Immigration Legislation and Issues in the 111th Congress
Released: 2011-01-18T00:00:00

Introduction

Comprehensive immigration reform was debated in the 109 th and 110 th Congresses, but no comprehensive legislation was enacted. The Speaker of the House and the Senate majority leader pledged to take up immigration reform legislation in the 111 th Congress. In the past, comprehensive bills addressed border security, enforcement of immigration laws within the United States (interior enforcement), employment eligibility verification, temporary worker programs, permanent admissions and, most controversially, unauthorized aliens in the United States. Although the 111 th Congress did not take up a comprehensive reform bill, it did consider a narrower DREAM Act bill to legalize the status of certain unauthorized alien students. On December 8, 2010, the House approved a version of the DREAM Act as an amendment to an unrelated bill, the Removal Clarification Act of 2010 ( H.R. 5281 ), on a vote of 216 to 198. Ten days later, a cloture motion in the Senate to agree to the House DREAM Act amendment failed on a 55-41 vote.

The 111 th Congress considered various other immigration-related measures and enacted a number of targeted immigration provisions. It passed legislation ( P.L. 111-8 , P.L. 111-9 , P.L. 111-68 , P.L. 111-83 ) to extend the life of several immigration programs—the E-Verify electronic employment eligibility verification system, the Immigrant Investor Regional Center Program, the Conrad State J-1 Waiver Program, and the special immigrant visa for religious workers—until September 30, 2012. Among the other subjects of legislation enacted by the 111 th Congress were border security ( P.L. 111-5 , P.L. 111-32 , P.L. 111-83 , P.L. 111-230 , P.L. 111-281 , P.L. 111-376 ), refugees ( P.L. 111-8 , P.L. 111-117 ), and Haitian migrants ( P.L. 111-212 , P.L. 111-293 ).

This report discusses these and other immigration-related issues that received legislative action or were of significant congressional interest in the 111 th Congress. Department of Homeland Security (DHS) appropriations are addressed in a separate report and, for the most part, are not covered here.

Electronic Employment Eligibility Verification

Employment eligibility verification and worksite enforcement have been mainstays of recent debates over comprehensive immigration reform. They are widely viewed as essential components of a strategy to reduce unauthorized immigration.

Under Section 274A of the Immigration and Nationality Act (INA), it is unlawful for an employer to knowingly hire, recruit or refer for a fee, or continue to employ an alien who is not authorized to be so employed. Employers are further required to participate in a paper-based (I-9) employment eligibility verification system in which they examine documents presented by new hires to verify identity and work eligibility, and to complete and retain I-9 verification forms. Employers violating prohibitions on unlawful employment may be subject to civil and/or criminal penalties. Enforcement of these provisions is termed "worksite enforcement." While all employers must meet the I-9 requirements, they also may elect to participate in the E-Verify electronic employment eligibility verification system. E-Verify is administered by DHS's U.S. Citizenship and Immigration Services (USCIS). Participants in E-Verify electronically verify new hires' employment authorization through Social Security Administration (SSA) and, if necessary, DHS databases.

At the start of the 111 th Congress, E-Verify was scheduled to expire on March 6, 2009. Prompted by the approaching expiration, the House and Senate considered several provisions related to electronic employment eligibility verification and enacted a series of extensions. The Omnibus Appropriations Act, 2009 ( P.L. 111-8 ) extended E-Verify until September 30, 2009, and the Continuing Appropriations Resolution, 2010 ( P.L. 111-68 , Division B, §128) extended the program until October 31, 2009. With the enactment of the Department of Homeland Security Appropriations Act, 2010 ( P.L. 111-83 , §547), E-Verify is currently authorized until September 30, 2012. This extension represented a compromise between the House-passed version of the underlying bill ( H.R. 2892 ), which would have extended the program until September 30, 2011, and the Senate-passed version which would have made E-Verify permanent.

P.L. 111-83 also included language on E-Verify that was in both the House-passed and Senate-passed versions of H.R. 2892 to prohibit any funds made available to the DHS Office of the Secretary and Executive Management under the act to be used for any new DHS hires who were not verified through E-Verify (§533). Other E-Verify provisions in the House-passed or Senate-passed versions of H.R. 2892 were not enacted in P.L. 111-83 . The omitted language included two Senate-passed provisions. One would have allowed any employer participating in E-Verify to verify the employment eligibility of existing employees. The other Senate provision would have directed federal departments and agencies to require, as a condition of contracts they entered into, that the contractors use E-Verify to verify the employment eligibility of all individuals hired during the term of the contract to work in the United States and all individuals (whether new hires or existing employees) assigned to perform work in the United States under the contract.

