U.S. Congress - Text of H.R.1645 as Introduced in House Security Through Regularized Immigration and a Vibrant Economy Act of 2007
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Donate NowH.R.1645 - Security Through Regularized Immigration and a Vibrant Economy Act of 2007
To provide for comprehensive immigration reform, and for other purposes.
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HR 1645 IHCommentsClose CommentsPermalink
To provide for comprehensive immigration reform, and for other purposes.CommentsClose CommentsPermalink
March 22, 2007
Mr. GUTIERREZ (for himself, Mr. FLAKE, Mr. BACA, Mr. LINCOLN DIAZ-BALART of Florida, Mr. EMANUEL, Mr. RADANOVICH, Ms. JACKSON-LEE of Texas, Mr. LAHOOD, Mr. CROWLEY, Mr. MARIO DIAZ-BALART of Florida, Ms. GIFFORDS, Ms. ROS-LEHTINEN, Ms. SCHAKOWSKY, Mr. FORTUN.AE6O, Mr. BECERRA, Mr. CARDOZA, Mr. CUELLAR, Mr. GONZALEZ, Mr. GRIJALVA, Mr. HINOJOSA, Mrs. NAPOLITANO, Mr. ORTIZ, Mr. PASTOR, Mr. REYES, Mr. RODRIGUEZ, Ms. ROYBAL-ALLARD, Mr. SALAZAR, Mr. SERRANO, Mr. SIRES, and Ms. SOLIS) introduced the following bill; which was referred to the Committee on the Judiciary, and in addition to the Committee on Homeland Security, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concernedCommentsClose CommentsPermalink
To provide for comprehensive immigration reform, and for other purposes.CommentsClose CommentsPermalink
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,CommentsClose CommentsPermalink
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title- This Act may be cited as the `Security Through Regularized Immigration and a Vibrant Economy Act of 2007' or as the `STRIVE Act of 2007'.CommentsClose CommentsPermalink
(b) Table of Contents- The table of contents for this Act is as follows:CommentsClose CommentsPermalink
Sec. 1. Short title; table of contents.CommentsClose CommentsPermalink
Sec. 2. Reference to the Immigration and Nationality Act.CommentsClose CommentsPermalink
Sec. 3. Definitions.CommentsClose CommentsPermalink
Sec. 4. Severability.CommentsClose CommentsPermalink
Sec. 5. Certification requirements prior to implementation of the New Worker Program and the conditional nonimmigrant classification.CommentsClose CommentsPermalink
TITLE I--BORDER ENFORCEMENT
Subtitle A--Assets for Controlling United States Borders
Sec. 101. Enforcement personnel.CommentsClose CommentsPermalink
Sec. 102. Technological assets.CommentsClose CommentsPermalink
Sec. 103. Infrastructure.CommentsClose CommentsPermalink
Sec. 104. Ports of entry.CommentsClose CommentsPermalink
Sec. 105. Secure communication.CommentsClose CommentsPermalink
Sec. 106. Unmanned aerial vehicles.CommentsClose CommentsPermalink
Sec. 107. Surveillance technologies programs.CommentsClose CommentsPermalink
Subtitle B--Border Security Plans, Strategies, and Reports
Sec. 111. Surveillance plan.CommentsClose CommentsPermalink
Sec. 112. National Strategy for Border Security.CommentsClose CommentsPermalink
Sec. 113. Reports on improving the exchange of information on North American security.CommentsClose CommentsPermalink
Sec. 114. Border Patrol training capacity review.CommentsClose CommentsPermalink
Sec. 115. Secure Border Initiative financial accountability.CommentsClose CommentsPermalink
Subtitle C--Southern Border Security
Sec. 121. Improving the security of Mexico's southern border.CommentsClose CommentsPermalink
Sec. 122. Report on deaths at the United States-Mexico border.CommentsClose CommentsPermalink
Sec. 123. Cooperation with the Government of Mexico.CommentsClose CommentsPermalink
Sec. 124. Temporary National Guard support for securing the southern land border of the United States.CommentsClose CommentsPermalink
Sec. 125. United States-Mexico Border Enforcement Review Commission.CommentsClose CommentsPermalink
Subtitle D--Secure Entry Initiatives
Sec. 131. Biometric data enhancements.CommentsClose CommentsPermalink
Sec. 132. US-VISIT System.CommentsClose CommentsPermalink
Sec. 133. Document fraud detection.CommentsClose CommentsPermalink
Sec. 134. Improved document integrity.CommentsClose CommentsPermalink
Sec. 135. Biometric entry-exit system.CommentsClose CommentsPermalink
Sec. 136. Evasion of inspection or violation of arrival, reporting, entry, or clearance requirements.CommentsClose CommentsPermalink
Subtitle E--Law Enforcement Relief for States
Sec. 141. Border relief grant program.CommentsClose CommentsPermalink
Sec. 142. Northern and southern border prosecution initiative.CommentsClose CommentsPermalink
Subtitle F--Rapid Response Measures
Sec. 151. Deployment of Border Patrol agents.CommentsClose CommentsPermalink
Sec. 152. Border Patrol major assets.CommentsClose CommentsPermalink
Sec. 153. Electronic equipment.CommentsClose CommentsPermalink
Sec. 154. Personal equipment.CommentsClose CommentsPermalink
Sec. 155. Authorization of appropriations.CommentsClose CommentsPermalink
Subtitle G--Border Infrastructure and Technology Modernization
Sec. 161. Definitions.CommentsClose CommentsPermalink
Sec. 162. Port of Entry Infrastructure Assessment Study.CommentsClose CommentsPermalink
Sec. 163. National Land Border Security Plan.CommentsClose CommentsPermalink
Sec. 164. Expansion of commerce security programs.CommentsClose CommentsPermalink
Sec. 165. Port of entry technology demonstration program.CommentsClose CommentsPermalink
Sec. 166. Authorization of appropriations.CommentsClose CommentsPermalink
Subtitle H--Safe and Secure Detention
Sec. 171. Definitions.CommentsClose CommentsPermalink
Sec. 172. Recording secondary inspection interviews.CommentsClose CommentsPermalink
Sec. 173. Procedures governing detention decisions.CommentsClose CommentsPermalink
Sec. 174. Legal orientation program.CommentsClose CommentsPermalink
Sec. 175. Conditions of detention.CommentsClose CommentsPermalink
Sec. 176. Office of Detention Oversight.CommentsClose CommentsPermalink
Sec. 177. Secure alternatives program.CommentsClose CommentsPermalink
Sec. 178. Less restrictive detention facilities.CommentsClose CommentsPermalink
Sec. 179. Authorization of appropriations; effective date.CommentsClose CommentsPermalink
Subtitle I--Other Border Security Initiatives
Sec. 181. Combating human smuggling.CommentsClose CommentsPermalink
Sec. 182. Screening of municipal solid waste.CommentsClose CommentsPermalink
Sec. 183. Border security on certain Federal land.CommentsClose CommentsPermalink
TITLE II--INTERIOR ENFORCEMENT
Subtitle A--Reducing the Number of Illegal Aliens in the United States
Sec. 201. Incarceration of criminal aliens.CommentsClose CommentsPermalink
Sec. 202. Encouraging aliens to depart voluntarily.CommentsClose CommentsPermalink
Sec. 203. Deterring aliens ordered removed from remaining in the United States unlawfully.CommentsClose CommentsPermalink
Sec. 204. Prohibition of the sale of firearms to, or the possession of firearms by certain aliens.CommentsClose CommentsPermalink
Sec. 205. Uniform statute of limitations for certain Immigration, naturalization, and peonage offenses.CommentsClose CommentsPermalink
Sec. 206. Expedited removal.CommentsClose CommentsPermalink
Sec. 207. Field agent allocation.CommentsClose CommentsPermalink
Sec. 208. Streamlined processing of background checks conducted for immigration benefit applications and petitions.CommentsClose CommentsPermalink
Sec. 209. State criminal alien assistance program.CommentsClose CommentsPermalink
Sec. 210. Transportation and processing of illegal aliens apprehended by State and local law enforcement officers.CommentsClose CommentsPermalink
Sec. 211. Reducing illegal immigration and alien smuggling on tribal lands.CommentsClose CommentsPermalink
Sec. 212. Mandatory address reporting requirements.CommentsClose CommentsPermalink
Sec. 213. State and local Enforcement of Federal Immigration laws.CommentsClose CommentsPermalink
Sec. 214. Increased criminal penalties related to drunk driving.CommentsClose CommentsPermalink
Sec. 215. Law enforcement authority of States and political subdivisions and transfer to Federal custody.CommentsClose CommentsPermalink
Sec. 216. Laundering of monetary instruments.CommentsClose CommentsPermalink
Sec. 217. Increase of Federal detention space and the utilization of facilities identified for closures as a result of the Defense Base Closure Realignment Act of 1990.CommentsClose CommentsPermalink
Sec. 218. Determination of immigration status of individuals charged with Federal offenses.CommentsClose CommentsPermalink
Sec. 219. Expansion of the Justice Prisoner and Alien Transfer System.CommentsClose CommentsPermalink
Sec. 220. Cancellation of visas.CommentsClose CommentsPermalink
Subtitle B--Passport and Visa Security
Sec. 221. Reform of passport fraud offenses.CommentsClose CommentsPermalink
Sec. 222. Other immigration reforms.CommentsClose CommentsPermalink
Subtitle C--Detention and Removal of Aliens Who Illegally Enter or Remain in the United States
Sec. 231. Detention and removal of aliens ordered removed.CommentsClose CommentsPermalink
Sec. 232. Increased criminal penalties for immigration violations.CommentsClose CommentsPermalink
Sec. 233. Aggravated felony.CommentsClose CommentsPermalink
Sec. 234. Increased criminal penalties related to gang violence, removal, and alien smuggling.CommentsClose CommentsPermalink
Sec. 235. Illegal entry.CommentsClose CommentsPermalink
Sec. 236. Illegal reentry.CommentsClose CommentsPermalink
TITLE III--EMPLOYMENT VERIFICATION
Sec. 301. Employment verification.CommentsClose CommentsPermalink
Sec. 302. Clarification of ineligibility for misrepresentation.CommentsClose CommentsPermalink
Sec. 303. Antidiscrimination protections.CommentsClose CommentsPermalink
Sec. 304. Additional protections.CommentsClose CommentsPermalink
Sec. 305. Additional worksite enforcement and fraud detection agents.CommentsClose CommentsPermalink
Sec. 306. Amendments to the Social Security Act and the Internal Revenue Code.CommentsClose CommentsPermalink
TITLE IV--NEW WORKER PROGRAM
Sec. 401. Nonimmigrant worker.CommentsClose CommentsPermalink
Sec. 402. Admission of nonimmigrant workers.CommentsClose CommentsPermalink
Sec. 403. Employer obligations.CommentsClose CommentsPermalink
Sec. 404. Alien employment management system.CommentsClose CommentsPermalink
Sec. 405. Recruitment of United States workers.CommentsClose CommentsPermalink
Sec. 406. Numerical limitations.CommentsClose CommentsPermalink
Sec. 407. Adjustment to lawful permanent resident status.CommentsClose CommentsPermalink
Sec. 408. Requirements for participating countries.CommentsClose CommentsPermalink
Sec. 409. Compliance investigators.CommentsClose CommentsPermalink
Sec. 410. Standing commission on immigration and labor markets.CommentsClose CommentsPermalink
Sec. 411. Admission of nonimmigrants.CommentsClose CommentsPermalink
Sec. 412. Agency representation and coordination.CommentsClose CommentsPermalink
Sec. 413. Sense of Congress regarding personal protective equipment.CommentsClose CommentsPermalink
Sec. 414. Rulemaking; effective date.CommentsClose CommentsPermalink
Sec. 415. Authorization of appropriations.CommentsClose CommentsPermalink
TITLE V--VISA REFORMS
Subtitle A--Backlog Reduction
Sec. 501. Elimination of existing backlogs.CommentsClose CommentsPermalink
Sec. 502. Increasing country limits and exempting family-sponsored and employment-based immigrants.CommentsClose CommentsPermalink
Sec. 503. Allocation of immigrant visas.CommentsClose CommentsPermalink
Sec. 504. Nursing shortage.CommentsClose CommentsPermalink
Sec. 505. Expedited adjudication of employer petitions for aliens of extraordinary artistic ability.CommentsClose CommentsPermalink
Sec. 506. Powerline workers and boilermakers.CommentsClose CommentsPermalink
Sec. 507. H-1B visas.CommentsClose CommentsPermalink
Sec. 508. United States educated immigrants.CommentsClose CommentsPermalink
Sec. 509. Student visa reform.CommentsClose CommentsPermalink
Sec. 510. L-1 visa holders subject to visa backlog.CommentsClose CommentsPermalink
Sec. 511. Retaining workers subject to green card backlog.CommentsClose CommentsPermalink
Sec. 512. Streamlining the adjudication process for established employers.CommentsClose CommentsPermalink
Sec. 513. Providing premium processing of Employment-Based visa petitions.CommentsClose CommentsPermalink
Sec. 514. Eliminating procedural delays in labor certification process.CommentsClose CommentsPermalink
Sec. 515. Visa revalidation.CommentsClose CommentsPermalink
Sec. 516. Relief for minor children and widows.CommentsClose CommentsPermalink
Sec. 517. Relief for widows and orphans.CommentsClose CommentsPermalink
Sec. 518. Sons and daughters of Filipino World War II veterans.CommentsClose CommentsPermalink
Sec. 519. Determinations under the Haitian Refugee Immigration Fairness Act of 1998.CommentsClose CommentsPermalink
Sec. 520. S visas.CommentsClose CommentsPermalink
Sec. 521. L visa limitations.CommentsClose CommentsPermalink
Sec. 522. Establishment of new fashion model nonimmigrant classification.CommentsClose CommentsPermalink
Sec. 523. EB-5 regional center program.CommentsClose CommentsPermalink
Sec. 524. Return of Talent Program.CommentsClose CommentsPermalink
Subtitle B--Preservation of Immigration Benefits for Victims of a Major Disaster or Emergency
Sec. 531. Short title.CommentsClose CommentsPermalink
Sec. 532. Definitions.CommentsClose CommentsPermalink
Sec. 533. Special immigrant status.CommentsClose CommentsPermalink
Sec. 534. Extension of filing or reentry deadlines.CommentsClose CommentsPermalink
Sec. 535. Humanitarian relief for certain surviving spouses and children.CommentsClose CommentsPermalink
Sec. 536. Recipient of public benefits.CommentsClose CommentsPermalink
Sec. 537. Age-out protection.CommentsClose CommentsPermalink
Sec. 538. Employment eligibility verification.CommentsClose CommentsPermalink
Sec. 539. Naturalization.CommentsClose CommentsPermalink
Sec. 540. Discretionary authority.CommentsClose CommentsPermalink
Sec. 541. Evidentiary standards and regulations.CommentsClose CommentsPermalink
Sec. 542. Identification documents.CommentsClose CommentsPermalink
Sec. 543. Waiver of regulations.CommentsClose CommentsPermalink
Sec. 544. Notices of change of address.CommentsClose CommentsPermalink
Sec. 545. Foreign students and exchange program participants.CommentsClose CommentsPermalink
TITLE VI--LEGALIZATION OF UNDOCUMENTED INDIVIDUALS
Subtitle A--Conditional Nonimmigrants
Sec. 601. Conditional nonimmigrants.CommentsClose CommentsPermalink
Sec. 602. Adjustment of status for conditional nonimmigrants.CommentsClose CommentsPermalink
Sec. 603. Administrative and judicial review.CommentsClose CommentsPermalink
Sec. 604. Mandatory disclosure of information.CommentsClose CommentsPermalink
Sec. 605. Penalties for false statements in applications.CommentsClose CommentsPermalink
Sec. 606. Aliens not subject to direct numerical limitations.CommentsClose CommentsPermalink
Sec. 607. Employer protections.CommentsClose CommentsPermalink
Sec. 608. Limitations on eligibility.CommentsClose CommentsPermalink
Sec. 609. Rulemaking.CommentsClose CommentsPermalink
Sec. 610. Authorization of appropriations.CommentsClose CommentsPermalink
Subtitle B--DREAM Act of 2007
Sec. 621. Short title.CommentsClose CommentsPermalink
Sec. 622. Definitions.CommentsClose CommentsPermalink
Sec. 623. Restoration of State option to determine residency for purposes of higher education benefits.CommentsClose CommentsPermalink
Sec. 624. Cancellation of removal and adjustment of status of certain long-term residents who entered the United States as children.CommentsClose CommentsPermalink
Sec. 625. Conditional permanent resident status.CommentsClose CommentsPermalink
Sec. 626. Retroactive benefits under this Act.CommentsClose CommentsPermalink
Sec. 627. Exclusive jurisdiction.CommentsClose CommentsPermalink
Sec. 628. Penalties for false statements in application.CommentsClose CommentsPermalink
Sec. 629. Confidentiality of information.CommentsClose CommentsPermalink
Sec. 630. Expedited processing of applications; prohibition on fees.CommentsClose CommentsPermalink
Sec. 631. Higher education assistance.CommentsClose CommentsPermalink
Sec. 632. GAO report.CommentsClose CommentsPermalink
Subtitle C--AgJOBS Act of 2007
Sec. 641. Short title.CommentsClose CommentsPermalink
Sec. 642. Definitions.CommentsClose CommentsPermalink
Chapter 1--Pilot Program for Earned Status Adjustment of Agricultural Workers
subchapter a--blue card status
Sec. 643. Requirements for blue card status.CommentsClose CommentsPermalink
Sec. 644. Treatment of aliens granted blue card status.CommentsClose CommentsPermalink
Sec. 645. Adjustment to permanent residence.CommentsClose CommentsPermalink
Sec. 646. Applications.CommentsClose CommentsPermalink
Sec. 647. Waiver of numerical limitations and certain grounds for inadmissibility.CommentsClose CommentsPermalink
Sec. 648. Administrative and judicial review.CommentsClose CommentsPermalink
Sec. 649. Use of information.CommentsClose CommentsPermalink
Sec. 650. Regulations, effective date, authorization of appropriations.CommentsClose CommentsPermalink
subchapter b--correction of social security records
Sec. 651. Correction of Social Security records.CommentsClose CommentsPermalink
Chapter 2--Reform of H-2A Worker Program
Sec. 652. Amendment to the Immigration and Nationality Act.CommentsClose CommentsPermalink
Chapter 3--Miscellaneous Provisions
Sec. 653. Determination and use of user fees.CommentsClose CommentsPermalink
Sec. 654. Regulations.CommentsClose CommentsPermalink
Sec. 655. Reports to Congress.CommentsClose CommentsPermalink
Sec. 656. Effective date.CommentsClose CommentsPermalink
Subtitle D--Programs to Assist Nonimmigrant Workers
Sec. 661. Grants to support public education and community training.CommentsClose CommentsPermalink
Sec. 662. Grant program to assist applicants for naturalization.CommentsClose CommentsPermalink
Sec. 663. Strengthening American citizenship.CommentsClose CommentsPermalink
Sec. 664. Addressing poverty in Mexico.CommentsClose CommentsPermalink
TITLE VII--MISCELLANEOUS
Subtitle A--Increasing Court Personnel
Sec. 701. Additional immigration personnel.CommentsClose CommentsPermalink
Sec. 702. Senior judge participation in the selection of magistrates.CommentsClose CommentsPermalink
Sec. 703. Study on the appellate process for immigration appeals.CommentsClose CommentsPermalink
Sec. 704. Sense of Congress regarding the establishment of an immigration court system.CommentsClose CommentsPermalink
Subtitle B--Citizenship Assistance for Members of the Armed Services
Sec. 711. Waiver of requirement for fingerprints for members of the Armed Forces.CommentsClose CommentsPermalink
Sec. 712. Noncitizen membership in the Armed Forces.CommentsClose CommentsPermalink
Sec. 713. Provision of information on naturalization to members of the Armed Forces.CommentsClose CommentsPermalink
Sec. 714. Provision of information on naturalization to the public.CommentsClose CommentsPermalink
Sec. 715. Reports.CommentsClose CommentsPermalink
Subtitle C--Family Humanitarian Relief
Sec. 721. Adjustment of status for certain nonimmigrant victims of terrorism.CommentsClose CommentsPermalink
Sec. 722. Cancellation of removal for certain immigrant victims of terrorism.CommentsClose CommentsPermalink
Sec. 723. Exceptions.CommentsClose CommentsPermalink
Sec. 724. Evidence of death.CommentsClose CommentsPermalink
Sec. 725. Definitions.CommentsClose CommentsPermalink
Subtitle D--Other Matters
Sec. 731. Office of Internal Corruption Investigation.CommentsClose CommentsPermalink
Sec. 732. Adjustment of status for certain persecuted religious minorities.CommentsClose CommentsPermalink
Sec. 733. Eligibility of agricultural and forestry workers for certain legal assistance.CommentsClose CommentsPermalink
Sec. 734. State court interpreter grants.CommentsClose CommentsPermalink
Sec. 735. Adequate notice for alternate country of removal.CommentsClose CommentsPermalink
Sec. 736. Standards for biometric documents.CommentsClose CommentsPermalink
Sec. 737. State Impact Assistance Account.CommentsClose CommentsPermalink
Sec. 738. New Worker Program and Conditional Nonimmigrant Fee Account.CommentsClose CommentsPermalink
SEC. 2. REFERENCE TO THE IMMIGRATION AND NATIONALITY ACT.
Except as otherwise expressly provided, whenever in this Act an amendment or repeal is expressed in terms of an amendment to, or repeal of, a section or other provision, the reference shall be considered to be made to a section or other provision of the Immigration and Nationality Act (
SEC. 3. DEFINITIONS.
In this Act:CommentsClose CommentsPermalink
(1) DEPARTMENT- Except as otherwise provided, the term `Department' means the Department of Homeland Security.CommentsClose CommentsPermalink
(2) SECRETARY- Except as otherwise provided, the term `Secretary' means the Secretary of Homeland Security.CommentsClose CommentsPermalink
SEC. 4. SEVERABILITY.
If any provision of this Act, any amendment made by this Act, or the application of such provision or amendment to any person or circumstance is held to be invalid for any reason, the remainder of this Act, the amendments made by this Act, and the application of the provisions of such to any other person or circumstance shall not be affected by such holding.CommentsClose CommentsPermalink
SEC. 5. CERTIFICATION REQUIREMENTS PRIOR TO IMPLEMENTATION OF THE NEW WORKER PROGRAM AND THE CONDITIONAL NONIMMIGRANT CLASSIFICATION.
Notwithstanding any other provision of this Act, the Secretary may not implement the New Worker Program established in the amendments made by title IV or grant conditional nonimmigrant classification under the amendments made by title VI prior to the date that the Secretary submits to the President and Congress a certification that the following conditions have been met:CommentsClose CommentsPermalink
(1) SECURE BORDER- The Secretary has submitted to Congress a report on the status of the implementation of the border surveillance technology improvements described in the Secure Border Initiative, including target dates for the completion of such improvements.CommentsClose CommentsPermalink
(2) SECURE DOCUMENTS- That the systems and infrastructure necessary to carry out the improvements to immigration document security required by this Act and the amendments made by this Act, including documents that will be issued under the New Worker Program and to aliens granted conditional nonimmigrant classification, have been developed, tested for reliability and accuracy, and are ready for use, including systems and infrastructure necessary to permit the Director of the Federal Bureau of Investigation to conduct required background checks.CommentsClose CommentsPermalink
(3) FIRST PHASE IMPLEMENTATION OF THE ELECTRONIC EMPLOYMENT ELIGIBILITY VERIFICATION SYSTEM- The first phase of the Electronic Employment Verification System described in section 274A of the Immigration and Nationality Act, as amended by section 301 of this Act, for critical infrastructure employers described in subsection (c)(10)(i) of such section 274A has been implemented.CommentsClose CommentsPermalink
TITLE I--BORDER ENFORCEMENT
Subtitle A--Assets for Controlling United States Borders
SEC. 101. ENFORCEMENT PERSONNEL.
(a) Port of Entry Inspectors-CommentsClose CommentsPermalink
(1) ADDITIONAL INSPECTORS- In each of the fiscal years 2008 through 2012, the Secretary shall, subject to the availability of appropriations, increase by not less than 500 the number of positions for full-time active duty port of entry inspectors and provide appropriate training, equipment, and support to such additional inspectors.CommentsClose CommentsPermalink
(2) AUTHORIZATION OF APPROPRIATIONS- There are authorized to be appropriated to the Secretary such sums as may be necessary for each of the fiscal years 2008 through 2012 to carry out paragraph (1).CommentsClose CommentsPermalink
(b) Border Patrol Agents- Section 5202 of the Intelligence Reform and Terrorism Prevention Act of 2004 (
`SEC. 5202. INCREASE IN FULL-TIME BORDER PATROL AGENTS.
`(a) Annual Increases- The Secretary of Homeland Security shall, subject to the availability of appropriations for such purpose, increase the number of positions for full-time active-duty Border Patrol agents within the Department of Homeland Security (above the number of such positions for which funds were appropriated for the preceding fiscal year), by--CommentsClose CommentsPermalink
`(1) 2,000 in fiscal year 2008;CommentsClose CommentsPermalink
`(2) 2,400 in fiscal year 2009;CommentsClose CommentsPermalink
`(3) 2,400 in fiscal year 2010;CommentsClose CommentsPermalink
`(4) 2,400 in fiscal year 2011; andCommentsClose CommentsPermalink
`(5) 2,400 in fiscal year 2012.CommentsClose CommentsPermalink
`(b) Northern Border- In each of the fiscal years 2008 through 2012, in addition to the Border Patrol agents assigned along the northern border of the United States during the previous fiscal year, the Secretary shall assign a number of Border Patrol agents equal to not less than 20 percent of the net increase in Border Patrol agents during each such fiscal year.CommentsClose CommentsPermalink
`(c) Authorization of Appropriations- There are authorized to be appropriated such sums as may be necessary for each of fiscal years 2008 through 2012 to carry out this section.'.CommentsClose CommentsPermalink
(c) Investigative Personnel-CommentsClose CommentsPermalink
(1) IMMIGRATION AND CUSTOMS ENFORCEMENT INVESTIGATORS- Section 5203 of the Intelligence Reform and Terrorism Prevention Act of 2004 (
(2) ADDITIONAL PERSONNEL- In addition to the positions authorized under section 5203 of the Intelligence Reform and Terrorism Prevention Act of 2004, as amended by paragraph (1), during each of the fiscal years 2008 through 2012, the Secretary shall, subject to the availability of appropriations, increase by not less than 200 the number of positions for personnel within the Department assigned to investigate alien smuggling.CommentsClose CommentsPermalink
(3) AUTHORIZATION OF APPROPRIATIONS- There are authorized to be appropriated to the Secretary such sums as may be necessary for each of the fiscal years 2008 through 2012 to carry out this section.CommentsClose CommentsPermalink
(d) Deputy United States Marshals-CommentsClose CommentsPermalink
(1) ADDITIONAL UNITED STATES MARSHALS- In each of the fiscal years 2008 through 2012, the Attorney General shall, subject to the availability of appropriations, increase by not less than 50 the number of positions for full-time active duty Deputy United States Marshals that investigate criminal matters related to immigration.CommentsClose CommentsPermalink
(2) AUTHORIZATION OF APPROPRIATIONS- There are authorized to be appropriated to the Attorney General such sums as may be necessary for each of the fiscal years 2008 through 2012 to carry out paragraph (1).CommentsClose CommentsPermalink
(e) Recruitment of Former Members of the Armed Forces and Members of Reserve Components of the Armed Forces-CommentsClose CommentsPermalink
(1) REQUIREMENT FOR PROGRAM- The Secretary, in conjunction with the Secretary of Defense, shall establish a program to actively recruit covered members or former members of the Armed Forces to serve in United States Customs and Border Protection.CommentsClose CommentsPermalink
(2) REPORT ON RECRUITMENT INCENTIVES-CommentsClose CommentsPermalink
(A) REQUIREMENT- Not later than 60 days after the date of enactment of this Act, the Secretary and the Secretary of Defense shall jointly submit to the appropriate committees of Congress a report assessing the desirability and feasibility of offering an incentive to a covered member or former member of the Armed Forces for the purpose of encouraging such member to serve in United States Customs and Border Protection. The Secretary and the Secretary of Defense shall assume that the cost of any such incentive shall be borne by the Secretary.CommentsClose CommentsPermalink
(B) CONTENT- The report required by subparagraph (A) shall include--CommentsClose CommentsPermalink
(i) an assessment of the desirability and feasibility of offering any incentive, including a monetary incentive, that the Secretary and the Secretary of Defense jointly consider appropriate, regardless of whether such incentive is authorized by law or regulations on the date of enactment of this Act;CommentsClose CommentsPermalink
(ii) a detailed assessment of the desirability and feasibility of such an incentive that would--CommentsClose CommentsPermalink
(I) encourage service in United States Customs and Border Protection by a covered member or a former member of the Armed Forces who provided border patrol or border security assistance to United States Customs and Border Protection as part of the member's duties as a member of the Armed Forces; andCommentsClose CommentsPermalink
(II) leverage military training and experience by accelerating training, or allowing credit to be applied to related areas of training, required for service with United States Customs and Border Protection;CommentsClose CommentsPermalink
(iii) a description of various monetary and non-monetary incentives considered for purposes of the report;CommentsClose CommentsPermalink
(iv) an assessment of the desirability and feasibility of utilizing any such incentive for the purpose described in subparagraph (A); andCommentsClose CommentsPermalink
(v) any other matter that the Secretary and the Secretary of Defense jointly consider appropriate.CommentsClose CommentsPermalink
(3) DEFINITIONS- In this subsection:CommentsClose CommentsPermalink
(A) APPROPRIATE COMMITTEES OF CONGRESS- The term `appropriate committees of Congress' means--CommentsClose CommentsPermalink
(i) the Committee on Appropriations, the Committee on Armed Services, and the Committee on Homeland Security and Governmental Affairs of the Senate; andCommentsClose CommentsPermalink
(ii) the Committee on Appropriations, the Committee on Armed Services, and the Committee on Homeland Security of the House of Representatives.CommentsClose CommentsPermalink
(B) COVERED MEMBER OR FORMER MEMBER OF THE ARMED FORCES- The term `covered member or former member of the Armed Forces' means an individual--CommentsClose CommentsPermalink
(i) who is a member of a reserve component of the Armed Forces; orCommentsClose CommentsPermalink
(ii) who is a former member of the Armed Forces within 2 years of separation from service in the Armed Forces.CommentsClose CommentsPermalink
SEC. 102. TECHNOLOGICAL ASSETS.
(a) Increased Availability of Equipment- The Secretary and the Secretary of Defense shall develop and implement a plan to use authorities provided to the Secretary of Defense under chapter 18 of title 10, United States Code, to increase the availability and use of Department of Defense equipment, including unmanned aerial vehicles, tethered aerostat radars, and other surveillance equipment, to assist the Secretary in carrying out surveillance activities conducted at or near the international land borders of the United States to prevent illegal immigration.CommentsClose CommentsPermalink
(b) Report- Not later than 6 months after the date of enactment of this Act, the Secretary and the Secretary of Defense shall submit to Congress a report that contains--CommentsClose CommentsPermalink
(1) a description of the current use of Department of Defense equipment to assist the Secretary in carrying out surveillance of the international land borders of the United States and assessment of the risks to citizens of the United States and foreign policy interests associated with the use of such equipment;CommentsClose CommentsPermalink
(2) the plan developed under subsection (b) to increase the use of Department of Defense equipment to assist such surveillance activities; andCommentsClose CommentsPermalink
(3) a description of the types of equipment and other support to be provided by the Secretary of Defense under such plan during the 1-year period beginning on the date of the submission of the report.CommentsClose CommentsPermalink
(c) Unmanned Aerial Vehicle Pilot Program- During the 1-year period beginning on the date on which the report is submitted under subsection (b), the Secretary shall conduct a pilot program to test unmanned aerial vehicles for border surveillance along the international border between Canada and the United States.CommentsClose CommentsPermalink
(d) Construction- Nothing in this section may be construed as altering or amending the prohibition on the use of any part of the Army or the Air Force as a posse comitatus under
(e) Authorization of Appropriations- There are authorized to be appropriated to the Secretary such sums as may be necessary for each of the fiscal years 2008 through 2012 to carry out subsection (a).CommentsClose CommentsPermalink
SEC. 103. INFRASTRUCTURE.
(a) Construction of Border Control Facilities- Subject to the availability of appropriations, the Secretary shall construct all-weather roads and acquire additional vehicle barriers and facilities necessary to achieve operational control of the international borders of the United States.CommentsClose CommentsPermalink
(b) Authorization of Appropriations- There are authorized to be appropriated to the Secretary such sums as may be necessary for each of the fiscal years 2008 through 2012 to carry out subsection (a).CommentsClose CommentsPermalink
SEC. 104. PORTS OF ENTRY.
The Secretary is authorized to--CommentsClose CommentsPermalink
(1) construct additional ports of entry along the international land borders of the United States, at locations to be determined by the Secretary; andCommentsClose CommentsPermalink
(2) make necessary improvements to the ports of entry in existence on the date of enactment of this Act.CommentsClose CommentsPermalink
SEC. 105. SECURE COMMUNICATION.
The Secretary shall, as expeditiously as practicable, develop and implement a plan to improve the use of satellite communications and other technologies to ensure clear and secure 2-way communication capabilities--CommentsClose CommentsPermalink
(1) among all Border Patrol agents conducting operations between ports of entry;CommentsClose CommentsPermalink
(2) between Border Patrol agents and their respective Border Patrol stations;CommentsClose CommentsPermalink
(3) between Border Patrol agents and residents in remote areas along the international land borders of the United States; andCommentsClose CommentsPermalink
(4) between all appropriate border security agencies of the Department and State, local, and tribal law enforcement agencies.CommentsClose CommentsPermalink
SEC. 106. UNMANNED AERIAL VEHICLES.
(a) Unmanned Aerial Vehicles and Associated Infrastructure- The Secretary shall acquire and maintain unmanned aerial vehicles and related equipment for use to patrol the international borders of the United States, including equipment such as--CommentsClose CommentsPermalink
(1) additional sensors;CommentsClose CommentsPermalink
(2) critical spares;CommentsClose CommentsPermalink
(3) satellite command and control; andCommentsClose CommentsPermalink
(4) other necessary equipment for operational support.CommentsClose CommentsPermalink
(b) Authorization of Appropriations-CommentsClose CommentsPermalink
(1) IN GENERAL- There are authorized to be appropriated to the Secretary for each of the fiscal years 2008 and 2009 such sums as may be necessary to carry out subsection (a).CommentsClose CommentsPermalink
(2) AVAILABILITY OF FUNDS- Amounts appropriated pursuant to the authorization of appropriations in paragraph (1) are authorized to remain available until expended.CommentsClose CommentsPermalink
SEC. 107. SURVEILLANCE TECHNOLOGIES PROGRAMS.
