. 4262 would reform the H-2B program.
Among other changes, both would allow the importing of H-2B workers to perform
short-term labor or services; current law limits H-2B workers to the performance of
temporary work. S. 2010, S. 2381/H.R. 4262, and other bills (S. 2252/H.R. 4052, S.
2258, and H.R. 4041) would increase the potential number of H-2B workers by either
raising the statutory cap on the program, currently set at 66,000 per year, or
exempting certain H-2B workers from the cap. H.R. 3534 proposes to amend the H
visa category more generally. It would eliminate the current subcategories, including
the H-2A and H-2B visas, and replace them with a single category covering aliens
coming temporarily to the United States to perform skilled or unskilled work.
Also before the 108th Congress are proposals to create new temporary worker
programs (S. 1387, S. 1461/H.R. 2899, S. 2010, S. 2381/H.R. 4262, and H.R. 3651).
These bills would amend the INA to establish new nonimmigrant visas. S. 1387
would establish two new visas, one for seasonal workers and one for nonseasonal
workers. S. 1461/H.R. 2899 would likewise establish two new nonimmigrant visas.
One would cover aliens coming to the United States to perform temporary work, and
the other would cover unauthorized alien workers. The new visa category proposed
in H.R. 3651 would cover unauthorized aliens. In addition to reforming the H-2B
visa, as discussed above, S. 2010 and S. 2381/H.R. 4262 would each establish a new
temporary worker visa. S. 2010 would establish a new visa for temporary workers
in occupation classifications not covered by the H-1B, H-2A, H-2B, or other
specified high-skilled nonimmigrant visa categories. The new visa proposed in
S. 2381/H.R. 4262 would be for temporary workers in occupation classifications not
covered by the H-1B, H-2A, or other specified high-skilled nonimmigrant visa
categories.12 Provisions in some of the above bills to enable certain aliens to obtain
legal permanent residence are discussed in the next section.
Legal Permanent Residence for
Estimates derived from the March Supplement of the U.S. Bureau of Census’s
Current Population Survey indicate that the unauthorized resident alien population
(commonly referred to as illegal aliens) was 9.3 million in 2002. Almost two-thirds
(57%) of these illegal residents were believed to be Mexican nationals.13 Several
bills before the 108th Congress, some of which are discussed below, would enable
certain unauthorized aliens to adjust to legal permanent resident (LPR) status.
Adjustment refers to the process under immigration law by which an individual
present in the United States is granted legal permanent residence.
Adjustment of Alien Workers
Some pending guest worker bills (see above) would establish special
mechanisms for alien workers in the United States to become LPRs. S. 1645/H.R.
aliens could first apply for temporary resident status and then, after meeting
additional requirements, could apply to adjust to LPR status. Under S. 1461/H.R.
12 See CRS Report RL32044, Immigration: Policy Considerations Related to Guest Worker
Programs, by Andorra Bruno. (Hereafter cited as CRS Report RL32044, Policy
Considerations Related to Guest Worker Programs.)
13 See CRS Report RS21938, Unauthorized Aliens in the United States: Estimates Since
LPR status. By contrast, S. 1387, S. 2185, H.R. 3534, H.R. 3604, and H.R. 3651 do
not propose special mechanisms for guest workers to obtain LPR status.14
Adjustment of Alien Students
A bill that would enable certain unauthorized alien students to become LPRs (S.
1545) has been reported by the Senate Judiciary Committee. Known as the
“DREAM Act,” S. 1545 would establish a two-stage process through which eligible
aliens would first be granted conditional LPR status and then after meeting additional
requirements, could become full-fledged LPRs. To be eligible for conditional LPR
status under the bill, an alien must have been under age 16 at the time of initial entry
into the United States, have resided continuously here for at least five years preceding
enactment, and have a high school diploma (or equivalent credential) or have gained
admission to an institution of higher education, among other requirements. Related
bills have been introduced in the House (H.R. 84, H.R. 1684, and H.R. 3271).15 In
addition, legalization provisions in some guest worker bills and other immigration
bills would also enable certain unauthorized alien students to become LPRs.
Provisions in the unauthorized student bills cited above related to eligibility for
higher education benefits are discussed separately below.
Noncitizen Eligibility for Public Benefits
Prior to 1996, LPRs were eligible for federal public benefits, such as Medicaid,
under terms comparable to citizens, and states were not permitted to restrict access
to federal programs on the basis of immigration status. The 1996 welfare reform law
(P.L. 104-193) made most newly entering LPRs ineligible for federal public benefits
for five years; after five years, it allowed states to continue barring LPRs from federal
public benefits, including Medicaid and the State Children’s Health Insurance
Program (SCHIP).16 Nonetheless, all noncitizens, regardless of status, who otherwise
meet the eligibility requirements for Medicaid, are eligible for emergency Medicaid.17
On December 8, 2003, President Bush signed the Medicare Prescription Drug,
Improvement, and Modernization Act of 2003 (P.L. 108-173). It includes a provision
to reimburse healthcare providers for uncompensated treatment given to unauthorized
aliens, aliens paroled18 into the United States for the purpose of receiving eligible
14 CRS Report RL32044, Policy Considerations Related to Guest Worker Programs.
15 See CRS Report RL31365, Unauthorized Alien Students: Issues and Legislation, by
Andorra Bruno and Jeffrey J. Kuenzi.
