Report U.S. Immigration: A Primer for State Policy Makers

Preface

This primer for policymakers is intended to provide a clear and concise introduction to current immigra­tion and refugee policy, trends in state immigration legislation, and key studies that seek to assess fiscal and economic impacts of immigrants in the United States.

Immigration policy remains in flux. Since January 2017, the Trump administration has issued many execu­tive orders and policy changes related to immigrants, refugees and foreign visitors. Several of these chang­es are under review by the courts. Most recently, The Supreme Court of the United States ruled on June 26 to uphold the administration’s third version of the travel ban to the U. S. In Congress, 771 immigration-related bills have been introduced.

On the Horizon

• The Supreme Court of the United States is expected to rule by the end of June on the administration’s third version of the travel ban to the U. S., and the Hawaii and Maryland appeals.
• The House is poised to vote on several immigration bills, including border enforcement, Deferred Action for Childhood Arrivals, and the attorney general’s recent announcement of a “zero tolerance” policy of criminal illegal entry, leading to the separation of children from parents at the U.S.-Mexico border.
• The administration issued an executive order addressing family separation, expected to draw legal challenges and require future legislative action.

“States are coming up with innovative ways to address immigration is­sues—in education, health care, and economic development—that the federal government can learn from to improve our immigration system.”

–Senator René García (R-Fla.), co-chair NCSL Task Force on Immigration and the States

“States see the role immigrants can play in their economies and are able to find common ground in devel­oping local solutions. Ultimately, federal action is needed, and inaction has costs.”

–Senator Mo Denis (D-Nev.), co-chair NCSL Task Force on Immigration and the States

This publication was made possible by the generous support of the John D. and Catherine T. MacArthur Foundation.

Introduction

Immigration is a federal responsibility, set out in the U.S. Constitution under the power of Congress to “es­tablish a uniform rule of naturalization.” It is governed by the president, five executive agencies, and U.S. Supreme Court decisions. In brief, federal immigration law sets the parameters for who and how many foreign-born people can enter the U.S., and the conditions for their work and residence.

State and local governments develop policies that affect immigrants af­ter their arrival, working with federal partners in areas such as refugee resettlement and immigration enforcement, and assisting immigrants in becoming integrated into the nation’s social, political and economic life. State legislatures consider more than 1,200 bills each year related to im­migrants, and on average enact 200 laws relating to budgets, education, employment, driver’s licenses, health and human services, human traf­ficking, and law enforcement.

As federal policymakers debate reform of the U.S. immigration system, common ground and practical lessons can be found at the state level. States have made decisions about eligibility for benefits such as in-state tuition and driver’s licenses, entered into partnerships on criminal immi­gration enforcement and employment verification with the Department of Homeland Security (DHS), and created streamlined paths for profes­sional licenses for immigrant professionals in demand.

This issue brief provides a concise introduction to the U.S. immigration system of permanent, temporary and humanitarian arrivals, as well as unauthorized immigration. Sec­tions cover legal immigration, refugee resettlement, economic and fiscal impacts, and state level demo­graphics and legislation.

Who Comes to the United States?

In FY 2016, almost 1.2 million foreign nationals were admitted to the U.S. as lawful permanent residents. The visa allocation was approximately 68 percent for family visas, 12 percent for employment visas, 10 percent for humanitarian reasons (refugees), 4 percent for diversity visas and 6 percent other.

Immigrants comprise about 13 percent of the U.S. population, or 42 million people out of the total U.S. population of 322 million. Almost one-half are naturalized citizens, 30 percent are lawful permanent residents, and 20 percent are unauthorized immigrants.

In 2016, nearly half of immigrants reported their race as white (46 percent), one fourth as Asian (27 percent), black (9 percent), other (15 percent) and two or more races (2 percent).

Permanent Immigrants: Family, Employment and Diversity Visas

Lawful permanent residents are granted admission for permanent residence to the U.S. on the basis of family relation or job skill. A worldwide limit of 675,000 visas is allowed annually for family (480,000), employment (140,000) and diversity visas (55,000). All applicants must meet U.S. admission requirements. Applicants for permanent immigration are limited by country ceilings. A maximum of 7 percent of the total visas can be issued to a single country each year.

U.S. citizens or lawful permanent residents can sponsor family members to join them in the U.S. The ceiling for family admissions is 480,000, though an unlimited number of visas are available for immediate family (spouses, parents and minor children.) Since it is possible for immediate family members to use all the available visas, 226,000 visas are reserved for other family members, such as adult children, meaning the 480,000 is a “pierceable” cap. Sponsors must submit a legally enforceable affidavit demonstrating they can support their family and the sponsored relative at 125 percent of the federal poverty level.