(a) Aerial Surveillance Program-CommentsClose CommentsPermalink
(1) IN GENERAL- In conjunction with the border surveillance plan developed under section 5201 of the Intelligence Reform and Terrorism Prevention Act of 2004 (
(2) ASSESSMENT AND CONSULTATION REQUIREMENTS- In developing the program under this subsection, the Secretary shall--CommentsClose CommentsPermalink
(A) consider current and proposed aerial surveillance technologies;CommentsClose CommentsPermalink
(B) assess the feasibility and advisability of utilizing such technologies to address border threats, including an assessment of the technologies considered best suited to address respective threats;CommentsClose CommentsPermalink
(C) consult with the Secretary of Defense regarding any technologies or equipment, which the Secretary may deploy along an international border of the United States; andCommentsClose CommentsPermalink
(D) consult with the Administrator of the Federal Aviation Administration regarding safety, airspace coordination and regulation, and any other issues necessary for implementation of the program.CommentsClose CommentsPermalink
(3) ADDITIONAL REQUIREMENTS-CommentsClose CommentsPermalink
(A) IN GENERAL- The program developed under this subsection shall include the use of a variety of aerial surveillance technologies in a variety of topographies and areas, including populated and unpopulated areas located on or near an international border of the United States, in order to evaluate, for a range of circumstances--CommentsClose CommentsPermalink
(i) the significance of previous experiences with such technologies in border security or critical infrastructure protection;CommentsClose CommentsPermalink
(ii) the cost and effectiveness of various technologies for border security, including varying levels of technical complexity; andCommentsClose CommentsPermalink
(iii) liability, safety, and privacy concerns relating to the utilization of such technologies for border security.CommentsClose CommentsPermalink
(4) CONTINUED USE OF AERIAL SURVEILLANCE TECHNOLOGIES- The Secretary may continue the operation of aerial surveillance technologies while assessing the effectiveness of the utilization of such technologies.CommentsClose CommentsPermalink
(5) REPORT TO CONGRESS- Not later than 180 days after implementing the program under this subsection, the Secretary shall submit to Congress a report regarding such program. The Secretary shall include in the report a description of such program together with any recommendations that the Secretary finds appropriate for enhancing the program.CommentsClose CommentsPermalink
(6) AUTHORIZATION OF APPROPRIATIONS- There are authorized to be appropriated such sums as may be necessary to carry out this subsection.CommentsClose CommentsPermalink
(b) Integrated and Automated Surveillance Program-CommentsClose CommentsPermalink
(1) REQUIREMENT FOR PROGRAM- Subject to the availability of appropriations, the Secretary shall establish a program to procure additional unmanned aerial vehicles, cameras, poles, sensors, satellites, radar coverage, and other technologies necessary to achieve operational control of the international borders of the United States and to establish a security perimeter known as a `virtual fence' along such international borders to provide a barrier to illegal immigration. Such program shall be known as the Integrated and Automated Surveillance Program.CommentsClose CommentsPermalink
(2) PROGRAM COMPONENTS- The Secretary shall ensure, to the maximum extent feasible, that--CommentsClose CommentsPermalink
(A) the technologies utilized in the Integrated and Automated Surveillance Program are integrated and function cohesively in an automated fashion, including the integration of motion sensor alerts and cameras in a manner where a sensor alert automatically activates a corresponding camera to pan and tilt in the direction of the triggered sensor;CommentsClose CommentsPermalink
(B) cameras utilized in the Program do not have to be manually operated;CommentsClose CommentsPermalink
(C) such camera views and positions are not fixed;CommentsClose CommentsPermalink
(D) surveillance video taken by such cameras is able to be viewed at multiple designated communications centers;CommentsClose CommentsPermalink
(E) a standard process is used to collect, catalog, and report intrusion and response data collected under the Program;CommentsClose CommentsPermalink
(F) future remote surveillance technology investments and upgrades for the Program can be integrated with existing systems;CommentsClose CommentsPermalink
(G) performance measures are developed and applied that can evaluate whether the Program is providing desired results and increasing response effectiveness in monitoring and detecting illegal intrusions along the international borders of the United States;CommentsClose CommentsPermalink
(H) plans are developed under the Program to streamline site selection, site validation, and environmental assessment processes to minimize delays of installing surveillance technology infrastructure;CommentsClose CommentsPermalink
(I) standards are developed under the Program to expand the shared use of existing private and governmental structures to install remote surveillance technology infrastructure where possible; andCommentsClose CommentsPermalink
(J) standards are developed under the Program to identify and deploy the use of nonpermanent or mobile surveillance platforms that will increase the Secretary's mobility and ability to identify illegal border intrusions.CommentsClose CommentsPermalink
(3) REPORT TO CONGRESS- Not later than 1 year after the initial implementation of the Integrated and Automated Surveillance Program, the Secretary shall submit to Congress a report regarding the Program. The Secretary shall include in the report a description of the Program together with any recommendation that the Secretary finds appropriate for enhancing the program.CommentsClose CommentsPermalink
(4) EVALUATION OF CONTRACTORS-CommentsClose CommentsPermalink
(A) REQUIREMENT FOR STANDARDS- The Secretary shall develop appropriate standards to evaluate the performance of any contractor providing goods or services to carry out the Integrated and Automated Surveillance Program.CommentsClose CommentsPermalink
(B) REVIEW BY THE INSPECTOR GENERAL-CommentsClose CommentsPermalink
(i) IN GENERAL- The Inspector General of the Department shall review each new contract related to the Program that has a value of more than $5,000,000 in a timely manner, to determine whether such contract fully complies with applicable cost requirements, performance objectives, program milestones, and schedules.CommentsClose CommentsPermalink
(ii) REPORTS- The Inspector General shall report the findings of each review carried out under clause (i) to the Secretary in a timely manner. Not later than 30 days after the date the Secretary receives a report of findings from the Inspector General, the Secretary shall submit to the Committee on Homeland Security and Governmental Affairs of the Senate and the Committee on Homeland Security of the House of Representatives a report of such findings and a description of any the steps that the Secretary has taken or plans to take in response to such findings.CommentsClose CommentsPermalink
(5) AUTHORIZATION OF APPROPRIATIONS- There are authorized to be appropriated such sums as may be necessary to carry out this subsection.CommentsClose CommentsPermalink
Subtitle B--Border Security Plans, Strategies, and Reports
SEC. 111. SURVEILLANCE PLAN.
(a) Requirement for Plan- The Secretary shall develop a comprehensive plan for the systematic surveillance of the international land and maritime borders of the United States.CommentsClose CommentsPermalink
(b) Content- The plan required by subsection (a) shall include the following:CommentsClose CommentsPermalink
(1) An assessment of existing technologies employed on the international land and maritime borders of the United States.CommentsClose CommentsPermalink
(2) A description of the compatibility of new surveillance technologies with surveillance technologies in use by the Secretary on the date of enactment of this Act.CommentsClose CommentsPermalink
(3) A description of how the Commissioner of the United States Customs and Border Protection is working, or is expected to work, with the Under Secretary for Science and Technology of the Department to identify and test surveillance technology.CommentsClose CommentsPermalink
(4) A description of the specific surveillance technology to be deployed.CommentsClose CommentsPermalink
(5) Identification of any obstacles that may impede such deployment.CommentsClose CommentsPermalink
(6) A detailed estimate of all costs associated with such deployment and with continued maintenance of such technologies.CommentsClose CommentsPermalink
(7) A description of how the Secretary is working with the Administrator of the Federal Aviation Administration on safety and airspace control issues associated with the use of unmanned aerial vehicles.CommentsClose CommentsPermalink
(8) A description of the program to fully integrate and utilize aerial surveillance technologies developed pursuant to section 107(a).CommentsClose CommentsPermalink
(9) A description of the Integrated and Automated Surveillance Program established pursuant to section 107(b).CommentsClose CommentsPermalink
(c) Submission to Congress- Not later than 6 months after the date of enactment of this Act, the Secretary shall submit to Congress the plan required by this section.CommentsClose CommentsPermalink
SEC. 112. NATIONAL STRATEGY FOR BORDER SECURITY.
(a) Requirement for Strategy- The Secretary, in consultation with the heads of other appropriate Federal agencies, shall develop a National Strategy for Border Security that describes actions to be carried out to achieve operational control over all ports of entry into the United States and the international land and maritime borders of the United States.CommentsClose CommentsPermalink
(b) Content- The National Strategy for Border Security shall include the following:CommentsClose CommentsPermalink
(1) The implementation schedule for the comprehensive plan for systematic surveillance described in section 111.CommentsClose CommentsPermalink
(2) An assessment of the threat posed by terrorists and terrorist groups that may try to infiltrate the United States at locations along the international land and maritime borders of the United States.CommentsClose CommentsPermalink
(3) A risk assessment for all United States ports of entry and all portions of the international land and maritime borders of the United States that includes a description of activities being undertaken--CommentsClose CommentsPermalink
(A) to prevent the entry of terrorists, other unlawful aliens, instruments of terrorism, narcotics, and other contraband into the United States; andCommentsClose CommentsPermalink
(B) to protect critical infrastructure at or near such ports of entry or borders.CommentsClose CommentsPermalink
(4) An assessment of the legal requirements that prevent achieving and maintaining operational control over the entire international land and maritime borders of the United States.CommentsClose CommentsPermalink
(5) An assessment of the most appropriate, practical, and cost-effective means of defending the international land and maritime borders of the United States against threats to security and illegal transit, including intelligence capacities, technology, equipment, personnel, and training needed to address security vulnerabilities.CommentsClose CommentsPermalink
(6) An assessment of staffing needs for all border security functions, taking into account threat and vulnerability information pertaining to the borders and the impact of new security programs, policies, and technologies.CommentsClose CommentsPermalink
(7) A description of the border security roles and missions of Federal, State, regional, local, and tribal authorities, and recommendations regarding actions the Secretary can carry out to improve coordination with such authorities to enable border security and enforcement activities to be carried out in a more efficient and effective manner.CommentsClose CommentsPermalink
(8) An assessment of existing efforts and technologies used for border security and the effect of the use of such efforts and technologies on civil rights, private property rights, privacy rights, and civil liberties, including an assessment of efforts to take into account asylum seekers, trafficking victims, unaccompanied minor aliens, and other vulnerable populations.CommentsClose CommentsPermalink
(9) A prioritized list of research and development objectives to enhance the security of the international land and maritime borders of the United States.CommentsClose CommentsPermalink
(10) A description of ways to ensure that the free flow of travel and commerce is not diminished by efforts, activities, and programs aimed at securing the international land and maritime borders of the United States.CommentsClose CommentsPermalink
(11) An assessment of additional detention facilities and beds that are needed to detain unlawful aliens apprehended at United States ports of entry or along the international land borders of the United States.CommentsClose CommentsPermalink
(12) A description of the performance metrics to be used to ensure accountability by the bureaus of the Department in implementing such Strategy.CommentsClose CommentsPermalink
(13) A schedule for the implementation of the security measures described in such Strategy, including a prioritization of security measures, realistic deadlines for addressing the security and enforcement needs, an estimate of the resources needed to carry out such measures, and a description of how such resources should be allocated.CommentsClose CommentsPermalink
(c) Consultation- In developing the National Strategy for Border Security, the Secretary shall consult with representatives of--CommentsClose CommentsPermalink
(1) State, local, and tribal authorities with responsibility for locations along the international land and maritime borders of the United States; andCommentsClose CommentsPermalink
(2) appropriate private sector entities, nongovernmental organizations, and affected communities that have expertise in areas related to border security.CommentsClose CommentsPermalink
(d) Coordination- The National Strategy for Border Security shall be consistent with the National Strategy for Maritime Security developed pursuant to Homeland Security Presidential Directive 13, dated December 21, 2004.CommentsClose CommentsPermalink
(e) Submission to Congress-CommentsClose CommentsPermalink
(1) STRATEGY- Not later than 1 year after the date of enactment of this Act, the Secretary shall submit to Congress the National Strategy for Border Security.CommentsClose CommentsPermalink
(2) UPDATES- The Secretary shall submit to Congress any update of such Strategy that the Secretary determines is necessary, not later than 30 days after such update is developed.CommentsClose CommentsPermalink
(f) Immediate Action- Nothing in this section or section 111 may be construed to relieve the Secretary of the responsibility to take all actions necessary and appropriate to achieve and maintain operational control over the entire international land and maritime borders of the United States.CommentsClose CommentsPermalink
SEC. 113. REPORTS ON IMPROVING THE EXCHANGE OF INFORMATION ON NORTH AMERICAN SECURITY.
(a) Requirement for Reports- Not later than 1 year after the date of enactment of this Act, and annually thereafter, the Secretary of State, in coordination with the Secretary and the heads of other appropriate Federal agencies, shall submit to Congress a report on improving the exchange of information related to the security of North America.CommentsClose CommentsPermalink
(b) Contents- Each report submitted under subsection (a) shall contain a description of the following:CommentsClose CommentsPermalink
(1) SECURITY CLEARANCES AND DOCUMENT INTEGRITY- The progress made toward the development of common enrollment, security, technical, and biometric standards for the issuance, authentication, validation, and repudiation of secure documents, including--CommentsClose CommentsPermalink
(A) technical and biometric standards based on best practices and consistent with international standards for the issuance, authentication, validation, and repudiation of travel documents, including--CommentsClose CommentsPermalink
(i) passports;CommentsClose CommentsPermalink
(ii) visas; andCommentsClose CommentsPermalink
(iii) permanent resident cards;CommentsClose CommentsPermalink
(B) working with Canada and Mexico to encourage foreign governments to enact laws to combat alien smuggling and trafficking, and laws to forbid the use and manufacture of fraudulent travel documents and to promote information sharing;CommentsClose CommentsPermalink
(C) applying the necessary pressures and support to ensure that other countries meet proper travel document standards and are committed to travel document verification before the citizens of such countries travel internationally, including travel by such citizens to the United States; andCommentsClose CommentsPermalink
(D) providing technical assistance for the development and maintenance of a national database built upon identified best practices for biometrics associated with visa and travel documents.CommentsClose CommentsPermalink
(2) IMMIGRATION AND VISA MANAGEMENT- The progress of efforts to share information regarding high-risk individuals who may attempt to enter Canada, Mexico, or the United States, including the progress made--CommentsClose CommentsPermalink
(A) in implementing the Statement of Mutual Understanding on Information Sharing, signed by Canada and the United States in February 2003; andCommentsClose CommentsPermalink
(B) in identifying trends related to immigration fraud, including asylum and document fraud, and to analyze such trends.CommentsClose CommentsPermalink
(3) VISA POLICY COORDINATION AND IMMIGRATION SECURITY- The progress made by Canada, Mexico, and the United States to enhance the security of North America by cooperating on visa policy and identifying best practices regarding immigration security, including the progress made--CommentsClose CommentsPermalink
(A) in enhancing consultation among officials who issue visas at the consulates or embassies of Canada, Mexico, or the United States throughout the world to share information, trends, and best practices on visa flows;CommentsClose CommentsPermalink
(B) in comparing the procedures and policies of Canada and the United States related to visitor visa processing, including--CommentsClose CommentsPermalink
(i) application process;CommentsClose CommentsPermalink
(ii) interview policy;CommentsClose CommentsPermalink
(iii) general screening procedures;CommentsClose CommentsPermalink
(iv) visa validity;CommentsClose CommentsPermalink
(v) quality control measures; andCommentsClose CommentsPermalink
(vi) access to appeal or review;CommentsClose CommentsPermalink
(C) in exploring methods for Canada, Mexico, and the United States to waive visa requirements for nationals and citizens of the same foreign countries;CommentsClose CommentsPermalink
(D) in providing technical assistance for the development and maintenance of a national database built upon identified best practices for biometrics associated with immigration violators;CommentsClose CommentsPermalink
(E) in developing and implementing an immigration security strategy for North America that works toward the development of a common security perimeter by enhancing technical assistance for programs and systems to support advance automated reporting and risk targeting of international passengers;CommentsClose CommentsPermalink
(F) in sharing information on lost and stolen passports on a real-time basis among immigration or law enforcement officials of Canada, Mexico, and the United States; andCommentsClose CommentsPermalink
(G) in collecting 10 fingerprints from each individual who applies for a visa.CommentsClose CommentsPermalink
(4) NORTH AMERICAN VISITOR OVERSTAY PROGRAM- The progress made by Canada and the United States in implementing parallel entry-exit tracking systems that, while respecting the privacy laws of both countries, share information regarding third country nationals who have overstayed their period of authorized admission in either Canada or the United States.CommentsClose CommentsPermalink
(5) TERRORIST WATCH LISTS- The progress made in enhancing the capacity of the United States to combat terrorism through the coordination of counterterrorism efforts, including the progress made--CommentsClose CommentsPermalink
(A) in developing and implementing bilateral agreements between Canada and the United States and between Mexico and the United States to govern the sharing of terrorist watch list data and to comprehensively enumerate the uses of such data by the governments of each country;CommentsClose CommentsPermalink
(B) in establishing appropriate linkages among Canada, Mexico, and the United States Terrorist Screening Center; andCommentsClose CommentsPermalink
(C) in exploring with foreign governments the establishment of a multilateral watch list mechanism that would facilitate direct coordination between the country that identifies an individual as an individual included on a watch list, and the country that owns such list, including procedures that satisfy the security concerns and are consistent with the privacy and other laws of each participating country.CommentsClose CommentsPermalink
(6) MONEY LAUNDERING, CURRENCY SMUGGLING, AND ALIEN SMUGGLING- The progress made in improving information sharing and law enforcement cooperation in combating organized crime, including the progress made--CommentsClose CommentsPermalink
(A) in combating currency smuggling, money laundering, alien smuggling, and trafficking in alcohol, firearms, and explosives;CommentsClose CommentsPermalink
(B) in determining the feasibility of formulating a firearms trafficking action plan between Mexico and the United States;CommentsClose CommentsPermalink
(C) in developing a joint threat assessment on organized crime between Canada and the United States;CommentsClose CommentsPermalink
(D) in determining the feasibility of formulating a joint threat assessment on organized crime between Mexico and the United States;CommentsClose CommentsPermalink
(E) in developing mechanisms to exchange information on findings, seizures, and capture of individuals transporting undeclared currency; andCommentsClose CommentsPermalink
(F) in developing and implementing a plan to combat the transnational threat of illegal drug trafficking.CommentsClose CommentsPermalink
(7) LAW ENFORCEMENT COOPERATION- The progress made in enhancing law enforcement cooperation among Canada, Mexico, and the United States through enhanced technical assistance for the development and maintenance of a national database built upon identified best practices for biometrics associated with known and suspected criminals or terrorists, including exploring the formation of law enforcement teams that include personnel from the United States and Mexico, and appropriate procedures for such teams.CommentsClose CommentsPermalink
SEC. 114. BORDER PATROL TRAINING CAPACITY REVIEW.
(a) In General- The Comptroller General of the United States shall conduct a review of the basic training provided to Border Patrol agents by the Secretary to ensure that such training is provided as efficiently and cost-effectively as possible.CommentsClose CommentsPermalink
(b) Components of Review- The review under subsection (a) shall include the following components:CommentsClose CommentsPermalink
(1) An evaluation of the length and content of the basic training curriculum provided to new Border Patrol agents by the Federal Law Enforcement Training Center, including a description of how such curriculum has changed since September 11, 2001, and an evaluation of language and cultural diversity training programs provided within such curriculum.CommentsClose CommentsPermalink
(2) A review and a detailed breakdown of the costs incurred by United States Customs and Border Protection and the Federal Law Enforcement Training Center to train 1 new Border Patrol agent.CommentsClose CommentsPermalink
(3) A comparison, based on the review and breakdown under paragraph (2), of the costs, effectiveness, scope, and quality, including geographic characteristics, with other similar training programs provided by State and local agencies, nonprofit organizations, universities, and the private sector.CommentsClose CommentsPermalink
(4) An evaluation of whether utilizing comparable non-Federal training programs, proficiency testing, and long-distance learning programs may affect--CommentsClose CommentsPermalink
(A) the cost-effectiveness of increasing the number of Border Patrol agents trained per year;CommentsClose CommentsPermalink
(B) the per agent costs of basic training; andCommentsClose CommentsPermalink
(C) the scope and quality of basic training needed to fulfill the mission and duties of a Border Patrol agent.CommentsClose CommentsPermalink
SEC. 115. SECURE BORDER INITIATIVE FINANCIAL ACCOUNTABILITY.
(a) In General- The Inspector General of the Department shall review each contract action relating to the Secure Border Initiative having a value of more than $20,000,000, to determine whether each such action fully complies with applicable cost requirements, performance objectives, program milestones, inclusion of small, minority, and women-owned business, and time lines. The Inspector General shall complete a review under this subsection with respect to each contract action--CommentsClose CommentsPermalink
(1) not later than 60 days after the date of the initiation of the action; andCommentsClose CommentsPermalink
(2) upon the conclusion of the performance of the contract.CommentsClose CommentsPermalink
(b) Inspector General-CommentsClose CommentsPermalink
(1) ACTION- If the Inspector General becomes aware of any improper conduct or wrongdoing in the course of conducting a contract review under subsection (a), the Inspector General shall, as expeditiously as practicable, refer information relating to such improper conduct or wrongdoing to the Secretary, or to another appropriate official of the Department, who shall determine whether to temporarily suspend the contractor from further participation in the Secure Border Initiative.CommentsClose CommentsPermalink
(2) REPORT- Upon the completion of each review described in subsection (a), the Inspector General shall submit to the Secretary a report containing the findings of the review, including findings regarding--CommentsClose CommentsPermalink
(A) cost overruns;CommentsClose CommentsPermalink
(B) significant delays in contract execution;CommentsClose CommentsPermalink
(C) lack of rigorous departmental contract management;CommentsClose CommentsPermalink
(D) insufficient departmental financial oversight;CommentsClose CommentsPermalink
(E) bundling that limits the ability of small businesses to compete; orCommentsClose CommentsPermalink
(F) other high-risk business practices.CommentsClose CommentsPermalink
(c) Reports by the Secretary-CommentsClose CommentsPermalink
(1) IN GENERAL- Not later than 30 days after the receipt of each report required under subsection (b)(2), the Secretary shall submit a report to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives, that describes--CommentsClose CommentsPermalink
(A) the findings of the report received from the Inspector General; andCommentsClose CommentsPermalink
(B) the steps the Secretary has taken, or plans to take, to address the problems identified in such report.CommentsClose CommentsPermalink
(2) CONTRACTS WITH FOREIGN COMPANIES- Not later than 60 days after the initiation of each contract action with a company whose headquarters are not based in the United States, the Secretary shall submit a report to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives, regarding the Secure Border Initiative.CommentsClose CommentsPermalink
(d) Reports on United States Ports- Not later that 30 days after receiving information regarding a proposed purchase of a contract to manage the operations of a United States port by a foreign entity, the Committee on Foreign Investment in the United States shall submit a report to Congress that describes--CommentsClose CommentsPermalink
(1) the proposed purchase;CommentsClose CommentsPermalink
(2) any security concerns related to the proposed purchase; andCommentsClose CommentsPermalink
(3) the manner in which such security concerns have been addressed.CommentsClose CommentsPermalink
(e) Authorization of Appropriations- In addition to amounts that are otherwise authorized to be appropriated to the Office of the Inspector General of the Department, there are authorized to be appropriated to the Office, to enable the Office to carry out this section--CommentsClose CommentsPermalink
(1) for fiscal year 2008, not less than 5 percent of the overall budget of the Office for such fiscal year;CommentsClose CommentsPermalink
(2) for fiscal year 2009, not less than 6 percent of the overall budget of the Office for such fiscal year; andCommentsClose CommentsPermalink
(3) for fiscal year 2010, not less than 7 percent of the overall budget of the Office for such fiscal year.CommentsClose CommentsPermalink
Subtitle C--Southern Border Security
SEC. 121. IMPROVING THE SECURITY OF MEXICO'S SOUTHERN BORDER.
(a) Technical Assistance- The Secretary of State, in coordination with the Secretary, shall work to cooperate with the head of Foreign Affairs Canada and the appropriate officials of the Government of Mexico to establish a program--CommentsClose CommentsPermalink
(1) to assess the specific needs of the countries of Central America in maintaining the security of the international borders of such countries;CommentsClose CommentsPermalink
(2) to use the assessment made under paragraph (1) to determine the financial and technical support needed by the countries of Central America from Canada, Mexico, and the United States to meet such needs;CommentsClose CommentsPermalink
(3) to provide technical assistance to the countries of Central America to promote issuance of secure passports and travel documents by such countries; andCommentsClose CommentsPermalink
(4) to encourage the countries of Central America--CommentsClose CommentsPermalink
(A) to control alien smuggling and trafficking;CommentsClose CommentsPermalink
(B) to prevent the use and manufacture of fraudulent travel documents; andCommentsClose CommentsPermalink
(C) to share relevant information with Mexico, Canada, and the United States.CommentsClose CommentsPermalink
(b) Border Security for the Countries of Central America- The Secretary, in consultation with the Secretary of State, shall work to cooperate--CommentsClose CommentsPermalink
(1) with the appropriate officials of the governments of the countries of Central America to provide law enforcement assistance to such countries to specifically address immigration issues to increase the ability of such governments to dismantle human smuggling organizations and gain additional control over the international borders between the countries of Central America; andCommentsClose CommentsPermalink
(2) with the appropriate officials of the governments of the countries of Central America to establish a program to provide needed equipment, technical assistance, and vehicles to manage, regulate, and patrol such international borders.CommentsClose CommentsPermalink
(c) Tracking Central American Gangs- The Secretary of State, in coordination with the Secretary and the Director of the Federal Bureau of Investigation, shall work to cooperate with the appropriate officials of the governments of other countries of Central America--CommentsClose CommentsPermalink
(1) to assess the direct and indirect impact on the United States and Central America of deporting violent criminal aliens;CommentsClose CommentsPermalink
(2) to establish a program and database to track individuals involved in Central American gang activities;CommentsClose CommentsPermalink
(3) to develop a mechanism that is acceptable to the governments of the countries of Central America and of the United States to notify such a government if an individual suspected of gang activity will be deported to that country prior to the deportation and to provide support for the reintegration of such deportees into that country; andCommentsClose CommentsPermalink
(4) to develop an agreement to share all relevant information related to individuals connected with Central American gangs.CommentsClose CommentsPermalink
(d) Limitations on Assistance- Any funds made available to carry out this section shall be subject to the limitations contained in section 551 of the Foreign Operations, Export Financing, and Related Programs Appropriations Act, 2006 (
SEC. 122. REPORT ON DEATHS AT THE UNITED STATES-MEXICO BORDER.
(a) Collection of Statistics- The Commissioner of the United States Customs and Border Protection shall collect statistics relating to deaths occurring at the border between the United States and Mexico, including--CommentsClose CommentsPermalink
(1) the causes of the deaths; andCommentsClose CommentsPermalink
(2) the total number of deaths.CommentsClose CommentsPermalink
(b) Report- Not later than 1 year after the date of enactment of this Act, and annually thereafter, the Commissioner of United States Customs and Border Protection shall submit to the Secretary a report that--CommentsClose CommentsPermalink
(1) analyzes trends with respect to the statistics collected under subsection (a) during the preceding year; andCommentsClose CommentsPermalink
(2) recommends actions to reduce the deaths described in subsection (a).CommentsClose CommentsPermalink
SEC. 123. COOPERATION WITH THE GOVERNMENT OF MEXICO.
(a) Cooperation Regarding Border Security- The Secretary of State, in cooperation with the Secretary and representatives of Federal, State, and local law enforcement agencies that are involved in border security and immigration enforcement efforts, shall work with the appropriate officials from the Government of Mexico to improve coordination between the United States and Mexico regarding--CommentsClose CommentsPermalink
(1) improved border security along the international border between the United States and Mexico;CommentsClose CommentsPermalink
(2) the reduction of human trafficking and smuggling between the United States and Mexico;CommentsClose CommentsPermalink
(3) the reduction of drug trafficking and smuggling between the United States and Mexico;CommentsClose CommentsPermalink
(4) the reduction of gang membership in the United States and Mexico;CommentsClose CommentsPermalink
(5) the reduction of violence against women in the United States and Mexico; andCommentsClose CommentsPermalink
(6) the reduction of other violence and criminal activity.CommentsClose CommentsPermalink
(b) Cooperation Regarding Education on Immigration Laws- The Secretary of State, in cooperation with other appropriate Federal officials, shall work with the appropriate officials from the Government of Mexico to carry out activities to educate citizens and nationals of Mexico regarding eligibility for status as a nonimmigrant under Federal law to ensure that the citizens and nationals are not exploited while working in the United States.CommentsClose CommentsPermalink
(c) Cooperation Regarding Circular Migration- The Secretary of State, in cooperation with the Secretary of Labor and other appropriate Federal officials, shall work with the appropriate officials from the Government of Mexico to improve coordination between the United States and Mexico to encourage circular migration, including assisting in the development of economic opportunities and providing job training for citizens and nationals in Mexico.CommentsClose CommentsPermalink
(d) Consultation Requirement- Federal, State, and local representatives in the United States shall work to cooperate with their counterparts in Mexico concerning border security structures along the international border between the United States and Mexico, as authorized by this title, in order to--CommentsClose CommentsPermalink
(1) solicit the views of affected communities;CommentsClose CommentsPermalink
(2) lessen tensions; andCommentsClose CommentsPermalink
(3) foster greater understanding and stronger cooperation on this and other important security issues of mutual concern.CommentsClose CommentsPermalink
(e) Annual Report- Not later than 180 days after the date of enactment of this Act, and annually thereafter, the Secretary of State shall submit to Congress a report on the actions taken by the United States and Mexico under this section.CommentsClose CommentsPermalink
SEC. 124. TEMPORARY NATIONAL GUARD SUPPORT FOR SECURING THE SOUTHERN LAND BORDER OF THE UNITED STATES.
(a) Authority To Provide Assistance-CommentsClose CommentsPermalink
(1) IN GENERAL- With the approval of the Secretary of Defense, the Governor of a State may order any units or personnel of the National Guard of such State to perform annual training duty under
(2) SUPPORT- With the approval of the Secretary of Defense, the Governor of a State may order any units or personnel of the National Guard of such State to perform duty under
(b) Authorized Activities- The activities authorized by this subsection are any of the following:CommentsClose CommentsPermalink
(1) Ground reconnaissance activities.CommentsClose CommentsPermalink
(2) Airborne reconnaissance activities.CommentsClose CommentsPermalink
(3) Logistical support.CommentsClose CommentsPermalink
(4) Provision of translation services and training.CommentsClose CommentsPermalink
(5) Administrative support services.CommentsClose CommentsPermalink
(6) Technical training services.CommentsClose CommentsPermalink
(7) Emergency medical assistance and services.CommentsClose CommentsPermalink
(8) Communications services.CommentsClose CommentsPermalink
(9) Rescue of aliens in peril.CommentsClose CommentsPermalink
(10) Construction of roadways, patrol roads, fences, barriers, and other facilities to secure the southern land border of the United States.CommentsClose CommentsPermalink
(11) Ground and air transportation.CommentsClose CommentsPermalink
(c) Cooperative Agreements- Units and personnel of the National Guard of a State may perform activities in another State under subsection (a) only pursuant to the terms of an emergency management assistance compact or other cooperative arrangement entered into between Governors of such States for purposes of this section, and only with the approval of the Secretary of Defense.CommentsClose CommentsPermalink
(d) Coordination of Assistance- The Secretary of Homeland Security shall, in consultation with the Secretary of Defense and the Governors of the States concerned, coordinate the performance of activities under this section by units and personnel of the National Guard.CommentsClose CommentsPermalink
(e) Annual Training- Annual training duty performed by members of the National Guard under subsection (a) shall be appropriate for the units and individual members concerned, taking into account the types of units and military occupational specialties of individual members performing such duty.CommentsClose CommentsPermalink
(f) Definitions- In this section:CommentsClose CommentsPermalink
(1) The term `Governor of a State' means, in the case of the District of Columbia, the Commanding General of the National Guard of the District of Columbia.CommentsClose CommentsPermalink
(2) The term `State' means each of the several States, the District of Columbia, the Commonwealth of Puerto Rico, Guam, and the Virgin Islands.CommentsClose CommentsPermalink
(3) The term `State along the southern border of the United States' means each of the following:CommentsClose CommentsPermalink
(A) The State of Arizona.CommentsClose CommentsPermalink
(B) The State of California.CommentsClose CommentsPermalink
(C) The State of New Mexico.CommentsClose CommentsPermalink
(D) The State of Texas.CommentsClose CommentsPermalink
(g) Duration of Authority- The authority of this section shall expire on January 1, 2009.CommentsClose CommentsPermalink
(h) Prohibition on Direct Participation in Law Enforcement- Activities carried out under the authority of this section shall not include the direct participation of a member of the National Guard in a search, seizure, arrest, or similar activity.CommentsClose CommentsPermalink
SEC. 125. UNITED STATES-MEXICO BORDER ENFORCEMENT REVIEW COMMISSION.
(a) Establishment of Commission-CommentsClose CommentsPermalink
(1) IN GENERAL- There is established an independent commission to be known as the United States-Mexico Border Enforcement Review Commission (referred to in this section as the `Commission').CommentsClose CommentsPermalink
(2) PURPOSES- The purposes of the Commission are--CommentsClose CommentsPermalink
(A) to study the overall enforcement and detention strategies, programs and policies of Federal agencies along the United States-Mexico border; andCommentsClose CommentsPermalink
(B) to make recommendations to the President and Congress with respect to such strategies, programs and policies.CommentsClose CommentsPermalink
(3) MEMBERSHIP- The Commission shall be composed of 16 voting members, who shall be appointed as follows:CommentsClose CommentsPermalink
(A) The Governors of the States of California, New Mexico, Arizona, and Texas shall each appoint 4 voting members of whom--CommentsClose CommentsPermalink
(i) 1 shall be a local elected official from the State's border region;CommentsClose CommentsPermalink
(ii) 1 shall be a local law enforcement official from the State's border region; andCommentsClose CommentsPermalink
(iii) 2 shall be from the State's communities of academia, religious leaders, civic leaders or community leaders.CommentsClose CommentsPermalink
(B) 2 nonvoting members, of whom--CommentsClose CommentsPermalink
(i) 1 shall be appointed by the Secretary; andCommentsClose CommentsPermalink
(ii) 1 shall be appointed by the Attorney General.CommentsClose CommentsPermalink
(4) QUALIFICATIONS-CommentsClose CommentsPermalink
(A) IN GENERAL- Members of the Commission shall be--CommentsClose CommentsPermalink
(i) individuals with expertise in migration, border enforcement and protection, civil and human rights, community relations, cross-border trade and commerce or other pertinent qualifications or experience; andCommentsClose CommentsPermalink
(ii) representative of a broad cross section of perspectives from the region along the international border between the United States and Mexico;CommentsClose CommentsPermalink
(B) POLITICAL AFFILIATION- Not more than 2 members of the Commission appointed by each Governor under paragraph (3)(A) may be members of the same political party.CommentsClose CommentsPermalink
(C) NONGOVERNMENTAL APPOINTEES- An individual appointed as a voting member to the Commission may not be an officer or employee of the Federal Government.CommentsClose CommentsPermalink
(5) DEADLINE FOR APPOINTMENT- All members of the Commission shall be appointed not later than 6 months after the enactment of this Act. If any member of the Commission described in paragraph (3)(A) is not appointed by such date, the Commission shall carry out its duties under this section without the participation of such member.CommentsClose CommentsPermalink
(6) TERM OF SERVICE- The term of office for members shall be for the life of the Commission, or 3 years, whichever is sooner.CommentsClose CommentsPermalink
(7) VACANCIES- Any vacancy in the Commission shall not affect its powers, but shall be filled in the same manner in which the original appointment was made.CommentsClose CommentsPermalink
(8) MEETINGS-CommentsClose CommentsPermalink
(A) INITIAL MEETING- The Commission shall meet and begin the operations of the Commission as soon as practicable.CommentsClose CommentsPermalink
(B) SUBSEQUENT MEETINGS- After its initial meeting, the Commission shall meet upon the call of the chairman or a majority of its members.CommentsClose CommentsPermalink
(9) QUORUM- Nine members of the Commission shall constitute a quorum.CommentsClose CommentsPermalink
(10) CHAIR AND VICE CHAIR- The voting members of the Commission shall elect a Chairman and Vice Chairman from among its members. The term of office shall be for the life of the Commission.CommentsClose CommentsPermalink
(b) Duties- The Commission shall review, examine, and make recommendations regarding border enforcement policies, strategies, and programs, including recommendations regarding--CommentsClose CommentsPermalink
(1) the protection of human and civil rights of community residents and migrants along the international border between the United States and Mexico;CommentsClose CommentsPermalink
(2) the adequacy and effectiveness of human and civil rights training of enforcement personnel on such border;CommentsClose CommentsPermalink
(3) the adequacy of the complaint process within the agencies and programs of the Department that are employed when an individual files a grievance;CommentsClose CommentsPermalink
(4) the effect of the operations, technology, and enforcement infrastructure along such border on the--CommentsClose CommentsPermalink
(A) environment;CommentsClose CommentsPermalink
(B) cross border traffic and commerce; andCommentsClose CommentsPermalink
(C) the quality of life of border communities;CommentsClose CommentsPermalink
(5) State and local law enforcement involvement in the enforcement of Federal immigration law;CommentsClose CommentsPermalink
(6) the adequacy of detention standards and conditions, and the extent to which the standards and conditions are enforced; andCommentsClose CommentsPermalink
(7) any other matters regarding border enforcement policies, strategies, and programs the Commission determines appropriate.CommentsClose CommentsPermalink
(c) Information and Assistance From Federal Agencies-CommentsClose CommentsPermalink
(1) INFORMATION FROM FEDERAL AGENCIES- The Commission may seek directly from any department or agency of the United States such information, including suggestions, estimates, and statistics, as allowed by law and as the Commission considers necessary to carry out the provisions of this section. Upon request of the Commission, the head of such department or agency shall furnish such information to the Commission.CommentsClose CommentsPermalink
(2) ASSISTANCE FROM FEDERAL AGENCIES- The Administrator of General Services shall, on a reimbursable basis, provide the Commission with administrative support and other services for the performance of the Commission's functions. The departments and agencies of the United States may provide the Commission with such services, funds, facilities, staff, and other support services as they determine advisable and as authorized by law.CommentsClose CommentsPermalink
(d) Compensation-CommentsClose CommentsPermalink
(1) IN GENERAL- Members of the Commission shall serve without pay.CommentsClose CommentsPermalink
(2) REIMBURSEMENT OF EXPENSES- All members of the Commission shall be reimbursed for reasonable travel expenses and subsistence, and other reasonable and necessary expenses incurred by them in the performance of their duties.CommentsClose CommentsPermalink
(e) Report- Not later than 2 years after the date of the first meeting called pursuant to (a)(8)(A), the Commission shall submit a report to the President and Congress that contains--CommentsClose CommentsPermalink
(1) findings with respect to the duties of the Commission;CommentsClose CommentsPermalink
(2) recommendations regarding border enforcement policies, strategies, and programs;CommentsClose CommentsPermalink
(3) suggestions for the implementation of the Commission's recommendations; andCommentsClose CommentsPermalink
(4) a recommendation as to whether the Commission should continue to exist after the date of termination described in subsection (g), and if so, a description of the purposes and duties recommended to be carried out by the Commission after such date.CommentsClose CommentsPermalink
(f) Authorization of Appropriations- There are authorized to be appropriated such sums as may be necessary to carry out this section.CommentsClose CommentsPermalink
(g) Sunset- Unless the Commission is re-authorized by Congress, the Commission shall terminate on the date that is 90 days after the date the Commission submits the report described in subsection (e).CommentsClose CommentsPermalink
Subtitle D--Secure Entry Initiatives
SEC. 131. BIOMETRIC DATA ENHANCEMENTS.