16 See CRS Report RL31114, Noncitizen Eligibility for Major Federal Public Assistance
Programs: Policies and Legislation, by Ruth Ellen Wasem.
17 See CRS Report RL31630, Federal Funding for Unauthorized Aliens’ Emergency
Medical Expenses, by Alison M. Siskin.
18 “Parole” is a term in immigration law which means that the alien has been granted
temporary permission to enter and be present in the United States. Parole does not
services, and Mexican citizens permitted to enter the United States with border
crossing cards (also referred to as “laser visas”). Specifically, P.L. 108-173 instructs
the Secretary of Health and Human Services (HHS) to pay local governments,
hospitals, or other providers such amounts as they can demonstrate were used to
provide uncompensated emergency health services to unauthorized aliens, aliens
paroled into the United States, and Mexican citizens entering with border crossing
cards. Funding is allocated to states based on a formula, and the state allotment is
available to reimburse health care providers in that state. For each of fiscal years
!$167 million is designated to states based on the percentage of
unauthorized aliens residing in the state compared to the total
number of unauthorized aliens in the United States; and
!$83 million is designated to the 6 states with the highest percentage
of unauthorized alien apprehensions for the fiscal year.
P.L. 108-173 also requires the Secretary of HHS to establish a process, including
measures to protect against fraud and abuse, for hospitals and other health care
providers to apply for reimbursement.
Higher Education Benefits
Section 505 of the Illegal Immigration Reform and Immigrant Responsibility
Act (IIRIRA; Division C of P.L. 104-208) made unauthorized aliens ineligible for
postsecondary education benefits based on state residence unless equal benefits were
made available to all U.S. citizens regardless of state of residence. Bills before the
108th Congress (including S. 1545, as reported) would repeal IIRIRA §505 and, as
discussed above, would enable certain unauthorized alien students to become LPRs.
Pending House bills (H.R. 84 and H.R. 1684) also would make alien students who
apply for relief under their terms eligible for federal postsecondary education
benefits, such as student financial aid, while their applications are pending. S. 1545,
as reported, does not contain such provisions.19
Biometric Deadlines for Travel Documents
The Enhanced Border Security and Visa Entry Reform Act of 2002 (EBSVER;
P.L. 107-173) required that by October 26, 2004 all visas issued have biometric
identifiers. Although the Department of State (DOS) has said that it will meet the
deadline, it is not clear that DHS will have the readers for the new biometric visas
constitute formal admission to the United States, and parolees are required to leave when
the parole expires or, if eligible, to be admitted in a lawful status.
19 See CRS Report RL31365, Unauthorized Alien Students: Issues and Legislation, by
Andorra Bruno and Jeffrey J. Kuenzi.
in place at all points of entry by the specified date.20 EBSVER also established
biometric requirements for visa waiver program (VWP) countries, whose nationals
are allowed to enter the United States as temporary visitors for business or pleasure
without first obtaining a visa from a U.S. consulate abroad.21 The act mandated that
by October 26, 2004, the government of each VWP country must certify that it has
established a program to issue machine-readable passports that are tamper-resistant
and incorporate a biometric identifier. EBSVER also specified that any person
applying for admission to the United States under the VWP must have a tamper-
resistant, machine-readable passport with a biometric identifier, unless the passport
was issued prior to October 26, 2004. The standard agreed upon by the international
community for the biometric identifier is facial recognition.
P.L. 108-299 (H.R. 4417) extended for one-year both the deadline for VWP
countries to certify that they have a program to issue machine-readable passports with
biometric identifiers, and the requirement that all visas issued have biometric
identifiers. The new biometric deadline is October 26, 2005. Under P.L. 108-299,
any person applying for admission to the United States under the VWP as of that date
would have to have a tamper-resistant, machine-readable passport with a biometric
identifier, unless the passport was issued prior to October 26, 2005.
S.Amdt. 3933 was introduced on October 5, 2004, during the floor debate of S.
2845, the “National Intelligence Reform Act of 2004.” S.Amdt. 3933 would require
that each VWP country, as a condition of being in the VWP, have a program to issue
tamper-resident, machine readable visa documents that incorporate biometric
identifiers which are compatible with the biometric identifiers used in the US-VISIT
Consular Identification Cards
The current debate about consular identification cards in the United States has
centered around the matrícula consular, the consular card issued by the Mexican
government to its citizens in the United States when they register with a consulate.