Employers may petition to bring individuals with special skills into the U.S., at a yearly limit of 140,000. There are five preferences for permanent employment visas:

• First: 40,000 visas for priority workers with “extraordinary” or “outstanding” ability in certain fields (arts, science, education, business or athletics).
• Second: 40,000 visas for persons with advanced degrees or “exceptional” abilities in sciences, art or business.
• Third: 40,000 visas for skilled shortage workers.
• Fourth: 10,000 visas for “special” immigrants, including religious workers.
• Fifth: 10,000 investor visas (known as EB-5).

EB-5 Immigrant Investor Program

The Immigrant Investor program was created under the Immigration Act of 1990 to help attract foreign investment and support job creation in rural or high unemployment areas. Foreign investors can earn permanent residence after two years if they invest a minimum of $1 million, or $500,000 in a targeted employment area (TEA), and create or preserve at least 10 jobs for U.S. workers.

A new investment option was created in 1993—the EB-5 Regional Center. Rather than creating a new business or taking over a troubled business, visa applicants can invest in a pre-approved third party-managed investment vehicle. The regional center can pool EB-5 foreign investment with other foreign and domestic investments. The foreign investor pays fees to the Regional Center for travel, legal fees and commissions. The majority of EB-5 investments are now made in TEAs through Regional Centers. Job creation was redefined to include indirect jobs in addition to direct jobs.

EB-5 visas are capped at 10,000 per year. About 80 percent of investors come from four countries: China, South Korea, Taiwan and the United Kingdom. Others have come from Canada, India, Mexico, Iran, and Japan. Investors may bring their spouses and children under 21 to live, work and study in the U.S. Family members count against the cap.

Figure 1. 2016 Immigrant and Non-Immigrant Visas by Category

Source: Congressional Rsearch Service. CRS presentation of data from the Department of State’s FY1997-2016 NIV Detail Table, https://travel. state.gov/content/travel/en/legal/visa-law0/visa-statistics/nonimmigrant-visa-statistics.html.

Notes: All visa categories include derivatives (i.e., family, dependents). The temporary workers category includes the following visa types: CW, E, H, I, L, O, P, Q, R, TD, and TN.

Diversity Visas

The U.S. also offers 55,000 “diversity” visas each year for individuals in countries that send few immigrants. Applicants must have a high school education or two years of work experience in the last five years. In 2017, 19 million applications were received, double that of a decade ago, according to the Pew Research Center. Visas are granted by a lottery system, with about 20,000 visas granted to residents of Europe and about 20,000 to residents of Africa. Applicants must meet U.S. admission requirements.

Humanitarian Admissions (Refugees and Asylum Seekers)

Refugees seek admission to the United States to flee persecution, and apply outside of the U.S. For example, applicants for asylum apply at the port of entry or after they’ve entered the U.S.

The president, in consultation with Congress, sets the ceiling for refugee visas each year. The FY 2017 ceiling is 45,000, down from 110,000 in 2016. The number of refugees admitted in FY 2015 was 69,933. In 2015, individuals granted asylum totaled 26,124.

Refugees must apply for legal permanent residency after one year’s residence. Those granted asylum may apply for legal permanent residency after one year’s residence.

Naturalization

Legal permanent residents may become naturalized citizens after five years of residence. They must

demonstrate good moral character and knowledge of English and U.S. history and civics. Each year, the

U.S. naturalizes about 700,000-750,000 immigrants.

Temporary Immigrants/Nonimmigrants

Temporary immigrants, known as “nonimmigrants” in U.S. law, are those allowed to enter the United States for a specific purpose, and for a temporary or limited time, and unless specifically authorized, are not permitted to work in the U.S. Nonimmigrant visas are issued for 87 subcategories within 24 major categories, including short-term visitors (tourists), students, business visitors, diplomats, and temporary agricultural and nonagricultural workers.

In 2016, the U.S. Department of State issued 10.4 million nonimmigrant visas. The largest groups included 8 million tourism and business visas, 883,000 temporary workers, 513,000 students, and 380,000 cultural exchange visitors. Descriptions of some of the major temporary worker visas are below.

H-1B Specialty Occupations

U.S. employers can hire highly educated foreign professionals in specialty occupations, often math, engineering or technology, by applying for H-1B visas. The foreign worker must possess at least a bachelor’s degree or its equivalent and state licensure, if required to practice in that field. H-1B work-authorization is limited to employment by the sponsoring employer. These visas are capped at 85,000 visas per year. Congress created an exemption for those with a U.S. master’s degree or higher of an additional 20,000 visas. In 2017, the U.S. Citizen and Immigration Services (USCIS) received 199,000 applications in the first five days of the filing period. Visas are granted by a computer-generated random selection process, or “lottery” system.