Not later than December 31, 2008, the Secretary shall--CommentsClose CommentsPermalink
(1) in consultation with the Attorney General, enhance connectivity between the Automated Biometric Fingerprint Identification System (IDENT) of the Department and the Integrated Automated Fingerprint Identification System (IAFIS) of the Federal Bureau of Investigation to ensure more expeditious data searches; andCommentsClose CommentsPermalink
(2) in consultation with the Secretary of State, collect all fingerprints from each alien required to provide fingerprints during the alien's initial enrollment in the integrated entry and exit data system described in section 110 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (
SEC. 132. US-VISIT SYSTEM.
Not later than 6 months after the date of enactment of this Act, the Secretary, in consultation with the heads of other appropriate Federal agencies, shall submit to Congress a schedule for--CommentsClose CommentsPermalink
(1) equipping all land border ports of entry of the United States with the U.S.-Visitor and Immigrant Status Indicator Technology (US-VISIT) system implemented under the authority of section 110 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (
(2) developing and deploying at such ports of entry the exit component of the US-VISIT system; andCommentsClose CommentsPermalink
(3) making interoperable all immigration screening systems operated by the Secretary.CommentsClose CommentsPermalink
SEC. 133. DOCUMENT FRAUD DETECTION.
(a) Training- Subject to the availability of appropriations, the Secretary shall provide all officers of the United States Customs and Border Protection with training in identifying and detecting fraudulent travel documents. Such training shall be developed in consultation with the head of the Forensic Document Laboratory of United States Immigration and Customs Enforcement.CommentsClose CommentsPermalink
(b) Forensic Document Laboratory- The Secretary shall provide all United States Customs and Border Protection officers with access to the Forensic Document Laboratory.CommentsClose CommentsPermalink
(c) Assessment-CommentsClose CommentsPermalink
(1) REQUIREMENT FOR ASSESSMENT- The Inspector General of the Department shall conduct an independent assessment of the accuracy and reliability of the Forensic Document Laboratory.CommentsClose CommentsPermalink
(2) REPORT TO CONGRESS- Not later than 6 months after the date of enactment of this Act, the Inspector General shall submit to Congress the findings of the assessment required by paragraph (1).CommentsClose CommentsPermalink
(d) Authorization of Appropriations- There are authorized to be appropriated to the Secretary such sums as may be necessary for each of fiscal years 2008 through 2012 to carry out this section.CommentsClose CommentsPermalink
SEC. 134. IMPROVED DOCUMENT INTEGRITY.
(a) In General- Section 303 of the Enhanced Border Security and Visa Entry Reform Act of 2002 (
(1) by striking `Attorney General' each place it appears and inserting `Secretary of Homeland Security';CommentsClose CommentsPermalink
(2) in the heading, by striking `entry and exit documents' and inserting `travel and entry documents and evidence of status';CommentsClose CommentsPermalink
(3) in subsection (b)(1)--CommentsClose CommentsPermalink
(A) by striking `Not later than October 26, 2004, the' and inserting `The'; andCommentsClose CommentsPermalink
(B) by striking `visas and' both places it appears and inserting `visas, evidence of status, and';CommentsClose CommentsPermalink
(4) by redesignating subsection (d) as subsection (e); andCommentsClose CommentsPermalink
(5) by inserting after subsection (c) the following:CommentsClose CommentsPermalink
`(d) Other Documents- Not later than December 31, 2008, every document, other than an interim document, issued by the Secretary of Homeland Security which may be used as evidence of an alien's authorization to travel shall be machine-readable and tamper-resistant, and shall incorporate a biometric identifier to allow the Secretary of Homeland Security to verify electronically the identity and status of the alien.'.CommentsClose CommentsPermalink
SEC. 135. BIOMETRIC ENTRY-EXIT SYSTEM.
(a) Collection of Biometric Data From Aliens Departing the United States- Section 215 (
(1) by redesignating subsection (c) as subsection (g);CommentsClose CommentsPermalink
(2) by moving subsection (g), as redesignated by paragraph (1), to the end; andCommentsClose CommentsPermalink
(3) by inserting after subsection (b) the following:CommentsClose CommentsPermalink
`(c) The Secretary of Homeland Security is authorized to require aliens departing the United States to provide biometric data and other information relating to their immigration status.'.CommentsClose CommentsPermalink
(b) Inspection of Applicants for Admission- Section 235(d) (
`(5) AUTHORITY TO COLLECT BIOMETRIC DATA- In conducting inspections under subsection (b), immigration officers are authorized to collect biometric data from--CommentsClose CommentsPermalink
`(A) any applicant for admission or alien seeking to transit through the United States; orCommentsClose CommentsPermalink
`(B) any lawful permanent resident who is entering the United States and who is not regarded as seeking admission pursuant to section 101(a)(13)(C).'.CommentsClose CommentsPermalink
(c) Collection of Biometric Data From Alien Crewmen- Section 252 (
`(d) An immigration officer is authorized to collect biometric data from an alien crewman seeking permission to land temporarily in the United States.'.CommentsClose CommentsPermalink
(d) Grounds of Inadmissibility- Section 212 (
(1) in subsection (a)(7), by adding at the end the following:CommentsClose CommentsPermalink
`(C) WITHHOLDERS OF BIOMETRIC DATA- Any alien who knowingly fails to comply with a lawful request for biometric data under section 215(c) or 235(d) is inadmissible.'; andCommentsClose CommentsPermalink
(2) in subsection (d), by inserting after paragraph (1) the following:CommentsClose CommentsPermalink
`(2) The Secretary of Homeland Security shall determine whether a ground for inadmissibility exists with respect to an alien described in subparagraph (C) of subsection (a)(7) and may waive the application of such subparagraph for an individual alien or a class of aliens, at the discretion of the Secretary.'.CommentsClose CommentsPermalink
(e) Implementation- Section 7208 of the 9/11 Commission Implementation Act of 2004 (
(1) in subsection (c), by adding at the end the following:CommentsClose CommentsPermalink
`(3) IMPLEMENTATION- In fully implementing the automated biometric entry and exit data system under this section, the Secretary is not required to comply with the requirements of chapter 5 of title 5, United States Code (commonly referred to as the Administrative Procedure Act) or any other law relating to rulemaking, information collection, or publication in the Federal Register.'; andCommentsClose CommentsPermalink
(2) in subsection (l)--CommentsClose CommentsPermalink
(A) by striking `There are authorized' and inserting the following:CommentsClose CommentsPermalink
`(1) IN GENERAL- There are authorized'; andCommentsClose CommentsPermalink
(B) by adding at the end the following:CommentsClose CommentsPermalink
`(2) IMPLEMENTATION AT ALL LAND BORDER PORTS OF ENTRY- There are authorized to be appropriated such sums as may be necessary for each of fiscal years 2008 and 2009 to implement the automated biometric entry and exit data system at all land border ports of entry.'.CommentsClose CommentsPermalink
SEC. 136. EVASION OF INSPECTION OR VIOLATION OF ARRIVAL, REPORTING, ENTRY, OR CLEARANCE REQUIREMENTS.
(a) In General- Chapter 27 of title 18, United States Code, is amended by adding at the end the following:CommentsClose CommentsPermalink
`Sec. 556. Evasion of inspection or violation of arrival, reporting, entry, or clearance requirements
`(a) Prohibition- A person at a port of entry or customs or immigration checkpoint shall be punished as described in subsection (b) if such person attempts to elude or eludes customs, immigration, or agriculture inspection or fails to stop at the command of an officer or employee of the United States charged with enforcing the immigration, customs, or other laws of the United States at a port of entry or customs or immigration checkpoint.CommentsClose CommentsPermalink
`(b) Penalties- A person who commits an offense described in subsection (a) shall be--CommentsClose CommentsPermalink
`(1) fined under this title;CommentsClose CommentsPermalink
`(2)(A) imprisoned for not more than 3 years, or both;CommentsClose CommentsPermalink
`(B) imprisoned for not more than 10 years, or both, if in commission of this violation, such person attempts to inflict or inflicts bodily injury (as defined in section 1365(h) of this title); orCommentsClose CommentsPermalink
`(C) imprisoned for any term of years or for life, or both, if death results, and may be sentenced to death; orCommentsClose CommentsPermalink
`(3) both fined and imprisoned under this subsection.CommentsClose CommentsPermalink
`(c) Conspiracy- If 2 or more persons conspire to commit an offense described in subsection (a), and 1 or more of such persons do any act to effect the object of the conspiracy, each shall be punishable as a principal, except that the sentence of death may not be imposed.CommentsClose CommentsPermalink
`(d) Prima Facie Evidence- For the purposes of seizure and forfeiture under applicable law, in the case of use of a vehicle or other conveyance in the commission of this offense, or in the case of disregarding or disobeying the lawful authority or command of any officer or employee of the United States under section 111(b) of this title, such conduct shall constitute prima facie evidence of smuggling aliens or merchandise.'.CommentsClose CommentsPermalink
(b) Conforming Amendment- The table of sections for chapter 27 of title 18, United States Code, is amended by inserting at the end:CommentsClose CommentsPermalink
`556. Evasion of inspection or during violation of arrival, reporting, entry, or clearance requirements.'.CommentsClose CommentsPermalink
(c) Failure To Obey Border Enforcement Officers-
`(c) Failure To Obey Lawful Orders of Border Enforcement Officers- Whoever willfully disregards or disobeys the lawful authority or command of any officer or employee of the United States charged with enforcing the immigration, customs, or other laws of the United States while engaged in, or on account of, the performance of official duties shall be fined under this title or imprisoned for not more than 5 years, or both.'.CommentsClose CommentsPermalink
(d) Technical Amendments-CommentsClose CommentsPermalink
(1) IN GENERAL- Chapter 27 of title 18, United States Code, is amended by redesignating the section 554 added by section 551(a) of the Department of Homeland Security Appropriations Act, 2007 (
(2) TABLE OF SECTIONS- The table of sections for chapter 27 of title 18, United States Code, is amended--CommentsClose CommentsPermalink
(A) by striking the following:CommentsClose CommentsPermalink
`554. Border tunnels and passages.'; andCommentsClose CommentsPermalink
(B) inserting the following:CommentsClose CommentsPermalink
`555. Border tunnels and passages.'.CommentsClose CommentsPermalink
(3) CRIMINAL FORFEITURE-
(4) DIRECTIVE TO THE UNITED STATES SENTENCING COMMISSION- Section 551(d) of the Department of Homeland Security Appropriations Act, 2007 (
Subtitle E--Law Enforcement Relief for States
SEC. 141. BORDER RELIEF GRANT PROGRAM.
(a) Grants Authorized-CommentsClose CommentsPermalink
(1) IN GENERAL- The Secretary is authorized to award grants, subject to the availability of appropriations, to an eligible law enforcement agency to provide assistance to such agency to address--CommentsClose CommentsPermalink
(A) criminal activity that occurs in the jurisdiction of such agency by virtue of such agency's proximity to the United States border; andCommentsClose CommentsPermalink
(B) the impact of any lack of security along the United States border.CommentsClose CommentsPermalink
(2) DURATION- Grants may be awarded under this subsection during fiscal years 2008 through 2012.CommentsClose CommentsPermalink
(3) COMPETITIVE BASIS- The Secretary shall award grants under this subsection on a competitive basis, except that the Secretary shall give priority to applications from any eligible law enforcement agency serving a community with a population of less than 50,000.CommentsClose CommentsPermalink
(b) Use of Funds- Grants awarded pursuant to subsection (a) may only be used to provide additional resources for an eligible law enforcement agency to address criminal activity occurring along any such border, including--CommentsClose CommentsPermalink
(1) to obtain equipment;CommentsClose CommentsPermalink
(2) to hire additional personnel;CommentsClose CommentsPermalink
(3) to upgrade and maintain law enforcement technology;CommentsClose CommentsPermalink
(4) to cover operational costs, including overtime and transportation costs; andCommentsClose CommentsPermalink
(5) such other resources as are available to assist that agency.CommentsClose CommentsPermalink
(c) Application-CommentsClose CommentsPermalink
(1) IN GENERAL- Each eligible law enforcement agency seeking a grant under this section shall submit an application to the Secretary at such time, in such manner, and accompanied by such information as the Secretary may reasonably require.CommentsClose CommentsPermalink
(2) CONTENTS- Each application submitted pursuant to paragraph (1) shall--CommentsClose CommentsPermalink
(A) describe the activities for which assistance under this section is sought; andCommentsClose CommentsPermalink
(B) provide such additional assurances as the Secretary determines to be essential to ensure compliance with the requirements of this section.CommentsClose CommentsPermalink
(d) Definitions- For the purposes of this section:CommentsClose CommentsPermalink
(1) ELIGIBLE LAW ENFORCEMENT AGENCY- The term `eligible law enforcement agency' means a tribal, State, or local law enforcement agency--CommentsClose CommentsPermalink
(A) located in a county that is not more than 100 miles from a United States border with--CommentsClose CommentsPermalink
(i) Canada; orCommentsClose CommentsPermalink
(ii) Mexico; orCommentsClose CommentsPermalink
(B) located in a county more than 100 miles from any such border, but where such county has been certified by the Secretary as a High Impact Area.CommentsClose CommentsPermalink
(2) HIGH IMPACT AREA- The term `High Impact Area' means any county designated by the Secretary as such, taking into consideration--CommentsClose CommentsPermalink
(A) whether local law enforcement agencies in that county have the resources to protect the lives, property, safety, or welfare of the residents of that county;CommentsClose CommentsPermalink
(B) the relationship between any lack of security along the United States border and the rise, if any, of criminal activity in that county; andCommentsClose CommentsPermalink
(C) any other unique challenges that local law enforcement face due to a lack of security along the United States border.CommentsClose CommentsPermalink
(e) Authorization of Appropriations-CommentsClose CommentsPermalink
(1) IN GENERAL- There are authorized to be appropriated $50,000,000 for each of fiscal years 2008 through 2012 to carry out the provisions of this section.CommentsClose CommentsPermalink
(2) DIVISION OF AUTHORIZED FUNDS- Of the amounts authorized under paragraph (1)--CommentsClose CommentsPermalink
(A) 2/3 shall be set aside for eligible law enforcement agencies located in the 6 States with the largest number of undocumented alien apprehensions; andCommentsClose CommentsPermalink
(B) 1/3 shall be set aside for areas designated as a High Impact Area under subsection (d).CommentsClose CommentsPermalink
(f) Supplement Not Supplant- Amounts appropriated for grants under this section shall be used to supplement and not supplant other State and local public funds obligated for the purposes provided under this title.CommentsClose CommentsPermalink
(g) Enforcement of Federal Immigration Law- Nothing in this section shall be construed to authorize State or local law enforcement agencies or their officers to exercise Federal immigration law enforcement authority.CommentsClose CommentsPermalink
SEC. 142. NORTHERN AND SOUTHERN BORDER PROSECUTION INITIATIVE.
(a) Reimbursement to State and Local Prosecutors for Prosecuting Federally Initiated Drug Cases- The Attorney General shall, subject to the availability of appropriations, reimburse State and county prosecutors located in States along the Northern or Southern border of the United States for prosecuting federally initiated and referred drug cases.CommentsClose CommentsPermalink
(b) Authorization of Appropriations- There are authorized to be appropriated $50,000,000 for each of the fiscal years 2008 through 2013 to carry out subsection (a).CommentsClose CommentsPermalink
Subtitle F--Rapid Response Measures
SEC. 151. DEPLOYMENT OF BORDER PATROL AGENTS.
(a) Emergency Deployment of Border Patrol Agents-CommentsClose CommentsPermalink
(1) IN GENERAL- If the Governor of a State on an international border of the United States declares an international border security emergency and requests additional agents of the Border Patrol (referred to in this subtitle as `agents') from the Secretary, the Secretary, subject to paragraphs (2) and (3), may provide the State with not more than 1,000 additional agents for the purpose of patrolling and defending the international border, in order to prevent individuals from crossing the international border into the United States at any location other than an authorized port of entry.CommentsClose CommentsPermalink
(2) CONSULTATION- Upon receiving a request for agents under paragraph (1), the Secretary, after consultation with the President, shall grant such request to the extent that providing such agents will not significantly impair the Department's ability to provide border security for any other State.CommentsClose CommentsPermalink
(3) COLLECTIVE BARGAINING- Emergency deployments under this subsection shall be made in accordance with all applicable collective bargaining agreements and obligations.CommentsClose CommentsPermalink
(b) Elimination of Fixed Deployment of Border Patrol Agents- The Secretary shall ensure that agents are not precluded from performing patrol duties and apprehending violators of law, except in unusual circumstances if the temporary use of fixed deployment positions is necessary.CommentsClose CommentsPermalink
SEC. 152. BORDER PATROL MAJOR ASSETS.
(a) Control of Border Patrol Assets- The Border Patrol shall have complete and exclusive administrative and operational control over all the assets utilized in carrying out its mission, including aircraft, watercraft, vehicles, detention space, transportation, and all of the personnel associated with such assets.CommentsClose CommentsPermalink
(b) Helicopters and Power Boats-CommentsClose CommentsPermalink
(1) HELICOPTERS- The Secretary shall increase, by not less than 100, the number of helicopters under the control of the Border Patrol. The Secretary shall ensure that appropriate types of helicopters are procured for the various missions being performed.CommentsClose CommentsPermalink
(2) POWER BOATS- The Secretary shall increase, by not less than 250, the number of power boats under the control of the Border Patrol. The Secretary shall ensure that the types of power boats that are procured are appropriate for both the waterways in which they are used and the mission requirements.CommentsClose CommentsPermalink
(3) USE AND TRAINING- The Secretary shall--CommentsClose CommentsPermalink
(A) establish an overall policy on how the helicopters and power boats procured under this subsection will be used; andCommentsClose CommentsPermalink
(B) implement training programs for the agents who use such assets, including safe operating procedures and rescue operations.CommentsClose CommentsPermalink
(c) Motor Vehicles-CommentsClose CommentsPermalink
(1) QUANTITY- The Secretary shall establish a fleet of motor vehicles appropriate for use by the Border Patrol that will permit a ratio of not less than 1 police-type vehicle for every 3 agents. These police-type vehicles shall be replaced not less often than once every 3 years. The Secretary shall ensure that there are sufficient numbers and types of other motor vehicles to support the mission of the Border Patrol.CommentsClose CommentsPermalink
(2) FEATURES- All motor vehicles purchased for the Border Patrol shall--CommentsClose CommentsPermalink
(A) be appropriate for the mission of the Border Patrol; andCommentsClose CommentsPermalink
(B) have a panic button and a global positioning system device that is activated solely in emergency situations to track the location of agents in distress.CommentsClose CommentsPermalink
SEC. 153. ELECTRONIC EQUIPMENT.
(a) Portable Computers- The Secretary shall ensure that each police-type motor vehicle in the fleet of the Border Patrol is equipped with a portable computer with access to all necessary law enforcement databases and otherwise suited to the unique operational requirements of the Border Patrol.CommentsClose CommentsPermalink
(b) Radio Equipment- The Secretary shall augment the existing radio communications system so that all law enforcement personnel working in each area where Border Patrol operations are conducted have clear and encrypted 2-way radio communication capabilities at all times. Each portable communications device shall be equipped with a panic button and a global positioning system device that is activated solely in emergency situations to track the location of agents in distress.CommentsClose CommentsPermalink
(c) Handheld Global Positioning System Devices- The Secretary shall ensure that each Border Patrol agent is issued a state-of-the-art handheld global positioning system device for navigational purposes.CommentsClose CommentsPermalink
(d) Night Vision Equipment- The Secretary shall ensure that sufficient quantities of state-of-the-art night vision equipment are procured and maintained to enable each Border Patrol agent working during the hours of darkness to be equipped with a portable night vision device.CommentsClose CommentsPermalink
SEC. 154. PERSONAL EQUIPMENT.
(a) Border Armor- The Secretary shall ensure that every agent is issued high-quality body armor that is appropriate for the climate and risks faced by the agent. Each agent shall be permitted to select from among a variety of approved brands and styles. Agents shall be strongly encouraged, but not required, to wear such body armor whenever practicable. All body armor shall be replaced not less often than once every 5 years.CommentsClose CommentsPermalink
(b) Weapons- The Secretary shall ensure that agents are equipped with weapons that are reliable and effective to protect themselves, their fellow agents, and innocent third parties from the threats posed by armed criminals. The Secretary shall ensure that the policies of the Department authorize all agents to carry weapons that are suited to the potential threats that they face.CommentsClose CommentsPermalink
(c) Uniforms- The Secretary shall ensure that all agents are provided with all necessary uniform items, including outerwear suited to the climate, footwear, belts, holsters, and personal protective equipment, at no cost to such agents. Such items shall be replaced at no cost to such agents as such items become worn or unserviceable or no longer fit properly.CommentsClose CommentsPermalink
SEC. 155. AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be appropriated to the Secretary such sums as may be necessary for each of the fiscal years 2008 through 2012 to carry out this subtitle.CommentsClose CommentsPermalink
Subtitle G--Border Infrastructure and Technology Modernization
SEC. 161. DEFINITIONS.
In this subtitle:CommentsClose CommentsPermalink
(1) COMMISSIONER- The term `Commissioner' means the Commissioner of United States Customs and Border Protection.CommentsClose CommentsPermalink
(2) NORTHERN BORDER- The term `northern border' means the international border between the United States and Canada.CommentsClose CommentsPermalink
(3) SOUTHERN BORDER- The term `southern border' means the international border between the United States and Mexico.CommentsClose CommentsPermalink
SEC. 162. PORT OF ENTRY INFRASTRUCTURE ASSESSMENT STUDY.
(a) Requirement To Update- Not later than January 31 of each year, the Administrator of General Services shall update the Port of Entry Infrastructure Assessment Study prepared by United States Customs and Border Protection in accordance with the matter relating to the ports of entry infrastructure assessment that is set out in the joint explanatory statement in the conference report accompanying H.R. 2490 of the 106th Congress, 1st session (House of Representatives Rep. No. 106-319, on page 67) and submit such updated study to Congress.CommentsClose CommentsPermalink
(b) Consultation- In preparing the updated studies required in subsection (a), the Administrator of General Services shall consult with the Director of the Office of Management and Budget, the Secretary, and the Commissioner.CommentsClose CommentsPermalink
(c) Content- Each updated study required in subsection (a) shall--CommentsClose CommentsPermalink
(1) identify port of entry infrastructure and technology improvement projects that would enhance border security and facilitate the flow of legitimate commerce if implemented;CommentsClose CommentsPermalink
(2) include the projects identified in the National Land Border Security Plan required by section 164; andCommentsClose CommentsPermalink
(3) prioritize the projects described in paragraphs (1) and (2) based on the ability of a project to--CommentsClose CommentsPermalink
(A) fulfill immediate security requirements; andCommentsClose CommentsPermalink
(B) facilitate trade across the borders of the United States.CommentsClose CommentsPermalink
(d) Project Implementation- The Commissioner shall implement the infrastructure and technology improvement projects described in subsection (c) in the order of priority assigned to each project under paragraph (3) of such subsection.CommentsClose CommentsPermalink
(e) Divergence From Priorities- The Commissioner may diverge from the priority order if the Commissioner determines that significantly changed circumstances, such as immediate security needs or changes in infrastructure in Mexico or Canada, compellingly alter the need for a project in the United States.CommentsClose CommentsPermalink
SEC. 163. NATIONAL LAND BORDER SECURITY PLAN.
(a) In General- Not later than 1 year after the date of enactment of this Act, an annually thereafter, the Secretary, after consultation with representatives of Federal, State, and local law enforcement agencies and private entities that are involved in international trade across the northern border or the southern border, shall submit a National Land Border Security Plan to Congress.CommentsClose CommentsPermalink
(b) Vulnerability Assessment-CommentsClose CommentsPermalink
(1) IN GENERAL- The plan required in subsection (a) shall include a vulnerability assessment of each port of entry located on the northern border or the southern border.CommentsClose CommentsPermalink
(2) PORT SECURITY COORDINATORS- The Secretary may establish 1 or more port security coordinators at each port of entry located on the northern border or the southern border--CommentsClose CommentsPermalink
(A) to assist in conducting a vulnerability assessment at such port; andCommentsClose CommentsPermalink
(B) to provide other assistance with the preparation of the plan required in subsection (a).CommentsClose CommentsPermalink
SEC. 164. EXPANSION OF COMMERCE SECURITY PROGRAMS.
(a) Customs-Trade Partnership Against Terrorism-CommentsClose CommentsPermalink
(1) IN GENERAL- Not later than 180 days after the date of enactment of this Act, the Commissioner, in consultation with the Secretary, shall develop a plan to expand the programs of the Customs-Trade Partnership Against Terrorism established pursuant to section 211 of the SAFE Port Act (
(A) The Business Anti-Smuggling Coalition.CommentsClose CommentsPermalink
(B) The Carrier Initiative Program.CommentsClose CommentsPermalink
(C) The Americas Counter Smuggling Initiative.CommentsClose CommentsPermalink
(D) The Container Security Initiative established pursuant to section 205 of the SAFE Port Act (
(E) The Free and Secure Trade Initiative.CommentsClose CommentsPermalink
(F) Other industry partnership programs administered by the Commissioner.CommentsClose CommentsPermalink
(2) SOUTHERN BORDER DEMONSTRATION PROGRAM- Not later than 180 days after the date of enactment of this Act, the Commissioner shall implement, on a demonstration basis, at least 1 Customs-Trade Partnership Against Terrorism program, which has been successfully implemented along the northern border, along the southern border.CommentsClose CommentsPermalink
(b) Demonstration Program- Not later than 180 days after the date of enactment of this Act, the Commissioner shall establish a demonstration program to develop a cooperative trade security system to improve supply chain security.CommentsClose CommentsPermalink
SEC. 165. PORT OF ENTRY TECHNOLOGY DEMONSTRATION PROGRAM.
(a) Establishment- The Secretary shall carry out a technology demonstration program to--CommentsClose CommentsPermalink
(1) test and evaluate new port of entry technologies;CommentsClose CommentsPermalink
(2) refine port of entry technologies and operational concepts; andCommentsClose CommentsPermalink
(3) train personnel under realistic conditions.CommentsClose CommentsPermalink
(b) Technology and Facilities-CommentsClose CommentsPermalink
(1) TECHNOLOGY TESTING- Under the technology demonstration program, the Secretary shall test technologies that enhance port of entry operations, including operations related to--CommentsClose CommentsPermalink
(A) inspections;CommentsClose CommentsPermalink
(B) communications;CommentsClose CommentsPermalink
(C) port tracking;CommentsClose CommentsPermalink
(D) identification of persons and cargo;CommentsClose CommentsPermalink
(E) sensory devices;CommentsClose CommentsPermalink
(F) personal detection;CommentsClose CommentsPermalink
(G) decision support; andCommentsClose CommentsPermalink
(H) the detection and identification of weapons of mass destruction.CommentsClose CommentsPermalink
(2) DEVELOPMENT OF FACILITIES- At a demonstration site selected pursuant to subsection (c)(2), the Secretary shall develop facilities to provide appropriate training to law enforcement personnel who have responsibility for border security, including--CommentsClose CommentsPermalink
(A) cross-training among agencies;CommentsClose CommentsPermalink
(B) advanced law enforcement training; andCommentsClose CommentsPermalink
(C) equipment orientation.CommentsClose CommentsPermalink
(c) Demonstration Sites-CommentsClose CommentsPermalink
(1) NUMBER- The Secretary shall carry out the demonstration program at not less than 3 sites and not more than 5 sites.CommentsClose CommentsPermalink
(2) SELECTION CRITERIA- To ensure that at least 1 of the facilities selected as a port of entry demonstration site for the demonstration program has the most up-to-date design, contains sufficient space to conduct the demonstration program, has a traffic volume low enough to easily incorporate new technologies without interrupting normal processing activity, and is able to efficiently carry out demonstration and port of entry operations, at least 1 port of entry selected as a demonstration site shall--CommentsClose CommentsPermalink
(A) have been established not more than 15 years before the date of enactment of this Act;CommentsClose CommentsPermalink
(B) consist of not less than 65 acres, with the possibility of expansion to not less than 25 adjacent acres; andCommentsClose CommentsPermalink
(C) have serviced an average of not more than 50,000 vehicles per month during the 1-year period ending on the date of enactment of this Act.CommentsClose CommentsPermalink
(d) Relationship With Other Agencies- The Secretary shall permit personnel from an appropriate Federal or State agency to utilize a demonstration site described in subsection (c) to test technologies that enhance port of entry operations, including technologies described in subparagraphs (A) through (H) of subsection (b)(1).CommentsClose CommentsPermalink
(e) Report-CommentsClose CommentsPermalink
(1) REQUIREMENT- Not later than 1 year after the date of enactment of this Act, and annually thereafter, the Secretary shall submit to Congress a report on the activities carried out at each demonstration site under the technology demonstration program established under this section.CommentsClose CommentsPermalink
(2) CONTENT- The report submitted under paragraph (1) shall include an assessment by the Secretary of the feasibility of incorporating any demonstrated technology for use throughout United States Customs and Border Protection.CommentsClose CommentsPermalink
SEC. 166. AUTHORIZATION OF APPROPRIATIONS.
(a) In General- In addition to any funds otherwise available, there are authorized to be appropriated such sums as may be necessary for the fiscal years 2008 through 2012 to carry out this subtitle.CommentsClose CommentsPermalink
(b) International Agreements- Amounts appropriated pursuant to the authorization of appropriations in subsection (a) may be used for the implementation of projects described in the Declaration on Embracing Technology and Cooperation to Promote the Secure and Efficient Flow of People and Commerce across our Shared Border between the United States and Mexico, agreed to March 22, 2002, Monterrey, Mexico or the Smart Border Declaration between the United States and Canada, agreed to December 12, 2001, Ottawa, Canada that are consistent with the provisions of this subtitle.CommentsClose CommentsPermalink
Subtitle H--Safe and Secure Detention
SEC. 171. DEFINITIONS.
In this subtitle:CommentsClose CommentsPermalink
(1) ASYLUM SEEKER- The term `asylum seeker' means an applicant for asylum under section 208 of the Immigration and Nationality Act (
(2) CREDIBLE FEAR OF PERSECUTION- The term `credible fear of persecution' has the meaning given that term in section 235(b)(1)(B)(v) of the Immigration and Nationality Act (
(3) DETAINEE- The term `detainee' means an alien in the Department's custody held in a detention facility.CommentsClose CommentsPermalink
(4) DETENTION FACILITY- The term `detention facility' means any Federal facility in which an asylum seeker, an alien detained pending the outcome of a removal proceeding, or an alien detained pending the execution of a final order of removal, is detained for more than 72 hours, or any other facility in which such detention services are provided to the Federal Government by contract, and does not include detention at any port of entry in the United States.CommentsClose CommentsPermalink
(5) REASONABLE FEAR OF PERSECUTION OR TORTURE- The term `reasonable fear of persecution or torture' has the meaning described in section 208.31 of title 8, Code of Federal Regulations.CommentsClose CommentsPermalink
(6) STANDARD- The term `standard' means any policy, procedure, or other requirement.CommentsClose CommentsPermalink
(7) VULNERABLE POPULATIONS- The term `vulnerable populations' means classes of aliens subject to the Immigration and Nationality Act (
(A) Asylum seekers.CommentsClose CommentsPermalink
(B) Refugees admitted under section 207 of the Immigration and Nationality Act (
(C) Aliens whose deportation is being withheld under section 243(h) of the Immigration and Nationality Act (as in effect immediately before the effective date of section 307 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (
(D) Aliens granted or seeking protection under article 3 of the Convention Against Torture and other Cruel, Inhumane, or Degrading Treatment or Punishment, done at New York, December 10, 1994.CommentsClose CommentsPermalink
(E) Applicants for relief and benefits under the Immigration and Nationality Act pursuant to the amendments made by the Trafficking Victims Protection Act of 2000 (division A of
(F) Applicants for relief and benefits under the Immigration and Nationality Act pursuant to the amendments made by the Violence Against Women Act of 2000 (division B of
(G) Unaccompanied alien children (as defined by 462(g) of the Homeland Security Act of 2002 (
SEC. 172. RECORDING SECONDARY INSPECTION INTERVIEWS.