In recent years, and especially since the September 11, 2001 attacks, Mexican
consulates in the United States and other interested parties have worked to gain
acceptance of the matrícula consular as identification for a variety of purposes, with
The matrícula consular raises a number of questions for domestic and foreign
policy. With respect to domestic policy, there is much debate about the costs and
benefits of the cards in the areas of immigration, public safety and law enforcement,
and homeland security. Relevant foreign policy issues include the U.S.-Mexico
20 For more information on visa issuances and biometric identifiers in visas, see CRS Report
RL31512, Visa Issuances: Policy, Issues, and Legislation, by Ruth Ellen Wasem.
21 For more information on the VWP, see CRS Report RL32221, Visa Waiver Program, by
bilateral relationship, reciprocity of treatment of citizens abroad, and consular
notification in law enforcement situations.
Legislation related to consular identification cards is before the 108th Congress.
The House-passed Foreign Relations Authorization Act for FY2004-FY2005 (H.R.
Other pending measures concern acceptance of consular identification cards by U.S.
federal entities (H.R. 502, H.R. 687, and H.R. 3534), and acceptance of the cards for
banking purposes (H.R. 773 and H.J.Res. 58). H.R. 4440 would establish
consequences under immigration law for the possession or use of consular
identification cards. H.R. 10 as reported by the House Judiciary Committee would
require that, for purposes of establishing his or her identity to a federal employee, an
alien present in the United States may present a valid foreign passport or an
immigration document issued by DHS or the Department of Justice under the
authority of immigration laws, and no other document can be used for such
Employment Eligibility Verification Pilot Programs
IIRIRA (in Title IV, Subtitle A) directed the Attorney General to conduct three
pilot programs for employment eligibility confirmation (i.e., to confirm that new
hires are legally eligible to work). It further directed the Attorney General to
establish an employment eligibility confirmation system to be used by employers
participating in the pilot programs. Each program was authorized initially for four
years. P.L. 107-128 extended the life of each program from four years to six years.
The first program to be implemented, known as the “basic pilot program,” began
in November 1997. Under IIRIRA, the basic pilot is to operate in at least five of the
seven states with the largest estimated unauthorized alien populations. Currently, it
is operating in six states (California, Florida, Illinois, Nebraska, New York, and
Texas). Although some employers are required to participate in a pilot program,
participation in the programs is, for the most part, voluntary.
S. 1685, as reported by the Senate Judiciary Committee, would amend IIRIRA’s
pilot program provisions. It would extend each program for an additional five years,
thereby authorizing the basic pilot program until 2008. S. 1685 also would provide
for the operation of the basic pilot program in all states by December 1, 2004. It
would not change the IIRIRA provisions concerning voluntary or mandatory
During Senate floor consideration, S. 1685 was amended to add unrelated
provisions concerning the immigrant investor regional center pilot program. These
22 See CRS Report RL32094, Consular Identification Cards: Domestic and Foreign Policy
Implications, the Mexican Case, and Related Legislation, by Andorra Bruno and K. Larry
Storrs; and CRS Report RS21627, Implications of the Vienna Convention on Consular
Relations upon the Regulation of Consular Identification Cards, by Jennifer K. Elsea and
Michael John Garcia.
provisions, which were previously passed by the Senate in another bill (S. 1642), are
discussed below in the “Other Legislation Receiving Action” section. S. 1685, as
amended, was passed by the Senate and House. On December 3, 2003, the President
signed the bill into law (P.L. 108-156).
Earlier in the session, a related bill (H.R. 2359) had been considered in the
House. As reported by the House Judiciary Committee, H.R. 2359, like S. 1685,
would have extended each pilot program for an additional five years and would have
provided for the operation of the basic pilot program in all states. Additionally, H.R.
2359 would have allowed the pilot program confirmation system to be used for
government inquiries about an individual’s immigration status. A separate provision
of IIRIRA (§642(c)) directed the former INS to respond to inquiries by federal, state,
or local government agencies seeking to verify or ascertain the citizenship or
immigration status of any individual within the jurisdiction of the agencies for any
purpose authorized by law. H.R. 2359 would have provided that such inquiries may
be submitted and responded to using the employment eligibility confirmation system.
A modified version of H.R. 2359, which contained all the above provisions, was
considered on the House floor on October 28, 2003. A motion to suspend the rules
and pass the bill, as amended, failed. The 231 to 170 vote on the motion fell short
of the required two-thirds vote.