H-2A Temporary Agricultural Workers

Agricultural employers who anticipate a shortage of domestic workers can apply for H-2A visas for foreign workers to perform temporary or seasonal agricultural work. H-2A employers must pay inbound and outbound transportation, free housing, and meals for their workers. Employers must apply for and receive

a temporary labor certification for H-2A workers from the U.S. Department of Labor, then request H-2A classification from USCIS. After USCIS approves, prospective H-2A workers must apply for an H-2A visa with the U.S. Department of State at a U.S. Embassy or Consulate abroad. H-2A visas are valid for up to one year and may be extended for up to 3 years. In 2015, nearly 140,000 temporary agricultural worker visas were issued.

Figure 2. H-2A Visas Issued, FY1992 FY2016

Source: CRS Presentation of data from the U.S. Department of State, Consular Affairs

H-2B Temporary Nonagricultural Workers

The H-2B visa nonimmigrant program permits employers to hire foreign workers to perform temporary nonagricultural services or labor on a one-time, seasonal, peak load or intermittent basis. The petitioning employer first applies for a temporary labor certification from the United States Secretary of Labor indicating that: (1) there are not sufficient U.S. workers who are capable of performing the temporary services or labor at the time of filing the petition for H-2B classification and at the place where the foreign worker is to perform the work; and (2) the employment of the foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers. Certification is issued to the employer, not the worker, and is not transferable from one employer to another or from one worker to another.

Congress has set the H-2B cap at 66,000 per fiscal year. One half of the visas are available for the first half of the fiscal year (October-March) and one-half for the second half of the fiscal year (April- September).

Figure 3. H-2B Visas Issued, FY1992 - FY2016

Source: CRS Presentation of data from the U.S. Department of State, Consular Affairs

L-1 Intracompany Visa

The L-1 visa is available to employees of an international company with offices in both the U.S. and abroad. It is valid for a relatively short amount of time, from three months to five years. With extensions, the maximum stay is seven years.

Unauthorized Immigration

An estimated 11 million unauthorized immigrants are currently living in the U.S. About 60 percent enter without inspection and 40 percent overstay their visa. Almost 60 percent of unauthorized immigrants have resided in the U.S. for more than 10 years.

How Is the Immigration System Managed?

The U.S. has an extensive government infrastructure and legislative and regulatory code governing the permanent and temporary admission of foreigners.

The federal responsibility for immigration is shared by the president, five executive departments (U.S. Department of State, U.S. Department of Justice, U.S. Department of Homeland Security (DHS), U.S. Department of Health and Human Services (HHS), and U.S. Department of Labor), and Congress. Article I, Section 8, clause 4 of the U.S. Constitution states that Congress’ power is to “establish an uniform rule of naturalization,” and the U.S. Supreme Court has long held that the power of immigration and naturalization is exclusively within federal jurisdiction.

Congress and the executive branch determine the length of stay for each category. These range from “duration of assignment” for diplomats and journalists; “period of study” for students; six months to one year for visitors; and one, three or six years for the “H” category temporary workers. Separately, visa validity periods are negotiated country by country and category by category, but in general are usually issued for three to six years.

The 10th Amendment states: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Over the last 30 years, court decisions, federal legislation, and migration trends have led to the increased involvement of state and local government in immigrant issues.

U.S. immigration law, first codified in the Immigration and Nationality Act (1952), is said to be the second longest in the U.S. code, after the tax law. Key legislation related to immigration and immigrants:

• The Immigration Act of 1965 replaced the national origins quota with per-country ceilings.
• The Refugee Act of 1980 established a federal-state partnership for a national domestic refugee resettlement program.
• The Immigration Reform and Control Act of 1986 offered legalization to 2.6 million unauthorized migrants, created employer sanctions for hiring illegal workers and provided states with $4 billion to help immigrants through the legalization process.
• The Immigration Act of 1990 capped family visas, reformed employment and nonimmigrant visas, and created diversity visas and Temporary Protected Status.
• The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 added enforcement and penalties on illegal immigration.
• The Personal Responsibility and Work Opportunity and Reconciliation Act of 1996 added new restrictions on legal immigrants’ eligibility for public benefits, and ended most benefits for unauthorized immigrants.

Thirty years have passed since the last major comprehensive immigration reform, covering both legal and unauthorized immigration, was enacted. Congress has tried three times without success in the past decade to advance immigration to more effectively meet the nation’s priorities in national security and economic competitiveness, in 2006 (S2611), 2007 (S.1348), and 2014 (S.744). This year, the Senate voted on four immigration bills in February during a debate on the FY 2019 budget agreement with none acquiring the necessary 60 votes.