Other bills introduced in the 111 th Congress would have more broadly changed existing law on employment verification. For example, the Secure America Through Verification and Enforcement Act of 2009 (SAVE Act; H.R. 3308 ) would have made E-Verify permanent and would have phased in a requirement that all employers use it to verify the employment authorization of new hires and current employees. A similar bill of the same name ( S. 1505 ) was introduced in the Senate.

Border Security

DHS is charged with protecting U.S. borders from weapons of mass destruction, terrorists, smugglers, and unauthorized aliens. Border security involves securing the many means by which people and things can enter the country. Operationally, this means controlling the official ports of entry (POE) through which legitimate travelers and commerce enter the country, and patrolling the nation's land and maritime borders to safeguard against and interdict illegal entries.

Border security was an important immigration issue for the 111 th Congress. There was much debate about whether DHS had sufficient resources to fulfill its border security mission. A number of bills were introduced that would have added resources for Customs and Border Protection (CBP), the lead agency at DHS charged with securing U.S. borders at and between official ports of entry (POE). At ports of entry, CBP officers are responsible for conducting immigration, customs, and agricultural inspections on entering aliens. Between ports of entry, the border patrol, a component of CBP, enforces U.S. immigration law and other federal laws along the border. In the course of discharging its duties, the border patrol patrols over 8,000 miles of U.S. international borders with Mexico and Canada and the coastal waters around Florida and Puerto Rico. The following discussion focuses on key provisions on border resources that were enacted by the 111 th Congress and selected other provisions.

Resources at Ports of Entry

The American Recovery and Reinvestment Act of 2009 (ARRA; P.L. 111-5 ) provided an emergency supplemental appropriation of $680 million for CBP during FY2009. The funding for CBP included $160 million for salaries and expenses, of which $100 million was designated for the procurement and deployment of nonintrusive inspection technology and $60 million was designated for the procurement and deployment of tactical communications equipment and radios. The act included $420 million for the construction and modification of ports of entry.

In response to the drug-related violence on the Mexican side of the Southwest border, Congress appropriated additional resources for border activities. Title VI of the FY2009 Supplemental Appropriations Act ( P.L. 111-32 ) contained $140 million to support activities along the Southwest border with Mexico in response to reports of increasing drug-related violence. This funding included $40 million for CBP for various activities and $5 million for CBP Air and Marine to support additional air operations along the Southwest border. Moreover, the FY2010 DHS Appropriations bill ( P.L. 111-83 ) included funding for 50 additional CBP Officers and 10 support positions to enhance the Southwest border outbound operations.

On August 13, 2010, the President signed into law P.L. 111-230 , making $600 million in FY2010 emergency supplemental appropriations available for border security, of which $394 million was allocated to DHS, $196 million to the Department of Justice (DOJ), and $10 million to the federal judiciary. Within DHS, P.L. 111-230 provided CBP with a total of $306 million, including $39 million for CBP officers at ports of entry on the Southwest border and $10 million to support integrity and background investigation programs. The remaining funding for DHS was to be focused largely on efforts between ports of entry, as discussed below.

Another CBP-related law, the Anti-Border Corruption Act of 2010 ( P.L. 111-376 ), requires that within two years after enactment all applicants for law enforcement positions within CBP receive polygraph examinations before being hired. In addition, the act requires that that CBP initiate background reinvestigations for all of its law enforcement personnel within 180 days of enactment.

Resources Between Ports of Entry

Legislation related to border patrol resources garnered some attention in the 111 th Congress. For example, P.L. 111-83 funded the hiring in FY2010 of an additional 100 border patrol agents (and 23 associated support personnel), and the ARRA included $100 million for the deployment of SBInet technology to the border. The Administration requested $574 million for the deployment of SBInet-related technologies and infrastructures in FY2011, a decrease of $226 million over the FY2010 enacted level of $800 million. This reduction occurred, in part, because the management and deployment of SBInet had come under scrutiny. DHS Secretary Napolitano ordered a department-wide assessment of the SBInet technology project, but continued to support the deployment of border supervision and protection technologies.