(a) In General- The Secretary shall establish quality assurance procedures to ensure the accuracy and verifiability of signed or sworn statements taken by employees of the Department exercising expedited removal authority under section 235(b) of the Immigration and Nationality Act (
(b) Factors Relating to Sworn Statements- Where practicable, as determined by the sole and unreviewable discretion of the Secretary, the quality assurance procedures established pursuant to this section shall include taped interviews to ensure the accuracy and verifiability of signed or sworn statements taken by employees of the Department.CommentsClose CommentsPermalink
(c) Interpreters- The Secretary shall ensure that a professional fluent interpreter is used when the interviewing officer does not speak a language understood by the alien and there is no other Federal, State, or local government employee available who is able to interpret effectively, accurately, and impartially.CommentsClose CommentsPermalink
SEC. 173. PROCEDURES GOVERNING DETENTION DECISIONS.
Section 236 (
(1) in subsection (a)--CommentsClose CommentsPermalink
(A) in the matter preceding paragraph (1)--CommentsClose CommentsPermalink
(i) in the first sentence by striking `Attorney General' and inserting `Secretary of Homeland Security';CommentsClose CommentsPermalink
(ii) by striking `(c)' and inserting `(d)'; andCommentsClose CommentsPermalink
(iii) in the second sentence by striking `Attorney General' and inserting `Secretary';CommentsClose CommentsPermalink
(B) in paragraph (2)--CommentsClose CommentsPermalink
(i) in subparagraph (A)--CommentsClose CommentsPermalink
(I) by striking `Attorney General' and inserting `Secretary'; andCommentsClose CommentsPermalink
(II) by striking `or' at the end;CommentsClose CommentsPermalink
(ii) in subparagraph (B), by striking `but' at the end; andCommentsClose CommentsPermalink
(iii) by inserting after subparagraph (B) the following:CommentsClose CommentsPermalink
`(C) the alien's own recognizance; orCommentsClose CommentsPermalink
`(D) a secure alternatives program as provided for in this section; but';CommentsClose CommentsPermalink
(2) by redesignating subsections (b), (c), (d), and (e) as subsections (d), (e), (f), and (h), respectively;CommentsClose CommentsPermalink
(3) by inserting after subsection (a) the following new subsections:CommentsClose CommentsPermalink
`(b) Custody Decisions-CommentsClose CommentsPermalink
`(1) IN GENERAL- In the case of a decision under subsection (a) or (d), the following shall apply:CommentsClose CommentsPermalink
`(A) The decision shall be made in writing and shall be served upon the alien. A decision to continue detention without bond or parole shall specify in writing the reasons for that decision.CommentsClose CommentsPermalink
`(B) The decision shall be served upon the alien within 72 hours of the alien's detention or, in the case of an alien subject to section 235 or 241(a)(5) who must establish a credible fear of persecution or a reasonable fear of persecution or torture in order to proceed in immigration court, within 72 hours of a positive credible fear of persecution or reasonable fear of persecution or torture determination.CommentsClose CommentsPermalink
`(2) CRITERIA TO BE CONSIDERED- The criteria to be considered by the Secretary and the Attorney General in making a custody decision shall include--CommentsClose CommentsPermalink
`(A) whether the alien poses a risk to public safety or national security;CommentsClose CommentsPermalink
`(B) whether the alien is likely to appear for immigration proceedings; andCommentsClose CommentsPermalink
`(C) any other relevant factors.CommentsClose CommentsPermalink
`(3) CUSTODY REDETERMINATION- An alien subject to this section may at any time after being served with the Secretary's decision under subsections (a) or (d) request a redetermination of that decision by an immigration judge. All decisions by the Secretary to detain without bond or parole shall be subject to redetermination by an immigration judge within 2 weeks from the time the alien was served with the decision, unless waived by the alien. The alien may request a further redetermination upon a showing of a material change in circumstances since the last redetermination hearing.CommentsClose CommentsPermalink
`(c) Exception for Mandatory Detention- Subsection (b) shall not apply to any alien who is subject to mandatory detention under section 235(b)(1)(B)(iii)(IV), 236(c), or 236A or who has a final order of removal and has no proceedings pending before the Executive Office for Immigration Review.';CommentsClose CommentsPermalink
(4) in subsection (d), as redesignated--CommentsClose CommentsPermalink
(A) by striking `Attorney General' and inserting `Secretary'; andCommentsClose CommentsPermalink
(B) by striking `or parole' and inserting `, parole, or decision to release;';CommentsClose CommentsPermalink
(5) in subsection (e), as redesignated--CommentsClose CommentsPermalink
(A) by striking `Attorney General' and inserting `Secretary' each place it appears; andCommentsClose CommentsPermalink
(B) in paragraph (2), by inserting `or for humanitarian reasons,' after `such an investigation,';CommentsClose CommentsPermalink
(6) in subsection (f), as redesignated--CommentsClose CommentsPermalink
(A) in the matter preceding paragraph (1), by striking `Attorney General' and inserting `Secretary';CommentsClose CommentsPermalink
(B) in paragraph (1), in subparagraphs (A) and (B), by striking `Service' and inserting `Department of Homeland Security'; andCommentsClose CommentsPermalink
(C) in paragraph (3), by striking `Service' and inserting `Secretary of Homeland Security';CommentsClose CommentsPermalink
(7) by inserting after subsection (f), as redesignated, the following new subparagraph:CommentsClose CommentsPermalink
`(g) Administrative Review- If an immigration judge's custody decision has been stayed by the action of an officer or employee of the Department of Homeland Security, the stay shall expire in 30 days, unless the Board of Immigration Appeals before that time, and upon motion, enters an order continuing the stay.'; andCommentsClose CommentsPermalink
(8) in subsection (h), as redesignated--CommentsClose CommentsPermalink
(A) by striking `Attorney General's' and inserting `Secretary of Homeland Security's'; andCommentsClose CommentsPermalink
(B) by striking `Attorney General' and inserting `Secretary'.CommentsClose CommentsPermalink
SEC. 174. LEGAL ORIENTATION PROGRAM.
(a) In General- The Attorney General, in consultation with the Secretary, shall ensure that all detained aliens in immigration and asylum proceedings receive legal orientation through a program administered and implemented by the Executive Office for Immigration Review of the Department of Justice.CommentsClose CommentsPermalink
(b) Content of Program- The legal orientation program developed pursuant to this section shall be based on the Legal Orientation Program carried out by the Executive Office for Immigration Review on the date of the enactment of this Act.CommentsClose CommentsPermalink
(c) Expansion of Legal Assistance- The Secretary shall ensure the expansion through the United States Citizenship and Immigration Service of public-private partnerships that facilitate pro bono counseling and legal assistance for asylum seekers awaiting a credible fear of persecution interview. The pro bono counseling and legal assistance programs developed pursuant to this subsection shall be based on the pilot program developed in Arlington, Virginia by the United States Citizenship and Immigration Service.CommentsClose CommentsPermalink
SEC. 175. CONDITIONS OF DETENTION.
(a) In General- The Secretary shall ensure that standards governing conditions and procedures at detention facilities are fully implemented and enforced, and that all detention facilities comply with the standards.CommentsClose CommentsPermalink
(b) Procedures and Standards- The Secretary shall promulgate new standards, or modify existing detention standards, to improve conditions in detention facilities. The improvements shall address at a minimum the following policies and procedures:CommentsClose CommentsPermalink
(1) FAIR AND HUMANE TREATMENT- Procedures to ensure that detainees are not subject to degrading or inhumane treatment such as verbal or physical abuse or harassment, sexual abuse or harassment, or arbitrary punishment.CommentsClose CommentsPermalink
(2) LIMITATIONS ON SHACKLING- Procedures limiting the use of shackling, handcuffing, solitary confinement, and strip searches of detainees to situations where the use of such techniques is necessitated by security interests or other extraordinary circumstances.CommentsClose CommentsPermalink
(3) INVESTIGATION OF GRIEVANCES- Procedures for the prompt and effective investigation of grievances raised by detainees, including review of grievances by officials of the Department who do not work at the same detention facility where the detainee filing the grievance is detained.CommentsClose CommentsPermalink
(4) ACCESS TO TELEPHONES- Procedures permitting detainees sufficient access to telephones, and the ability to contact, free of charge, legal representatives, the immigration courts, the Board of Immigration Appeals, and the Federal courts through confidential toll-free numbers.CommentsClose CommentsPermalink
(5) LOCATION OF FACILITIES- Location of detention facilities, to the extent practicable, near sources of free or low-cost legal representation with expertise in asylum or immigration law.CommentsClose CommentsPermalink
(6) PROCEDURES GOVERNING TRANSFERS OF DETAINEES- Procedures governing the transfer of a detainee that take into account--CommentsClose CommentsPermalink
(A) the detainee's access to legal representatives; andCommentsClose CommentsPermalink
(B) the proximity of the facility to the venue of the asylum or removal proceeding.CommentsClose CommentsPermalink
(7) QUALITY OF MEDICAL CARE- Prompt and adequate medical care provided at no cost to the detainee, including dental care, eye care, mental health care, individual and group counseling, medical dietary needs, and other medically necessary specialized care. Medical facilities in all detention facilities used by the Department shall maintain current accreditation by the National Commission on Correctional Health Care (NCCHC). Requirements that each medical facility that is not accredited by the Joint Commission on the Accreditation of Health Care Organizations (JCAHO) will seek to obtain such accreditation. Maintenance of complete medical records for every detainee which shall be made available upon request to a detainee, his legal representative, or other authorized individuals.CommentsClose CommentsPermalink
(8) TRANSLATION CAPABILITIES- The employment of detention facility staff that, to the extent practicable, are qualified in the languages represented in the population of detainees at a detention facility, and the provision of alternative translation services when necessary.CommentsClose CommentsPermalink
(9) RECREATIONAL PROGRAMS AND ACTIVITIES- Daily access to indoor and outdoor recreational programs and activities.CommentsClose CommentsPermalink
(c) Special Standards for Noncriminal Detainees- The Secretary shall promulgate new standards, or modifications to existing standards, that--CommentsClose CommentsPermalink
(1) recognize the special characteristics of noncriminal, nonviolent detainees, and ensure that procedures and conditions of detention are appropriate for a noncriminal population; andCommentsClose CommentsPermalink
(2) ensure that noncriminal detainees are separated from inmates with criminal convictions, pretrial inmates facing criminal prosecution, and those inmates exhibiting violent behavior while in detention.CommentsClose CommentsPermalink
(d) Special Standards for Vulnerable Populations- The Secretary shall promulgate new standards, or modifications to existing standards, that--CommentsClose CommentsPermalink
(1) recognize the unique needs of asylum seekers, victims of torture and trafficking, families with children, detainees who do not speak English, detainees with special religious, cultural or spiritual considerations, and other vulnerable populations; andCommentsClose CommentsPermalink
(2) ensure that procedures and conditions of detention are appropriate for the populations listed in this subsection.CommentsClose CommentsPermalink
(e) Training of Personnel-CommentsClose CommentsPermalink
(1) IN GENERAL- The Secretary shall ensure that personnel in detention facilities are given specialized training to better understand and work with the population of detainees held at the facilities where such personnel work. The training should address the unique needs of--CommentsClose CommentsPermalink
(A) asylum seekers;CommentsClose CommentsPermalink
(B) victims of torture or other trauma; andCommentsClose CommentsPermalink
(C) other vulnerable populations.CommentsClose CommentsPermalink
(2) SPECIALIZED TRAINING- The training required by this subsection shall be designed to better enable personnel to work with detainees from different countries, and detainees who cannot speak English. The training shall emphasize that many detainees have no criminal records and are being held for civil violations.CommentsClose CommentsPermalink
SEC. 176. OFFICE OF DETENTION OVERSIGHT.
(a) Establishment of the Office-CommentsClose CommentsPermalink
(1) IN GENERAL- There shall be established within the Department an Office of Detention Oversight (in this section referred to as the `Office').CommentsClose CommentsPermalink
(2) HEAD OF THE OFFICE- There shall be at the head of the Office an Administrator who shall be appointed by, and shall report to, the Secretary.CommentsClose CommentsPermalink
(3) SCHEDULE- The Office shall be established and the Administrator of the Office appointed not later than 6 months after the date of enactment of this Act.CommentsClose CommentsPermalink
(b) Responsibilities of the Office-CommentsClose CommentsPermalink
(1) INSPECTIONS OF DETENTION CENTERS- The Administrator of the Office shall--CommentsClose CommentsPermalink
(A) undertake frequent and unannounced inspections of all detention facilities;CommentsClose CommentsPermalink
(B) develop a procedure for any detainee or the detainee's representative to file a written complaint directly with the Office; andCommentsClose CommentsPermalink
(C) report to the Secretary and to the Assistant Secretary of Homeland Security for United States Immigration and Customs Enforcement all findings of a detention facility's noncompliance with detention standards.CommentsClose CommentsPermalink
(2) INVESTIGATIONS- The Administrator of the Office shall--CommentsClose CommentsPermalink
(A) initiate investigations, as appropriate, into allegations of systemic problems at detention facilities or incidents that constitute serious violations of detention standards;CommentsClose CommentsPermalink
(B) report to the Secretary and the Assistant Secretary of Homeland Security for United States Immigration and Customs Enforcement the results of all investigations; andCommentsClose CommentsPermalink
(C) refer matters, where appropriate, for further action to--CommentsClose CommentsPermalink
(i) the Department of Justice;CommentsClose CommentsPermalink
(ii) the Office of the Inspector General of the Department;CommentsClose CommentsPermalink
(iii) the Office of Civil Rights and Civil Liberties of the Department; orCommentsClose CommentsPermalink
(iv) any other relevant office of agency.CommentsClose CommentsPermalink
(3) REPORT TO CONGRESS-CommentsClose CommentsPermalink
(A) IN GENERAL- The Administrator of the Office shall submit to the Secretary, the Committee on the Judiciary and the Committee on Homeland Security and Governmental Affairs of the Senate, and the Committee on the Judiciary and the Committee on Homeland Security of the House of Representatives an annual report on the Administrator's findings on detention conditions and the results of the investigations carried out by the Administrator.CommentsClose CommentsPermalink
(B) CONTENTS OF REPORT- Each report required by subparagraph (A) shall include--CommentsClose CommentsPermalink
(i) a description of the actions to remedy findings of noncompliance or other problems that are taken by the Secretary or the Assistant Secretary of Homeland Security for United States Immigration and Customs Enforcement, and each detention facility found to be in noncompliance; andCommentsClose CommentsPermalink
(ii) information regarding whether such actions were successful and resulted in compliance with detention standards.CommentsClose CommentsPermalink
(4) REVIEW OF COMPLAINTS BY DETAINEES- The Administrator of the Office shall establish procedures to receive and review complaints of violations of the detention standards promulgated by the Secretary. The procedures shall protect the anonymity of the claimant, including detainees, employees, or others, from retaliation.CommentsClose CommentsPermalink
(c) Cooperation With Other Offices and Agencies- Whenever appropriate, the Administrator of the Office shall cooperate and coordinate its activities with--CommentsClose CommentsPermalink
(1) the Office of the Inspector General of the Department;CommentsClose CommentsPermalink
(2) the Office of Civil Rights and Civil Liberties of the Department;CommentsClose CommentsPermalink
(3) the Privacy Officer of the Department;CommentsClose CommentsPermalink
(4) the Civil Rights Division of the Department of Justice; orCommentsClose CommentsPermalink
(5) any other relevant office or agency.CommentsClose CommentsPermalink
SEC. 177. SECURE ALTERNATIVES PROGRAM.
(a) Establishment of Program- The Secretary shall establish a secure alternatives program under which an alien who has been detained may be released under enhanced supervision to prevent the alien from absconding and to ensure that the alien makes appearances related to such detention.CommentsClose CommentsPermalink
(b) Program Requirements-CommentsClose CommentsPermalink
(1) NATIONWIDE IMPLEMENTATION- The Secretary shall facilitate the development of the secure alternatives program on a nationwide basis, as a continuation of existing pilot programs such as the Intensive Supervision Appearance Program (ISAP) developed by the Department.CommentsClose CommentsPermalink
(2) UTILIZATION OF ALTERNATIVES- The secure alternatives program shall utilize a continuum of alternatives based on the alien's need for supervision, including placement of the alien with an individual or organizational sponsor, or in a supervised group home.CommentsClose CommentsPermalink
(3) ALIENS ELIGIBLE FOR SECURE ALTERNATIVES PROGRAM-CommentsClose CommentsPermalink
(A) IN GENERAL- Aliens who would otherwise be subject to detention based on a consideration of the release criteria in section 236(b)(2), or who are released pursuant to section 236(e)(2), shall be considered for the secure alternatives program.CommentsClose CommentsPermalink
(B) DESIGN OF PROGRAMS- Secure alternatives programs shall be designed to ensure sufficient supervision of the population described in subparagraph (A).CommentsClose CommentsPermalink
(4) CONTRACTS- The Secretary shall enter into contracts with qualified nongovernmental entities to implement the secure alternatives program.CommentsClose CommentsPermalink
(5) OTHER CONSIDERATIONS- In designing such program, the Secretary shall--CommentsClose CommentsPermalink
(A) consult with relevant experts; andCommentsClose CommentsPermalink
(B) consider programs that have proven successful in the past, including the Appearance Assistance Program developed by the Vera Institute and the Intensive Supervision Appearance Program (ISAP) developed by the Department.CommentsClose CommentsPermalink
SEC. 178. LESS RESTRICTIVE DETENTION FACILITIES.
(a) Construction- The Secretary shall facilitate the construction or use of secure but less restrictive detention facilities.CommentsClose CommentsPermalink
(b) Criteria- In developing detention facilities pursuant to this section, the Secretary shall--CommentsClose CommentsPermalink
(1) consider the design, operation, and conditions of existing secure but less restrictive detention facilities, such as the Department's detention facilities in Broward County, Florida, and Berks County, Pennsylvania;CommentsClose CommentsPermalink
(2) to the extent practicable, construct or use detention facilities where--CommentsClose CommentsPermalink
(A) movement within and between indoor and outdoor areas of the facility is subject to minimal restrictions;CommentsClose CommentsPermalink
(B) detainees have ready access to social, psychological, and medical services;CommentsClose CommentsPermalink
(C) detainees with special needs, including those who have experienced trauma or torture, have ready access to services and treatment addressing their needs;CommentsClose CommentsPermalink
(D) detainees have ready access to meaningful programmatic and recreational activities;CommentsClose CommentsPermalink
(E) detainees are permitted contact visits with legal representatives, family members, and others;CommentsClose CommentsPermalink
(F) detainees have access to private toilet and shower facilities;CommentsClose CommentsPermalink
(G) prison-style uniforms or jumpsuits are not required; andCommentsClose CommentsPermalink
(H) special facilities are provided to families with children.CommentsClose CommentsPermalink
(c) Facilities for Families With Children- For situations where release or secure alternatives programs are not an option, the Secretary shall ensure that special detention facilities are specifically designed to house parents with their minor children, including ensuring that--CommentsClose CommentsPermalink
(1) procedures and conditions of detention are appropriate for families with minor children; andCommentsClose CommentsPermalink
(2) living and sleeping quarters for parents and minor children are not physically separated.CommentsClose CommentsPermalink
(d) Placement in Nonpunitive Facilities- Priority for placement in less restrictive facilities shall be given to asylum seekers, families with minor children, other vulnerable populations, and nonviolent criminal detainees.CommentsClose CommentsPermalink
(e) Procedures and Standards- Where necessary, the Secretary shall promulgate new standards, or modify existing detention standards, to promote the development of less restrictive detention facilities.CommentsClose CommentsPermalink
SEC. 179. AUTHORIZATION OF APPROPRIATIONS; EFFECTIVE DATE.
(a) Authorization of Appropriations- There are authorized to be appropriated such sums as are necessary to carry out this subtitle.CommentsClose CommentsPermalink
(b) Effective Date- This subtitle and the amendments made by this subtitle shall take effect on the date that is 6 months after the date of enactment of this Act.CommentsClose CommentsPermalink
Subtitle I--Other Border Security Initiatives
SEC. 181. COMBATING HUMAN SMUGGLING.
(a) Requirement for Plan- The Secretary shall develop and implement a plan to improve coordination among United States Immigration and Customs Enforcement and United States Customs and Border Protection and any other Federal, State, local, or tribal authorities, as determined appropriate by the Secretary, to improve coordination efforts to combat human smuggling.CommentsClose CommentsPermalink
(b) Content- In developing the plan required by subsection (a), the Secretary shall consider--CommentsClose CommentsPermalink
(1) the interoperability of databases utilized to prevent human smuggling;CommentsClose CommentsPermalink
(2) adequate and effective personnel training;CommentsClose CommentsPermalink
(3) methods and programs to effectively target networks that engage in such smuggling;CommentsClose CommentsPermalink
(4) effective utilization of--CommentsClose CommentsPermalink
(A) visas for victims of trafficking and other crimes; andCommentsClose CommentsPermalink
(B) investigatory techniques, equipment, and procedures that prevent, detect, and prosecute international money laundering and other operations that are utilized in smuggling;CommentsClose CommentsPermalink
(5) joint measures, with the Secretary of State, to enhance intelligence sharing and cooperation with foreign governments whose citizens are preyed on by human smugglers; andCommentsClose CommentsPermalink
(6) other measures that the Secretary considers appropriate to combat human smuggling.CommentsClose CommentsPermalink
(c) Report- Not later than 1 year after implementing the plan described in subsection (a), the Secretary shall submit to Congress a report on such plan, including any recommendations for legislative action to improve efforts to combating human smuggling.CommentsClose CommentsPermalink
(d) Savings Provision- Nothing in this section may be construed to provide additional authority to any State or local entity to enforce Federal immigration laws.CommentsClose CommentsPermalink
SEC. 182. SCREENING OF MUNICIPAL SOLID WASTE.
(a) Definitions- In this section:CommentsClose CommentsPermalink
(1) COMMERCIAL MOTOR VEHICLE- The term `commercial motor vehicle' has the meaning given the term in
(2) COMMISSIONER- The term `Commissioner' means the Commissioner of United States Customs and Border Protection.CommentsClose CommentsPermalink
(3) MUNICIPAL SOLID WASTE- The term `municipal solid waste' includes sludge (as defined in section 1004 of the Solid Waste Disposal Act (
(b) Report to Congress- Not later than 90 days after the date of enactment of this Act, the Commissioner shall submit to Congress a report that--CommentsClose CommentsPermalink
(1) indicates whether the methodologies and technologies used by United States Customs and Border Protection to screen for and detect the presence of chemical, nuclear, biological, and radiological weapons in municipal solid waste are as effective as the methodologies and technologies used by United States Customs and Border Protection to screen for such weapons in other items of commerce entering the United States through commercial motor vehicle transport; andCommentsClose CommentsPermalink
(2) if the report indicates that the methodologies and technologies used to screen municipal solid waste are less effective than the methodologies and technologies used to screen other items of commerce, identifies the actions that United States Customs and Border Protection will take to achieve the same level of effectiveness in the screening of municipal solid waste, including actions necessary to meet the need for additional screening technologies.CommentsClose CommentsPermalink
(c) Impact on Commercial Motor Vehicles- If the Commissioner fails to fully implement an action identified under subsection (b)(2) before the earlier of the date that is 180 days after the date on which the report under subsection (b) is required to be submitted or the date that is 180 days after the date on which the report is submitted, the Secretary shall deny entry into the United States of any commercial motor vehicle carrying municipal solid waste until the Secretary certifies to Congress that the methodologies and technologies used by United States Customs and Border Protection to screen for and detect the presence of chemical, nuclear, biological, and radiological weapons in municipal solid waste are as effective as the methodologies and technologies used by United States Customs and Border Protection to screen for such weapons in other items of commerce entering into the United States through commercial motor vehicle transport.CommentsClose CommentsPermalink
SEC. 183. BORDER SECURITY ON CERTAIN FEDERAL LAND.
(a) Definitions- In this section:CommentsClose CommentsPermalink
(1) PROTECTED LAND- The term `protected land' means land under the jurisdiction of the Secretary concerned.CommentsClose CommentsPermalink
(2) SECRETARY CONCERNED- The term `Secretary concerned' means--CommentsClose CommentsPermalink
(A) with respect to land under the jurisdiction of the Secretary of Agriculture, the Secretary of Agriculture; andCommentsClose CommentsPermalink
(B) with respect to land under the jurisdiction of the Secretary of the Interior, the Secretary of the Interior.CommentsClose CommentsPermalink
(b) Support for Border Security Needs-CommentsClose CommentsPermalink
(1) IN GENERAL- To gain operational control over the international land borders of the United States and to prevent the entry of terrorists, unlawful aliens, narcotics, and other contraband into the United States, the Secretary, in cooperation with the Secretary concerned, shall provide--CommentsClose CommentsPermalink
(A) increased United States Customs and Border Protection personnel to secure protected land along the international land borders of the United States;CommentsClose CommentsPermalink
(B) Federal land resource training for United States Customs and Border Protection agents dedicated to protected land; andCommentsClose CommentsPermalink
(C) unmanned aerial vehicles, aerial assets, remote video surveillance camera systems, and sensors on protected land that is directly adjacent to the international land border of the United States, with priority given to units of the National Park System.CommentsClose CommentsPermalink
(2) COORDINATION- In providing training for United States Customs and Border Protection agents under paragraph (1)(B), the Secretary shall coordinate with the Secretary concerned to ensure that the training is appropriate to the mission of the National Park Service, the United States Fish and Wildlife Service, the Forest Service, or the relevant agency of the Department of the Interior or the Department of Agriculture to minimize the adverse impact on natural and cultural resources from border protection activities.CommentsClose CommentsPermalink
(c) Inventory of Costs and Activities- The Secretary concerned shall develop and submit to the Secretary an inventory of costs incurred by the Secretary concerned relating to illegal border activity, including the cost of equipment, training, recurring maintenance, construction of facilities, restoration of natural and cultural resources, recapitalization of facilities, and operations.CommentsClose CommentsPermalink
(d) Recommendations- The Secretary shall--CommentsClose CommentsPermalink
(1) develop joint recommendations with the National Park Service, the United States Fish and Wildlife Service, and the Forest Service for an appropriate cost recovery mechanism relating to items identified in subsection (c); andCommentsClose CommentsPermalink
(2) not later than March 31, 2008, submit to the Committee on the Judiciary and the Committee on Energy and Natural Resources of the Senate and the Committee on the Judiciary and the Committee on Natural Resources of the House of Representatives the recommendations developed under paragraph (1).CommentsClose CommentsPermalink
(e) Border Protection Strategy- The Secretary, the Secretary of the Interior, and the Secretary of Agriculture shall jointly develop a border protection strategy that supports the border security needs of the United States in the manner that best protects--CommentsClose CommentsPermalink
(1) units of the National Park System;CommentsClose CommentsPermalink
(2) National Forest System land;CommentsClose CommentsPermalink
(3) land under the jurisdiction of the United States Fish and Wildlife Service; andCommentsClose CommentsPermalink
(4) other relevant land under the jurisdiction of the Secretary of the Interior or the Secretary of Agriculture.CommentsClose CommentsPermalink
TITLE II--INTERIOR ENFORCEMENT
Subtitle A--Reducing the Number of Illegal Aliens in the United States
SEC. 201. INCARCERATION OF CRIMINAL ALIENS.
(a) Institutional Removal Program-CommentsClose CommentsPermalink
(1) CONTINUATION- The Secretary shall continue to operate the Institutional Removal Program (referred to in this section as the `Program') or shall develop and implement another program to--CommentsClose CommentsPermalink
(A) identify removable criminal aliens in Federal and State correctional facilities;CommentsClose CommentsPermalink
(B) ensure that such aliens are not released into the community; andCommentsClose CommentsPermalink
(C) remove such aliens from the United States after the completion of their sentences, in accordance with section 241 of the Immigration and Nationality Act (
(2) EXPANSION- The Secretary may extend the scope of the Program to all States.CommentsClose CommentsPermalink
(b) Technology Usage- Technology, such as videoconferencing, shall be used to the maximum extent practicable to make the Program available in remote locations. Mobile access to Federal databases of aliens, such as the Automated Biometric Fingerprint Identification System (IDENT), and live scan technology shall be used to the maximum extent practicable to make these resources available to State and local law enforcement agencies in remote locations.CommentsClose CommentsPermalink
(c) Report to Congress- Not later than 6 months after the date of enactment of this Act, and annually thereafter, the Secretary shall submit to Congress a report on the participation of States in the Program and in any other program carried out pursuant to subsection (a).CommentsClose CommentsPermalink
(d) Authorization of Appropriations- There are authorized to be appropriated such sums as may be necessary in each of the fiscal years 2008 through 2012 to carry out this section.CommentsClose CommentsPermalink
SEC. 202. ENCOURAGING ALIENS TO DEPART VOLUNTARILY.
(a) In General- Section 240B (
(1) in subsection (a)--CommentsClose CommentsPermalink
(A) by amending paragraph (1) to read as follows:CommentsClose CommentsPermalink
`(1) IN GENERAL- If an alien is not removable under paragraph (2)(A)(iii) or (4) of section 237(a)--CommentsClose CommentsPermalink
`(A) the Secretary of Homeland Security may permit the alien to voluntarily depart the United States at the alien's own expense under this subsection instead of being subject to proceedings under section 240; orCommentsClose CommentsPermalink
`(B) the Attorney General may permit the alien to voluntarily depart the United States at the alien's own expense under this subsection after the initiation of removal proceedings under section 240 and before the conclusion of such proceedings before an immigration judge.';CommentsClose CommentsPermalink
(B) in paragraph (2), by amending subparagraph (A) to read as follows:CommentsClose CommentsPermalink
`(A) IN GENERAL-CommentsClose CommentsPermalink
`(i) INSTEAD OF REMOVAL- Subject to subparagraph (B), permission to voluntarily depart under paragraph (1)(A) shall not be valid for any period in excess of 120 days. The Secretary may require an alien permitted to voluntarily depart under paragraph (1)(A) to post a voluntary departure bond, to be surrendered upon proof that the alien has departed the United States within the time specified.';CommentsClose CommentsPermalink
`(ii) BEFORE THE CONCLUSION OF REMOVAL PROCEEDINGS- Permission to voluntarily depart under paragraph (1)(B) shall not be valid for any period longer than 60 days, and may be granted only after a finding that the alien has the means to depart the United States and intends to do so. An immigration judge may require an alien to voluntarily depart under paragraph (1)(B) to post a voluntary departure bond, in an amount necessary to ensure that the alien will depart, to be surrendered upon proof that the alien has departed the United States within the time specified. An immigration judge may waive the requirement to post a voluntary departure bond in individual cases upon a finding that the alien has presented compelling evidence that the posting of a bond will pose a serious financial hardship and the alien has presented credible evidence that such a bond is unnecessary to guarantee timely departure.'; andCommentsClose CommentsPermalink
(C) by striking paragraph (3);CommentsClose CommentsPermalink
(2) by amending subsection (c) to read as follows:CommentsClose CommentsPermalink
`(c) Conditions on Voluntary Departure-CommentsClose CommentsPermalink
`(1) VOLUNTARY DEPARTURE AGREEMENT- Voluntary departure under this section may only be granted as part of an affirmative agreement by the alien.CommentsClose CommentsPermalink
`(2) CONCESSIONS BY THE SECRETARY- In connection with the alien's agreement to depart voluntarily under paragraph (1)(A), the Secretary of Homeland Security may agree to a reduction in the period of inadmissibility under subparagraph (A) or (B)(i) of section 212(a)(9).CommentsClose CommentsPermalink
`(3) ADVISALS- Agreements relating to voluntary departure granted during removal proceedings under section 240, or at the conclusion of such proceedings, shall be presented on the record before the immigration judge. The immigration judge shall advise the alien of the consequences of a voluntary departure agreement before accepting such agreement.CommentsClose CommentsPermalink
`(4) FAILURE TO COMPLY WITH AGREEMENT- If an alien agrees to voluntary departure under this section and fails to depart the United States within the time allowed for voluntary departure or fails to comply with any other terms of the agreement (including failure to timely post any required bond), the alien is--CommentsClose CommentsPermalink
`(A) ineligible for the benefits of the agreement;CommentsClose CommentsPermalink
`(B) subject to the penalties described in subsection (d); andCommentsClose CommentsPermalink
`(C) subject to an alternate order of removal if voluntary departure was granted under subsection (a)(1)(B) or (b).CommentsClose CommentsPermalink
`(5) VOLUNTARY DEPARTURE PERIOD NOT AFFECTED- Except as expressly agreed to by the Secretary in writing in the exercise of the Secretary's discretion before the expiration of the period allowed for voluntary departure, no motion, appeal, application, petition, or petition for review shall affect, reinstate, enjoin, delay, stay, or toll the alien's obligation to depart from the United States during the period agreed to by the alien and the Secretary.'; andCommentsClose CommentsPermalink
(3) by amending subsection (d) to read as follows:CommentsClose CommentsPermalink
`(d) Penalties for Failure To Depart- If an alien is permitted to voluntarily depart under this section and fails to voluntarily depart from the United States within the time period specified or otherwise violates the terms of a voluntary departure agreement, the alien will be subject to the following penalties:CommentsClose CommentsPermalink
`(1) CIVIL PENALTY- The alien shall be liable for a civil penalty of $3,000. The order allowing voluntary departure shall specify the amount of the penalty, which shall be acknowledged by the alien on the record. If the Secretary thereafter establishes that the alien failed to depart voluntarily within the time allowed, no further procedure will be necessary to establish the amount of the penalty, and the Secretary may collect the civil penalty at any time thereafter and by whatever means provided by law. An alien will be ineligible for any benefits under this chapter until this civil penalty is paid.CommentsClose CommentsPermalink
`(2) INELIGIBILITY FOR RELIEF- The alien shall be ineligible during the time the alien remains in the United States and for a period of 10 years after the alien's departure for any further relief under this section and sections 240A, 245, 248, and 249. The order permitting the alien to depart voluntarily shall inform the alien of the penalties under this subsection.'; andCommentsClose CommentsPermalink
(4) by amending subsection (e) to read as follows:CommentsClose CommentsPermalink
`(e) Eligibility-CommentsClose CommentsPermalink
`(1) PRIOR GRANT OF VOLUNTARY DEPARTURE- An alien shall not be permitted to voluntarily depart under this section if the Secretary of Homeland Security or the Attorney General previously permitted the alien to depart voluntarily under this section on or after the date of the enactment of the STRIVE Act of 2007.CommentsClose CommentsPermalink
`(2) RULEMAKING- The Secretary may promulgate regulations to limit eligibility or impose additional conditions for voluntary departure under subsection (a)(1)(A) for any class of aliens.'.CommentsClose CommentsPermalink
(b) Effective Date- The amendments made by this section shall apply with respect to all orders granting voluntary departure under section 240B of the Immigration and Nationality Act (
SEC. 203. DETERRING ALIENS ORDERED REMOVED FROM REMAINING IN THE UNITED STATES UNLAWFULLY.
Section 212(a)(9)(A) (
(1) in clause (i), by striking `seeks admission within 5 years of the date of such removal (or within 20 years' and inserting `seeks admission not later than 5 years after the date of the alien's removal (or not later than 20 years after the alien's removal'; andCommentsClose CommentsPermalink
(2) in clause (ii), by striking `seeks admission within 10 years of the date of such alien's departure or removal (or within 20 years of' and inserting `seeks admission not later than 10 years after the date of the alien's departure or removal (or not later than 20 years after'.CommentsClose CommentsPermalink
SEC. 204. PROHIBITION OF THE SALE OF FIREARMS TO, OR THE POSSESSION OF FIREARMS BY CERTAIN ALIENS.