Refugee Resettlement in the United States

Who Is a Refugee?

A refugee is defined by the Immigration and Nationality Act as any person outside his or her country who has a “well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.”What Is the U.S. Refugee Resettlement Program?

Congress established the U.S. refugee resettlement program through the Refugee Act of 1980, primarily to provide refuge to those fleeing communism in Russia and Southeast Asia, later expanding to other regions. The program was created as a partnership with state government and nonprofit resettlement agencies to provide cash, medical and social services until refugees became self-sufficient in their new communities.

The president sets an annual refugee ceiling in consultation with Congress. The admissions ceiling for the past decade has ranged from 70,000-80,000. Since the U.S. began accepting refugees in 1975, through 2017, the last full fiscal year, the average number of refugees admitted was 78,865.

The Trump administration set the refugee admission limit for FY 2018 to just 45,000, a decrease of 40,000 from FY 2016 and 5,000 from FY 2017. Refugee admissions have declined dramatically under the Trump administration, falling from 39,098 admitted as of March 2017 to just 10,550 admitted as of March 2018.

Forty-nine states participate in the refugee resettlement program to assist those fleeing persecution to become self-sufficient and integrated into their adopted communities.

Prior to Arrival

More than 60 million people are displaced from their homes because of war or persecution. The resettlement program is available to less than 1 percent of refugees per year. The U.S. is the leading resettlement country in the world, with 29 other countries participating.

The United Nations High Commissioner for Refugees (UNHCR) reviews applications from around the world, registers individuals as refugees and selects for resettlement the most vulnerable refugees who will be unable to return home, such as women head of households, and victims of violence and torture.

Of refugees accepted by the U.S., 75 percent are referred by UNHCR and another 25 percent are direct petition, such as Iraqis who served with the U.S. military.

Once they are referred by UNHCR, DHS must conduct criminal and medical background checks, all while the refugee is still overseas or out of the country. This process is overseen by USCIS. The screening is conducted by the National Counterterrorism Center and the Federal Bureau of Investigation and takes an average of 18 months to complete. Refugees are subjected to the highest level of security check of any traveler to the U.S.

State Department contractors conduct direct interviews with the refugee family to determine: 1) is this family principle applicant eligible under U.S. law based on one of five protected grounds: race, religion, nationality, membership in a particular social group, or political opinion; and 2) is this person admissible under U.S. law.

Refugees can be barred from entering the U.S. on medical grounds, criminal background, national security reasons, or potential to become a public charge (Section 212 of the Immigration and Nationality Act). Refugees are inadmissible if they have contributed money, intelligence, or any other support to any terrorist organization or they themselves have been members of a terrorist organization. Refugee applicants can

also be inadmissible if they are determined to have a communicable disease of public health significance. All applicants must also go through rigorous criminal background checks to prove they did not commit any other crimes such as prostitution, acts of violence violating religious freedom, money laundering, drug trafficking, or human trafficking.

After Arrival

Once the refugee has been approved for admittance to the United States, the Department of State handles overseas processing and contracts with nine national-level voluntary agencies who then coordinate refugee cases with 350 local affiliates in 49 states for initial resettlement. The agencies provide housing and other basic needs for the first 30-90 days with funding from the State Bureau of Population, Refugees and Migration. The State Department contracts require voluntary agencies to consult with stakeholders prior to accepting refugees for resettlement in the states. Refugees are provided with cultural orientation to the United States, assistance during their first 90 days, self-sufficiency, money management, and introduction to the role of law enforcement in the U.S.

The Office of Refugee Resettlement (ORR) in HHS funds domestic refugee resettlement after the initial resettlement. ORR funds states to provide temporary, short-term cash and medical assistance and social services. Each participating state has a refugee coordinator.

After 12 months of refugee status, refugees are required to apply for Lawful Permanent Resident (Permanent Resident Alien).

Figure 4. Refugee Arrivals 1975-2017

Source: Refugee Processing Center, 2017

What Is the Role of States?

States receive funding from the ORR for cash and medical assistance, social services (such as English language and job training), targeted assistance, and preventive health. States either provide services directly or contract with nonprofit organizations to carry out and implement resettlement services.

Thirty-two states administer the funds through state-run offices. Twelve states—Arkansas, Nevada, Idaho, Colorado, South Dakota, North Dakota, Kentucky, Alabama, Tennessee, Louisiana, Massachusetts and Vermont—participate in the alternative Wilson-Fish program, which contracts to nonprofit organizations. Five states—Minnesota, Oregon, Oklahoma, Texas and Maryland—use public-private partnerships to administer the funds. Wyoming does not participate.