Additionally, P.L. 111-83 imposed reporting requirements on the Secretary of Homeland Security to identify "additional border patrol sectors that should be utilizing Operation Streamline programs" and the resources needed to make the program more effective, and to report on improvements of cross-border inspection processes. The Coast Guard Authorization Act of 2010 ( P.L. 111-281 ) included provisions to establish a program in the maritime environment for the mobile biometric identification of suspected individuals, and to conduct a cost analysis of expanding the Coast Guard's biometric identification capabilities for use by other DHS maritime vessels and units. This law also directed the Secretary of Homeland Security to study the use by the Coast Guard and other DHS agencies of a combination of biometric technologies, including facial and iris recognition and emerging biometric technologies, to identify individuals for security purposes. Maritime biometric identification was also the subject of another bill passed by the House ( H.R. 1148 ).

As mentioned above, P.L. 111-230 provided DHS with a total of $394 million in FY2010 emergency supplemental funding, including $306 million for CBP. The majority of this CBP funding was allocated to border patrol activities between ports of entry, with $176 million provided for additional border patrol agents, $14 million for tactical communications, $32 million for unmanned aerial vehicle (UAV) acquisition and deployment, and $6 million for the construction of forward-operating bases for the border patrol. Outside CBP, the DHS funding in P.L. 111-230 included $80 million for Immigration and Customs Enforcement (ICE), of which $30 million was directed toward efforts to reduce the threat of violence along the Southwest border and $50 million was for additional ICE personnel. Additionally, $8 million was designated for CBP and ICE basic training at the Federal Law Enforcement Training Center (FLETC).

Barriers at the Border

Congress has repeatedly shown interest in the deployment of barriers along the U.S. international land border. In 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), which, among other provisions, explicitly gave the Attorney General broad authority to construct barriers along the border and specified where fencing was to be constructed. In 2008, Congress included provisions in P.L. 110-161 requiring DHS to construct reinforced fencing or other barriers along not less than 700 miles of the Southwest border, in locations where fencing was deemed most practical and effective. In carrying out this requirement, the Secretary was further directed to identify either 370 miles or "other mileage" along the Southwest border where fencing would be most practical and effective in deterring smugglers and illegal aliens, and to complete construction of fencing in identified areas. Although no legislation to amend this requirement moved beyond committee referral in the 111 th Congress, border fencing continued to be a source of contention in Congress as numerous Members called for the deployment of at least 700 miles of double-layered fencing designed to delay and deter pedestrian crossings.

Unauthorized Immigration

Unauthorized immigration remains a vexing issue for policymakers. The number of unauthorized aliens living in the United States in early 2009 was estimated at about 11 million. While many observers believe that the unauthorized alien population is decreasing, the sheer number of such aliens commands attention and has elicited a range of ideas about the appropriate policy response. Some legislative proposals in the 111 th Congress for addressing the unauthorized population focused on enforcement and included provisions on border security, worksite and other interior enforcement, and employment eligibility verification. H.R. 3308 and S. 1505 in the 111 th Congress were examples of these types of proposals.

Other policymakers have taken a different approach and support some type of legalization program for unauthorized aliens—which they often term "earned adjustment"—sometimes in combination with enforcement measures. Legalization programs were included in some of the comprehensive immigration reform bills considered in the 109 th and 110 th Congresses, and were featured in some measures before the 111 th Congress, such as the Comprehensive Immigration Reform for America's Security and Prosperity (CIR ASAP) Act of 2009 ( H.R. 4321 ). Other bills before the 111 th Congress containing legalization programs included similar Senate and House Agricultural Job Opportunities, Benefits, and Security (AgJOBS) Acts of 2009 ( S. 1038 , H.R. 2414 ) and the DREAM Act bills discussed in the next section.

Unauthorized Students

Unauthorized alien students compose a subpopulation of the larger unauthorized alien population in the United States. Legislation commonly referred to as the "DREAM Act" (whether or not a particular bill carries that name) was introduced in the past several Congresses to provide relief to this group in terms of both educational opportunities and immigration status. In the aftermath of failed efforts to enact comprehensive immigration reform in the 110 th Congress, some supporters of comprehensive reform argued for an incremental approach, in which components of reform, such as DREAM Act legislation, would be pursued individually. An attempt in the Senate to enact a DREAM Act bill in the 110 th Congress ( S. 2205 ) was unsuccessful.