Other Legislation and Issues
The refugee ceiling for FY2004 was 70,000, with 50,000 of these numbers
allocated among the regions of the world and the remaining 20,000 comprising an
“unallocated reserve” to be used if, and where, the need for additional refugee slots
arose. Actual FY2004 refugee admissions totaled 52,868. The proposed refugee
admissions for FY2005, provided to Congress during the annual refugee consultation,
again sets the refugee ceiling at 70,000 and includes 20,000 unallocated refugee
numbers. Refugee numbers that are unused in a fiscal year are lost; they do not carry
over into the following year.
The “Lautenberg amendment” requires the Attorney General to designate
categories of former Soviet and Indochinese nationals for whom less evidence is
needed to prove refugee status, and provides for adjustment to LPR status for certain
former Soviet and Indochinese nationals denied refugee status. P.L. 108-7 extended
the Lautenberg amendment through FY2003. The Consolidated Appropriations Act
for FY2004 (P.L. 108-199) extends the amendment through FY2004. In addition, it
amends the Lautenberg amendment to also require the designation of categories of
Iranian nationals, specifically religious minorities, for whom less evidence is needed
to prove refugee status.
Another provision in P.L. 108-199 instructs the Secretary of State to utilize
private voluntary organizations with refugee-related expertise in the identification,
referral, and processing of refugees overseas. Currently, the identification and
referral of refugees for the U.S. refugee program is done primarily by the United
Nations High Commissioner for Refugees.
The “McCain amendment,” first enacted in 1996, made the adult children of
certain Vietnamese refugees eligible for U.S. refugee resettlement. P.L. 107-185
revised and re-enacted the amendment for FY2002 and FY2003. Among its
provisions, this law enabled adult children previously denied resettlement to have
their cases reconsidered. In the 108th Congress, H.R. 2792 would extend the
amendment, as revised by P.L. 107-185, through FY2005.
Resettlement Funding. For FY2003, Congress provided $478.0 million for
HHS’s Office of Refugee Resettlement (ORR). This total included $34.2 million
transferred to ORR from the former INS for the unaccompanied alien minors
program, pursuant to P.L. 107-296. For FY2004, P.L. 108-199 provides $450.3
million for ORR programs. The Bush Administration’s request for ORR for FY2005
is $473 million. On September 9, 2004, the House passed H.R. 5006, the FY2005
appropriations for the Departments of Labor, Health and Human Services, and
Education, and Related Agencies (L-HHS-ED), and included $491.3 million for
ORR. H.R. 5006 also would give ORR the authority to carry over unexpended funds.
The Senate reported bill for the FY2005 L-HHS-ED appropriations (S. 2810)23
included $477.2 million for ORR.
North Korean Refugees. Since the constitution of Republic of Korea (i.e.,
South Korea) guarantees citizenship to all Koreans, and given the diplomatic
complexities of the Korean peninsula, residents of Democratic People’s Republic of
Korea (i.e., North Korea) generally have not been considered eligible for refugee
status.24 H.R. 4011, The North Korean Human Rights Act of 2004, passed by the
House and Senate on October 4, 2004, would require that a national of the North
Korea not be considered a national of the South Korea for purposes of eligibility for
refugee or asylum status. H.R. 4011 would also require the Secretary of State to
facilitate the submission of applications for refugee status from North Koreans. In
addition, the bill would require the Secretary of State to submit a report to Congress
which describes the situation of North Korean refugees, and explains U.S.
government policy towards North Korean nationals outside of North Korea.
Furthermore, H.R. 4011 would require annual reports for six years on North Korean
who applied for and received asylum and refugee status.
P.L. 108-99 extends a provision in immigration law that allows for the
admission of immigrants to perform religious work. These religious workers enter
under the fourth preference category of employment-based immigration, known as
“special immigrants,” and are subject to an annual cap of 5,000. P.L. 108-99 extends
23 See CRS Report RL31269, Refugee Admissions and Resettlement Policy, by Andorra
24 For more information on North Korean refugees see CRS General Distribution
Memorandum, Talking Points on North Korean Refugees by Mark Manyin. Available by
request from the author.
this religious worker provision for five additional years, through September 30, 2008.
Ministers of religion are treated separately from religious workers; the special
immigrant provision covering them is permanent.
Prior to the Immigration Act of 1990 (P.L. 101-649), ministers of religion were
admitted to the United States without numerical limits, and there was no separate
provision for religious workers. Religious workers immigrated through one of the
more general categories of numerically-limited, employment-based immigration that
were in effect at that time. The Immigration Act of 1990 amended the INA to
redefine the special immigrant category (which is subject to an overall cap) to include
ministers of religion as well as religious workers, and created a new nonimmigrant
(i.e., temporary) visa for religious workers, commonly referred to as the R visa. The
1990 Act also contained a “sunset”of the special immigrant provision for religious
workers on September 30, 1994. The provision was subsequently extended through
September 30, 1997, and then again through September 30, 2003.25
Victims of Trafficking
P.L. 106-386 created a new nonimmigrant category, known as the T visa or T
status, for aliens who are victims of severe forms of trafficking in persons. To
qualify for the T category, in addition to being a victim of a severe form of trafficking
in persons, the alien must:
!be physically present in the United States, American Samoa, the
Commonwealth of the Northern Mariana Islands, or a U.S. port of
entry because of such trafficking;
!have complied with any reasonable request for assistance to law
enforcement in the investigation or prosecution of acts of trafficking,
or be under age 15; and
!be likely to suffer extreme hardship involving unusual and severe
harm upon removal.