Refugees are also eligible for other federally funded benefit programs, if they meet all other requirements, including Supplemental Security Income, Temporary Assistance for Needy Families, and Supplemental Nutrition Assistance Program.

What Is the Budget for the Office of Refugee Resettlement (ORR)?

ORR funds a variety of temporary assistance programs for refugees. The two major areas of support for refugees are Refugee Cash Assistance and Refugee Medical Assistance. ORR also provide funding for employment assistance and citizenship services. Social services include interpretation and translation, citizenship and naturalization classes and support, and various employment and job training services.

Over the last 10 years, cash and medical assistance has averaged $300 million/year and social services

$150 million per year. The ORR budget for FY 2018 is $1.46 billion dollars, including $948 million in funding for unaccompanied migrant children.

Table 1. Refugee and Entrant Assistance - In millions...

Deferred Action for Childhood Arrivals

In 2012, DHS issued the Deferred Action for Childhood Arrivals (DACA) policy to allow young unauthorized immigrants who are low enforcement priorities to remain in the country with temporary lawful status. A person who receives deferred action is considered to be lawfully present and may apply for work authorization. Deferred action is permitted for a renewable period of two years but it does not grant legal immigration status nor a pathway to citizenship. Deferred action under DACA may be terminated if the recipient engages in criminal activity, leaves the country without advanced parole, or if the program is repealed.

The U.S. Citizenship and Immigration Services (USCIS) has granted DACA to individuals residing in all 50 states, the District of Columbia, and U.S. territories including Puerto Rico, Guam and the Virgin Islands. The top 10 states of residence are California, Texas, New York, Illinois, Florida, Arizona, North Carolina, New Jersey, Georgia and Washington. There are more than 25 different countries of origin, with the top 10 countries of origin being Mexico, El Salvador, Guatemala, Honduras, Peru, South Korea, Brazil, Ecuador, Colombia and the Philippines.

An estimated 690,000 immigrant youth have DACA status in 2017. State by state estimates by the Migration Policy Institute can be found here.

Sept. 5, 2017, DHS issued a memorandum rescinding the DACA program. The program was phased out over six months, ending March 5, 2018. Bipartisan legislation (S.1615 and H.R.3440), entitled the Dream Act of 2017, is pending in Congress. On Jan. 9, 2018, a U.S. district judge ordered that DACA recipients be allowed to continue submitting renewal applications pending final decision on the litigation. On April 24, 2018, a federal judge ruled that the government must resume accepting new applications. The judge stayed his decision for 90 days to give DHS the opportunity to better explain its reasoning for canceling the program, and if it fails to do so, it must accept and process all new and renewal DACA applications.

Temporary Protected Status

Established by Congress in 1990, temporary protected status (TPS) is granted to nationals from designated countries affected by armed conflict or natural disaster who are already in the United States. TPS allows persons to live and work in the U.S., though they are not eligible for public benefits or permanent residence status.

Ten countries—El Salvador, Haiti, Honduras, Nepal, Nicaragua, Somalia, South Sudan, Sudan, Syria, and Yemen—are designated for TPS. About 320,000 people have TPS as of 2017, the majority from El Salvador (195,000), Honduras (57,000), and Haiti (46,000). DHS can extend TPS for 6 to 18 months, though some countries have received multiple 18-month extensions.

The protection of 2,500 immigrants from Nicaragua under temporary protected status will terminate on Jan. 5, 2019. TPS for the largest group, 263,280 Salvadorans will terminate on Sept. 9, 2019, and the sec ond-largest group, 45,000 Haitians, will terminate on July 22, 2019. An extension to July 5, 2018 was granted to 86,000 Hondurans.

Child Migrants/Unaccompanied Alien Children

Federal responsibility for unaccompanied children is divided between the DHS and the HHS. Children in DHS custody who are under age 18 without a parent or guardian must be screened to determine if they are victims of trafficking or persecution. Children from Mexico and Canada can either choose to leave voluntarily or be sent home within 48 hours under repatriation agreements. Children from all other countries must be transferred to HHS within 72 hours for court review of their immigration claims. The Office of Refugee Resettlement in HHS reunites the child with family or a friend, or in approximately 10 percent of the cases, places them in foster care. After being placed, every child is put into deportation proceedings. The children may then be granted permission to stay (for example, through family visas, special immigrant juvenile visas or asylum) or be removed from the United States. Court review is required, under a 2008 trafficking law, for children from countries other than Mexico and Canada.