(1) in subsection (d)(5)--CommentsClose CommentsPermalink
(A) in subparagraph (A), by striking `or' at the end;CommentsClose CommentsPermalink
(B) in subparagraph (B), by striking `(y)(2)' and all that follows and inserting `(y), is in a nonimmigrant classification; or'; andCommentsClose CommentsPermalink
(C) by adding at the end the following:CommentsClose CommentsPermalink
`(C) has been paroled into the United States under section 212(d)(5) of the Immigration and Nationality Act (
(2) in subsection (g)(5)--CommentsClose CommentsPermalink
(A) in subparagraph (A), by striking `or' at the end;CommentsClose CommentsPermalink
(B) in subparagraph (B), by striking `(y)(2)' and all that follows and inserting `(y), is in a nonimmigrant classification; or'; andCommentsClose CommentsPermalink
(C) by adding at the end the following:CommentsClose CommentsPermalink
`(C) has been paroled into the United States under section 212(d)(5) of the Immigration and Nationality Act (
(3) in subsection (y)--CommentsClose CommentsPermalink
(A) in the heading, by striking `Admitted Under Nonimmigrant Visas' and inserting `in a Nonimmigrant Classification';CommentsClose CommentsPermalink
(B) in paragraph (1), by amending subparagraph (B) to read as follows:CommentsClose CommentsPermalink
`(B) the term `nonimmigrant classification' includes all classes of nonimmigrant aliens described in section 101(a)(15) of the Immigration and Nationality Act (
(C) in paragraph (2), by striking `has been lawfully admitted to the United States under a nonimmigrant visa' and inserting `is in a nonimmigrant classification'; andCommentsClose CommentsPermalink
(D) in paragraph (3)(A), by striking `Any individual who has been admitted to the United States under a nonimmigrant visa may receive a waiver from the requirements of subsection (g)(5)' and inserting `Any alien in a nonimmigrant classification may receive a waiver from the requirements of subsection (g)(5)(B)'.CommentsClose CommentsPermalink
SEC. 205. UNIFORM STATUTE OF LIMITATIONS FOR CERTAIN IMMIGRATION, NATURALIZATION, AND PEONAGE OFFENSES.
(a) In General-
`Sec. 3291. Immigration, naturalization, and peonage offenses
`No person shall be prosecuted, tried, or punished for a violation of any section of chapters 69 (relating to nationality and citizenship offenses), 75 (relating to passport, visa, and immigration offenses), or 77 (relating to peonage, slavery, and trafficking in persons), for an attempt or conspiracy to violate any such section, for a violation of any criminal provision under section 243, 266, 274, 275, 276, 277, or 278 of the Immigration and Nationality Act (
(b) Clerical Amendment- The table of sections for chapter 213 of title 18, United States Code, is amended by striking the item relating to section 3291 and inserting the following:CommentsClose CommentsPermalink
`3291. Immigration, naturalization, and peonage offenses.'.CommentsClose CommentsPermalink
SEC. 206. EXPEDITED REMOVAL.
(a) In General- Section 238 (
(1) by striking the section heading and inserting `expedited removal of criminal aliens';CommentsClose CommentsPermalink
(2) in subsection (a), by striking the subsection heading and inserting: `Expedited Removal From Correctional Facilities- ';CommentsClose CommentsPermalink
(3) in subsection (b), by striking the subsection heading and inserting: `Removal of Criminal Aliens- ';CommentsClose CommentsPermalink
(4) in subsection (b), by striking paragraphs (1) and (2) and inserting the following:CommentsClose CommentsPermalink
`(1) IN GENERAL- The Secretary of Homeland Security may, in the case of an alien described in paragraph (2), determine the deportability of such alien and issue an order of removal pursuant to the procedures set forth in this subsection or section 240.CommentsClose CommentsPermalink
`(2) ALIENS DESCRIBED- An alien is described in this paragraph if the alien--CommentsClose CommentsPermalink
`(A) has not been lawfully admitted to the United States for permanent residence; andCommentsClose CommentsPermalink
`(B) was convicted of any criminal offense establishing deportability under subparagraph (A)(iii) or (D)(i) of section 237(a)(2).'; andCommentsClose CommentsPermalink
(5) by redesignating the subsection (c) that relates to judicial removal as subsection (d).CommentsClose CommentsPermalink
(b) Effective Date- The amendments made by this section shall take effect on the date of enactment of this Act and shall apply to all aliens apprehended or convicted on or after such date.CommentsClose CommentsPermalink
SEC. 207. FIELD AGENT ALLOCATION.
(a) In General- Section 103(f) (
`(f) Minimum Number of Agents in States-CommentsClose CommentsPermalink
`(1) IN GENERAL- The Secretary of Homeland Security shall allocate to each State--CommentsClose CommentsPermalink
`(A) not fewer than 40 full-time active duty agents of the Bureau of Immigration and Customs Enforcement to--CommentsClose CommentsPermalink
`(i) investigate immigration violations; andCommentsClose CommentsPermalink
`(ii) ensure the departure of all removable aliens; andCommentsClose CommentsPermalink
`(B) not fewer than 15 full-time active duty agents of United States Citizenship and Immigration Services to carry out immigration and naturalization adjudication functions.CommentsClose CommentsPermalink
`(2) WAIVER- The Secretary may waive the application of paragraph (1) for any State with a population of less than 2,000,000, as most recently reported by the Bureau of the Census.'.CommentsClose CommentsPermalink
(b) Effective Date- The amendment made by subsection (a) shall take effect on the date that is 90 days after the date of the enactment of this Act.CommentsClose CommentsPermalink
(c) Authorization of Appropriations- There are authorized to be appropriated such sums as may be necessary to carry out this section.CommentsClose CommentsPermalink
SEC. 208. STREAMLINED PROCESSING OF BACKGROUND CHECKS CONDUCTED FOR IMMIGRATION BENEFIT APPLICATIONS AND PETITIONS.
(a) Information Sharing; Interagency Task Force- Section 105 (
`(e) Interagency Task Force-CommentsClose CommentsPermalink
`(1) IN GENERAL- The Secretary of Homeland Security shall establish an interagency task force to resolve cases in which an application or petition for an immigration benefit conferred under this Act has been delayed due to an outstanding background check investigation for more than 2 years after the date on which such application or petition was initially filed.CommentsClose CommentsPermalink
`(2) MEMBERSHIP- The interagency task force established under paragraph (1) shall include representatives from Federal agencies with immigration, law enforcement, or national security responsibilities under this Act.'.CommentsClose CommentsPermalink
(b) Authorization of Appropriations- There are authorized to be appropriated to the Director of the Federal Bureau of Investigation such sums as are necessary for each fiscal year, 2008 through 2012 for enhancements to existing systems for conducting background and security checks necessary to support immigration security and orderly processing of applications.CommentsClose CommentsPermalink
(c) Report on Background and Security Checks-CommentsClose CommentsPermalink
(1) IN GENERAL- Not later than 180 days after the date of the enactment of this Act, the Director of the Federal Bureau of Investigation shall submit to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives a report on the background and security checks conducted by the Federal Bureau of Investigation on behalf of United States Citizenship and Immigration Services.CommentsClose CommentsPermalink
(2) CONTENT- The report required under paragraph (1) shall include--CommentsClose CommentsPermalink
(A) a description of the background and security check program;CommentsClose CommentsPermalink
(B) a statistical breakdown of the background and security check delays associated with different types of immigration applications;CommentsClose CommentsPermalink
(C) a statistical breakdown of the background and security check delays by applicant country of origin; andCommentsClose CommentsPermalink
(D) the steps that the Director of the Federal Bureau of Investigations is taking to expedite background and security checks that have been pending for more than 180 days.CommentsClose CommentsPermalink
(d) Ensuring Accountability in Background Check Determinations-CommentsClose CommentsPermalink
(1) IN GENERAL- Chapter 4 of title III (
`SEC. 362. CONSTRUCTION.
`(a) In General- Nothing in this Act (other than section 241(b)(3)) or in any other provision of law (other than the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, done at New York, December 10, 1994, subject to any reservations, understandings, declarations, and provisos contained in the resolution of ratification of the Convention, as implemented by section 2242 of the Foreign Affairs Reform and Restructuring Act of 1998 (
`(1) any alien with respect to whom a national security, criminal, or other investigation or case is open or pending (including the issuance of an arrest warrant, detainer, or indictment) that is material to the alien's eligibility for the status or benefit sought; orCommentsClose CommentsPermalink
`(2) any alien for whom all law enforcement and other background checks have not been conducted and resolved or the information related to such background checks have not provided to or assessed by the reviewing official.CommentsClose CommentsPermalink
`(b) Timeframes- Notwithstanding subsection (a), the Secretary of Homeland Security may not delay adjudication or document issuance beyond 180 days due to an outstanding background or security check unless the Secretary certifies that such background and security check may establish that the alien poses a risk to national security or public safety. The decision to delay shall be reviewed every 180 days, and such decision may not be delegated below the level of Assistant Secretary. An alien has no right to review or appeal the Secretary's decision to delay adjudication or issuance of documentation under this section, but remains entitled to interim work authorization.'.CommentsClose CommentsPermalink
(2) RULEMAKING- The Secretary of Homeland Security shall promulgate regulations that describe the conditions under which interim work authorization under paragraph (1) shall be issued.CommentsClose CommentsPermalink
(3) ANNUAL REPORT TO CONGRESS- The Secretary of Homeland Security, the Attorney General, the Secretary of State, and the Secretary of Labor shall submit an annual report to Congress that includes--CommentsClose CommentsPermalink
(A) the number of cases in which paragraph (1) or (2) of subsection (a) is invoked during the reporting period;CommentsClose CommentsPermalink
(B) the total number of pending cases in each category at the end of the reporting period;CommentsClose CommentsPermalink
(C) the resolution of cases finally decided during the reporting period; andCommentsClose CommentsPermalink
(D) statistics on interim employment authorizations issued under this section.CommentsClose CommentsPermalink
(e) Clerical Amendment- The table of contents is amended by inserting after the item relating to section 361 the following:CommentsClose CommentsPermalink
`Sec. 362. Construction.'.CommentsClose CommentsPermalink
(f) Enhanced Transparency of Clearance Process-CommentsClose CommentsPermalink
(1) ESTABLISHMENT- The Secretary and the Attorney General shall each establish an Office of the Public Advocate for Immigration Clearances within the Department and the Department of Justice, respectively. Each Office shall be headed by a Public Advocate.CommentsClose CommentsPermalink
(2) DUTIES- Each Public Advocate shall--CommentsClose CommentsPermalink
(A) serve as a public liaison for their respective Department for identifying and resolving delays in immigration processing caused by background check investigations; andCommentsClose CommentsPermalink
(B) serve on the Interagency Task Force established under subsection (e) of section 105 of the Immigration and Nationality Act (
SEC. 209. STATE CRIMINAL ALIEN ASSISTANCE PROGRAM.
(a) Authorization of Appropriations- Section 241(i)(5)(C) (
(b) Reimbursement of States for Preconviction Costs Relating to the Incarceration of Illegal Aliens- Section 241(i)(3)(A) (
(c) Reimbursement of States for Indirect Costs Relating to the Incarceration of Illegal Aliens- Section 501 of the Immigration Reform and Control Act of 1986 (
(1) by amending subsection (a) to read as follows:CommentsClose CommentsPermalink
`(a) Reimbursement of States- Subject to the amounts provided in advance in appropriation Acts, the Secretary of Homeland Security shall reimburse a State for--CommentsClose CommentsPermalink
`(1) the costs incurred by the State for the imprisonment of any illegal alien or Cuban national who is convicted of a felony by such State; andCommentsClose CommentsPermalink
`(2) the indirect costs related to the imprisonment described in paragraph (1).'; andCommentsClose CommentsPermalink
(2) by amending subsections (c) through (e) to read as follows:CommentsClose CommentsPermalink
`(c) Manner of Allotment of Reimbursements- Reimbursements under this section shall be allotted in a manner that gives special consideration for any State that--CommentsClose CommentsPermalink
`(1) shares a border with Mexico or Canada; orCommentsClose CommentsPermalink
`(2) includes within the State an area in which a large number of undocumented aliens reside relative to the general population of that area.CommentsClose CommentsPermalink
`(d) Definitions- In this section:CommentsClose CommentsPermalink
`(1) INDIRECT COSTS- The term `indirect costs' includes--CommentsClose CommentsPermalink
`(A) court costs, county attorney costs, detention costs, and criminal proceedings expenditures that do not involve going to trial;CommentsClose CommentsPermalink
`(B) indigent defense costs; andCommentsClose CommentsPermalink
`(C) unsupervised probation costs.CommentsClose CommentsPermalink
`(2) STATE- The term `State' has the meaning given such term in section 101(a)(36) of the Immigration and Nationality Act (
`(e) Authorization of Appropriations- There are authorized to be appropriated $200,000,000 for each of the fiscal years 2008 through 2012 to carry out subsection (a)(2).'.CommentsClose CommentsPermalink
SEC. 210. TRANSPORTATION AND PROCESSING OF ILLEGAL ALIENS APPREHENDED BY STATE AND LOCAL LAW ENFORCEMENT OFFICERS.
(a) In General- The Secretary shall provide sufficient transportation and officers to take illegal aliens apprehended by State and local law enforcement officers into custody for processing at a detention facility operated by the Department.CommentsClose CommentsPermalink
(b) Authorization of Appropriations- There are authorized to be appropriated such sums as may be necessary for each of fiscal years 2008 through 2012 to carry out this section.CommentsClose CommentsPermalink
SEC. 211. REDUCING ILLEGAL IMMIGRATION AND ALIEN SMUGGLING ON TRIBAL LANDS.
(a) Grants Authorized- The Secretary may award grants to Indian tribes with lands adjacent to an international border of the United States that have been adversely affected by illegal immigration.CommentsClose CommentsPermalink
(b) Use of Funds- Grants awarded under subsection (a) may be used for--CommentsClose CommentsPermalink
(1) law enforcement activities;CommentsClose CommentsPermalink
(2) health care services;CommentsClose CommentsPermalink
(3) environmental restoration; andCommentsClose CommentsPermalink
(4) the preservation of cultural resources.CommentsClose CommentsPermalink
(c) Report- Not later than 180 days after the date of the enactment of this Act, the Secretary shall submit a report to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives that--CommentsClose CommentsPermalink
(1) describes the level of access of Border Patrol agents on tribal lands;CommentsClose CommentsPermalink
(2) describes the extent to which enforcement of immigration laws may be improved by enhanced access to tribal lands;CommentsClose CommentsPermalink
(3) contains a strategy for improving such access through cooperation with tribal authorities; andCommentsClose CommentsPermalink
(4) identifies grants provided by the Department for Indian tribes, either directly or through State or local grants, relating to border security expenses.CommentsClose CommentsPermalink
(d) Authorization of Appropriations- There are authorized to be appropriated such sums as may be necessary for each of the fiscal years 2008 through 2012 to carry out this section.CommentsClose CommentsPermalink
SEC. 212. MANDATORY ADDRESS REPORTING REQUIREMENTS.
(a) Clarifying Address Reporting Requirements- Section 265 (
(1) in subsection (a)--CommentsClose CommentsPermalink
(A) by striking `notify the Attorney General in writing' and inserting `submit written or electronic notification to the Secretary of Homeland Security, in a manner approved by the Secretary,';CommentsClose CommentsPermalink
(B) by striking `the Attorney General may require' and inserting `the Secretary may require'; andCommentsClose CommentsPermalink
(C) by adding at the end the following: `If the alien is involved in proceedings before an immigration judge or in an administrative appeal of such proceedings, the alien shall submit to the Attorney General the alien's current address and a telephone number, if any, at which the alien may be contacted.';CommentsClose CommentsPermalink
(2) in subsection (b), by striking `Attorney General' each place such term appears and inserting `Secretary of Homeland Security';CommentsClose CommentsPermalink
(3) in subsection (c), by striking `given to such parent' and inserting `given by such parent'; andCommentsClose CommentsPermalink
(4) by adding at the end the following:CommentsClose CommentsPermalink
`(d) Address To Be Provided-CommentsClose CommentsPermalink
`(1) IN GENERAL- Except as otherwise provided by the Secretary under paragraph (2), an address provided by an alien under this section shall be the alien's current residential mailing address, and shall not be a post office box or other nonresidential mailing address or the address of an attorney, representative, labor organization, or employer.CommentsClose CommentsPermalink
`(2) SPECIFIC REQUIREMENTS- The Secretary may provide specific requirements with respect to--CommentsClose CommentsPermalink
`(A) designated classes of aliens and special circumstances, including aliens who are employed at a remote location; andCommentsClose CommentsPermalink
`(B) the reporting of address information by aliens who are incarcerated in a Federal, State, or local correctional facility.CommentsClose CommentsPermalink
`(3) DETENTION- An alien who is being detained by the Secretary under this Act is not required to report the alien's current address under this section during the time the alien remains in detention, but shall be required to notify the Secretary of the alien's address under this section at the time of the alien's release from detention.CommentsClose CommentsPermalink
`(e) Use of Most Recent Address Provided by the Alien-CommentsClose CommentsPermalink
`(1) IN GENERAL- Notwithstanding any other provision of law, the Secretary may provide for the appropriate coordination and cross referencing of address information provided by an alien under this section with other information relating to the alien's address under other Federal programs, including--CommentsClose CommentsPermalink
`(A) any information pertaining to the alien, which is submitted in any application, petition, or motion filed under this Act with the Secretary of Homeland Security, the Secretary of State, or the Secretary of Labor;CommentsClose CommentsPermalink
`(B) any information available to the Attorney General with respect to an alien in a proceeding before an immigration judge or an administrative appeal or judicial review of such proceeding;CommentsClose CommentsPermalink
`(C) any information collected with respect to nonimmigrant foreign students or exchange program participants under section 641 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (
`(D) any information collected from State or local correctional agencies pursuant to the State Criminal Alien Assistance Program.CommentsClose CommentsPermalink
`(2) RELIANCE- The Secretary may rely on the most recent address provided by the alien under this section or section 264 to send to the alien any notice, form, document, or other matter pertaining to Federal immigration laws, including service of a notice to appear. The Attorney General and the Secretary may rely on the most recent address provided by the alien under section 239(a)(1)(F) to contact the alien about pending removal proceedings.CommentsClose CommentsPermalink
`(3) OBLIGATION- The alien's provision of an address for any other purpose under the Federal immigration laws does not excuse the alien's obligation to submit timely notice of the alien's address to the Secretary under this section (or to the Attorney General under section 239(a)(1)(F) with respect to an alien in a proceeding before an immigration judge or an administrative appeal of such proceeding).CommentsClose CommentsPermalink
`(f) Requirement for Database- The Secretary of Homeland Security shall establish an electronic database to timely record and preserve addresses provided under this section.'.CommentsClose CommentsPermalink
(b) Conforming Changes With Respect to Registration Requirements- Chapter 7 of title II (
(1) in section 262(c), by striking `Attorney General' and inserting `Secretary of Homeland Security';CommentsClose CommentsPermalink
(2) in section 263(a), by striking `Attorney General' and inserting `Secretary of Homeland Security'; andCommentsClose CommentsPermalink
(3) in section 264--CommentsClose CommentsPermalink
(A) in subsections (a), (b), (c), and (d), by striking `Attorney General' each place it appears and inserting `Secretary of Homeland Security'; andCommentsClose CommentsPermalink
(B) in subsection (f)--CommentsClose CommentsPermalink
(i) by striking `Attorney General is authorized' and inserting `Secretary of Homeland Security and Attorney General are authorized'; andCommentsClose CommentsPermalink
(ii) by striking `Attorney General or the Service' and inserting `Secretary or the Attorney General'.CommentsClose CommentsPermalink
(c) Effect on Eligibility for Immigration Benefits- If an alien fails to comply with section 262, 263, or 265 of the Immigration and Nationality Act (
(d) Technical Amendments- Section 266 (
(e) Effective Dates-CommentsClose CommentsPermalink
(1) IN GENERAL- Except as provided in paragraph (2), the amendments made by this section shall take effect on the date of the enactment of this Act.CommentsClose CommentsPermalink
(2) EXCEPTIONS- The amendments made by paragraphs (1)(A), (1)(B), (2), and (3) of subsection (a) shall take effect as if enacted on March 1, 2003.CommentsClose CommentsPermalink
SEC. 213. STATE AND LOCAL ENFORCEMENT OF FEDERAL IMMIGRATION LAWS.
(a) In General- Section 287(g) (
(1) in paragraph (2), by adding at the end `If such training is provided by a State or political subdivision of a State to an officer or employee of such State or political subdivision of a State, the cost of such training (including applicable overtime costs) shall be reimbursed by the Secretary of Homeland Security.'; andCommentsClose CommentsPermalink
(2) in paragraph (4), by adding at the end `The cost of any equipment required to be purchased under such written agreement and necessary to perform the functions under this subsection shall be reimbursed by the Secretary of Homeland Security.'.CommentsClose CommentsPermalink
(b) Authorization of Appropriations- There are authorized to be appropriated to the Secretary such sums as may be necessary to carry out this section and the amendments made by this section.CommentsClose CommentsPermalink
SEC. 214. INCREASED CRIMINAL PENALTIES RELATED TO DRUNK DRIVING.
(a) Inadmissibility- Section 212(a)(2) (
(1) by redesignating subparagraph (F) as subparagraph (J); andCommentsClose CommentsPermalink
(2) by inserting after subparagraph (E) the following:CommentsClose CommentsPermalink
`(F) DRUNK DRIVERS- Any alien who has been convicted of 3 offenses for driving under the influence and at least 1 of the offenses is a felony under Federal or State law, for which the alien was sentenced to more than 1 year imprisonment, is inadmissible.'.CommentsClose CommentsPermalink
(b) Deportability- Section 237(a)(2) (
`(F) DRUNK DRIVERS- Unless the Secretary of Homeland Security or the Attorney General waives the application of this subparagraph, any alien who has been convicted of 3 offenses for driving under the influence and at least 1 of the offenses is a felony under Federal or State law, for which the alien was sentenced to more than 1 year imprisonment, is deportable.'.CommentsClose CommentsPermalink
(c) Judicial Advisal-CommentsClose CommentsPermalink
(1) IN GENERAL- A court shall not accept a guilty plea for driving under the influence unless the court has administered to the defendant, on the record, the following adivsal:CommentsClose CommentsPermalink
`If you are not a citizen of the United States, you are advised that conviction for driving under the influence, including conviction by entry of any plea, even if the conviction is later expunged, may result in deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States.'.CommentsClose CommentsPermalink
(2) FAILURE TO ADVISE- Upon request, the court shall allow the defendant a reasonable amount of additional time to consider the appropriateness of the plea in light of the advisement set out in paragraph (1). If the court fails to advise the defendant in accordance with paragraph (1) and the defendant shows that conviction of the offense to which the defendant pleaded guilty may result in the defendant's deportation, exclusion from the United States, or denial of naturalization pursuant to the laws of the United States, the court, upon a motion by the defendant, shall vacate the judgment and permit the defendant to withdraw the plea and enter a plea of not guilty. If the record does not show that the court provided the required advisement, it shall be presumed that the defendant did not receive the advisement. The defendant shall not be required to disclose his or her immigration status at any time.CommentsClose CommentsPermalink
(d) Conforming Amendment- Section 212(h) (
(1) in the subsection heading, by striking `Subsection (a)(2)(A)(i)(I), (II), (B), (D),AND (E)' and inserting `Certain Provisions in Subsection (a)(2)'; andCommentsClose CommentsPermalink
(2) in the matter preceding paragraph (1), by striking `and (E)' and inserting `(E), and (F)'.CommentsClose CommentsPermalink
(e) Effective Date- The amendments made by this section shall take effect on the date of the enactment of this Act and shall apply to convictions entered on or after such date.CommentsClose CommentsPermalink
SEC. 215. LAW ENFORCEMENT AUTHORITY OF STATES AND POLITICAL SUBDIVISIONS AND TRANSFER TO FEDERAL CUSTODY.
Title II (
`SEC. 240D. LAW ENFORCEMENT AUTHORITY OF STATES AND POLITICAL SUBDIVISIONS AND TRANSFER OF ALIENS TO FEDERAL CUSTODY.
`(a) Authority- Notwithstanding any other provision of law, law enforcement personnel of a State, or a political subdivision of a State, have the inherent authority of a sovereign entity to investigate, apprehend, arrest, detain, or transfer to Federal custody (including the transportation across State lines to detention centers) an alien for the purpose of assisting in the enforcement of the criminal provisions of the immigration laws of the United States in the normal course of carrying out the law enforcement duties of such personnel. This State authority has never been displaced or preempted by a Federal law.CommentsClose CommentsPermalink
`(b) Transfer- If the head of a law enforcement entity of a State (or a political subdivision of the State), exercising authority with respect to the detention of an alien convicted of a criminal offense, submits a request to the Secretary of Homeland Security, the Secretary shall--CommentsClose CommentsPermalink
`(1) determine the immigration status of the offender; andCommentsClose CommentsPermalink
`(2) report to the requesting agency whether the Department of Homeland Security intends to take custody of the offender for violations of Federal immigration laws, with an approximate timeframe for the transfer of custody.CommentsClose CommentsPermalink
`(c) Reimbursement- The Secretary of Homeland Security is authorized to use funds appropriated pursuant to the authorization of appropriations in section 241(i)(5) to reimburse a State, or a political subdivision of a State for activities described in subparagraph (a) or (b).CommentsClose CommentsPermalink
`(d) Requirement for Appropriate Security- The Secretary of Homeland Security shall ensure that--CommentsClose CommentsPermalink
`(1) aliens incarcerated in a Federal facility pursuant to this section are held in facilities which provide an appropriate level of security; andCommentsClose CommentsPermalink
`(2) if practicable, aliens detained solely for civil violations of Federal immigration law are separated within a facility or facilities.CommentsClose CommentsPermalink
`(e) Requirement for Schedule- In carrying out this section, the Secretary of Homeland Security shall establish a regular circuit and schedule for the prompt transportation of apprehended aliens from the custody of those States, and political subdivisions of States, which routinely submit requests described in subsection (b), into Federal custody.CommentsClose CommentsPermalink
`(f) Authority for Contracts-CommentsClose CommentsPermalink
`(1) IN GENERAL- The Secretary of Homeland Security may enter into contracts or cooperative agreements with appropriate State and local law enforcement and detention agencies to implement this section.CommentsClose CommentsPermalink
`(2) DETERMINATION BY SECRETARY- Before entering into a contract or cooperative agreement with a State or political subdivision of a State under paragraph (1), the Secretary shall determine whether the State, or if appropriate, the political subdivision in which the agencies are located, has in place any formal or informal policy that violates section 642 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (
`(g) Construction- Nothing in this section shall be construed to require law enforcement personnel of a State or a political subdivision to assist in the enforcement of the immigration laws of the United States.CommentsClose CommentsPermalink
`(h) Authorization of Appropriations- There are authorized to be appropriated such sums as may be necessary to carry out this section.'.CommentsClose CommentsPermalink
SEC. 216. LAUNDERING OF MONETARY INSTRUMENTS.
(1) by inserting `section 1590 (relating to trafficking with respect to peonage, slavery, involuntary servitude, or forced labor),' after `section 1363 (relating to destruction of property within the special maritime and territorial jurisdiction),'; andCommentsClose CommentsPermalink
(2) by inserting `section 274(a) of the Immigration and Nationality Act (8 U.S.C.1324(a)) (relating to bringing in and harboring certain aliens),' after `section 590 of the Tariff Act of 1930 (
SEC. 217. INCREASE OF FEDERAL DETENTION SPACE AND THE UTILIZATION OF FACILITIES IDENTIFIED FOR CLOSURES AS A RESULT OF THE DEFENSE BASE CLOSURE REALIGNMENT ACT OF 1990.
(a) Construction or Acquisition of Detention Facilities-CommentsClose CommentsPermalink
(1) IN GENERAL- Subject to the availability of appropriations, the Secretary shall construct or acquire, in addition to existing facilities for the detention of aliens, at least 20 detention facilities in the United States that have the capacity to detain a combined total of not less than 20,000 individuals at any time for aliens detained pending removal or a decision on removal of such aliens from the United States.CommentsClose CommentsPermalink
(2) REQUIREMENT TO CONSTRUCT OR ACQUIRE- Subject to the availability of appropriations, the Secretary shall construct or acquire additional detention facilities in the United States to accommodate the detention beds required by section 5204(a) of the Intelligence Reform and Terrorism Protection Act of 2004 (
(3) USE OF ALTERNATE DETENTION FACILITIES- Subject to the availability of appropriations, the Secretary shall fully utilize all possible options to cost effectively increase available detention capacities, and shall utilize detention facilities that are owned and operated by the Federal Government if the use of such facilities is cost effective.CommentsClose CommentsPermalink
(4) USE OF INSTALLATIONS UNDER BASE CLOSURE LAWS- In acquiring additional detention facilities under this subsection, the Secretary shall consider the transfer of appropriate portions of military installations approved for closure or realignment under the Defense Base Closure and Realignment Act of 1990 (part A of title XXIX of
(5) DETERMINATION OF LOCATION- The location of any detention facility constructed or acquired in accordance with this subsection shall be determined, with the concurrence of the Secretary, by the senior officer responsible for Detention and Removal Operations in the Department. The detention facilities shall be located so as to enable the officers and employees of the Department to increase to the maximum extent practicable the annual rate and level of removals of illegal aliens from the United States.CommentsClose CommentsPermalink
(b) Annual Report to Congress- Not later than 1 year after the date of the enactment of this Act, and annually thereafter, in consultation with the heads of other appropriate Federal agencies, the Secretary shall submit to Congress an assessment of the additional detention facilities and bed space needed to detain unlawful aliens apprehended at the United States ports of entry or along the international land borders of the United States.CommentsClose CommentsPermalink
(c) Technical and Conforming Amendment- Section 241(g)(1) (
(d) Authorization of Appropriations- There are authorized to be appropriated such sums as may be necessary to carry out this section.CommentsClose CommentsPermalink
SEC. 218. DETERMINATION OF IMMIGRATION STATUS OF INDIVIDUALS CHARGED WITH FEDERAL OFFENSES.
(a) Responsibility of United States Attorneys- Beginning not later than 2 years after the date of enactment of this Act, the office of the United States Attorney that is prosecuting a criminal case in a Federal court--CommentsClose CommentsPermalink
(1) shall determine, not later than 30 days after filing the initial pleadings in the case, whether each defendant in the case is lawfully present in the United States (subject to subsequent legal proceedings to determine otherwise);CommentsClose CommentsPermalink
(2)(A) if the defendant is determined to be an alien lawfully present in the United States, shall notify the court in writing of the determination and the current status of the alien under the Immigration and Nationality Act (
(B) if the defendant is determined not to be lawfully present in the United States, shall notify the court in writing of the determination, the defendant's alien status, and, to the extent possible, the country of origin or legal residence of the defendant;CommentsClose CommentsPermalink
(3) ensure that the information described in paragraph (2) is included in the case file and the criminal records system of the office of the United States attorney; andCommentsClose CommentsPermalink
(4) provide notice to the alien and the counsel for the alien of any such determination and any such submission to the court.CommentsClose CommentsPermalink
(b) Guidelines- A determination made under subsection (a)(1) shall be made in accordance with guidelines of the Executive Office for Immigration Review of the Department of Justice.CommentsClose CommentsPermalink
(c) Responsibilities of Federal Courts-CommentsClose CommentsPermalink
(1) MODIFICATIONS OF RECORDS AND CASE MANAGEMENTS SYSTEMS- Not later than 2 years after the date of enactment of this Act, all Federal courts that hear criminal cases, or appeals of criminal cases, shall modify their criminal records and case management systems, in accordance with guidelines which the Director of the Administrative Office of the United States Courts shall establish, so as to enable accurate reporting of information described in subsection (a)(2).CommentsClose CommentsPermalink
(2) DATA ENTRIES- Beginning not later than 2 years after the date of enactment of this Act, each Federal court described in paragraph (1) shall enter into its electronic records the information contained in each notification to the court under subsection (a)(2).CommentsClose CommentsPermalink
(d) Construction- Nothing in this section may be construed to provide a basis for admitting evidence to a jury or releasing information to the public regarding an alien's immigration status.CommentsClose CommentsPermalink
(e) Annual Report to Congress- The Director of the Administrative Office of the United States Courts shall include, in the annual report filed with Congress under
(1) statistical information on criminal trials of aliens in the courts and criminal convictions of aliens in the lower courts and upheld on appeal, including the type of crime in each case and including information on the legal status of the aliens; andCommentsClose CommentsPermalink
(2) recommendations on whether additional court resources are needed to accommodate the volume of criminal cases brought against aliens in the Federal courts.CommentsClose CommentsPermalink
(f) Authorization of Appropriations-CommentsClose CommentsPermalink
(1) IN GENERAL- There are authorized to be appropriated for each of fiscal years 2008 through 2012, such sums as may be necessary to carry out this section.CommentsClose CommentsPermalink
(2) AVAILABILITY OF FUNDS- Funds appropriated pursuant to the authorization of appropriations in this subsection in any fiscal year shall remain available until expended.CommentsClose CommentsPermalink
SEC. 219. EXPANSION OF THE JUSTICE PRISONER AND ALIEN TRANSFER SYSTEM.
Not later than 60 days after the date of enactment of this Act, the Attorney General shall issue a directive to expand the Justice Prisoner and Alien Transfer System so that such System provides additional services with respect to aliens who are illegally present in the United States. Such expansion should include--CommentsClose CommentsPermalink
(1) increasing the daily operations of such System with buses and air hubs in 3 geographic regions;CommentsClose CommentsPermalink
(2) allocating a set number of seats for such aliens for each metropolitan area;CommentsClose CommentsPermalink
(3) allowing metropolitan areas to trade or give some of the seats allocated to the area under such System for such aliens to other areas in their region based on the transportation needs of each area; andCommentsClose CommentsPermalink
(4) requiring an annual report that analyzes the number of seats that each metropolitan area is allocated under such System for such aliens and modifies such allocation if necessary.CommentsClose CommentsPermalink
SEC. 220. CANCELLATION OF VISAS.
Section 222(g) (
(1) in paragraph (1)--CommentsClose CommentsPermalink
(A) by striking `Attorney General' and inserting `Secretary of Homeland Security'; andCommentsClose CommentsPermalink
(B) by inserting `and any other nonimmigrant visa issued by the United States that is in the possession of the alien' after `such visa'; andCommentsClose CommentsPermalink
(2) in paragraph (2)(A), by striking `(other than the visa described in paragraph (1)) issued in a consular office located in the country of the alien's nationality' and inserting `(other than a visa described in paragraph (1)) issued in a consular office located in the country of the alien's nationality or foreign residence'.CommentsClose CommentsPermalink
Subtitle B--Passport and Visa Security
SEC. 221. REFORM OF PASSPORT FRAUD OFFENSES.