To receive T status, the alien must also be admissible to the United States or obtain
a waiver of inadmissibility. The act also makes aliens who have a bona fide
application for T status eligible to receive certain public benefits to the same extent
as refugees. Additionally, the spouse, children, and, in some cases, parents of an
alien granted T status may be given derivative T status in order to avoid extreme
The Trafficking Victims Protection Reauthorization Act of 2003 (P.L. 108-193)
changes eligibility for T status by: (1) raising the age of the exemption for complying
with reasonable requests for assistance in the investigation and prosecution of
traffickers from age 15 to age 18; (2) making unmarried aliens under age 18, who are
the siblings of trafficking victims who are under age 21, eligible for derivative T
status; (3) preventing the aging-out of children who were under age 21 when their
25 See CRS Report RS21630, Immigration of Religious Workers: Background and
Legislation, by Ruth Ellen Wasem.
parents filed applications for T status; and (4) removing public charge as a ground
for inadmissibility to T status. P.L. 108-193 also authorizes $15 million in each of
fiscal years 2004 and 2005 for the Secretary of HHS to provide services to victims
The Social Security program provides monthly cash benefits to qualified retired
and disabled workers, their dependents, and survivors. Generally, a worker must
have 10 years of Social Security-covered employment to be eligible for retirement
benefits (less time is required for disability and survivor benefits). Most jobs in the
United States are covered under Social Security. Noncitizens (aliens) who work in
Social Security-covered employment must pay Social Security payroll taxes,
including those who are in the United States working temporarily and those who may
be working in the United States without authorization, with some exceptions. By
statute, the work of aliens under certain visa categories (e.g., H-2A agricultural
workers) is not covered by Social Security.
On March 2, 2004, the President signed into law the Social Security Protection
Act of 2004 (P.L. 108-203, H.R. 743), under which an alien whose application for
Social Security benefits is based on a Social Security Number (SSN) issued January
1, 2004, or later is required to have work authorization at the time an SSN is
assigned, or at any later time, to be eligible for benefits under the Social Security
program. Aliens whose applications are based on SSNs issued before January 1,
regardless if they never had authorization to work in the United States.26
Diversity Visa Lottery
The diversity visa lottery offers an opportunity for immigration to nationals of
countries that do not have high levels of immigration. Aliens from eligible countries
had until noon on December 30, 2003 to submit their applications for the FY2005
diversity visa lottery. Aliens who are selected through the lottery, if they are
otherwise admissible under the INA, may become legal permanent residents of the
United States. Participation in the diversity visa lottery is limited annually to 55,000
aliens from countries that are under-represented among recent immigrant admissions
to the United States. In FY2001, over 8 million aliens from around the world sent
in applications for the FY2003 lottery. Of the diversity visas awarded in FY2002,
European immigrants comprised 39.4% of the diversity visa recipients and African
immigrants received 38.1%
While the diversity lottery has not been directly amended since its enactment in
1990, the Nicaraguan Adjustment and Central American Relief Act of 1997
(NACARA) temporarily reduces the 55,000 annual ceiling by up to 5,000 visas
annually. Beginning in FY1999, the diversity ceiling became 50,000 to offset
immigrant visa numbers made available to certain unsuccessful asylum seekers from
26 For more information see CRS Report RL32004, Social Security Benefits for Noncitizens:
Current Policy and Legislation, by Dawn Nuschler and Alison Siskin.
El Salvador, Guatemala, and formerly communist countries in Europe who are being
granted LPR status under special rules established by NACARA. While the offset
is temporary, it is not clear how many years it will be in effect to handle these
adjustments of status.
Some question the continuation of the diversity visa lottery, given that family
members often wait years for a visa to immigrate to the United States. They state a
preference that the 55,000 visas be used for backlog reduction of the other visa
categories. Supporters of the diversity visa, however, point to the immigration
dominance of nationals from a handful of countries and argue that the diversity visa
provides “new seed” immigrants for an immigration system weighted
disproportionately to family-based immigrants.27 The House Judiciary Subcommittee
on Immigration, Border Security and Claims has reported H.R. 775, which would
eliminate the diversity visa lottery.