Figure 5. Refugee Processing Center Admissions and Arrivals

Source: GAO; National Atlas (globe)

Trump Administration Travel Ban/Court Cases

President Donald J. Trump attempted on three separate occasions in 2017 to bar the entry of foreign visitors from certain countries that had sponsored acts of international terrorism. Hawaii and Maryland moved to block the order. On Dec. 4, the U.S. Supreme Court announced a temporary stay of the injunctions in the 4th and 9th Circuit (Hawaii and Maryland) court cases, allowing the third executive order to go into effect. The U.S. Supreme Court announced on Jan. 19 that it would review the third version of the travel ban and issue a ruling this June.

On Jan. 29, 2018, the Trump administration announced the implementation of new screening procedures for refugees of certain “high-risk” countries following a 90-day review period during which refugee admissions from these countries were halted. The countries reportedly affected by the new screening procedures include: Egypt, Iran, Iraq, Libya, Mali, North Korea, Somalia, South Sudan, Sudan, Syria, and Yemen. The enhanced security measures include more in-depth interviews with refugee applicants, as well as an expanded exploration of refugee backgrounds and claim verification.

State Legislatures and Immigration Federalism

State governments have been partners in federal immigration policy since the 1980 Refugee Act created a national program and established federal funding to state and nonprofit providers of services such as English and job training to support refugees’ path to self-sufficiency.

The 1986 Immigration Reform and Control Act (IRCA) legalized 2.6 million unauthorized immigrants but barred them from federally-funded benefits for five years. When the bill included no funding to states to cover anticipated health, education and social services expenditures, states successfully proposed an amendment for $4 billion in transitional aid (1988-1994) to help this group of immigrants navigate the lengthy legalization process, learn English and civics, and receive health screening.

State legislation has moved beyond benefits such as social service and nutrition to a wide range of policy arenas–education, employment, driver’s licenses, and enforcement among them. These efforts came about in part because of new federal mandates included in two 1996 laws. The 1996 welfare law created new eligibility standards for legal immigrants’ access to federal benefit programs such as health, public assistance and disability benefits. The 1996 illegal immigration law, while adding penalties on unauthorized immigrants, also included provisions seeking restrictions on state authority to extend state-funded benefits to unauthorized residents, such as in-state tuition rates.

States have significant financial and administrative responsibilities for public services. They fund 91 percent of elementary and secondary education and share financing with the federal government for public health and welfare services for low-income populations. States also fund law enforcement personnel, responsible for public safety for all residents and for cooperation with federal authorities on criminal immigration violations. States have launched integration policies, such as support for English language classes, civic engagement activities, and naturalization programs.

Trends in State Immigration Laws

States have been testing the parameters of their authority and responsibility as Congress continues to be deadlocked on immigration reform. Legislation has ranged across a continuum of immigrant enforcement to immigrant integration measures.

In the 1980s and 1990s, state legislation was focused primarily on benefit eligibility for social services, health and nutrition assistance, in response to the federal immigration and welfare reform laws.

In the 2000s, states began restoring in-state tuition benefits for unauthorized immigrant students, while also adding restrictions on driver’s licenses as a result of the federal REAL ID law.

• Sixteen legislatures—California, Colorado, Connecticut, Florida, Illinois, Kansas, Maryland, Minnesota, Nebraska, New Jersey, New Mexico, New York, Oregon, Texas, Utah, Virginia, and Washington—and the District of Columbia allow unauthorized immigrant students to receive the in-state tuition rate. These laws typically require attendance and graduation at state high schools, acceptance at a state college or university, and promising to apply for legal status as soon as eligible. An additional five university systems in Hawaii, Maine, Michigan, Oklahoma, and Rhode Island established policies to allow in-state tuition for unauthorized immigrant students.
• Twelve states and the District of Columbia enacted laws to allow unauthorized immigrants to obtain a driver’s licenses. These states—California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maryland, Nevada, New Mexico, Utah, Vermont and Washington—issue a license if an applicant provides certain documentation, such as a foreign birth certificate, a foreign passport, or a consular card and evidence of current residency in the state.
• Arizona tested states’ authority in immigration federalism in two U.S. Supreme Court cases: E-Verify in 2007, largely upheld, and immigration law enforcement, largely struck down. Arizona enacted a law in 2007 that mandated use of E-Verify, with severe penalties including suspension or revocation of the employer’s business license. In Chamber of Commerce v. Whiting, the Supreme Court upheld Arizona’s law, finding that it was a licensing law permissible under IRCA.
• Currently, 22 states—Alabama, Arizona, Colorado, Florida, Georgia, Idaho, Indiana, Louisiana, Michigan, Minnesota, Mississippi, Missouri, Nebraska, North Carolina, Oklahoma, Pennsylvania, South Carolina, Tennessee, Texas, Utah, Virginia and West Virginia—require the use of E-Verify for at least some public and/or private employers.