(a) Trafficking in Passports-
`Sec. 1541. Trafficking in passports
`(a) Multiple Passports- Any person who, during any period of 3 years or less, knowingly--CommentsClose CommentsPermalink
`(1) and without lawful authority produces, issues, or transfers 10 or more passports;CommentsClose CommentsPermalink
`(2) forges, counterfeits, alters, or falsely makes 10 or more passports;CommentsClose CommentsPermalink
`(3) secures, possesses, uses, receives, buys, sells, or distributes 10 or more passports, knowing the passports to be forged, counterfeited, altered, falsely made, stolen, procured by fraud, or produced or issued without lawful authority; orCommentsClose CommentsPermalink
`(4) completes, mails, prepares, presents, signs, or submits 10 or more applications for a United States passport, knowing the applications to contain any false statement or representation,CommentsClose CommentsPermalink
shall be fined under this title, imprisoned not more than 20 years, or both.CommentsClose CommentsPermalink
`(b) Passport Materials- Any person who knowingly and without lawful authority produces, buys, sells, possesses, or uses any official material (or counterfeit of any official material) used to make a passport, including any distinctive paper, seal, hologram, image, text, symbol, stamp, engraving, or plate, shall be fined under this title, imprisoned not more than 20 years, or both.'.CommentsClose CommentsPermalink
(b) False Statement in an Application for a Passport-
`Sec. 1542. False statement in an application for a passport
`(a) In General- Whoever knowingly makes any false statement or representation in an application for a United States passport, or mails, prepares, presents, or signs an application for a United States passport knowing the application to contain any false statement or representation, shall be fined under this title, imprisoned not more than 15 years, or both.CommentsClose CommentsPermalink
`(b) Venue-CommentsClose CommentsPermalink
`(1) IN GENERAL- An offense under subsection (a) may be prosecuted in any district--CommentsClose CommentsPermalink
`(A) in which the false statement or representation was made or the application for a United States passport was prepared or signed; orCommentsClose CommentsPermalink
`(B) in which or to which the application was mailed or presented.CommentsClose CommentsPermalink
`(2) ACTS OCCURRING OUTSIDE THE UNITED STATES- An offense under subsection (a) involving an application for a United States passport prepared and adjudicated outside the United States may be prosecuted in the district in which the resultant passport was or would have been produced.CommentsClose CommentsPermalink
`(c) Savings Clause- Nothing in this section may be construed to limit the venue otherwise available under sections 3237 and 3238 of this title.'.CommentsClose CommentsPermalink
(c) Forgery and Unlawful Production of a Passport-
`Sec. 1543. Forgery and unlawful production of a passport
`(a) Forgery- Any person who knowingly--CommentsClose CommentsPermalink
`(1) forges, counterfeits, alters, or falsely makes any passport; orCommentsClose CommentsPermalink
`(2) transfers any passport knowing it to be forged, counterfeited, altered, falsely made, stolen, or to have been produced or issued without lawful authority,CommentsClose CommentsPermalink
shall be fined under this title, imprisoned not more than 15 years, or both.CommentsClose CommentsPermalink
`(b) Unlawful Production- Any person who knowingly and without lawful authority--CommentsClose CommentsPermalink
`(1) produces, issues, authorizes, or verifies a passport in violation of the laws, regulations, or rules governing the issuance of the passport;CommentsClose CommentsPermalink
`(2) produces, issues, authorizes, or verifies a United States passport for or to any person knowing or in reckless disregard of the fact that such person is not entitled to receive a passport; orCommentsClose CommentsPermalink
`(3) transfers or furnishes a passport to any person for use by any person other than the person for whom the passport was issued or designed,CommentsClose CommentsPermalink
shall be fined under this title, imprisoned not more than 15 years, or both.'.CommentsClose CommentsPermalink
(d) Misuse of a Passport-
`Sec. 1544. Misuse of a passport
`Any person who knowingly--CommentsClose CommentsPermalink
`(1) uses any passport issued or designed for the use of another;CommentsClose CommentsPermalink
`(2) uses any passport in violation of the conditions or restrictions therein contained, or in violation of the laws, regulations, or rules governing the issuance and use of the passport;CommentsClose CommentsPermalink
`(3) secures, possesses, uses, receives, buys, sells, or distributes any passport knowing it to be forged, counterfeited, altered, falsely made, procured by fraud, or produced or issued without lawful authority; orCommentsClose CommentsPermalink
`(4) violates the terms and conditions of any safe conduct duly obtained and issued under the authority of the United States,CommentsClose CommentsPermalink
shall be fined under this title, imprisoned not more than 15 years, or both.'.CommentsClose CommentsPermalink
(e) Schemes to Defraud Aliens-
`Sec. 1545. Schemes to defraud aliens
`(a) In General- Any person who knowingly executes a scheme or artifice, in connection with any matter that is authorized by or arises under Federal immigration laws or any matter the offender claims or represents is authorized by or arises under Federal immigration laws, to--CommentsClose CommentsPermalink
`(1) defraud any person; orCommentsClose CommentsPermalink
`(2) obtain or receive money or anything else of value from any person by means of false or fraudulent pretenses, representations, or promises,CommentsClose CommentsPermalink
shall be fined under this title, imprisoned not more than 15 years, or both.CommentsClose CommentsPermalink
`(b) Misrepresentation- Any person who knowingly and falsely represents that such person is an attorney or an accredited representative (as that term is defined in section 1292.1 of title 8, Code of Federal Regulations (or any successor regulation to such section)) in any matter arising under Federal immigration laws shall be fined under this title, imprisoned not more than 15 years, or both.'.CommentsClose CommentsPermalink
(f) Immigration and Visa Fraud-
(1) by amending the section heading to read as follows:CommentsClose CommentsPermalink
`Sec. 1546. Immigration and visa fraud';
andCommentsClose CommentsPermalink
(2) by striking subsections (b) and (c) and inserting the following:CommentsClose CommentsPermalink
`(b) In General- Any person who knowingly--CommentsClose CommentsPermalink
`(1) uses any immigration document issued or designed for the use of another;CommentsClose CommentsPermalink
`(2) forges, counterfeits, alters, or falsely makes any immigration document;CommentsClose CommentsPermalink
`(3) completes, mails, prepares, presents, signs, or submits any immigration document knowing it to contain any materially false statement or representation;CommentsClose CommentsPermalink
`(4) secures, possesses, uses, transfers, receives, buys, sells, or distributes any immigration document knowing it to be forged, counterfeited, altered, falsely made, stolen, procured by fraud, or produced or issued without lawful authority;CommentsClose CommentsPermalink
`(5) adopts or uses a false or fictitioius name to evade or to attempt to evade the immigration laws; orCommentsClose CommentsPermalink
`(6) transfers or furnishes, without lawful authority, an immigration document to another person for use by a person other than the person for whom the pasport was issued or disgned,CommentsClose CommentsPermalink
shall be fined under this title, imprisoned not more 15 years, or both.CommentsClose CommentsPermalink
`(c) Trafficking- Any person who, during any period of 3 years or less, knowingly--CommentsClose CommentsPermalink
`(1) and without lawful authority produces, issues, or transfers 10 or more immigration documents;CommentsClose CommentsPermalink
`(2) forges, counterfeits, alters, or falsely makes 10 or more immigration documents;CommentsClose CommentsPermalink
`(3) secures, possesses, uses, buys, sells, or distributes 10 or more immigration documents, knowing the immigration documents to be forged, counterfeited, altered, stolen, falsely made, procured by fraud, or produced or issued without lawful authority; orCommentsClose CommentsPermalink
`(4) completes, mails, prepares, presents, signs, or submits 10 or more immigration documents knowing the documents to contain any materially false statement or representation,CommentsClose CommentsPermalink
shall be fined under this title, imprisoned not more than 20 years, or both.CommentsClose CommentsPermalink
`(d) Immigration Document Materials- Any person who knowingly and without lawful authority produces, buys, sells, possesses, or uses any official material (or counterfeit of any official material) used to make immigration documents, including any distinctive paper, seal, hologram, image, text, symbol, stamp, engraving, or plate, shall be fined under this title, imprisoned not more than 20 years, or both.CommentsClose CommentsPermalink
`(e) Employment Documents- Any person who uses--CommentsClose CommentsPermalink
`(1) an identification document, knowing (or having reason to know) that the document was not issued lawfully for the use of the possessor;CommentsClose CommentsPermalink
`(2) an identification document knowing (or having reason to know) that the document is false; orCommentsClose CommentsPermalink
`(3) a false attestation,CommentsClose CommentsPermalink
for the purpose of satisfying a requirement of section 274A(b) of the Immigration and Nationality Act (
(g) Alternative Imprisonment Maximum for Certain Offenses-
(1) in the matter preceding paragraph (1), by striking `(other than an offense under section 1545)';CommentsClose CommentsPermalink
(2) in paragraph (1), by striking `15' and inserting `20'; andCommentsClose CommentsPermalink
(3) in paragraph (2), by striking `20' and inserting `25'.CommentsClose CommentsPermalink
(h) Attempts, Conspiracies, Jurisdiction, and Definitions- Chapter 75 of title 18, United States Code, is amended by adding after section 1547 the following:CommentsClose CommentsPermalink
`Sec. 1548. Attempts and conspiracies
`Any person who attempts or conspires to violate any section of this chapter shall be punished in the same manner as a person who completed a violation of that section.CommentsClose CommentsPermalink
`Sec. 1549. Additional jurisdiction
`(a) In General- Any person who commits an offense under this chapter within the special maritime and territorial jurisdiction of the United States shall be punished as provided under this chapter.CommentsClose CommentsPermalink
`(b) Extraterritorial Jurisdiction- Any person who commits an offense under this chapter outside the United States shall be punished as provided under this chapter if--CommentsClose CommentsPermalink
`(1) the offense involves a United States passport or immigration document (or any document purporting to be such a document) or any matter, right, or benefit arising under or authorized by Federal immigration laws;CommentsClose CommentsPermalink
`(2) the offense is in or affects foreign commerce;CommentsClose CommentsPermalink
`(3) the offense affects, jeopardizes, or poses a significant risk to the lawful administration of Federal immigration laws, or the national security of the United States;CommentsClose CommentsPermalink
`(4) the offense is committed to facilitate an act of international terrorism (as defined in section 2331) or a drug trafficking crime (as defined in section 929(a)(2)) that affects or would affect the national security of the United States;CommentsClose CommentsPermalink
`(5) the offender is a national of the United States or an alien lawfully admitted for permanent residence (as those terms are defined in section 101(a) of the Immigration and Nationality Act (
`(6) the offender is a stateless person whose habitual residence is in the United States.CommentsClose CommentsPermalink
`Sec. 1550. Authorized law enforcement activities
`Nothing in this chapter shall prohibit any lawfully authorized investigative, protective, or intelligence activity of a law enforcement agency of the United States, a State, or a political subdivision of a State, or an intelligence agency of the United States, or any activity authorized under title V of the Organized Crime Control Act of 1970 (
`Sec. 1551. Definitions
`As used in this chapter:CommentsClose CommentsPermalink
`(1) The term `application for a United States passport' includes any document, photograph, or other piece of evidence submitted in support of an application for a United States passport.CommentsClose CommentsPermalink
`(2) The term `immigration document'--CommentsClose CommentsPermalink
`(A) means any application, petition, affidavit, declaration, attestation, form, visa, identification card, alien registration document, employment authorization document, border crossing card, certificate, permit, order, license, stamp, authorization, grant of authority, or other official document, arising under or authorized by the immigration laws of the United States; andCommentsClose CommentsPermalink
`(B) includes any document, photograph, or other piece of material evidence attached or submitted in support of an immigration document described in subparagraph (A).CommentsClose CommentsPermalink
`(3) The term `immigration laws' includes--CommentsClose CommentsPermalink
`(A) the laws described in section 101(a)(17) of the Immigration and Nationality Act (
`(B) the laws relating to the issuance and use of passports; andCommentsClose CommentsPermalink
`(C) the regulations prescribed under the authority of any law described in subparagraph (A) or (B).CommentsClose CommentsPermalink
`(4) A person does not exercise `lawful authority' if the person abuses or improperly exercises lawful authority the person otherwise holds.CommentsClose CommentsPermalink
`(5) The term `passport' means--CommentsClose CommentsPermalink
`(A) a travel document attesting to the identity and nationality of the bearer that is issued under the authority of the Secretary of State, a foreign government, or an international organization; orCommentsClose CommentsPermalink
`(B) any instrument purporting to be a document described in subparagraph (A).CommentsClose CommentsPermalink
`(6) The term `produce' means to make, prepare, assemble, issue, print, authenticate, or alter.CommentsClose CommentsPermalink
`(7) The term `to present' means to offer or submit for official processing, examination, or adjudication. Any such presentation continues until the official processing, examination, or adjudication is complete.CommentsClose CommentsPermalink
`(8) The `use' of a passport or an immigration document referred to in section 1541(a), 1543(b), 1544, 1546(a), and 1546(b) of this chapter includes--CommentsClose CommentsPermalink
`(A) any officially authorized use;CommentsClose CommentsPermalink
`(B) use to travel;CommentsClose CommentsPermalink
`(C) use to demonstrate identity, residence, nationality, citizenship, or immigration status;CommentsClose CommentsPermalink
`(D) use to seek or maintain employment; orCommentsClose CommentsPermalink
`(E) use in any matter within the jurisdiction of the Federal government or of a State government.'.CommentsClose CommentsPermalink
(i) Clerical Amendment- The table of sections for chapter 75 of title 18, United States Code, is amended to read as follows:CommentsClose CommentsPermalink
`Sec.CommentsClose CommentsPermalink
`1541. Trafficking in passports.CommentsClose CommentsPermalink
`1542. False statement in an application for a passport.CommentsClose CommentsPermalink
`1543. Forgery and unlawful production of a passport.CommentsClose CommentsPermalink
`1544. Misuse of a passport.CommentsClose CommentsPermalink
`1545. Schemes to defraud aliens.CommentsClose CommentsPermalink
`1546. Immigration and visa fraud.CommentsClose CommentsPermalink
`1547. Alternative imprisonment maximum for certain offenses.CommentsClose CommentsPermalink
`1548. Attempts and conspiracies.CommentsClose CommentsPermalink
`1549. Additional jurisdiction.CommentsClose CommentsPermalink
`1550. Authorized law enforcement activities.CommentsClose CommentsPermalink
`1551. Definitions.'.CommentsClose CommentsPermalink
SEC. 222. OTHER IMMIGRATION REFORMS.
(a) Directive to the United States Sentencing Commission-CommentsClose CommentsPermalink
(1) IN GENERAL- Pursuant to the authority under
(2) REPORT- Not later than 1 year after the date of the enactment of this Act, the United States Sentencing Commission shall submit to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives a report on the implementation of this subsection.CommentsClose CommentsPermalink
(b) Release and Detention Prior to Disposition-CommentsClose CommentsPermalink
(1) DETENTION-
`(e) Detention- (1) If, after a hearing pursuant to the provisions of subsection (f) of this section, the judicial officer finds that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community, such judicial officer shall order the detention of the person before trial.CommentsClose CommentsPermalink
`(2) In a case described in subsection (f)(1) of this section, a rebuttable presumption arises that no condition or combination of conditions will reasonably assure the safety of any other person and the community if such judicial officer finds that--CommentsClose CommentsPermalink
`(A) the person has been convicted of a Federal offense that is described in subsection (f)(1) of this section, or of a State or local offense that would have been an offense described in subsection (f)(1) of this section if a circumstance giving rise to Federal jurisdiction had existed;CommentsClose CommentsPermalink
`(B) the offense described in subparagraph (A) of this paragraph was committed while the person was on release pending trial for a Federal, State, or local offense; andCommentsClose CommentsPermalink
`(C) a period of not more than five years has elapsed since the date of conviction, or the release of the person from imprisonment, for the offense described in subparagraph (A) of this paragraph, whichever is later.CommentsClose CommentsPermalink
`(3) Subject to rebuttal by the person, it shall be presumed that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of the community if the judicial officer finds that there is probable cause to believe that the person committed an offense for which a maximum term of imprisonment of ten years or more is prescribed in the Controlled Substances Act (
(c) Protection for Legitimate Refugees and Asylum Seekers-CommentsClose CommentsPermalink
(1) PROTECTION FOR LEGITIMATE REFUGEES AND ASYLUM SEEKERS- The Attorney General, in consultation with the Secretary of Homeland Security, shall develop binding prosecution guidelines for Federal prosecutors to ensure that any prosecution of an alien seeking entry into the United States by fraud is consistent with the United States treaty obligations under Article 31(1) of the Convention Relating to the Status of Refugees, done at Geneva July 28, 1951 (as made applicable by the Protocol Relating to the Status of Refugees, done at New York January 31, 1967 (19 UST 6223)).CommentsClose CommentsPermalink
(2) NO PRIVATE RIGHT OF ACTION- The guidelines developed pursuant to paragraph (1), and any internal office procedures related to such guidelines, are intended solely for the guidance of attorneys of the United States. This subsection, such guidelines, and the process for developing such guidelines are not intended to, do not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable at law by any party in any administrative, civil, or criminal matter.CommentsClose CommentsPermalink
(3) WAIVER- The Secretary may grant a waiver from prosecution under chapter 75 of title 18, United States Code, as amended by section 211 of this Act, to a person--CommentsClose CommentsPermalink
(A) seeking protection, classification, or status under section 208 or 241(b)(3) of the Immigration and Nationality Act, or relief under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment done at New York, December 10, 1994, pursuant to title 8, Code of Federal Regulations;CommentsClose CommentsPermalink
(B) referred for a credible fear interview, a reasonable fear interview, or an asylum-only hearing under section 235 of the Immigration and Nationality Act or title 8, Code of Federal Regulations; orCommentsClose CommentsPermalink
(C) has filed an application for classification or status under paragraph (15)(T), (15)(U), (27)(J), or (51) of section 101(a) of the Immigration and Nationality Act, section 216(c)(4)(C), 240A(b)(2), or section 244(a)(3) of such Act.CommentsClose CommentsPermalink
(d) Diplomatic Security Service- Section 37(a)(1) of the State Department Basic Authorities Act of 1956 (
`(1) conduct investigations concerning--CommentsClose CommentsPermalink
`(A) illegal passport or visa issuance or use;CommentsClose CommentsPermalink
`(B) identity theft or document fraud affecting or relating to the programs, functions, and authorities of the Department of State;CommentsClose CommentsPermalink
`(C) violations of chapter 77 of title 18, United States Code; andCommentsClose CommentsPermalink
`(D) Federal offenses committed within the special maritime and territorial jurisdiction defined in paragraph (9) of
Subtitle C--Detention and Removal of Aliens Who Illegally Enter or Remain in the United States
SEC. 231. DETENTION AND REMOVAL OF ALIENS ORDERED REMOVED.
(a) In General- Section 241(a) (
(1) in paragraph (1)(A), by striking `Attorney General' and inserting `Secretary of Homeland Security';CommentsClose CommentsPermalink
(2) in paragraphs (3), (4), (5), (6), and (7), by striking `Attorney General' each place it appears and inserting `Secretary';CommentsClose CommentsPermalink
(3) in paragraph (1)--CommentsClose CommentsPermalink
(A) by amending subparagraph (C) to read as follows:CommentsClose CommentsPermalink
`(C) EXTENSION OF REMOVAL PERIOD-CommentsClose CommentsPermalink
`(i) IN GENERAL- The Secretary shall extend the removal period for more than a period of 90 days and the alien may remain in detention during such extended period if, during the removal period--CommentsClose CommentsPermalink
`(I) the alien--CommentsClose CommentsPermalink
`(aa) fails or refuses to make timely application in good faith for travel or other documents necessary for the alien to depart the United States; orCommentsClose CommentsPermalink
`(bb) conspires or acts to prevent the removal of the alien subject to an order of removal; andCommentsClose CommentsPermalink
`(II) the Secretary makes a certification described in paragraph (8)(B) for such alien.CommentsClose CommentsPermalink
`(ii) STAY OF REMOVAL- An alien seeking a stay of removal from an immigration judge, a Federal judge, or the Board of Immigration Appeals shall not be deemed under any provision of law to be conspiring or acting to prevent the removal of the alien.CommentsClose CommentsPermalink
`(iii) REVIEW- The procedures described in paragraph (8)(E) shall apply to actions taken under this subparagraph.'; andCommentsClose CommentsPermalink
(B) by adding at the end the following:CommentsClose CommentsPermalink
`(D) TOLLING OF PERIOD- If, at the time described in clause (i), (ii), or (iii) of subparagraph (B), the alien is not in the custody of the Secretary under the authority of this Act, the removal period shall not begin until the alien is taken into such custody. If the Secretary lawfully transfers custody of the alien during the removal period to another Federal agency or to a State or local government agency in connection with the official duties of such agency, the removal period shall be tolled until the date on which the alien is returned to the custody of the Secretary.';CommentsClose CommentsPermalink
(4) by amending paragraph (2) to read as follows:CommentsClose CommentsPermalink
`(2) DETENTION- During the removal period, the Secretary shall detain the alien. Under no circumstances during the removal period shall the Secretary release an alien who has been found inadmissible under section 212(a)(2) or 212(a)(3)(B) or deportable under section 237(a)(2) or 1227(a)(4)(B). If a court, the Board of Immigration Appeals, or an immigration judge orders a stay of removal of an alien who is subject to an administratively final order of removal, the Secretary, in the exercise of discretion, may detain or supervise the alien during the pendency of such stay of removal, subject to the limitations set forth in subparagraphs (3), (6), and (8).';CommentsClose CommentsPermalink
(5) in paragraph (3)--CommentsClose CommentsPermalink
(A) in the matter preceding subparagraph (A), by striking `If' and inserting `Subject to the requirements of paragraphs (6) and (8), if'; andCommentsClose CommentsPermalink
(B) by striking subparagraph (D) and inserting the following:CommentsClose CommentsPermalink
`(D) to obey reasonable restrictions on the alien's conduct or activities, or to perform affirmative acts prescribed by the Secretary--CommentsClose CommentsPermalink
`(i) to prevent the alien from absconding; orCommentsClose CommentsPermalink
`(ii) to protect the community;CommentsClose CommentsPermalink
`(E) if appropriate--CommentsClose CommentsPermalink
`(i) to utilize an electronic monitoring device;CommentsClose CommentsPermalink
`(ii) to complete parole and probation requirements for aliens with outstanding obligations under Federal or State law; andCommentsClose CommentsPermalink
`(F) to comply with any other conditions of such supervision that the Secretary determines is appropriate.';CommentsClose CommentsPermalink
(6) in paragraph (6), by inserting `, subject to the provisions of paragraph (8)' after `beyond the removal period';CommentsClose CommentsPermalink
(7) by redesignating paragraph (7) as paragraph (11);CommentsClose CommentsPermalink
(8) by inserting after paragraph (6) the following:CommentsClose CommentsPermalink
`(7) PAROLE-CommentsClose CommentsPermalink
`(A) IN GENERAL- If an alien detained pursuant to paragraph (6) is an applicant for admission and is released from detention, such release shall be considered to be made as an exercise of the Secretary's parole authority under 212(d)(5). Notwithstanding section 212(d)(5), the Secretary may provide that the alien shall not be returned to custody unless--CommentsClose CommentsPermalink
`(i) the alien violates the conditions of the alien's parole under this section;CommentsClose CommentsPermalink
`(ii) the alien's removal becomes reasonably foreseeable; orCommentsClose CommentsPermalink
`(iii) the alien violates the conditions set out in paragraph (3).CommentsClose CommentsPermalink
`(B) NOT AN ADMISSION- Under no circumstance shall an alien paroled under this section be considered admitted to the United States.CommentsClose CommentsPermalink
`(8) ADDITIONAL RULES FOR DETENTION OR RELEASE OF ALIENS BEYOND REMOVAL PERIOD-CommentsClose CommentsPermalink
`(A) DETENTION AFTER REMOVAL PERIOD- The Secretary is authorized to detain an alien who has effected an entry into the United States--CommentsClose CommentsPermalink
`(i) for not more than 90 days beyond the removal period if the Secretary is seeking to make a certification described in subparagraph (B) for the alien; orCommentsClose CommentsPermalink
`(ii) for more than 90 days beyond the removal period if the Secretary has made a certification described in subparagraph (B) for the alien, subject to the conditions set out in this paragraph.CommentsClose CommentsPermalink
`(B) CERTIFICATION- A certification described in this subparagraph is a written certification made by the Secretary in which the Secretary determines--CommentsClose CommentsPermalink
`(i) that the alien is significantly likely to be removed in the reasonably foreseeable future;CommentsClose CommentsPermalink
`(ii) that the alien has failed to make a timely application, in good faith, for travel documents or has otherwise conspired or acted to prevent the removal of the alien;CommentsClose CommentsPermalink
`(iii) that the alien would have been removed if the alien had not--CommentsClose CommentsPermalink
`(I) failed or refused to make all reasonable efforts to comply with the removal order;CommentsClose CommentsPermalink
`(II) failed or refused to fully cooperate with the efforts of the Secretary to establish the alien's identity and carry out the removal order, including failing to submit a timely application, in good faith, for travel or other documents necessary for the alien's departure from the United States; orCommentsClose CommentsPermalink
`(III) conspired or acted to prevent such removal;CommentsClose CommentsPermalink
`(iv) in consultation with the Secretary of Health and Human Services, that the alien has a highly contagious disease that poses a threat to public safety, in which case the alien may be quarantined in a civil medical facility;CommentsClose CommentsPermalink
`(v) on the basis of information available to the Secretary (including classified and national security information), regardless of the grounds upon which the alien was ordered removed and pursuant to a written certification under section 236A, that there is reason to believe that the release of the alien would threaten the national security of the United States; orCommentsClose CommentsPermalink
`(vi) that the release of the alien would threaten the safety of the community, notwithstanding conditions of release designed to ensure the safety of the community or any person and the alien--CommentsClose CommentsPermalink
`(I) has been convicted of 1 or more aggravated felonies (as defined in section 101(a)(43)(A)), or of 1 or more attempts or conspiracies to commit any such aggravated felonies for which the alien served an aggregate term of imprisonment of at least 5 years and the alien is likely to engage in acts of violence in the future; orCommentsClose CommentsPermalink
`(II) because of a mental condition or personality disorder (certified under section 232(b)) and behavior associated with that condition or disorder, is likely to engage in acts of violence in the future, in which case the alien may be referred for review and evaluation for civil commitment pursuant to the civil commitment statute of the State in which the alien resides.CommentsClose CommentsPermalink
`(C) DELEGATION- Notwithstanding any other provision of law, the Secretary may not delegate the authority to make a certification described in subparagraph (B) to any official lower than the Assistant Secretary for Immigration and Customs Enforcement.CommentsClose CommentsPermalink
`(D) ADMINISTRATIVE REVIEW-CommentsClose CommentsPermalink
`(i) IN GENERAL- The Secretary shall establish an administrative review process to permit an alien to appeal a decision by the Secretary to detain the alien after the removal period under subparagraph (A) or to extend the removal period for the alien under paragraph (1)(C).CommentsClose CommentsPermalink
`(ii) REVIEW- An immigration judge shall review a determination by the Secretary to detain an alien under subparagraph (A) or paragraph (1)(C). An immigration judge shall uphold such determination of the Secretary if the Secretary establishes at a hearing, by clear and convincing evidence, that such detention is authorized under subparagraph (A) or paragraph (1)(C). In making this determination, the court shall disclose, if otherwise discoverable, to the alien, the counsel of the alien, or both, under procedures and standards set forth in the Classified Information Procedures Act (18 U.S.C. App.), any evidence that the Secretary relied on in making a determination under this section unless the court finds that such disclosure would not assist in determining any legal or factual issue pertinent to the case. The decision of the immigration judge shall not be subject to appeal, but shall be reviewable in a habeas corpus proceeding under
`(E) RENEWAL OF EXTENDED DETENTION-CommentsClose CommentsPermalink
`(i) RENEWAL OF DETENTION- The Secretary may renew a certification under subparagraph (B) every 180 days after providing the alien with an opportunity to submit documents or other evidence in support of release. Unless the Secretary determines that continued detention under subparagraph (A) or paragraph (1)(C) is warranted, the Secretary shall release the alien subject to the conditions of supervision described in paragraph (3).CommentsClose CommentsPermalink
`(ii) REVIEW- Any renewal of a certification under clause (i) shall be subject to review as described in subparagraph (E) and any such review shall be completed before the date that is 180 days after the date the alien's detention was continued under subparagraph (A) or paragraph (1)(C) or the date of the previous renewal of such detention under clause (i).CommentsClose CommentsPermalink
`(F) APPLICABILITY- This paragraph and paragraphs (6) and (7) shall apply to any alien returned to custody under paragraph (9) as if the removal period terminated on the day of the redetention.CommentsClose CommentsPermalink
`(9) REDETENTION- The Secretary may not detain any alien subject to a final removal order who has previously been released from custody unless--CommentsClose CommentsPermalink
`(A) the alien fails to comply with the conditions of departure applicable to the alien;CommentsClose CommentsPermalink
`(B) the alien fails to continue to satisfy the conditions of supervision under paragraph (3); orCommentsClose CommentsPermalink
`(C) upon reconsideration, the Secretary makes a certification for the alien described in paragraph (8)(B).CommentsClose CommentsPermalink
`(10) JUDICIAL REVIEW- Without regard to the place of confinement, judicial review of any action or decision made pursuant to paragraph (6), (7), or (8) shall be available exclusively in a habeas corpus proceeding brought in a United States district court in the judicial district in which the alien is detained or in which the alien's removal proceeding was initiated.'.CommentsClose CommentsPermalink
(b) Effective Date- The amendments made by this section--CommentsClose CommentsPermalink
(1) shall take effect on the date of the enactment of this Act; andCommentsClose CommentsPermalink
(2) shall apply to--CommentsClose CommentsPermalink
(A) any alien subject to a final administrative removal, deportation, or exclusion order that was issued before, on, or after the date of the enactment of this Act; andCommentsClose CommentsPermalink
(B) any act or condition occurring or existing before, on, or after the date of the enactment of this Act.CommentsClose CommentsPermalink
SEC. 232. INCREASED CRIMINAL PENALTIES FOR IMMIGRATION VIOLATIONS.
(a) Pending Proceedings- Section 204(b) (
(b) Conditional Permanent Resident Status-CommentsClose CommentsPermalink
(1) IN GENERAL- Section 216(e) (
(2) CERTAIN ALIEN ENTREPRENEURS- Section 216A(e) (
(c) Concurrent Naturalization and Removal Proceedings- Section 318 (
`SEC. 318. PREREQUISITE TO NATURALIZATION; BURDEN OF PROOF.
`(a) In General- Except as otherwise provided in this title, no person shall be naturalized unless the person has been lawfully admitted to the United States for permanent residence in accordance with all applicable provisions of this Act. The burden of proof shall be upon such person to show that the person entered the United States lawfully, and the time, place, and manner of such entry into the United States, but in presenting such proof the person shall be entitled to the production of the person's's immigrant visa, if any, or of other entry document, if any, and of any other documents and records, not considered by the Secretary of Homeland Security to be confidential, pertaining to such entry, in the custody of the Department of Homeland Security.CommentsClose CommentsPermalink
`(b) Other Proceedings- Notwithstanding the provisions of section 405(b), and except as provided in sections 328 and 329, no person shall be naturalized against whom there is outstanding a final finding of deportability pursuant to a warrant of arrest issued under the provisions of this or any other Act and no application for naturalization shall be considered by the Secretary of Homeland Security or any court if there is pending against the applicant any removal proceeding or other proceeding to determine the applicant's inadmissibility or deportability, or to determine whether the applicant's lawful permanent resident status should be rescinded, if the removal proceeding or other proceeding was commenced before a final agency decision on naturalization made pursuant to a hearing requested under section 336(a). The findings of the Secretary in terminating removal proceedings or canceling the removal of an alien under this Act shall not be binding upon the Secretary in determining whether such person has established eligibility for naturalization under this title.'.CommentsClose CommentsPermalink
(d) District Court Jurisdiction- Section 336(b) (
`(b) Request for Hearing Before District Court- If a final administrative decision is not rendered under section 335 before the end of the 180-day period beginning on the date on which the examination is conducted under such section, the applicant may apply to the United States district court for the district in which the applicant resides for a hearing on the matter. Such court has jurisdiction over the matter and may--CommentsClose CommentsPermalink
`(1) determine the matter; orCommentsClose CommentsPermalink
`(2) remand the matter, with appropriate instructions, to the Secretary of Homeland Security, to determine the matter.'.CommentsClose CommentsPermalink
(e) Effective Date- The amendments made by this section--CommentsClose CommentsPermalink
(1) shall apply to any act that occurred on or after the date of enactment of this Act; andCommentsClose CommentsPermalink
(2) shall apply to any application for naturalization or any case or matter under the immigration laws filed on or after such date of enactment.CommentsClose CommentsPermalink
SEC. 233. AGGRAVATED FELONY.
(a) Definition of Aggravated Felony- Section 101(a)(43) (
(1) in the matter preceding subparagraph (A), by striking `The term `aggravated felony' means--' and inserting `Notwithstanding any other provision of law, the term `aggravated felony' applies to an offense described in this paragraph, whether in violation of Federal or State law, and to such an offense in violation of the law of a foreign country for which the term of imprisonment was completed within the previous 15 years, and regardless of whether the conviction was entered before, on, or after September 30, 1996 and means--';CommentsClose CommentsPermalink
(2) in subparagraph (N), by striking `paragraph (1)(A) or (2) of' and inserting `paragraph (1)(A), (2), or (4) of'; andCommentsClose CommentsPermalink
(3) by striking the undesignated matter following subparagraph (U).CommentsClose CommentsPermalink
(b) Effective Date and Application-CommentsClose CommentsPermalink
(1) IN GENERAL- The amendments made by subsection (a) shall--CommentsClose CommentsPermalink
(A) take effect on the date of enactment of this Act; andCommentsClose CommentsPermalink
(B) apply to any act that occurred on or after the date of enactment of this Act.CommentsClose CommentsPermalink
(2) APPLICATION OF IIRAIRA AMENDMENTS- The amendments to section 101 (a)(43) of the Immigration and Nationality Act made by section 321 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (division C of
SEC. 234. INCREASED CRIMINAL PENALTIES RELATED TO GANG VIOLENCE, REMOVAL, AND ALIEN SMUGGLING.
(a) Criminal Street Gangs-CommentsClose CommentsPermalink
(1) INADMISSIBILITY- Section 212(a)(2) (
(A) by redesignating subparagraph (F) as subparagraph (J); andCommentsClose CommentsPermalink
(B) by inserting after subparagraph (E) the following:CommentsClose CommentsPermalink
`(F) MEMBERS OF CRIMINAL STREET GANGS- Unless the Secretary of Homeland Security or the Attorney General waives the application of this subparagraph, any alien who has been convicted of a crime under
(2) DEPORTABILITY- Section 237(a)(2) (
`(F) MEMBERS OF CRIMINAL STREET GANGS- Unless the Secretary of Homeland Security or the Attorney General waives the application of this subparagraph, any alien who has been convicted of a crime under
(3) TEMPORARY PROTECTED STATUS- Section 244 (
(A) by striking `Attorney General' each place it appears and inserting `Secretary of Homeland Security';CommentsClose CommentsPermalink
(B) in subsection (c)(2)(B)--CommentsClose CommentsPermalink
(i) in clause (i), by striking `, or' at the end;CommentsClose CommentsPermalink
(ii) in clause (ii), by striking the period at the end and inserting `; or'; andCommentsClose CommentsPermalink
(iii) by adding at the end the following:CommentsClose CommentsPermalink
`(iii) the alien has been convicted of a crime under
(C) in subsection (d)--CommentsClose CommentsPermalink
(i) by striking paragraph (3); andCommentsClose CommentsPermalink
(ii) in paragraph (4), by adding at the end the following: `The Secretary of Homeland Security shall detain an alien provided temporary protected status under this section if the alien is subject to detention under section 236(c)(1).'.CommentsClose CommentsPermalink
(b) Penalties Related to Removal- Section 243 (
(1) in subsection (a)(1)--CommentsClose CommentsPermalink
(A) in the matter preceding subparagraph (A), by inserting `212(a) or' after `section'; andCommentsClose CommentsPermalink
(B) in the matter following subparagraph (D)--CommentsClose CommentsPermalink
(i) by striking `or imprisoned not more than four years' and inserting `and imprisoned for not more than 5 years'; andCommentsClose CommentsPermalink
(ii) by striking `, or both'; andCommentsClose CommentsPermalink
(2) in subsection (b), by striking `not more than $1000 or imprisoned for not more than one year, or both' and inserting `under title 18, United States Code, and imprisoned for not more than 5 years (or for not more than 10 years if the alien is removable under paragraph (1)(E), (2), or (4) of section 237(a)).'.CommentsClose CommentsPermalink
(c) Alien Smuggling and Related Offenses-CommentsClose CommentsPermalink
(1) IN GENERAL- Section 274 (
(A) by striking the section heading and all that follows through subsection (a)(1)(B)(iii);CommentsClose CommentsPermalink
(B) by striking subsection (a)(1)(C) and all that follows through the end;CommentsClose CommentsPermalink
(C) by redesignating subsection (a)(1)(B)(iv) as subparagraph (G) and indenting such subparagraph (G) four ems from the left margin;CommentsClose CommentsPermalink
(D) by amending subparagraph (G), as redesignated by subparagraph (C), by striking `in the case of a violation of subparagraph (A) (i), (ii), (iii), (iv), or (v) resulting' and inserting `if the offense resulted';CommentsClose CommentsPermalink
(E) by inserting before subparagraph (G), as redesignated by subparagraph (C), the following:CommentsClose CommentsPermalink
`SEC. 274. ALIEN SMUGGLING AND RELATED OFFENSES.