S. 710, as reported by the Senate Judiciary Committee, would make aliens who
commit acts of torture, extrajudicial killings, or severe violations of religious
freedom abroad inadmissible to, and removable from, the United States. Aliens who
committed acts of torture or extrajudicial killings also would be ineligible for asylum,
refugee status, or withholding of removal. In addition, S. 710 would expand the
authority of the Office of Special Investigations, within DOJ’s Criminal Division, to
detect, investigate, and take legal action to denaturalize aliens who participated in
torture, extrajudicial killings, or genocide abroad. The bill would authorize such
sums as necessary to ensure that the Office of Special Investigations can carry out its
new obligations while continuing its original duties regarding Nazi War criminals.
Unaccompanied Alien Children
S. 1129, as reported by the Senate Judiciary Committee, would create
procedures for DHS officers to follow when they encounter an unaccompanied alien
child, and would require the establishment of procedures to determine the age of an
unaccompanied minor. S. 1129 also would establish conditions for the detention of
unaccompanied alien children, and would allow an unaccompanied alien to be
released to specified persons other than the child’s parents. The bill would require
that unaccompanied alien children have counsel to represent them in immigration
proceedings, and would require the establishment of a pilot program to study
providing guardians ad litem to assist unaccompanied alien children involved in
Other Legislation Receiving Action
Iraqi Scientists. S. 205, as passed by the Senate, would amend the INA to
provide for the nonimmigrant admission of certain scientists and others with
information about the Iraqi weapons of mass destruction program, and their families.
27 CRS Report RS21342, Immigration: Diversity Visa Lottery, by Ruth Ellen Wasem and
S. 205 would place a numerical limit of 500 on this category. The bill also would
grant the Attorney General discretion to adjust these nonimmigrants to LPR status.
Irish Peace Process Program. H.R. 2655, as passed by the House, would
amend and extend through FY2008 a visa program that enables young adults residing
in Northern Ireland or certain counties within the Republic of Ireland to work
temporarily in the United States.
Immigrant Investor Pilot Program. S. 1642, as passed by the Senate,
would extend the immigrant investor regional center pilot program for five additional
years. It also would authorize DHS to give priority in processing immigrant investor
visa petitions to aliens seeking admission under the pilot program. The text of
S. 1642 was added as an amendment to an unrelated bill to extend and expand the
employment eligibility verification pilot programs (S. 1685, discussed above) during
consideration of that bill on the Senate floor. S. 1685, as amended to include the text
of S. 1642, was passed by the Senate and House, and signed into law by the
President as P.L. 108-156.
State Criminal Alien Assistance Program (SCAAP). SCAAP provides
reimbursement to state and local governments for the direct costs associated with
incarcerating undocumented criminal aliens. For FY2003 and FY2004, the INA
authorizes the appropriation of such sums as necessary for SCAAP. P.L. 108-199
provides $300 million for SCAAP for FY2004. S. 460, as passed by the Senate,
would authorize appropriations for SCAAP, as follows: such sums as necessary for
FY2003; $750 million for FY2004; $850 million for FY2005; and $950 million each
year for FY2006-FY2010. The House companion bill is H.R. 933. Other pending
bills (H.R. 1095, H.R. 1519) would authorize different levels of funding for SCAAP
for FY2004 through FY2008. H.R. 4754, the Commerce, Justice, State Department
Appropriations which passed the House on July 8, 2004, included $325 million for
SCAAP and the Senate version, S. 2809 provided $220 million for the program. S.
Waivers for Nonimmigrant Physicians. Foreign physicians in the United
States on J-1 visas must return to their home country after completing their education
or training unless they are granted a waiver. Waiver recipients are eligible to change
status to H-1B status, which is discussed above. State departments of health can
request waivers under the “Conrad 30" or “State 30" program. Under current law,
the “Conrad 30" program provisions apply to foreign physicians admitted to the
United States in J-1 status, or acquiring such status, before June 1, 2004. Pending
bills, including H.R. 4453, would make changes to the “Conrad 30" program. H.R.
4453, which has been approved by the House Judiciary Subcommittee on
Immigration, Border Security, and Claims, would strike the June 1, 2004 cut-off date
and instead make the Conrad program provisions applicable to foreign physicians
admitted in or acquiring J-1 status before the date that is one year after enactment of
the bill. In addition, H.R. 4453 would exempt state-sponsored waiver recipients from
the H-1B cap. On September 30, 2004, the House Judiciary Committee approved
28 See CRS Report RS21832, Immigration: Frequently Asked Questions on the State
Criminal Alien Assistance Program (SCAAP), by Karma Ester.