Immigration enforcement was the main trend in 2010-2011. Arizona passed SB1070, adding state penalties relating to immigration law enforcement including trespassing, harboring and transporting illegal immigrants, alien registration documents, employer sanctions, and human smuggling. Five states—Alabama, Georgia, Indiana, South Carolina and Utah—enacted similar legislation in 2011. Courts either partially or wholly enjoined these statutes, and Arizona’s was heard by the U.S. Supreme Court in 2012. The court struck down three of four contested provisions in Arizona v. United States and upheld a provision allowing law enforcement to ask immigration status during a lawful stop.

In 2017-2018, the most recent trends in states have focused on “sanctuary” policies, refugee resettlement, DACA arrivals and professional licenses.

Sanctuary policies. While there is no legal definition for sanctuary policies, the term is applied to jurisdictions that limit cooperation with federal immigration authorities. States and localities often cooperate with federal law enforcement, particularly in criminal investigations, for example under voluntary agreements such as the 287(g) program. Some state and local governments have policies that limit cooperation in civil investigations to support public safety and community policing goals, such as encouraging witnesses and victims of crime to come forward.

In 2017, at least 37 states and the District of Columbia considered more than 120 bills regarding sanctuary jurisdictions or compliance with immigration detainers. Of these, four states––Georgia, Indiana, Mississippi and Texas––enacted legislation requiring cooperation with federal immigration agencies/opposing sanctuary policies, while California, Illinois, Vermont and Washington, D.C. passed measures limiting state enforcement of federal civil immigration laws.

In 2018, about 50 bills were introduced in 15 states. So far in 2018, California has prohibited contracting state facilities to house federal detainees for civil immigration custody (A110), while Iowa requires compliance of law enforcement agencies with federal detainers (S481).

Texas enacted S4 in 2017, which prohibits localities, institutions of higher education, police departments, sheriffs, municipal or county attorneys from adopting policies that prohibit enforcement of state and federal immigration laws. Violations can re-

sult in civil penalties. The law does not apply to hospitals, public health departments, or school districts. Law enforcement must comply with federal detainer requests. In March 2018, a federal appeals court allowed the law to be implemented, overturning a lower court’s injunction. The Court of Appeals struck down a prohibition on officials from “endorsing” a policy that limits enforcement of immigration laws, ruling it a violation of the First Amendment.

Refugees. In 2017, more than half the states considered legislation related to refugee resettlement, seeking additional state control over refugee resettlement, opposing federal executive orders or supporting refugee populations. Few bills were enacted. South Dakota repealed the authority for its department of social services to enter agreements related to the Refugee Act of 1980 and North Dakota allowed for a study of refugees. California,

Illinois, Nebraska, New Jersey and Utah adopted resolutions supporting refugees.

DACA. About two dozen states have bills related to protections for DACA as Congress, the administration and courts sort out whether the DACA program continues administratively, is terminated, or will be codified. In 2018, three states—Connecticut, New Jersey, and Oregon—have extended in-state tuition status to those who had DACA status (CT S4, NJ S699, and OR S1563). States that have barred unauthorized immigrant students from in-state tuition benefits include Alabama (HB56, 2011), Arizona (Proposition 300, 2006), Colorado (HB 1023, 2006), Georgia (SB 492, 2008), South Carolina (HB4400, 2008), and Indiana (H 1402, 2011).

Professional Licenses. State legislators point to their states’ changing demographics and labor shortages as factors in considering ways to reduce barriers to professional licenses for certain populations, such as DACA recipients, legal immigrants and/or unauthorized immigrants. A state’s high median age, the retirement of baby boomers, and shortages in key industries such as construction, health and hospitality are causing states to respond with task forces (Maryland, Minnesota), immigrant offices (Illinois, Michigan), regional coalitions (Midwest), and new education and training.

California in 2014 allowed the licensing board to accept an individual tax identification number in addition to a social security number on an application for a professional license. Florida allowed admission to the state bar if the person arrived in the U.S. as a minor and has employment authorization. The Massachusetts Global Entrepreneur in Residence was created to help foreign students graduating from Massachusetts universities to transition to H-1B visas while launching their own businesses in the state (H4377, 2014). The Minnesota legislature created a Foreign-Trained Physician Task Force in 2014 to assist immigrant international medical graduates to integrate into the Minnesota health care delivery system, in response to physician shortages, an aging and diverse population, persistent health disparities, and rising health care costs. Nebraska allows DACA recipients to receive professional licenses (L947, 2016). Nevada allows school districts to grant teachers’ licenses to immigrants (A27, 2015).