Multiple DREAM Act bills (including S. 729 , S. 3992 , H.R. 1751 , and H.R. 6497 ) were introduced in the House and Senate in the 111 th Congress. While the bills differed, they all would have enabled eligible unauthorized students to obtain legal permanent resident (LPR) status in the United States through a two-stage process. In the first stage under all the bills, eligible aliens would have gone through an immigration procedure known as "cancellation of removal" to obtain a conditional legal status. Some of the bills also would have repealed a provision of current law (§505 of the Illegal Immigration Reform and Immigrant Responsibility Act) that restricts the ability of states to provide postsecondary educational benefits to unauthorized aliens. In the 111 th Congress, the House approved a version of the DREAM Act as an amendment to an unrelated bill, the Removal Clarification Act of 2010 ( H.R. 5281 ), on a vote of 216 to 198. The House-approved language, which was the same as H.R. 6497 , did not include the §505 repeal. Unlike most of the other DREAM Act bills introduced in the 111 th Congress, the House-approved version of the DREAM Act would have required beneficiaries to pay surcharges, submit biometric data, and satisfy federal tax liabilities, among other requirements. A cloture motion in the Senate to agree to the House DREAM Act amendment failed on a 55-41 vote on December 18, 2010.

U.S. Refugee Program

The admission of refugees to the United States is a perennial immigration issue. Refugee admission and resettlement are authorized by the INA. Under the INA, a refugee is a person who is outside his or her country and who is unable or unwilling to return because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. Refugees are processed and admitted to the United States from abroad. The Department of State (DOS) handles overseas processing of refugees, and DHS/USCIS makes final determinations about eligibility for admission. After one year in refugee status in the United States, refugees are required by law to apply to adjust to LPR status (see " Other Legislation Receiving Action " section below for related legislation).

The Foreign Relations Authorization Act, Fiscal Years 2010 and 2011 ( H.R. 2410 ), as passed by the House, proposed a number of changes to the U.S. refugee admissions and resettlement program. Division A, Title II, Subtitle C of the bill would have authorized the admission of refugees at the start of a fiscal year, as specified, in the absence of a timely presidential determination setting the refugee ceiling for that year. It would have directed DOS to expand the training of U.S. embassy and consular personnel and nongovernmental organizations to enable them to refer individuals to the refugee admissions program. It also would have required DOS to establish overseas programs in the English language and in cultural and work orientation for refugees who were approved for U.S. resettlement. A Senate bill ( S. 3113 ), which was the subject of a Senate Judiciary Committee hearing, would have made various changes to the refugee admissions and asylum processes.

Special legislative provisions facilitate relief for certain refugee groups. The "Lautenberg amendment," first enacted in 1989 and regularly extended, requires the Attorney General (now the Secretary of DHS) 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. 108-199 amended the Lautenberg amendment to add a new provision, known as the "Specter amendment," to direct the Attorney General to establish categories of Iranian religious minorities who may qualify for refugee status under the Lautenberg amendment's reduced evidentiary standard. P.L. 111-8 (Division H, Title VII, §7034(g)) extended the Lautenberg amendment through FY2009, and the Consolidated Appropriations Act, 2010 ( P.L. 111-117 , Division F, Title VII, §7034(f)), extended it through FY2010. The 111 th Congress did not pass legislation to re-enact the Lautenberg amendment for FY2011.

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 the amendment for FY2002 and FY2003. Among its provisions, this law enabled adult children previously denied resettlement to have their cases reconsidered. The amendment, as revised, was regularly extended in subsequent years. P.L. 110-161 (Division J, §634(f)) extended the amendment through FY2009, and in the 111 th Congress, P.L. 111-8 (Division H, Title VII, §7034(d)) extended it through FY2010. This latter extension, however, was repealed by P.L. 111-117 (Division F, Title VII, §7034(d)), and the McCain amendment is no longer in effect.

Beyond the formal refugee program, other immigration mechanisms have been established over the years to facilitate the admission to the United States of foreign nationals who have worked for or been closely associated with the U.S. government, including the U.S. military. The 111 th Congress created one such program for refugee-like Afghans as part of P.L. 111-8 (see " Special Immigrants " section below).

Refugee Resettlement Funding

The Department of Health and Human Services' Office of Refugee Resettlement (HHS/ORR), within the Administration for Children and Families, administers an initial transitional assistance program for temporarily dependent refugees and Cuban/Haitian entrants. P.L. 111-117 (Division D, Title II) provided $730.9 million for refugee assistance for FY2010. For FY2011, the President requested $877.6 million for refugee assistance. Needy refugees are also eligible for federal public assistance programs.