H.R. 4453 after adopting a substitute amendment that would extend the program until
June 2006. It would allow five physicians in each state to practice in areas not
specifically designated as “under-served” by the Department of Health and Human
Services. These physicians however, must still provide care to under-served
Nonpayment of Child Support. S. 1609, as reported by the Senate
Judiciary Committee, would establish consequences under immigration law for
failure to pay child support. The bill would amend the INA to make nonpayment of
child support a ground of inadmissibility as well as a basis for determining that an
individual is not a person of good moral character for various purposes, including
P.L. 108-7 (H.J.Res. 2). Consolidated Appropriations Resolution, 2003.
Includes provisions related to transfer of immigration authorities to DHS and
refugee-related provisions. Passed House on January 8, 2003. Passed Senate, as
amended, on January 23, 2003. House and Senate agreed to conference report
(H.Rept. 108-10) on February 13, 2003. Signed on February 20, 2003.
P.L. 108-77 (H.R. 2738). United States-Chile Free Trade Agreement
Implementation Act. Reported by Ways and Means Committee (H.Rept. 108-224,
Part I) on July 21, 2003. Reported by Judiciary Committee (H.Rept. 108-224, Part
II) on July 22, 2003. Passed House on July 24, 2003. Passed Senate on July 31,
P.L. 108-78 (H.R. 2739). United States-Singapore Free Trade Agreement
Implementation Act. Reported by Ways and Means Committee (H.Rept. 108-225,
Part I) on July 21, 2003. Reported by Judiciary Committee (H.Rept. 108-225, Part
II) on July 22, 2003. Passed House on July 24, 2003. Passed Senate on July 31,
P.L. 108-99 (H.R. 2152). Amends INA to extend special immigrant religious
worker program for 5 additional years. Reported by Judiciary Committee (H.Rept.
108-271) on September 16, 2003. Passed House on September 17, 2003. Passed
Senate on October 3, 2003. Signed on October 15, 2003.
P.L. 108-136 (H.R. 1588). National Defense Authorization Act for Fiscal Year
supplemental report (H.Rept. 108-106, Part II) filed on May 21, 2003. Passed House
on May 22, 2003. Passed Senate, as amended, on June 4, 2003. Signed on
November 24, 2003.
29 See CRS Report RL31460, Immigration: Foreign Physicians and the J-1 Visa Waiver
Program, by Karma A. Ester.
P.L. 108-156 (S. 1685). Basic Pilot Program Extension and Expansion Act of
2003. Passed Senate, as amended, on November 12, 2003. Passed House on
November 19, 2003. Signed on December 3, 2003.
P.L. 108-173 (H.R. 1). Medicare Prescription Drug, Improvement, and
Modernization Act of 2003. Passed House on June 27, 2003. Passed Senate, as
amended, on July 7, 2003. House agreed to conference report (H.Rept. 108-391) on
November 22, 2003; Senate agreed on November 25, 2003. Signed on December 8,
P.L. 108-193 (H.R. 2620). Trafficking Victims Protection Reauthorization Act
of 2003. Reported by International Relations Committee (H.Rept. 108-264, Part I)
on September 5, 2003. Reported by Judiciary Committee (H.Rept. 108-264, Part II)
on September 29, 2003. Passed House, as amended, on November 5, 2003. Passed
Senate on December 9, 2003. Signed on December 19, 2003.
P.L. 108-199 (H.R. 2673). Consolidated Appropriations Act, 2004. Originally
introduced as the FY2004 Agriculture Appropriations bill. Includes refugee-related
and SCAAP provisions. Reported by Appropriations Committee (H.Rept. 108-193)
on July 9, 2003. Passed House on July 14, 2003. Passed Senate, as amended, on
November 6, 2003. House agreed to conference report (H.Rept. 108-401) on
December 8, 2003; Senate agreed on January 22, 2004. Signed on January 23, 2004.
P.L. 108-203 (H.R. 743). Social Security Protection Act of 2004. Addresses
alien eligibility for Social Security benefits. Reported by Ways and Means
Committee (H.Rept. 108-46) on March 24, 2003. Passed House, as amended, on
April 2, 2003. Reported by Senate Finance Committee (S.Rept. 108-176) on October
P.L. 108-299 (H.R. 4417). Amends the Enhanced Border Security and Visa
Entry Reform Act of 2002 to modify certain deadlines for machine-readable, tamper-
resistant entry and exit documents. Passed House on June 14, 2004. Passed Senate
on July 22, 2004. Signed on August 9, 2004.
H.R. 10 (Hastert). 9/11 Recommendations Implementation Act. Reported by
Intelligence Committee (H.Rept. 108-724, Part I), Armed Services Committee
(H.Rept. 108-724, Part II), and Financial Services Committee (H.Rept. 108-724, Part
III) on October 4, 2004. Reported by Government Reform Committee (H.Rept. 108-
H.R. 775 (Goodlatte). Security and Fairness Enhancement (SAFE) for
America Act of 2003. Amends the INA to eliminate the diversity immigrant
program. Forwarded by Subcommittee on Immigration, Border Security, and Claims
to Judiciary Committee on September 14, 2004.