`(a) Criminal Offenses and Penalties-CommentsClose CommentsPermalink
`(1) PROHIBITED ACTIVITIES- Except as provided in paragraph (3), a person shall be punished as provided under paragraph (2), if the person--CommentsClose CommentsPermalink
`(A) encourages, directs, or induces a person to come to or enter the United States, or to cross the border to the United States, knowing or in reckless disregard of the fact that such person is an alien who lacks lawful authority to come to, enter, or cross the border to the United States;CommentsClose CommentsPermalink
`(B) encourages, directs, or induces a person to come to or enter the United States, or to cross the border to the United States, at a place other than a designated port of entry or place other than as designated by the Secretary of Homeland Security, knowing or in reckless disregard of the fact that such person is an alien and regardless of whether such alien has official permission or lawful authority to be in the United States;CommentsClose CommentsPermalink
`(C) transports, moves, harbors, conceals, or shields from detection a person outside of the United States knowing or in reckless disregard of the fact that such person is an alien in unlawful transit from 1 country to another or on the high seas, under circumstances in which the alien is seeking to enter the United States without official permission or legal authority;CommentsClose CommentsPermalink
`(D) encourages or induces a person to reside in the United States, knowing or in reckless disregard of the fact that such person is an alien who lacks lawful authority to reside in the United States;CommentsClose CommentsPermalink
`(E) transports or moves a person in the United States, knowing or in reckless disregard of the fact that such person is an alien who lacks lawful authority to enter or be in the United States, if the transportation or movement will further the alien's illegal entry into or illegal presence in the United States;CommentsClose CommentsPermalink
`(F) harbors, conceals, or shields from detection a person in the United States, knowing or in reckless disregard of the fact that such person is an alien who lacks lawful authority to be in the United States; orCommentsClose CommentsPermalink
`(G) conspires or attempts to commit any of the acts described in subparagraphs (A) through (F).CommentsClose CommentsPermalink
`(2) CRIMINAL PENALTIES- A person who violates any provision under paragraph (1)--CommentsClose CommentsPermalink
`(A) except as provided in subparagraphs (C) through (G), if the offense was not committed for commercial advantage, profit, or private financial gain, shall be fined under title 18, United States Code, imprisoned for not more than 5 years, or both;CommentsClose CommentsPermalink
`(B) except as provided in subparagraphs (C) through (G), if the offense was committed for commercial advantage, profit, or private financial gain--CommentsClose CommentsPermalink
`(i) if the violation is the offender's first violation under this subparagraph, shall be fined under such title, imprisoned for not more than 15 years, or both; orCommentsClose CommentsPermalink
`(ii) if the violation is the offender's second or subsequent violation of this subparagraph, shall be fined under such title, imprisoned for not more than 20 years, or both;CommentsClose CommentsPermalink
`(C) if the offense furthered or aided the commission of any other offense against the United States or any State that is punishable by imprisonment for more than 1 year, shall be fined under such title, imprisoned for not more than 20 years, or both;CommentsClose CommentsPermalink
`(D) shall be fined under such title, imprisoned not more than 20 years, or both, if the offense created a substantial and foreseeable risk of death, a substantial and foreseeable risk of serious bodily injury (as defined in
`(i) transporting the person in an engine compartment, storage compartment, or other confined space;CommentsClose CommentsPermalink
`(ii) transporting the person at an excessive speed or in excess of the rated capacity of the means of transportation; orCommentsClose CommentsPermalink
`(iii) transporting the person in, harboring the person in, or otherwise subjecting the person to crowded or dangerous conditions;CommentsClose CommentsPermalink
`(E) if the offense caused serious bodily injury (as defined in
`(F) shall be fined under such title and imprisoned for not more than 30 years if the offense involved an alien who the offender knew was--CommentsClose CommentsPermalink
`(i) engaged in terrorist activity (as defined in section 212(a)(3)(B)); orCommentsClose CommentsPermalink
`(ii) intending to engage in terrorist activity; and'CommentsClose CommentsPermalink
(F) by inserting after subparagraph (G), as redesignated by subparagraph (C), the following:CommentsClose CommentsPermalink
`(4) LIMITATION- It is not a violation of subparagraph (D), (E), or (F) of paragraph (1)--CommentsClose CommentsPermalink
`(A) for a religious denomination having a bona fide nonprofit, religious organization in the United States, or the agents or officers of such denomination or organization, to encourage, invite, call, allow, or enable an alien who is present in the United States to perform the vocation of a minister or missionary for the denomination or organization in the United States as a volunteer who is not compensated as an employee, notwithstanding the provision of room, board, travel, medical assistance, and other basic living expenses, provided the minister or missionary has been a member of the denomination for at least 1 year; orCommentsClose CommentsPermalink
`(B) for an individual or organization acting without compensation or expectation of compensation and not previously convicted of a violation of this section, to--CommentsClose CommentsPermalink
`(i) provide, or attempt to provide, an alien who is present in the United States with humanitarian assistance, including medical care, housing, counseling, victim services, and food; orCommentsClose CommentsPermalink
`(ii) transport the alien to a location where such assistance can be rendered.CommentsClose CommentsPermalink
`(5) EXTRATERRITORIAL JURISDICTION- There is extraterritorial Federal jurisdiction over the offenses described in this subsection.'; andCommentsClose CommentsPermalink
(G) by striking subsections (b) through (e) and inserting the following:CommentsClose CommentsPermalink
`(b) Employment of Unauthorized Aliens-CommentsClose CommentsPermalink
`(1) CRIMINAL OFFENSE AND PENALTIES- Any person who, during any 12-month period, knowingly employs 10 or more individuals with actual knowledge or in reckless disregard of the fact that the individuals are aliens described in paragraph (2), shall be fined under title 18, United States Code, imprisoned for not more than 10 years, or both.CommentsClose CommentsPermalink
`(2) DEFINITION- An alien described in this paragraph is an alien who--CommentsClose CommentsPermalink
`(A) is an unauthorized alien (as defined in section 274A);CommentsClose CommentsPermalink
`(B) is present in the United States without lawful authority; andCommentsClose CommentsPermalink
`(C) has been brought into the United States in violation of this subsection.CommentsClose CommentsPermalink
`(c) Seizure and Forfeiture-CommentsClose CommentsPermalink
`(1) IN GENERAL- Any conveyance used to commit or facilitate the commission of a violation of this section, the gross proceeds of such violation, and any property traceable to such property or proceeds, shall be subject to forfeiture.CommentsClose CommentsPermalink
`(2) APPLICABLE PROCEDURES- Seizures and forfeitures under this subsection shall be governed by the provisions of chapter 46 of title 18, United States Code, relating to civil forfeitures, except that such duties as are imposed upon the Secretary of the Treasury under the customs laws described in section 981(d) shall be performed by such officers, agents, and other persons as may be designated for that purpose by the Secretary of Homeland Security.CommentsClose CommentsPermalink
`(3) PRIMA FACIE EVIDENCE IN DETERMINATIONS OF VIOLATIONS- In determining whether a violation of subsection (a) has occurred, prima facie evidence that an alien involved in the alleged violation lacks lawful authority to come to, enter, or reside in the United States, or that such alien had come to, entered, or resided in the United States in violation of law shall include--CommentsClose CommentsPermalink
`(A) any order, finding, or determination concerning the alien's status or lack of status made by a Federal judge or administrative adjudicator (including an immigration judge or immigration officer) during any judicial or administrative proceeding authorized under Federal immigration law;CommentsClose CommentsPermalink
`(B) official records of the Department of Homeland Security, the Department of Justice, or the Department of State concerning the alien's status or lack of status; andCommentsClose CommentsPermalink
`(C) testimony by an immigration officer having personal knowledge of the facts concerning the alien's status or lack of status.CommentsClose CommentsPermalink
`(d) Authority to Arrest- No officer or person shall have authority to make any arrests for a violation of any provision of this section except--CommentsClose CommentsPermalink
`(1) officers and employees designated by the Secretary of Homeland Security, either individually or as a member of a class; andCommentsClose CommentsPermalink
`(2) other officers responsible for the enforcement of Federal criminal laws.CommentsClose CommentsPermalink
`(e) Admissibility of Videotaped Witness Testimony- Notwithstanding any provision of the Federal Rules of Evidence, the videotaped or otherwise audiovisually preserved deposition of a witness to a violation of subsection (a) who has been deported or otherwise expelled from the United States, or is otherwise unavailable to testify, may be admitted into evidence in an action brought for that violation if--CommentsClose CommentsPermalink
`(1) the witness was available for cross examination at the deposition by the party, if any, opposing admission of the testimony; andCommentsClose CommentsPermalink
`(2) the deposition otherwise complies with the Federal Rules of Evidence.CommentsClose CommentsPermalink
`(f) Outreach Program-CommentsClose CommentsPermalink
`(1) IN GENERAL- The Secretary of Homeland Security, in consultation with the Attorney General and the Secretary of State, as appropriate, shall--CommentsClose CommentsPermalink
`(A) develop and implement an outreach program to educate people in and out of the United States about the penalties for bringing in and harboring aliens in violation of this section; andCommentsClose CommentsPermalink
`(B) establish the American Local and Interior Enforcement Needs (ALIEN) Task Force to identify and respond to the use of Federal, State, and local transportation infrastructure to further the trafficking of unlawful aliens within the United States.CommentsClose CommentsPermalink
`(2) FIELD OFFICES- The Secretary of Homeland Security, after consulting with State and local government officials, shall establish such field offices as may be necessary to carry out this subsection.CommentsClose CommentsPermalink
`(3) AUTHORIZATION OF APPROPRIATIONS- There are authorized to be appropriated such sums are necessary for the fiscal years 2008 through 2012 to carry out this subsection.'.CommentsClose CommentsPermalink
(2) CLERICAL AMENDMENT- The table of contents is amended by striking the item relating to section 274 and inserting the following:CommentsClose CommentsPermalink
`Sec. 274. Alien smuggling and related offenses.'.CommentsClose CommentsPermalink
(d) Prohibiting Carrying or Using a Firearm During and in Relation to an Alien Smuggling Crime-
(1) in paragraph (1)--CommentsClose CommentsPermalink
(A) in subparagraph (A), by inserting `, alien smuggling crime,' after `any crime of violence';CommentsClose CommentsPermalink
(B) in subparagraph (A), by inserting `, alien smuggling crime,' after `such crime of violence';CommentsClose CommentsPermalink
(C) in subparagraph (D)(ii), by inserting `, alien smuggling crime,' after `crime of violence'; andCommentsClose CommentsPermalink
(2) by adding at the end the following:CommentsClose CommentsPermalink
`(6) For purposes of this subsection, the term `alien smuggling crime' means any felony punishable under section 274(a), 277, or 278 of the Immigration and Nationality Act (
SEC. 235. ILLEGAL ENTRY.
(a) In General- Section 275 (
`SEC. 275. ILLEGAL ENTRY.
`(a) In General-CommentsClose CommentsPermalink
`(1) CRIMINAL OFFENSES- An alien shall be subject to the penalties set forth in paragraph (2) if the alien--CommentsClose CommentsPermalink
`(A) knowingly enters or crosses the border into the United States at any time or place other than as designated by the Secretary of Homeland Security;CommentsClose CommentsPermalink
`(B) knowingly eludes examination or inspection by an immigration officer (including failing to stop at the command of such officer), or a customs or agriculture inspection at a port of entry; orCommentsClose CommentsPermalink
`(C) knowingly enters or crosses the border to the United States by means of a willfully false or misleading representation or the knowing concealment of a material fact (including such representation or concealment in the context of arrival, reporting, entry, or clearance requirements of the customs laws, immigration laws, agriculture laws, or shipping laws).CommentsClose CommentsPermalink
`(2) CRIMINAL PENALTIES- Any alien who violates any provision under paragraph (1)--CommentsClose CommentsPermalink
`(A) shall, for the first violation, be fined under title 18, United States Code, imprisoned not more than 6 months, or both;CommentsClose CommentsPermalink
`(B) shall, for a second or subsequent violation, or following an order of voluntary departure, be fined under such title, imprisoned not more than 2 years, or both;CommentsClose CommentsPermalink
`(C) if the violation occurred after the alien had been convicted of 3 or more misdemeanors or for a felony, shall be fined under such title, imprisoned not more than 5 years, or both;CommentsClose CommentsPermalink
`(D) if the violation occurred after the alien had been convicted of a felony for which the alien received a term of imprisonment of not less than 30 months, shall be fined under such title, imprisoned not more than 10 years, or both; andCommentsClose CommentsPermalink
`(E) if the violation occurred after the alien had been convicted of a felony for which the alien received a term of imprisonment of not less than 60 months, such alien shall be fined under such title, imprisoned not more than 15 years, or both.CommentsClose CommentsPermalink
`(3) PRIOR CONVICTIONS- The prior convictions described in subparagraphs (C) through (E) of paragraph (2) are elements of the offenses described in that paragraph and the penalties in such subparagraphs shall apply only in cases in which the conviction or convictions that form the basis for the additional penalty are--CommentsClose CommentsPermalink
`(A) alleged in the indictment or information; andCommentsClose CommentsPermalink
`(B) proven beyond a reasonable doubt at trial or admitted by the defendant.CommentsClose CommentsPermalink
`(4) ATTEMPT- Whoever attempts to commit any offense under this section shall be punished in the same manner as for a completion of such offense.CommentsClose CommentsPermalink
`(b) Improper Time or Place; Civil Penalties- Any alien who is apprehended while entering, attempting to enter, or knowingly crossing or attempting to cross the border to the United States at a time or place other than as designated by immigration officers shall be subject to a civil penalty, in addition to any criminal or other civil penalties that may be imposed under any other provision of law, in an amount equal to--CommentsClose CommentsPermalink
`(1) not less than $50 or more than $250 for each such entry, crossing, attempted entry, or attempted crossing; orCommentsClose CommentsPermalink
`(2) twice the amount specified in paragraph (1) if the alien had previously been subject to a civil penalty under this subsection.'.CommentsClose CommentsPermalink
(b) Clerical Amendment- The table of contents is amended by striking the item relating to section 275 and inserting the following:CommentsClose CommentsPermalink
`Sec. 275. Illegal entry.'.CommentsClose CommentsPermalink
SEC. 236. ILLEGAL REENTRY.
Section 276 (
`SEC. 276. REENTRY OF REMOVED ALIENS.
`(a) Reentry After Removal- Any alien who has been denied admission, excluded, deported, or removed, or who has departed the United States while an order of exclusion, deportation, or removal is outstanding, and subsequently enters, attempts to enter, crosses the border to, attempts to cross the border to, or is at any time found in the United States, shall be fined under title 18, United States Code, imprisoned not more than 2 years, or both.CommentsClose CommentsPermalink
`(b) Reentry of Criminal Offenders- Notwithstanding the penalty provided in subsection (a), if an alien described in that subsection--CommentsClose CommentsPermalink
`(1) was convicted for 3 or more misdemeanors or a felony before such removal or departure, the alien shall be fined under title 18, United States Code, imprisoned not more than 10 years, or both;CommentsClose CommentsPermalink
`(2) was convicted for a felony before such removal or departure for which the alien was sentenced to a term of imprisonment of not less than 30 months, the alien shall be fined under such title, imprisoned not more than 15 years, or both;CommentsClose CommentsPermalink
`(3) was convicted for a felony before such removal or departure for which the alien was sentenced to a term of imprisonment of not less than 60 months, the alien shall be fined under such title, imprisoned not more than 20 years, or both;CommentsClose CommentsPermalink
`(4) was convicted for 3 felonies before such removal or departure, the alien shall be fined under such title, imprisoned not more than 20 years, or both; orCommentsClose CommentsPermalink
`(5) was convicted, before such removal or departure, for murder, rape, kidnaping, or a felony offense described in chapter 77 (relating to peonage and slavery) or 113B (relating to terrorism) of such title, the alien shall be fined under such title, imprisoned not more than 20 years, or both.CommentsClose CommentsPermalink
`(c) Reentry After Repeated Removal- Any alien who has been denied admission, excluded, deported, or removed 3 or more times and thereafter enters, attempts to enter, crosses the border to, attempts to cross the border to, or is at any time found in the United States, shall be fined under title 18, United States Code, imprisoned not more than 10 years, or both.CommentsClose CommentsPermalink
`(d) Proof of Prior Convictions- The prior convictions described in subsection (b) are elements of the crimes described in that subsection, and the penalties in that subsection shall apply only in cases in which the conviction or convictions that form the basis for the additional penalty are--CommentsClose CommentsPermalink
`(1) alleged in the indictment or information; andCommentsClose CommentsPermalink
`(2) proven beyond a reasonable doubt at trial or admitted by the defendant.CommentsClose CommentsPermalink
`(e) Affirmative Defenses- It shall be an affirmative defense to a violation of this section that--CommentsClose CommentsPermalink
`(1) prior to the alleged violation, the alien had sought and received the express consent of the Secretary of Homeland Security to reapply for admission into the United States;CommentsClose CommentsPermalink
`(2) with respect to an alien previously denied admission and removed, the alien--CommentsClose CommentsPermalink
`(A) was not required to obtain such advance consent under this Act or any prior Act; andCommentsClose CommentsPermalink
`(B) had complied with all other laws and regulations governing the alien's admission into the United States;CommentsClose CommentsPermalink
`(3) the prior order of removal was based on charges filed against the alien before the alien reached 18 years of age; orCommentsClose CommentsPermalink
`(4) the alien has been found eligible for protection from removal pursuant to section 208.CommentsClose CommentsPermalink
`(f) Limitation on Collateral Attack on Underlying Removal Order- In a criminal proceeding under this section, an alien may not challenge the validity of any prior removal order concerning the alien unless the alien demonstrates by clear and convincing evidence that--CommentsClose CommentsPermalink
`(1) the alien exhausted all administrative remedies that may have been available to seek relief against the order;CommentsClose CommentsPermalink
`(2) the removal proceedings at which the order was issued improperly deprived the alien of the opportunity for judicial review; andCommentsClose CommentsPermalink
`(3) the entry of the order was fundamentally unfair.CommentsClose CommentsPermalink
`(g) Reentry of Alien Removed Prior to Completion of Term of Imprisonment- Any alien removed pursuant to section 241(a)(4) who enters, attempts to enter, crosses the border to, attempts to cross the border to, or is at any time found in, the United States shall be incarcerated for the remainder of the sentence of imprisonment which was pending at the time of deportation without any reduction for parole or supervised release unless the alien affirmatively demonstrates that the Secretary of Homeland Security has expressly consented to the alien's reentry. Such alien shall be subject to such other penalties relating to the reentry of removed aliens as may be available under this section or any other provision of law.CommentsClose CommentsPermalink
`(h) Limitation- It is not aiding and abetting a violation of this section for an individual, acting without compensation or the expectation of compensation, to--CommentsClose CommentsPermalink
`(1) provide, or attempt to provide, an alien with humanitarian assistance, including emergency medical care, food; orCommentsClose CommentsPermalink
`(2) transport the alien to a location where such assistance can be rendered.'.CommentsClose CommentsPermalink
TITLE III--EMPLOYMENT VERIFICATION
SEC. 301. EMPLOYMENT VERIFICATION.
(a) In General- Section 274A (
`SEC. 274A. EMPLOYMENT VERIFICATION.
`(a) Making Employment of Unauthorized Aliens Unlawful-CommentsClose CommentsPermalink
`(1) IN GENERAL- It is unlawful for an employer--CommentsClose CommentsPermalink
`(A) to hire, recruit, or refer for a fee an alien for employment in the United States knowing or with reckless disregard that the alien is an unauthorized alien with respect to such employment; orCommentsClose CommentsPermalink
`(B) to hire in the United States an individual unless such employer meets the requirements of subsections (b) and (c).CommentsClose CommentsPermalink
`(2) CONTINUING EMPLOYMENT- It is unlawful for an employer, after lawfully hiring an alien for employment, to continue to employ the alien in the United States knowing that the alien is (or has become) an unauthorized alien with respect to such employment.CommentsClose CommentsPermalink
`(3) USE OF LABOR THROUGH CONTRACT- An employer who uses a contract, subcontract, or exchange entered into, renegotiated, or extended after the date of the enactment of the STRIVE Act of 2007, to obtain the labor of an alien in the United States knowing or with reckless disregard that the alien is an unauthorized alien with respect to performing such labor, shall be considered to have hired the alien for employment in the United States in violation of paragraph (1)(A).CommentsClose CommentsPermalink
`(4) ORDER OF INTERNAL REVIEW AND CERTIFICATION OF COMPLIANCE-CommentsClose CommentsPermalink
`(A) AUTHORITY TO REQUIRE CERTIFICATION- If the Secretary has reasonable cause to believe that an employer has failed to comply with this section, the Secretary is authorized, at any time, to require that the employer certify that the employer is in compliance with this section or has instituted a program to come into compliance with the section.CommentsClose CommentsPermalink
`(B) CONTENT OF CERTIFICATION- Not later than 60 days after the date an employer receives a request for a certification under subparagraph (A) the employer shall certify under penalty of perjury that--CommentsClose CommentsPermalink
`(i) the employer is in compliance with the requirements of subsections (b) and (c); orCommentsClose CommentsPermalink
`(ii) that the employer has instituted a program to come into compliance with such requirements.CommentsClose CommentsPermalink
`(C) EXTENSION- The 60-day period referred to in subparagraph (B), may be extended by the Secretary for good cause, at the request of the employer.CommentsClose CommentsPermalink
`(D) PUBLICATION- The Secretary is authorized to publish in the Federal Register standards or methods for certification under subparagraph (A) and for specific recordkeeping practices with respect to such certification, and procedures for the audit of any records related to such certification.CommentsClose CommentsPermalink
`(5) DEFENSE-CommentsClose CommentsPermalink
`(A) IN GENERAL- Subject to subparagraph (B), an employer that establishes that the employer has complied in good faith, notwithstanding a technical or procedural failure, with the requirements of subsections (b) and (c) with respect to the hiring of an individual has established an affirmative defense that the employer has not violated paragraph (1)(B) with respect to such hiring.CommentsClose CommentsPermalink
`(B) EXCEPTION- Until the date that an employer is required to participate in the Electronic Employment Verification System under subsection (c), the employer may establish an affirmative defense under subparagraph (A) without a showing of compliance with subsection (c).CommentsClose CommentsPermalink
`(6) NO AUTHORIZATION OF NATIONAL IDENTIFICATION CARDS- Nothing in this title may be construed to authorize, directly or indirectly, the issuance, use, or establishment of a national identification card or a national identification system.CommentsClose CommentsPermalink
`(b) Document Verification Requirements- An employer hiring an individual for employment in the United States shall verify that the individual is eligible for such employment by meeting the following requirements:CommentsClose CommentsPermalink
`(1) ATTESTATION BY EMPLOYER-CommentsClose CommentsPermalink
`(A) REQUIREMENTS-CommentsClose CommentsPermalink
`(i) IN GENERAL- The employer shall attest, under penalty of perjury and on a form prescribed by the Secretary, that the employer has verified the identity and eligibility for employment of the individual by examining a document described in subparagraph (B).CommentsClose CommentsPermalink
`(ii) SIGNATURE REQUIREMENTS- An attestation required by clause (i) may be manifested by a handwritten or electronic signature.CommentsClose CommentsPermalink
`(iii) STANDARDS FOR EXAMINATION- An employer has complied with the requirement of this paragraph with respect to examination of a document if the document examined reasonably appears on its face to be genuine and relates to the individual whose identity and eligibility for employment in the United States is being verified. Nothing in this paragraph may be construed as requiring the employer to solicit the production of any other document or as requiring the individual to produce such other document.CommentsClose CommentsPermalink
`(B) EMPLOYMENT AND IDENTIFICATION DOCUMENTS- A document described in this subparagraph is--CommentsClose CommentsPermalink
`(i) in the case of an individual who is a national of the United States--CommentsClose CommentsPermalink
`(I) a United States passport;CommentsClose CommentsPermalink
`(II) a biometric, machine readable, tamper-resistant Social Security card, as described in section 205(c)(2)(G) of the Social Security Act (
`(III) a driver's license or identity card issued by a State, the Commonwealth of the Northern Mariana Islands, or an outlying possession of the United States that satisfies the requirements of Division B of
`(ii) in the case of an alien who is lawfully admitted for permanent residence in the United States--CommentsClose CommentsPermalink
`(I) a permanent resident card, as specified by the Secretary; orCommentsClose CommentsPermalink
`(II) a biometric, machine readable, tamper-resistant Social Security card, as described in section 205(c)(2)(G) of the Social Security Act (
`(iii) in the case of an alien who is not lawfully admitted for permanent residence and who is authorized under this Act or by the Secretary to be employed in the United States--CommentsClose CommentsPermalink
`(I) an employment authorization card, as specified by the Secretary, that--CommentsClose CommentsPermalink
`(aa) contains a photograph of the individual or other identifying information, including name, date of birth, gender, and address; andCommentsClose CommentsPermalink
`(bb) contains security features to make the document resistant to tampering, counterfeiting, and fraudulent use; orCommentsClose CommentsPermalink
`(II) a biometric, machine readable, tamper-resistant Social Security card, as described in section 205(c)(2)(G) of the Social Security Act (
`(iv) in the case of an individual who is unable to obtain a document described in clause (i), (ii), or (iii), a document designated by the Secretary that--CommentsClose CommentsPermalink
`(I) contains a photograph of the individual or other identifying information, including name, date of birth, gender, and address; andCommentsClose CommentsPermalink
`(II) contains security features to make the document resistant to tampering, counterfeiting, and fraudulent use; orCommentsClose CommentsPermalink
`(v) until the date that an employer is required to participate in the Electronic Employment Verification System under subsection (c) or is participating in such System on a voluntary basis, a document, or a combination of documents, of such type that, as of the date of the enactment of the STRIVE Act of 2007, the Secretary had established by regulation were sufficient for purposes of this section.CommentsClose CommentsPermalink
`(C) SPECIAL RULE FOR MINORS- Notwithstanding subparagraph (B), a minor who is under the age of 18 and who is unable to produce an identity document described in clause (i) through (v) of subparagraph (B) is exempt from producing such a document if--CommentsClose CommentsPermalink
`(i) a parent or legal guardian of the minor completes a form prescribed by the Secretary, and in the space for the minor's signature, the parent or legal guardian writes the words, `minor under age 18';CommentsClose CommentsPermalink
`(ii) a parent or legal guardian of the minor completes a form prescribed by the Secretary, the `Preparer/Translator certification'; andCommentsClose CommentsPermalink
`(iii) the employer of the minor writes in a form prescribed by the Secretary, in the space after the words `Document Identification #' the words, `minor under age 18'.CommentsClose CommentsPermalink
`(D) SPECIAL RULE FOR INDIVIDUALS WITH DISABILITIES- Notwithstanding subparagraph (B), an individual with a disability (as defined in section 3 of the Americans with Disabilities Act of 1990 (
`(i) a parent or legal guardian of the individual, or a representative from the nonprofit organization, association, or rehabilitation program placing the individual into a position of employment completes a form prescribed by the Secretary, and in the space for the covered individual's signature, writes the words, `special placement';CommentsClose CommentsPermalink
`(ii) a parent or legal guardian of the individual or the program representative, completes a form prescribed by the Secretary, the `Preparer/Translator certification'; andCommentsClose CommentsPermalink
`(iii) the employer of the covered individual writes in a form prescribed by the Secretary, in the space after the words `Document Identification #' the words, `special placement'.CommentsClose CommentsPermalink
`(E) AUTHORITY TO PROHIBIT USE OF CERTAIN DOCUMENTS-CommentsClose CommentsPermalink
`(i) AUTHORITY- If the Secretary finds that a document or class of documents described in clause (i) through (v) of subparagraph (B) is not reliable to establish identity or eligibility for employment (as the case may be) or is being used fraudulently to an unacceptable degree, the Secretary is authorized to prohibit, or impose conditions on, the use of such document or class of documents for purposes of this subsection.CommentsClose CommentsPermalink
`(ii) REQUIREMENT FOR PUBLICATION- The Secretary shall publish notice of any findings under clause (i) in the Federal Register.CommentsClose CommentsPermalink
`(2) ATTESTATION OF INDIVIDUAL-CommentsClose CommentsPermalink
`(A) IN GENERAL- The individual shall attest, under penalty of perjury on a form prescribed by the Secretary, that the individual is--CommentsClose CommentsPermalink
`(i) a national of the United States;CommentsClose CommentsPermalink
`(ii) an alien lawfully admitted for permanent residence; orCommentsClose CommentsPermalink
`(iii) an alien who is authorized under this Act or by the Secretary to be employed in the United States.CommentsClose CommentsPermalink
`(B) SIGNATURE FOR EXAMINATION- An attestation required by subparagraph (A) may be manifested by a handwritten or electronic signature.CommentsClose CommentsPermalink
`(C) PENALTIES- An individual who falsely represents that the individual is eligible for employment in the United States in an attestation required by subparagraph (A) shall, for each such violation, be subject to a fine of not more than $5,000, a term of imprisonment not to exceed 3 years, or both.CommentsClose CommentsPermalink
`(3) RETENTION OF ATTESTATION- The employer shall retain an attestation described in paragraph (1) or (2) for an individual, either in electronic, paper, microfiche, or microfilm form, and make such attestations available for inspection by an officer of the Department of Homeland Security, any other person designated by the Secretary, the Special Counsel for Immigration-Related Unfair Employment Practices of the Department of Justice, or the Secretary of Labor--CommentsClose CommentsPermalink
`(A) during a period beginning on the date of the hiring of the individual and ending on the date that is the later of--CommentsClose CommentsPermalink
`(i) 3 years after the date of such hiring; orCommentsClose CommentsPermalink
`(ii) 1 year after the date the individual's employment is terminated; orCommentsClose CommentsPermalink
`(B) during a shorter period determined by the Secretary, if the Secretary reduces the period described in subparagraph (A) for the employer or a class of employers that includes the employer.CommentsClose CommentsPermalink
`(4) DOCUMENT RETENTION AND RECORDKEEPING REQUIREMENTS-CommentsClose CommentsPermalink
`(A) RETENTION OF DOCUMENTS- Notwithstanding any other provision of law, an employer shall retain, for the applicable period described in paragraph (3), the following documents:CommentsClose CommentsPermalink
`(i) IN GENERAL- A paper, microfiche, microfilm, or electronic copy of each document described in paragraph (1)(B) presented by an individual that is designated as a copied document.CommentsClose CommentsPermalink
`(ii) OTHER DOCUMENTS- A record of any action taken, and copies of any correspondence written or received, with respect to the verification of an individual's identity or eligibility for employment in the United States, including records received through the Electronic Employment Verification System under subsection (c).CommentsClose CommentsPermalink
`(B) USE OF RETAINED DOCUMENTS- An employer shall use copies retained under clause (i) or (ii) of subparagraph (A) only for the purposes of complying with the requirements of this subsection, except as otherwise permitted under law.CommentsClose CommentsPermalink
`(5) PENALTIES- An employer that fails to comply with the requirement of this subsection shall be subject to the penalties described in subsection (d)(4)(B).CommentsClose CommentsPermalink
`(c) Electronic Employment Verification System-CommentsClose CommentsPermalink
`(1) REQUIREMENT FOR SYSTEM- The Secretary, in cooperation with the Commissioner of Social Security, shall implement an Electronic Employment Verification System (referred to in this subsection as the `System') as described in this subsection.CommentsClose CommentsPermalink
`(2) TECHNOLOGY STANDARD TO VERIFY EMPLOYMENT ELIGIBILITY-CommentsClose CommentsPermalink
`(A) IN GENERAL- The Secretary based upon recommendations from the Director of the National Institute of Standards and Technology, shall not later than 180 days after the date of the enactment of the STRIVE Act of 2007 develop and certify a technology standard as described in this subparagraph. The Secretary shall have discretion to extend the 180-day period if the Secretary determines that such extension will result in substantial improvement of the System.CommentsClose CommentsPermalink
`(B) INTEGRATED- Notwithstanding any other provision of Federal law, the technology standard developed shall be the technological basis for a cross-agency, cross-platform electronic system that is a cost-effective, efficient, fully integrated means to share immigration and Social Security information necessary to confirm the employment eligibility of all individuals seeking employment.CommentsClose CommentsPermalink
`(C) REPORT- Not later than 18 months after the date of the enactment of the STRIVE Act of 2007, the Secretary and the Director of the National Institute of Standards and Technology shall jointly submit to Congress a report describing the development, implementation, efficacy, and privacy implications of the technology standard and the System.CommentsClose CommentsPermalink
`(3) IDENTITY AND EMPLOYMENT ELIGIBILITY VERIFICATION- An employer shall verify the identity and eligibility for employment of an individual hired by the employer through the System as follows:CommentsClose CommentsPermalink
`(A) INITIAL INQUIRY- The employer shall submit an inquiry through the System to seek confirmation of the individual's identity and eligibility for employment in the United States not later than 5 working days after the date such employment actually commences.CommentsClose CommentsPermalink
`(B) INITIAL DETERMINATION- The Secretary, through the System, shall respond to an inquiry described in subparagraph (A) not later than 1 working day after such inquiry is submitted. Such response shall be a determination that--CommentsClose CommentsPermalink
`(i) confirms the individual's identity and eligibility for employment in the United States; orCommentsClose CommentsPermalink
`(ii) the System is tentatively unable to confirm the individual's identity or eligibility for employment (referred to in this section as a `tentative nonconfirmation').CommentsClose CommentsPermalink
`(C) MANUAL VERIFICATION-CommentsClose CommentsPermalink
`(i) REQUIREMENT- If the System provides a tentative nonconfirmation with respect to an individual, the Secretary shall--CommentsClose CommentsPermalink
`(I) provide the individual an opportunity to submit information to verify the individual's identity and eligibility for employment as described in subparagraph (D); andCommentsClose CommentsPermalink
`(II) conduct a manual verification to determine the individual's identity and eligibility for employment.CommentsClose CommentsPermalink
`(ii) DETERMINATION- Not later than 30 days after the last day that an individual may submit information under subparagraph (D) the Secretary, through the System, shall provide to the employer the results of the manual verification required by clause (i). Such results shall be a determination that--CommentsClose CommentsPermalink
`(I) confirms the individual's identity and eligibility for employment in the United States; orCommentsClose CommentsPermalink
`(II) the System is unable to confirm the individual's identity or eligibility for employment (referred to in this section as a `final nonconfirmation').CommentsClose CommentsPermalink
`(D) SUBMISSION OF INFORMATION- An individual who is the subject of a tentative nonconfirmation may submit to the Secretary, through the System, information to confirm such individual's identity or eligibility for employment or to otherwise contest such tentative nonconfirmation not later that 15 days after the individual receives notice of such tentative nonconfirmation.CommentsClose CommentsPermalink
`(E) EXTENSION- The 15-day period referred to in subparagraph (D) may be extended by the Secretary for good cause at the request of the individual.CommentsClose CommentsPermalink
`(F) DEFAULT CONFIRMATION AND REVOCATION- If the Secretary, through the System, fails to provide a determination described in clause (i) or (ii) of subparagraph (B) or subclause (I) or (II) of subparagraph (C)(ii) for an individual within the period described in such subparagraph, the Secretary shall, through the System, deem that the individual's identity and eligibility for employment are confirmed through the System and provide notice of such confirmation to the employer.CommentsClose CommentsPermalink
`(G) REVOCATION- In the case of a default confirmation in subclause (F), the Secretary reserves the right to revoke such default confirmation if the Secretary later determines the individual is, in fact, not eligible to work. The Secretary shall provide notice of such revocation and final nonconfirmation to the employer. The individual shall have the right to administrative review under paragraph (19) and judicial review under paragraph (20) of such final nonconfirmation.CommentsClose CommentsPermalink
`(H) PROHIBITIION ON TERMINATION FOR TENTATIVE NONCONFIRMATION- An employer may not terminate the employment of an individual based on tentative nonconfirmation.CommentsClose CommentsPermalink