Haitian Migration

The devastation caused by the January 12, 2010, earthquake in Haiti focused world attention on the humanitarian crisis and prompted U.S. leaders to reconsider policies on Haitian migration. On January 15, 2010, DHS Secretary Janet Napolitano announced that Haitians who were in the United States at the time of the earthquake would be given Temporary Protected Status (TPS), a temporary status that provides protection from removal. A separate DHS program was established to grant humanitarian parole to enter the United States to certain Haitian children who were in the process of being adopted by U.S. residents prior to the earthquake (see " Haitian Adoptions " section below).

The Supplemental Appropriations Act, 2010 ( P.L. 111-212 ) provided $220 million to HHS to provide services and extend various benefits to Haitian evacuees and migrants, and $10.6 million for USCIS costs associated with processing the Haitian migrants.

A related issue for the 111 th Congress concerned Haitians with approved petitions to immigrate to the United States who were waiting for visas to become available. The Haitian Emergency Life Protection Act of 2010 ( S. 2998 / H.R. 4616 ) would have amended the INA to allow Haitian nationals whose petitions for a family-sponsored immigrant visa were approved on or before January 12, 2010, to obtain a nonimmigrant (temporary) V visa. The V visa, which is currently available only to certain spouses and children of LPRs who are themselves petitioning for LPR status, enables beneficiaries to legally enter the United States to wait for their petitions to be approved or their visas to become available. No legislative action was taken on these bills.

International Adoptions

In intercountry adoptions, the law and process differ depending on whether the child being adopted is from a country where the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (the Convention) has entered into force or is from a non-Convention country. P.L. 111-287 attempts to eliminate some of these differences. Among its provisions to equalize Convention and non-Convention country requirements, P.L. 111-287 exempts adopted children emigrating from Convention countries from the requirement that they receive certain inoculations before admission to the United States. Previously, only adopted children from non-Convention countries were exempt from this requirement.

In addition, P.L. 111-287 amended the INA to permit the adoption of a child aged 16 or 17 from a Convention country by a U.S. citizen if the child's sibling has been adopted by that citizen. The provision is retroactive to April 1, 2008. Prior to the enactment of P.L. 111-287 , the adoption of a child aged 16 or 17 from a non-Convention country by a U.S. citizen was permissible if the child's sibling was adopted by that citizen when he or she was under the age of 16. Siblings from Convention countries had to be under the age of 16 to be adopted.

Two other bills considered in the 111 th Congress— H.R. 5532 , as passed by the House, and S. 2971 , as reported by the Senate Foreign Relations Committee—would have also exempted adopted children emigrating from Convention countries from the requirement that they receive certain inoculations before admission to the United States. In addition, H.R. 5532 would have more broadly amended the definition of child under the INA to allow for the adoption of children under the age of 18.

Haitian Adoptions

In response to the January 12, 2010, earthquake in Haiti, USCIS established a temporary program to give parole to (1) Haitian children who were legally confirmed as orphans eligible for intercountry adoption by the government of Haiti and who were in the process of being adopted by U.S. citizens prior to the earthquake, and (2) certain Haitian children who were identified by an adoption service provider or facilitator as eligible for intercountry adoption and who were matched with prospective American adoptive parents prior to January 12, 2010. To be eligible for the program, an application for the child had to be filed by April 15, 2010. Under most circumstances, when adopted children immigrate to the United States, they are admitted as LPRs and then automatically acquire U.S. citizenship.

P.L. 111-293 made the children who were paroled into the country under the program for Haitian orphans eligible to immediately adjust to LPR status. Since parole does not confer any immigration status, prior to the enactment of P.L. 111-293 the children granted parole under this program would have needed to live with their families in the United States for two years before they would have been eligible to become LPRs (and U.S. citizens).

Special Immigrants

The permanent employment-based immigration system consists of five preference categories. The fourth preference category is known as "special immigrants." Over the years, the special immigrant category has been used to confer immigration benefits on particular groups. There are various subcategories of special immigrants under current law. The 111 th Congress acted to extend an existing special immigrant program for religious workers and to create a new one for certain Afghans employed by, or on behalf of, the U.S. government.

Religious workers

Ministers of religion and religious workers make up the largest number of special immigrants. Religious work is currently defined as habitual employment in an occupation that is primarily related to a traditional religious function and that is recognized as a religious occupation within the denomination. While the INA provision for the admission of ministers of religion is permanent, the provision admitting religious workers has always had a sunset date. The provision is currently set to expire on September 30, 2012, in accordance with P.L. 111-83 (§568(a)).