For more information on state laws related to immigration, see NCSL’s searchable database.

Economic and Fiscal Impacts of Immigration

A constant in the debate about immigration to the United States is whether immigrants have a positive or negative impact on national and state budgets and economies. Many studies attempt to assess the fiscal and/or the economic impact of immigrant populations.

The fiscal impact is the difference between the cost of public benefits such as public education, health care, and welfare programs compared to tax revenues from income, sales and property tax. Economic impact is assessed by wages, gross domestic product, employment and investment.

National, Regional and State Studies

The National Academies of Sciences, Engineering and Medicine in 2016 commissioned a panel of experts to review the economic and demographic trends of U.S. immigration, its impact on the labor market and wages of native-born workers, and its fiscal impact at the national, state, and local levels. The panel synthesized hundreds of studies and found immigration to have an overall positive impact on long-run economic growth in the U.S. In the long term, there is little negative impact on wages or employment, but some impact on recent immigrants and those without a high school degree. The Urban Institute’s Kim Rueben, a participant in the study writes that immigrants arrive in their prime working years and help fill the jobs that Americans leave as they age out of the work force. Skilled foreign-born workers boost innovation and productivity, hold more patents, and are more likely to start new businesses than native-born Americans. Government spending and revenues related to immigrants are roughly the same as for the native-born over their lifetime. Children cost more for education, workers pay more in taxes, and older people receive retirement benefits.

Other findings from the NAS study include:

• First-generation immigrants cost more than native-born residents, mainly at the state and local levels, in part due to the costs of educating their children. When these second-generation children grow up, however, they are among the strongest economic and fiscal contributors in the U.S. population, contributing more in taxes than their parents or the native population.
• Immigrants have higher representation in certain occupations requiring high levels of education (science, technology, engineering and health).
• The children of immigrants working in low-status jobs find substantially better paying jobs than their parents had.

Another study looked at the DACA program, which provides temporary residency and work status to unauthorized immigrant youth. While Congress, the administration and the courts are reviewing the DACA program, some raise concerns that these students cost more in benefits, e.g., public education, than they contribute in taxes. The American Action Forum ran the numbers. Their study compares the costs of 690,000 DACA recipients with the tax revenues generated by their economic activity. Their estimate is that DACA recipients cost approximately $7.4 billion and generate an additional $10.8 billion in additional taxes, for a net benefit of $3.4 billion each year. The estimated cost of removing DACA recipients from the U.S. is between $7 and $21 billion.

State lawmakers have questioned how to understand the varying results of fiscal and economic impact studies. The Urban Institute reviewed six studies on the impacts of immigration in 2013 after the Senate passed S.744. The review found:

• Studies address different policies and use a variety of methodologies and assumptions.
• Differences in time horizon can drive differences in findings. Over time, immigrants become eligible for different government benefits, the children of immigrants become adults, new immigrants enter the country, and older immigrants retire from the labor force.
• Studies agree that legalization and increased legal immigration would expand the economy and boost tax revenues. GDP gains range from 0.3 percent to 0.8 percent per year ($83 to $150 billion), depending on the labor force growth stimulated by immigration reform and the increase in earnings of the undocumented immigrants who would be legalized.
• Economic impact studies tend to show positive effects. Fiscal impact studies considering both revenues and outlays show varied results.
• Further analysis of the net fiscal impacts of legalization at the federal, state, and local levels is needed.

The Chicago Council on Global Affairs brought together a bipartisan group of political and civic leaders in The Midwest Immigration Task Force, including former mayors and governors, current and former CEOs, heads of universities, and religious, labor, and civil-society leaders from 12 states in the Midwest. Their consensus report, U.S. Economic Competitiveness at Risk: A Midwest Call to Action on Immigration Re- form, affirmed that “immigrants are hugely important to the economic vitality of Midwestern towns and cities, and to the key sectors that drive the region’s economic growth particularly as the region faces an aging and shrinking native-born workforce.” In a recent blog, MacArthur Foundation senior fellow John Slocum summarized the report’s recommendations:

• Provide more visas for high-skilled and lower-skilled immigrants to meet workforce demand.
• Create new visas for temporary workers to fill hospitality, agriculture, and health care jobs not being addressed by seasonal-employment visas.
• Devise better tools for employers once new legal pathways for hiring are in place.
• Encourage STEM students from U.S. universities to stay and work in the region.
• Monitor visa overstays and improve coordination among law enforcement agencies.
• Provide a permanent answer for children brought to the United States illegally.