H.R. 1416 (Cox). Homeland Security Technical Corrections Act of 2003.
Reported by Select Committee on Homeland Security (H.Rept. 108-104) on May 15,
2003. Passed House, as amended, on June 24, 2003. Reported by the Senate
Governmental Affairs Committee (S.Rept. 108-214) on November 25, 2003.
H.R. 1950 (Hyde). Foreign Relations Authorization Act, Fiscal Years 2004 and
2005. Reported by International Relations Committee (H.Rept. 108-105, Part I) on
May 16, 2003; supplemental report (H.Rept. 108-105, Part II) filed on June 12, 2003.
Reported by Armed Services Committee (H.Rept. 108-105, Part III) on June 30,
2003. Reported by Energy and Commerce Committee (H.Rept. 108-105, Part IV) on
July 11, 2003. Passed House on July 16, 2003.
H.R. 2655 (Walsh). Amends and extends the Irish Peace Process Cultural and
Training Program Act of 1998. Reported by Judiciary Committee (H.Rept. 108-260,
Part I) on September 4, 2003. Passed House, as amended, on October 7, 2003.
H.R. 4011 (Leach). North Korea Human Rights Act of 2004. Reported by
International Relations Committee (H.Rept. 108-478, Part I) on May 4, 2004. Passed
House, as amended, on July 21, 2004. Passed Senate, as amended, on September 28,
H.R. 4453 (Moran). Access to Rural Physicians Improvement Act of 2004.
Forwarded by Subcommittee on Immigration, Border Security, and Claims to
Judiciary Committee on June 3, 2004. Reported by Judiciary Committee (H.Rept.
H.R. 4754 (Wolf). Departments of Commerce, Justice, and State, the Judiciary,
and Related Agencies Appropriations Act, 2005. Appropriates funds for the State
Criminal Alien Assistance Program (SCAAP). Reported by Appropriations
Committee (H.Rept. 108-576) on July 1, 2004. Passed House, as amended, on July
H.R. 5006 (Regula). Departments of Labor, Health and Human Services, and
Education, and Related Agencies Appropriations Act, 2005. Includes funding for the
Office of Refugee Resettlement (ORR) and gives ORR authority to carry over
unexpended funds. Reported by Appropriations Committee (H.Rept. 108-636) on
September 7, 2004. Passed House, as amended, on September 9, 2004.
S. 205 (Biden). Iraqi Scientists Immigration Act of 2003. Reported by
Judiciary Committee (without written report) on January 30, 2003. Passed Senate on
March 20, 2003.
S. 460 (Feinstein). State Criminal Alien Assistance Program Reauthorization
Act of 2003. Passed Senate on November 25, 2003.
S. 710 (Leahy). Anti-Atrocity Alien Deportation Act of 2003. Reported by
Judiciary Committee on November 6, 2003; S.Rept. 108-209 filed on November 24,
S. 1129 (Feinstein). Unaccompanied Alien Child Protection Act of 2003.
Reported by Judiciary Committee (without written report) on June 3, 2004.
S. 1545 (Hatch). Development, Relief, and Education for Alien Minors Act of
2003. Reported by Judiciary Committee on November 25, 2003; S.Rept. 108-224
filed on February 9, 2004.
S. 1609 (Hatch). Parental Responsibility Obligations Met through Immigration
System Enforcement Act. Reported by Judiciary Committee (without written report)
on May 13, 2004.
S. 1635 (Chambliss). L-1 Visa (Intracompany Transferee) Reform Act of 2003.
Reported by Judiciary Committee (without written report) on October 4, 2004.
S. 1642 (Leahy). Extends the immigrant investor regional center pilot program
for five additional years and authorizes giving immigrant investor visa priority to
aliens seeking admission under the program. Passed Senate, as amended, on October
S. 2809 (Gregg). Departments of Commerce, Justice, and State, the Judiciary,
and Related Agencies Appropriations Act, 2005. Appropriates funds for the State
Criminal Alien Assistance Program (SCAAP). Reported by Appropriations
Committee (S.Rept.108-344) on September 15, 2004.
S. 2810 (Specter). Departments of Labor, Health and Human Services, and
Education, and Related Agencies Appropriations Act, 2005. Includes funding for the
Office of Refugee Resettlement (ORR). Reported by Appropriations Committee
(S.Rept. 108-345) on September 15, 2004.
S. 2845 (Collins). National Intelligence Reform Act of 2004. S.Amdt. 3807
(McCain-Lieberman), adds title on terrorist travel and effective screening, agreed to
in Senate on October 1, 2004; S.Amdt. 3933 (Cantwell), requiring biometric
identification information on travel documents of aliens seeking to enter the United
States, agreed to in Senate, as modified, on October 5, 2004.