Afghan Allies

P.L. 111-8 (Division F, Title VI) authorizes DHS or DOS, in consultation with DHS, to provide special immigrant status to certain nationals of Afghanistan. An Afghan is eligible if he or she was employed by or on behalf of the U.S. government in Afghanistan on or after October 7, 2001, for not less than one year; provided documented valuable service to the U.S. government; and has experienced "an ongoing serious threat as a consequence of the alien's employment by the United States government." This special immigrant program is capped at 1,500 principal aliens (excluding spouses and children) annually for FY2009 through FY2013. It is modeled on a special immigrant program established for Iraqis in the 110 th Congress.

Other Issues and Legislation

Birthright Citizenship

Over the past decade or so, concern about illegal immigration has sporadically led to a reexamination of a long-established tenet of U.S. citizenship, codified in the Citizenship Clause of the Fourteenth Amendment of the U.S. Constitution and §301(a) of the INA, that a person who is born in the United States, and subject to its jurisdiction, is a citizen of the United States regardless of the race, ethnicity, or alienage of the parents. The war on terror and the case of Yaser Esam Hamdi, a U.S.-Saudi dual national captured in Afghanistan fighting with Taliban forces, further heightened attention and interest in restricting automatic birthright citizenship, after the revelation that Hamdi was a U.S. citizen by birth in Louisiana to parents who were Saudi nationals in the United States on nonimmigrant work visas and arguably entitled to rights not available to foreign enemy combatants. More recently, some Members have supported introducing legislation that would revise or reinterpret the Citizenship Clause, or at least holding hearings for a serious consideration it. Furthermore, some state legislators have voiced support for state legislation that would deny birth certificates to persons born to undocumented aliens, with state legislators from Arizona and 14 other states reportedly planning to unveil model legislation in January 2011, intending to set the stage for a U.S. Supreme Court review of the Citizenship Clause. However, some legal scholars think it is unlikely that the Supreme Court will hear such a case.

In the 111 th Congress, H.R. 126 ; §301 of H.R. 994 ; H.R. 1868 ; §7 of H.R. 5002 ; and S.J.Res. 6 would have amended the Constitution and/or the INA to exclude from citizenship at birth, persons born in the United States whose parents were unlawfully present in the United States or were nonimmigrant aliens. No legislative action was taken on any of these measures.

Immigrant Investor Regional Center Program

There is currently one immigrant visa set aside specifically for foreign investors (immigrant investors) coming to the United States. Immigrant investors comprise the fifth employment-based preference category, and the visa is commonly referred to as the EB-5 visa. In 1992, a pilot program was authorized under the EB-5 visa category to achieve the economic activity and job creation goals of that category by encouraging investment in economic units known as Regional Centers. These Regional Centers were designed to more easily facilitate investment, as well as target investment toward specific geographic areas. This pilot program has been extended multiple times, most recently through September 30, 2012, by P.L. 111-83 (§548). The Senate-passed version of the act had included language to permanently reauthorize the EB-5 Regional Center Program but this language was not included in the conference agreement. In July 2009, the Senate Judiciary Committee held a hearing to assess the Regional Center Program.

Widow Penalty in Permanent Admissions

A provision of P.L. 111-83 (§568(c)) repeals the so-called "widow penalty." This penalty was the termination of a pending immigrant relative petition for an alien spouse and of a related, pending application for LPR adjustment of status or an immigrant visa, upon the death of the U.S. citizen spouse, when the couple had been married less than two years. In cases where only the first half of the process had been completed (i.e., the immigrant relative petition had been approved), the petition could be revoked where the related application for LPR status had not been granted or where the alien spouse had not been admitted into the United States on an immigrant visa. This penalty resulted from USCIS's interpretation of the statutory definition of "immediate relative." USCIS interpreted the definition to mean that an alien spouse ceased to be married to a U.S. citizen and to be an "immediate relative" of a U.S. citizen upon the death of the U.S. citizen spouse. Where a couple had been married at least two years at the time of a U.S. citizen's death, however, USCIS converted the immigrant petition filed by a U.S. citizen for an alien spouse into a self-petition by the surviving spouse.

The new law enables the surviving alien spouse of a deceased U.S. citizen to self-petition for an immigrant visa/adjustment to LPR status regardless of the length of the marriage as long as the petition is filed within two years of the U.S. citizen's death and the surviving alien spouse has not remarried. As of the date of this report, USCIS has not issued new regulations, although it has issued revised guidelines implementing the new law. USCIS has also issued a draft policy memorandum on which the American Immigration Lawyers Association has commented, but apparently no final memorandum has been issued as of the date of this report. USCIS may extend its practice of converting any pending petitions filed by a U.S. citizen spouse before death into a self-petition for the surviving alien spouse, to include the petitions of previously ineligible alien spouses who were married for less than two years. An alien whose U.S. citizen spouse died before P.L. 111-83 was enacted, and who was previously ineligible to self-petition because of the widow penalty, can now self-petition as long as the petition is filed within two years of October 28, 2009, and the alien has not remarried.

In addition to repealing the widow penalty, the new law ( P.L. 111-83 , §568(d)) provides similar relief for surviving relatives who were the beneficiaries or derivative beneficiaries of pending or approved petitions for an immigrant visa/adjustment to LPR status immediately before the death of the relative who was the petitioner or primary beneficiary of the petition. Instead of being terminated or revoked, petitions will be adjudicated despite the death of the relative, as long as the surviving relatives resided in the United States at the time of the death and have continued to reside in the United States. Surviving relatives include the spouse, parent, or minor child of a U.S. citizen; other relatives of a U.S. citizen/LPR eligible for family preference immigrant visas; dependents/derivative beneficiaries of an employment-based immigrant; refugee or asylee relatives; and a dependent/derivative beneficiary of a T (trafficking) or U (crime victim) visa non-immigrant.

Prior to the repeal of the widow penalty, several lawsuits, including a class-action lawsuit, challenged the widow penalty on the grounds that, under the INA, a widowed, surviving spouse still qualifies as an immediate relative for the purpose of an immigrant petition and related, pending LPR/visa application, and that therefore the petition should not be terminated. Some of these lawsuits reportedly are still pending. The class action lawsuit has been settled in accordance with new USCIS guidelines implementing the new statute, essentially ordering plaintiffs claims to be processed in accordance with the new statute, as implemented under USCIS guidelines. Class members whose petitions/applications have been denied may have their cases reopened without filing a new application or formal motion with the accompanying fees. Class members are persons with petitions/applications pending or adjudicated by administrative or judicial action in the Ninth Circuit or persons who were residing in the Ninth Circuit at the time of the citizen spouse's death.

The new statute resolves the issue presented in a petition for certiorari arising in the Third Circuit that was pending before the U.S. Supreme Court. The issue presented by the petition was whether a noncitizen spouse is automatically disqualified from classification as a "spouse" under the "immediate relative" provision of the INA, notwithstanding a duly filed petition by the citizen spouse, where the couple was married for less than two years at the time of the citizen's death and immigration officials had not yet acted on the petition. The new statute reportedly enabled the petitioner in this case to obtain lawful permanent resident status. The petition was subsequently dismissed upon the joint motion of all parties to the case, pursuant to the Court rules.

In response to the new statute and the litigation, USCIS has issued (1) a memorandum providing updated guidance for processing immigrant/LPR petitions of surviving spouses of deceased U.S. citizens and amending the USCIS Adjudicator's Field Manual, (2) a fact sheet, and (3) an updated petition form.

Waivers for Foreign Medical Graduates

Foreign medical graduates (FMGs) may enter the United States on J-1 nonimmigrant visas in order to receive graduate medical education and training. Such FMGs must return to their home countries after completing their education or training for at least two years before they can apply for certain other nonimmigrant visas or LPR status, unless they are granted a waiver of the foreign residency requirement. States are able to request waivers on behalf of FMGs under a temporary program, known as the Conrad State Program. Established by a 1994 law, this program initially applied to aliens who acquired J status before June 1, 1996. The Conrad State Program has been extended several times, most recently by P.L. 111-83 (§568(b)), which makes the program applicable to aliens who acquire J before September 30, 2012.

Alien Smuggling

Some contend that the smuggling of aliens into the United States constitutes a significant risk to national security and public safety. Because smugglers facilitate the illegal entry of persons into the United States, some maintain that terrorists may use existing smuggling routes and organizations to enter undetected. In addition to generating billions of dollars in revenue for criminal enterprises, alien smuggling can lead to other collateral crimes. The main alien smuggling statute (INA §274) delineates the criminal penalties, asset seizure rules, and prima facie evidentiary requirements for smuggling offenses.

Section 917 of P.L. 111-281 increases the penalties and limits certain defenses in 18 U.S.C. §2237 for individuals on a maritime vessel who fail to heed the orders of a federal law enforcement officer to stop the vessel, or who obstruct boarding by or give false information to federal law enforcement authorities, if the offense is committed in the course of violating INA §274 or certain other provisions related to human trafficking. During the 111 th Congress, the House also passed the Alien Smuggling and Terrorism Prevention Act of 2009 ( H.R. 1029 ), which would have amended the alien smuggling provisions of both the INA and Title 18 of the U.S. Code. It would have essentially expanded the scope of activity prohibited under INA §274. It would, for example, have added a provision to INA §274 affirmatively asserting extraterritorial jurisdiction for acts of alien smuggling. This proposal would also have strengthened the criminal penalties for various smuggling offenses. The bill would also have made amendments to 18 U.S.C. §2237 similar to those made by P.L. 111-281 . The SAVE Act ( H.R. 3308 , S. 1505 ) would have essentially made the same amendments as H.R. 1029 to both the INA and Title 18 of the U.S. Code and, furthermore, would have increased investigative personnel for alien smuggling and established a reward program for information leading to an arrest and conviction for commercial alien smuggling.

Other Legislation Receiving Action

Temporary Professional Specialty (H-1B) Workers and Intracompany Transferees (L)

P.L. 111-5 included a provision (Division A, Title XVI, §1611) that requires H-1B employers receiving Troubled Asset Relief Program (TARP) funding to comply with the more rigorous labor market rules of H-1B dependent companies. This provision is scheduled to sunset in February 2011.

P.L. 111-230 temporarily increased the L visa (intracompany transfer) nonimmigrant application filing fee and the fraud prevention and detection fee by $2,250 for applicants that employ 50 or more employees in the United States if more than 50% of the applicant's employees are H-1B or L nonimmigrants. It also increased the H-1B visa application filing fee and the fraud prevention and detection fee by $2,000 for applicants that employ 50 or more employees in the United States if more than 50% of the applicant's employees are H-1B or L nonimmigrants. Generally, the nonimmigrant filing fees are deposited into the Examinations Fee Account, and the fraud prevention and detection fees are deposited into the H-1B and L Visa Fraud Prevention and Detection Fee Account. However, these new fee increases, which are in effect until September 30, 2014, are to be deposited into the General Fund of the Treasury to offset P.L. 111-230 's increase in appropriated funds for border security, as discussed above.

Foreign Students

P.L. 111-306 amended the INA to require that any language training program that accepts foreign students entering on F visas be accredited by an accrediting agency recognized by the Secretary of Education. Under regulations that predated the enactment of this law, a language training program had to show that it was a licensed, approved, or accredited program as a condition of accepting foreign students.

Victims of Violence and Trafficking

The Improving Assistance to Domestic and Sexual Violence Victims Act of 2009 ( S. 327 ) proposed to amend the Violence Against Women Act of 1994 and the Omnibus Crime Control and Safe Streets Act of 1968 to expand victim protections. As reported by the Senate Judiciary Committee, S. 327 included provisions related to T nonimmigrants (victims of severe forms of trafficking) and U nonimmigrants (individuals who have experienced substantial physical or mental abuse as a result of having been victims of certain criminal activities).

Refugee and Asylee Adjustments of Status

After living in the United States for one year, aliens admitted as refugees are required to apply for adjustment to LPR status and aliens granted asylum may apply for adjustment to LPR status. Under INA §209, one year of physical presence in the United States is a requirement for asylees and refugees to adjust status. The Refugee Opportunity Act ( S. 2960 ), as reported by the Senate Judiciary Committee, would have amended the INA to add an exception to the one-year physical presence requirement for adjustment of status for certain refugees and asylees who were employed overseas for up to one year by the U.S. government or a U.S. government contractor. These aliens would have been required to meet other conditions for adjustment to LPR status. S. 3113 also would have amended INA provisions on refugee and asylee adjustment of status.

LPR Return of Talent Program

The Return of Talent Act ( S. 2974 ), as reported by the Senate Judiciary Committee, would have amended the INA to establish a process to enable LPRs to temporarily return to their countries of origin to take part in post-conflict or natural disaster reconstruction activities or to temporarily provide medical services in a needy country, as specified. During the temporary absence, the LPR would have been considered to be physically present and residing in the United States for naturalization purposes. This visa category would have been capped at 1,000 aliens annually.

Immigration Relief for Immediate Family of Victims of September 11, 2001

The September 11 Family Humanitarian Relief and Patriotism Act of 2009 ( H.R. 3290 ), as reported by the House Judiciary Committee, would have enabled certain spouses and children of aliens who died as a direct result of the September 11 terrorist attacks to adjust to LPR status. These adjustments of status would not have counted against the numerical limits in the INA. A similar bill ( S. 1736 ) was introduced in the Senate, but received no action.