`(I) TERMINATION OF EMPLOYEE- If an employer receives a final nonconfirmation with respect to an individual, the employer shall terminate the employment of such individual.CommentsClose CommentsPermalink
`(J) ADMINISTRATIVE AND JUDICIAL REVIEW- If the Secretary, through the System, provides a final nonconfirmation with respect to an individual, the individual shall have the right to administrative review under paragraph (19) and judicial review under paragraph (20) of such final nonconfirmation.CommentsClose CommentsPermalink
`(K) RIGHT TO REVIEW AND CORRECT SYSTEM INFORMATION- The Secretary, in consultation with the Commissioner of Social Security, shall establish procedures to permit an individual to verify the individual's eligibility for employment in the United States prior to obtaining or changing employment, to view the individual's own records in the System in order to ensure the accuracy of such records, and to correct or update the information used by the System regarding the individual.CommentsClose CommentsPermalink
`(L) REVERIFICATION-CommentsClose CommentsPermalink
`(i) IN GENERAL- It is an unfair immigration-related employment practice under section 274B for an employer to reverify an individual's identity and employment eligibility unless--CommentsClose CommentsPermalink
`(I) the individual's work authorization expires as described in section 274a.2(b)(1)(vii) of title 8, Code of Federal Regulation or a subsequent similar regulation, in which case--CommentsClose CommentsPermalink
`(aa) not later than 30 days prior to the expiration of the individual's work authorization, the Secretary shall notify the employer of such expiration and of the employer's need to reverify the individual's employment eligibility; andCommentsClose CommentsPermalink
`(bb) the individual may present, and the employer shall accept, a receipt for the application for a replacement document, extension of work authorization, or a document described in clause (i) through (v) of subparagraph (B) of subsection (b)(1) in lieu of the required document by the expiration date in order to comply with any requirement to examine documentation imposed by this section, and the individual shall present the required document within 90 days from the date the employment authorization expires. If the actual document or replacement document is to be issued by United States Citizenship and Immigration Services and the application is still under review 60 days after the employment authorization expiration date, United States Citizenship and Immigration Services shall by the 60th day after the expiration date of the employment authorization, issue a letter for the applicant to take to the employer which shall automatically grant the individual an additional 90 days to present the document or replacement document; andCommentsClose CommentsPermalink
`(II) the employer has actual or constructive knowledge that the individual is not authorized to work in the United States; orCommentsClose CommentsPermalink
`(III) unless otherwise required by law.CommentsClose CommentsPermalink
`(ii) CONTINUING EMPLOYMENT- An employer may not verify an individual's employment eligibility if the individual is continuing in his or her employment as described in section 274a.2(b)(1)(viii) of title 8, Code of Federal Regulation or any subsequent similar regulation.CommentsClose CommentsPermalink
`(iii) SPECIAL RULE FOR CRITICAL INFRASTRUCTURE- Upon the implementation of the System, the Secretary shall require all agencies and departments of the United States (including the Armed Forces), a State government (including a State employment agency before making a referral), or any other employer if it employs individuals working in a location that is a Federal, State, or local government building, a military base, a nuclear energy site, a weapon site, or an airport, to complete a one time reverification of all individuals current employed at these facilities.CommentsClose CommentsPermalink
`(4) DESIGN AND OPERATION OF SYSTEM- The Secretary, in consultation with the Commissioner of Social Security, shall design and operate the System--CommentsClose CommentsPermalink
`(A) to maximize reliability and ease of use by employers in a manner that protects and maintains the privacy and security of the information maintained in the System;CommentsClose CommentsPermalink
`(B) to permit an employer to submit an inquiry to the System through the Internet or other electronic media or over a telephone line;CommentsClose CommentsPermalink
`(C) to respond to each inquiry made by an employer;CommentsClose CommentsPermalink
`(D) to maintain a record of each such inquiry and each such response;CommentsClose CommentsPermalink
`(E) to track and record any occurrence when the System is unable to receive such an inquiry;CommentsClose CommentsPermalink
`(F) to include appropriate administrative, technical, and physical safeguards to prevent unauthorized disclosure of personal information during use, transmission, storage, or disposal of that information, including the use of encryption, carrying out periodic testing of the System to detect, prevent, and respond to vulnerabilities or other failures, and utilizing periodic security updates;CommentsClose CommentsPermalink
`(G) to allow for monitoring of the use of the System and provide an audit capability;CommentsClose CommentsPermalink
`(H) to have reasonable safeguards, developed in consultation with the Attorney General, to prevent employers from engaging in unlawful discriminatory practices;CommentsClose CommentsPermalink
`(I) to permit an employer to submit the attestations required by subsection (b); andCommentsClose CommentsPermalink
`(J) to permit an employer to utilize any technology that is consistent with this section and with any regulation or guidance from the Secretary to streamline the procedures to comply with the attestation and employment eligibility verification requirements contained in this section.CommentsClose CommentsPermalink
`(5) LIMITATION ON DATA ELEMENTS STORED- The System and any databases created by the Commissioner of Social Security or the Secretary for use in the System shall store only the minimum data about each individual for whom an inquiry was made through the System to facilitate the successful operation of the System, and in no case shall the data stored be other than--CommentsClose CommentsPermalink
`(A) the individual's full legal name;CommentsClose CommentsPermalink
`(B) the individual's date of birth;CommentsClose CommentsPermalink
`(C) the individual's social security account number or employment authorization status identification number;CommentsClose CommentsPermalink
`(D) the address of the employer making the inquiry and the dates of any prior inquiries concerning the identity and authorization of the individual by the employer or any other employer and the address of such employer;CommentsClose CommentsPermalink
`(E) a record of each prior determination regarding the individual's identity and employment eligibility issued through the System; andCommentsClose CommentsPermalink
`(F) in the case of the individual who successfully contested or appealed a tentative nonconfirmation or final nonconfirmation, explanatory information concerning the successful resolution of any erroneous data or confusion regarding the identity or eligibility for employment of the individual, including the source of that error.CommentsClose CommentsPermalink
`(6) RESPONSIBILITIES OF THE COMMISSIONER OF SOCIAL SECURITY- The Commissioner of Social Security shall establish a reliable, secure method to provide through the System, within the time periods required by subparagraphs (B) and (C) of paragraph (2)--CommentsClose CommentsPermalink
`(A) a determination of whether the name and social security account number provided, with respect to an individual, in an inquiry by an employer, match such information maintained by the Commissioner in order to confirm the validity of the information provided;CommentsClose CommentsPermalink
`(B) a determination of whether such social security account number was issued to the individual;CommentsClose CommentsPermalink
`(C) a determination of whether such social security account number is valid for employment in the United States; andCommentsClose CommentsPermalink
`(D) a determination described in subparagraph (B) or (C) of paragraph (2), in a manner that ensures that other information maintained by the Commissioner is not disclosed or released to employers through the System.CommentsClose CommentsPermalink
`(7) RESPONSIBILITIES OF THE SECRETARY- The Secretary shall establish a reliable, secure method to provide, through the System, within the time periods required by subparagraphs (B) and (C) of paragraph (2)--CommentsClose CommentsPermalink
`(A) a determination of whether the name and alien identification or authorization number provided, with respect to an individual, in an inquiry by an employer match such information maintained by the Secretary in order to confirm the validity of the information provided;CommentsClose CommentsPermalink
`(B) a determination of whether such number was issued to the individual;CommentsClose CommentsPermalink
`(C) a determination of whether the individual is authorized to be employed in the United States; andCommentsClose CommentsPermalink
`(D) any other related information that the Secretary determines is appropriate.CommentsClose CommentsPermalink
`(8) PRIVACY IMPACT ASSESSMENT- The Commissioner of Social Security and the Secretary shall each complete a privacy impact assessment as described in section 208 of the E-Government Act of 2002 (
`(9) TRAINING- The Commissioner of Social Security and the Secretary shall provide appropriate training materials to employers participating in the System to ensure that such employers are able to utilize the System in compliance with the requirements of this section.CommentsClose CommentsPermalink
`(10) HOTLINE- The Secretary shall establish a fully staffed 24-hour hotline that shall receive inquiries from individuals or employers concerning determinations made by the System and shall identify for an individual, at the time of inquiry, the particular data that resulted in a determination that the System was unable to verify the individual's identity or eligibility for employment.CommentsClose CommentsPermalink
`(11) PARTICIPATION-CommentsClose CommentsPermalink
`(A) REQUIREMENTS FOR PARTICIPATION- Except as provided in subparagraphs (D) and (E), the Secretary shall require employers to participate in the System as follows:CommentsClose CommentsPermalink
`(i) CRITICAL EMPLOYERS- Not later than 1 year after the date of enactment of the STRIVE Act of 2007, the Secretary shall require all agencies and departments of the United States (including the Armed Forces), a State government (including a State employment agency before making a referral), or any other employer if it employs individuals working in a location that is a Federal, State, or local government building, a military base, a nuclear energy site, a weapon site, or an airport, but only to the extent of such individuals, to participate in the System, with respect to all individuals hired after the date the Secretary requires such participation.CommentsClose CommentsPermalink
`(ii) LARGE EMPLOYERS- Not later than 2 years after the date of enactment of the STRIVE Act of 2007 the Secretary shall require an employer with 5,000 or more employees in the United States to participate in the System, with respect to all employees hired by the employer after the date the Secretary requires such participation.CommentsClose CommentsPermalink
`(iii) MID-SIZED EMPLOYERS- Not later than 3 years after the date of enactment of the STRIVE Act of 2007 the Secretary shall require an employer with less than 5,000 employees and 1,000 or more employees in the United States to participate in the System, with respect to all employees hired by the employer after the date the Secretary requires such participation.CommentsClose CommentsPermalink
`(iv) SMALL EMPLOYERS- Not later than 4 years after the date of the enactment of the STRIVE Act of 2007, the Secretary shall require all employers with less than 1,000 employees in the United States to participate in the System, with respect to all employees hired by the employer after the date the Secretary requires such participation.CommentsClose CommentsPermalink
`(B) REQUIREMENT TO PUBLISH- The Secretary shall publish in the Federal Register the requirements for participation in the System for employers described in clauses (i) through (iv) of subparagraph (A) prior to the effective date of such requirements.CommentsClose CommentsPermalink
`(C) OTHER PARTICIPATION IN SYSTEM-CommentsClose CommentsPermalink
`(i) VOLUNTARY PARTICIPATION- Notwithstanding subparagraph (A), the Secretary has the authority to permit any employer that is not required to participate in the System under subparagraph (A) to participate in the System on a voluntary basis.CommentsClose CommentsPermalink
`(ii) EMPLOYERS NOT REQUIRED TO PARTICIPATE- Notwithstanding subparagraph (A) employers are not required to verify the identify or employment eligibility through the System for--CommentsClose CommentsPermalink
`(I) an individual performing casual employment for the employer and who provides domestic service in a private home that is sporadic, irregular, or intermittent;CommentsClose CommentsPermalink
`(II) a worker provided to the employer by a person providing contract services, such as a temporary agency; orCommentsClose CommentsPermalink
`(III) an independent contractor, performing services for the employer.CommentsClose CommentsPermalink
`(iii) RELATIONSHIP TO OTHER REQUIREMENTS- Nothing in clause (ii) may be construed to effect the requirements for the contracting party who employs a worker referred to in subclause (II) of such clause or an employer of an independent contractor referred to in subclause (III) of such clause to participate in the System with respect to such worker or independent contractor under this subsection.CommentsClose CommentsPermalink
`(D) WAIVER-CommentsClose CommentsPermalink
`(i) AUTHORITY TO PROVIDE A WAIVER- The Secretary is authorized to waive or delay the participation requirements of subparagraph (A) with respect to any employer or class of employers if the Secretary provides notice to Congress of such waiver prior to the date such waiver is granted.CommentsClose CommentsPermalink
`(ii) REQUIREMENT TO PROVIDE A WAIVER- The Secretary shall waive or delay the participation requirements of subparagraph (A) with respect to any employer or class of employers until the date that the Comptroller General of the United States submits the initial certification described in paragraph (17)(E) and shall waive or delay such participation during a year if the Comptroller General fails to submit a certification of paragraph (17)(E) for such year.CommentsClose CommentsPermalink
`(E) CONSEQUENCE OF FAILURE TO PARTICIPATE- If an employer is required to participate in the System and fails to comply with the requirements of the System with respect to an individual--CommentsClose CommentsPermalink
`(i) such failure shall be treated as a violation of subsection (a)(1)(B); andCommentsClose CommentsPermalink
`(ii) a rebuttable presumption is created that the employer has violated subsection (a)(1)(A), however, such presumption may not apply to a prosecution under subsection (e)(1).CommentsClose CommentsPermalink
`(12) EMPLOYER REQUIREMENTS-CommentsClose CommentsPermalink
`(A) IN GENERAL- An employer that participates in the System, with respect to the hiring of an individual for employment in the United States, shall--CommentsClose CommentsPermalink
`(i) notify the individual of the use of the System and that the System may be used for immigration enforcement purposes;CommentsClose CommentsPermalink
`(ii) obtain from the individual the documents required by subsection (b)(1) and record on the form designated by the Secretary--CommentsClose CommentsPermalink
`(I) the individual's social security account number; andCommentsClose CommentsPermalink
`(II) in the case of an individual who does not attest that the individual is a national of the United States under subsection (b)(2), such identification or authorization number that the Secretary shall require;CommentsClose CommentsPermalink
`(iii) retain such form in electronic, paper, microfilm, or microfiche form and make such form available for inspection for the periods and in the manner described in subsection (b)(3); andCommentsClose CommentsPermalink
`(iv) safeguard any information collected for purposes of the System and protect any means of access to such information to ensure that such information is not used for any purpose other than to determine the identity and employment eligibility of the individual and to protect the confidentiality of such information, including ensuring that such information is not provided to any person other than a person that carries out the employer's responsibilities under this subsection.CommentsClose CommentsPermalink
`(B) SCHEDULE-CommentsClose CommentsPermalink
`(i) REPLACEMENT DOCUMENTS- An employer shall accept a receipt for the application for a replacement document or a document described in subparagraph (B) of subsection (b)(1) in lieu of the required document in order to comply with any requirement to examine documentation imposed by this section, in the following circumstances:CommentsClose CommentsPermalink
`(I) The individual is unable to provide the required document within the time specified in this section because the document was lost, stolen, or damaged.CommentsClose CommentsPermalink
`(II) The individual presents a receipt for the application for the document within the time specified in this section.CommentsClose CommentsPermalink
`(III) The individual presents the document within 90 days of the hire. If the actual document or replacement document is to be issued by the United States Citizenship and Immigration Services and the application is still under review 60 days after receipt of the application, United States Citizenship and Immigration Services shall, not later than the 60th day after receipt of the application, issue a letter for the applicant to take to the employer which shall automatically grant the individual an additional 90 days from the original deadline in subsection (b)(6)(A)(i)(II) to present the document or replacement document; andCommentsClose CommentsPermalink
`(ii) PROHIBITION ON ACCEPTANCE OF A RECEIPT FOR SHORT-TERM EMPLOYMENT- An employer may not accept a receipt in lieu of the required document if the individual is hired for a duration of less than 10 working days.CommentsClose CommentsPermalink
`(C) CONFIRMATION OR NONCONFIRMATION-CommentsClose CommentsPermalink
`(i) RETENTION- If an employer receives a determination through the System under paragraph (3) for an individual, the employer shall retain either an electronic, paper, or microfiche form record of such confirmation for the period required by subsection (b)(4)(A).CommentsClose CommentsPermalink
`(ii) NONCONFIRMATION AND VERIFICATION-CommentsClose CommentsPermalink
`(I) NONCONFIRMATION- If an employer receives a tentative nonconfirmation with respect to an individual, the employer shall retain either an electronic or paper record of such nonconfirmation for the period required by subsection (b)(4)(A) and inform such individual not later than 10 working days after the issuance of such notice in the manner prescribed by the Secretary that includes information regarding the individual's right to submit information to contest the tentative nonconfirmation under paragraph (2)(D) and the address and telephone numbers established by the Commissioner and the Secretary to obtain information on how to submit such information.CommentsClose CommentsPermalink
`(II) NO CONTEST- If the individual does not contest the tentative nonconfirmation notice within 15 working days of receiving notice from the individual's employer, the notice shall become final and the employer shall retain either an electronic or paper record of such final nonconfirmation for the period required by subsection (b)(4)(A). An individual's failure to contest a tentative nonconfirmation may not be the basis for determining that the employer acted in a knowing (as defined in section 274a.1 of title 8, Code of Federal Regulations, or any corresponding similar regulation) manner.CommentsClose CommentsPermalink
`(III) CONTEST- If the individual contests the tentative nonconfirmation notice under subclause (I), the individual shall submit appropriate information to contest such notice to the System within 15 working days of receiving notice from the individual's employer and shall utilize the verification process developed under paragraph (2)(C)(ii). Such individual shall acknowledge receipt of such notice in writing.CommentsClose CommentsPermalink
`(IV) EFFECTIVE PERIOD OF TENTATIVE NONCONFIRMATION- A tentative nonconfirmation notice shall remain in effect until such notice becomes final under clause (II) or a final confirmation notice or final nonconfirmation notice is issued by the System.CommentsClose CommentsPermalink
`(V) PROHIBITION- An employer may not terminate the employment of an individual based on a tentative nonconfirmation notice until such notice becomes final under clause (II) or a final nonconfirmation notice is issued for the individual by the System. Nothing in this clause shall apply to termination of employment for any reason other than because of such a tentative nonconfirmation.CommentsClose CommentsPermalink
`(VI) RECORDING OF CONCLUSION ON FORM- If a final confirmation or nonconfirmation is provided by the System regarding an individual, the employer shall record on the form designated by the Secretary the appropriate code that is provided under the System to indicate a confirmation or nonconfirmation of the identity and employment eligibility of the individual.CommentsClose CommentsPermalink
`(D) CONSEQUENCES OF NONCONFIRMATION- If an employer has received a final nonconfirmation with respect to an individual, the employer shall terminate the employment of the individual. If the employer continues to employ the individual after receiving final nonconfirmation, a rebuttable presumption is created that the employer has violated paragraphs (1)(A) and (2) of subsection (a). Such presumption may not apply to a prosecution under subsection (e)(1).CommentsClose CommentsPermalink
`(13) PROHIBITION OF UNLAWFUL ACCESSING AND OBTAINING OF INFORMATION-CommentsClose CommentsPermalink
`(A) IN GENERAL- It shall be unlawful for any individual other than an employee of the Social Security Administration or the Department of Homeland Security specifically charged with maintaining the System to intentionally and knowingly--CommentsClose CommentsPermalink
`(i) access the System or the databases utilized to verify identity or employment eligibility for the System for any purpose other than verifying identity or employment eligibility or modifying the System pursuant to law or regulation; orCommentsClose CommentsPermalink
`(ii) obtain the information concerning an individual stored in the System or the databases utilized to verify identity or employment eligibility for the System for any purpose other than verifying identity or employment authorization or modifying the System pursuant to law or regulation.CommentsClose CommentsPermalink
`(B) PENALTIES-CommentsClose CommentsPermalink
`(i) UNLAWFUL ACCESS- Any individual who unlawfully accesses the System or the databases as described in subparagraph (A)(i) shall be fined no more than $1,000 per individual or sentenced to no more than 6 months imprisonment or both per individual whose file was compromised.CommentsClose CommentsPermalink
`(ii) UNLAWFUL USE- Any individual who unlawfully obtains information stored in the System in the database utilized to verify identity or employment eligibility for the System and uses the information to commit identity theft for financial gain or to evade security or to assist another in gaining financially or evading security, shall be fined no more than $10,000 per individual or sentenced to no more than 1 year of imprisonment or both per individual whose information was obtained and misappropriated.CommentsClose CommentsPermalink
`(14) PROTECTION FROM LIABILITY- No employer that participates in the System and complies in good faith with the attestation in subsection (b)(1) shall be liable under any law for any employment-related action taken with respect to an individual in good faith reliance on information provided by the System regarding that individual.CommentsClose CommentsPermalink
`(15) LIMITATION ON USE OF THE SYSTEM- Notwithstanding any other provision of law, nothing in this subsection shall be construed to permit or allow any department, bureau, or other agency of the United States to utilize any information, database, or other records used in the System for any purpose other than as provided for under this subsection.CommentsClose CommentsPermalink
`(16) ACCESS TO DATABASE- No officer or employee of any agency or department of the United States, other than such an officer or employee who is responsible for the verification of employment eligibility or for the evaluation of an employment eligibility verification program at the Social Security Administration, the Department of Homeland Security, and the Department of Labor, may have access to any information, database, or other records utilized by the System.CommentsClose CommentsPermalink
`(17) MODIFICATION AUTHORITY- The Secretary, after notice is submitted to Congress and provided to the public in the Federal Register, is authorized to modify the requirements of this subsection, including requirements with respect to completion of forms, method of storage, attestations, copying of documents, signatures, methods of transmitting information, and other operational and technical aspects to improve the efficiency, accuracy, and security of the System.CommentsClose CommentsPermalink
`(18) ANNUAL STUDY AND REPORT-CommentsClose CommentsPermalink
`(A) REQUIREMENT FOR STUDY- The Comptroller General of the United States shall conduct an annual study of the System as described in this paragraph.CommentsClose CommentsPermalink
`(B) PURPOSE OF THE STUDY- The Comptroller General shall, for each year, undertake a study to determine whether the System meets the following requirements:CommentsClose CommentsPermalink
`(i) DEMONSTRATED ACCURACY OF THE DATABASES- New information and information changes submitted by an individual to the System is updated in all of the relevant databases not later than 3 working days after submission in at least 99 percent of all cases.CommentsClose CommentsPermalink
`(ii) LOW ERROR RATES AND DELAYS IN VERIFICATION-CommentsClose CommentsPermalink
`(I) INCORRECT TENTATIVE NONCONFIRMATION NOTICES- That, during a year, not more than 1 percent of all tentative nonconfirmations provided through the System during such year are incorrect.CommentsClose CommentsPermalink
`(II) INCORRECT FINAL NONCONFIRMATION NOTICES- That, during a year, not more than 3 percent of all final nonconfirmations provided through the System during such year are incorrect.CommentsClose CommentsPermalink
`(III) RATES OF INCORRECT TENTATIVE NONCONFIRMATION NOTICES- That, during a year, the number of incorrect tentative nonconfirmations provided through the System for individuals who are not nationals of the United States is not more than 300 percent more than the number of such incorrect notices provided for nationals of the United States.CommentsClose CommentsPermalink
`(IV) RATES OF INCORRECT FINAL NONCONFIRMATION NOTICES- That, during a year, the number of incorrect final nonconfirmations provided through the System for individuals who are not nationals of the United States is not more than 300 percent more than the number of such incorrect notices provided for nationals of the United States during such year.CommentsClose CommentsPermalink
`(iii) MEASURABLE EMPLOYER COMPLIANCE WITH SYSTEM REQUIREMENTS-CommentsClose CommentsPermalink
`(I) NO DISCRIMINATION BASED ON SYSTEM OPERATIONS- The System has not and will not result in increased discrimination or cause reasonable employers to conclude that individuals of certain races or ethnicities are more likely to have difficulties when offered employment caused by the operation of the System.CommentsClose CommentsPermalink
`(II) REQUIREMENT FOR INDEPENDENT STUDY- The determination described in subclause (I) shall be based on an independent study commissioned by the Comptroller General in each phase of expansion of the System.CommentsClose CommentsPermalink
`(iv) PROTECTION OF WORKERS' PRIVATE INFORMATION- At least 97 percent of employers who participate in the System are in full compliance with the privacy requirements described in this subsection.CommentsClose CommentsPermalink
`(v) ADEQUATE AGENCY STAFFING AND FUNDING- The Secretary and Commissioner of Social Security have sufficient funding to meet all of the deadlines and requirements of this subsection.CommentsClose CommentsPermalink
`(C) CONSULTATION- In conducting a study under this paragraph, the Comptroller General shall consult with representatives of business, labor, immigrant communities, State governments, privacy advocates, and appropriate departments of the United States.CommentsClose CommentsPermalink
`(D) REQUIREMENT FOR REPORTS- Not later than 21 months after the date of the enactment of the STRIVE Act of 2007, and annually thereafter, the Comptroller General shall submit to the Secretary and to Congress a report containing the findings of the study carried out under this paragraph.CommentsClose CommentsPermalink
`(E) CERTIFICATION- If the Comptroller General determines that the System meets the requirements set out in clauses (i) through (v) of subparagraph (B) for a year, the Comptroller shall certify such determination and submit such certification to Congress with the report required by subparagraph (D).CommentsClose CommentsPermalink
`(19) ADMINISTRATIVE REVIEW-CommentsClose CommentsPermalink
`(A) IN GENERAL- An individual who is terminated from employment as a result of a final nonconfirmation may, not later than 60 days after the date of such termination, file an appeal of such final nonconfirmation.CommentsClose CommentsPermalink
`(B) PROCEDURES- The Secretary and Commissioner of Social Security shall develop procedures to review appeals filed under subparagraph (A) and to make final determinations on such appeals.CommentsClose CommentsPermalink
`(C) REVIEW FOR ERRORS- If a final determination on an appeal filed under subparagraph (A) results in a confirmation of an individual's eligibility for employment in the United States, the administrative review process shall require the Secretary to determine if the final nonconfirmation issued for the individual was the result of--CommentsClose CommentsPermalink
`(i) an error or negligence on the part of an employee or official operating or responsible for the System;CommentsClose CommentsPermalink
`(ii) the decision rules, processes, or procedures utilized by the System; orCommentsClose CommentsPermalink
`(iii) erroneous system information that was not the result of acts or omissions of the individual.CommentsClose CommentsPermalink
`(D) COMPENSATION FOR ERROR-CommentsClose CommentsPermalink
`(i) IN GENERAL- If the Secretary makes a determination under subparagraph (C) that the final nonconfirmation issued for an individual was not caused by an act or omission of the individual, the Secretary shall compensate the individual for lost wages.CommentsClose CommentsPermalink
`(ii) CALCULATION OF LOST WAGES- Lost wages shall be calculated based on the wage rate and work schedule that prevailed prior to termination. The individual shall be compensated for wages lost beginning on the first scheduled work day after employment was terminated and ending 180 days after completion of the administrative review process described in this paragraph or the day after the individual is reinstated or obtains employment elsewhere, whichever occurs first.CommentsClose CommentsPermalink
`(E) LIMITATION ON COMPENSATION- For purposes of determining an individual's compensation for the loss of employment, such compensation shall not include any period in which the individual was ineligible for employment in the United States.CommentsClose CommentsPermalink
`(F) SOURCE OF FUNDS- Compensation or reimbursement provided under this paragraph shall not be provided from funds appropriated in annual appropriations Acts to the Secretary for the Department of Homeland Security.CommentsClose CommentsPermalink
`(20) JUDICIAL REVIEW-CommentsClose CommentsPermalink
`(A) IN GENERAL- After the Secretary makes a final determination on an appeal filed by an individual under paragraph (19), the individual may obtain judicial review of such determination in a civil action commenced not later than 90 days after notice of such decision, or such further time as the Secretary may allow.CommentsClose CommentsPermalink
`(B) REPORT- Not later than 180 days after the date of enactment of the STRIVE Act of 2007, the Director of the Federal Judicial Center shall submit to Congress a report on judicial review of an administrative decision on a final nonconfirmation. The report shall contain recommendations on jurisdiction and procedures that shall be instituted to seek adequate and timely review of such decision.CommentsClose CommentsPermalink
`(C) COMPENSATION FOR ERROR-CommentsClose CommentsPermalink
`(i) IN GENERAL- In cases in which such judicial review reverses the final determination of the Secretary made under paragraph (19), the court shall compensate the individual for lost wages.CommentsClose CommentsPermalink
`(ii) CALCULATION OF LOST WAGES- Lost wages shall be calculated based on the wage rate and work schedule that prevailed prior to termination. The individual shall be compensated for wages lost beginning on the first scheduled work day after employment was terminated and ending 180 days after completion of the judicial review described in this paragraph or the day after the individual is reinstated or obtains employment elsewhere, whichever occurs first.CommentsClose CommentsPermalink
`(21) ENFORCEMENT OF VIOLATIONS- No private right of action shall exist for any claim based on a violation of this section. The Government of the United States shall have exclusive enforcement authority over violations of this section and shall use only the powers, penalties, and mechanisms found in this section. This paragraph shall apply to all cases in which a final judgment has not been entered prior to or on the date of enactment of the STRIVE Act of 2007.CommentsClose CommentsPermalink
`(22) SAFE HARBOR FOR CONTRACTORS- A person shall not be liable for a violation of paragraph (1)(A), (1)(B), or (2) of subsection (a) with respect to the hiring or continuation of employment of an unauthorized alien by a subcontractor of that person unless the person knew that the subcontractor hired or continued to employ such alien in violation of such a paragraph.CommentsClose CommentsPermalink
`(23) STATUTORY CONSTRUCTION- Nothing in this subsection shall affect any existing rights and obligations of employers or employees under other Federal, State, or local laws.CommentsClose CommentsPermalink
`(d) Compliance-CommentsClose CommentsPermalink
`(1) COMPLAINTS AND INVESTIGATIONS- The Secretary shall establish procedures--CommentsClose CommentsPermalink
`(A) for a person to file a complaint regarding a potential violation of paragraph (1)(A), (1)(B), or (2) of subsection (a);CommentsClose CommentsPermalink
`(B) for the investigation of any such complaint that the Secretary determines is appropriate to investigate; andCommentsClose CommentsPermalink
`(C) for the investigation of such other violation of paragraph (1)(A), (1)(B), or (2) of subsection (a) that the Secretary determines is appropriate.CommentsClose CommentsPermalink
`(2) AUTHORITY IN INVESTIGATIONS-CommentsClose CommentsPermalink
`(A) IN GENERAL- In conducting investigations and hearings under this subsection, officers and employees of the Department of Homeland Security, if designated by the Secretary, may compel by subpoena the attendance of witnesses and the production of evidence at any designated place in an investigation or case under this subsection.CommentsClose CommentsPermalink
`(B) FAILURE TO COOPERATE- In case of refusal to obey a subpoena lawfully issued under subparagraph (A), the Secretary may request that the Attorney General apply in an appropriate district court of the United States for an order requiring compliance with such subpoena, and any failure to obey such order may be punished by such court as contempt.CommentsClose CommentsPermalink
`(C) DEPARTMENT OF LABOR- The Secretary of Labor shall have the investigative authority provided under section 11(a) of the Fair Labor Standards Act of 1938 (
`(3) COMPLIANCE PROCEDURES-CommentsClose CommentsPermalink
`(A) PREPENALTY NOTICE- If the Secretary has reasonable cause to believe that there has been a violation of a requirement of this section and determines that further proceedings related to such violation are warranted, the Secretary shall issue to the employer concerned a written notice of the Secretary's intention to issue a claim for a fine or other penalty. Such notice shall--CommentsClose CommentsPermalink
`(i) describe the violation;CommentsClose CommentsPermalink
`(ii) specify the laws and regulations allegedly violated;CommentsClose CommentsPermalink
`(iii) disclose the material facts which establish the alleged violation; andCommentsClose CommentsPermalink
`(iv) inform such employer that the employer shall have a reasonable opportunity to make representations as to why a claim for a monetary or other penalty should not be imposed.CommentsClose CommentsPermalink
`(B) REMISSION OR MITIGATION OF PENALTIES-CommentsClose CommentsPermalink
`(i) PETITION BY EMPLOYER- If an employer receives written notice of a fine or other penalty in accordance with subparagraph (A), the employer may file within 45 days from receipt of such notice, with the Secretary a petition for the remission or mitigation of such fine or penalty, or a petition for termination of the proceedings. The petition may include any relevant evidence or proffer of evidence the employer wishes to present, and shall be filed and considered in accordance with procedures to be established by the Secretary.CommentsClose CommentsPermalink
`(ii) REVIEW BY SECRETARY- If the Secretary finds that such fine or other penalty was incurred erroneously, or finds the existence of such mitigating circumstances as to justify the remission or mitigation of such fine or penalty, the Secretary may remit or mitigate such fine or other penalty on the terms and conditions as the Secretary determines are reasonable and just, or order termination of any proceedings related to the notice. Such mitigating circumstances may include good faith compliance and participation in, or agreement to participate in, the System, if not otherwise required.CommentsClose CommentsPermalink
`(iii) APPLICABILITY- This subparagraph may not apply to an employer that has or is engaged in a pattern or practice of violations of paragraph (1)(A), (1)(B), or (2) of subsection (a) or of any other requirements of this section.CommentsClose CommentsPermalink
`(C) PENALTY CLAIM- After considering evidence and representations offered by the employer pursuant to subparagraph (B), the Secretary shall determine whether there was a violation and promptly issue a written final determination setting forth the findings of fact and conclusions of law on which the determination is based and the appropriate penalty.CommentsClose CommentsPermalink
`(4) CIVIL PENALTIES-CommentsClose CommentsPermalink
`(A) HIRING OR CONTINUING TO EMPLOY UNAUTHORIZED ALIENS- Any employer that violates paragraph (1)(A) or (2) of subsection (a) shall pay civil penalties as follows:CommentsClose CommentsPermalink
`(i) Pay a civil penalty of not less than $500 and not more than $4,000 for each unauthorized alien with respect to each such violation.CommentsClose CommentsPermalink
`(ii) If the employer has previously been fined 1 time within the preceding 12 months under this subparagraph, pay a civil penalty of not less than $4,000 and not more than $10,000 for each unauthorized alien with respect to each such violation.CommentsClose CommentsPermalink
`(iii) If the employer has previously been fined more than 1 time within the preceding 12 months under this subparagraph or has failed to comply with a previously issued and final order related to any such provision, pay a civil penalty of not less than $6,000 and not more than $20,000 for each unauthorized alien with respect to each such violation.CommentsClose CommentsPermalink
`(B) RECORD KEEPING OR VERIFICATION PRACTICES- Any employer that violates or fails to comply with paragraph (1)(B) of subsection (a) shall pay a civil penalty as follows:CommentsClose CommentsPermalink
`(i) Pay a civil penalty of not less than $200 and not more than $2,000 for each such violation or failure.CommentsClose CommentsPermalink
`(ii) If the employer has previously been fined 1 time within the preceding 12 months under this subparagraph, pay a civil penalty of not less than $400 and not more than $4,000 for each such violation of failure.CommentsClose CommentsPermalink
`(iii) If the employer has previously been fined more than 1 time within the preceding 12 months under this subparagraph or has failed to comply with a previously issued and final order related to such requirements, pay a civil penalty of $6,000 for each such violation or failure.CommentsClose CommentsPermalink
`(iv) SPECIAL RULE GOVERNING PAPERWORK VIOLATION- In the case where an employer commits a violation of this section that is deemed to be purely a paperwork violation where the Secretary fails to establish any intent to hire an individual who is not unauthorized for employment in the United States, the Secretary shall permit the employer to correct such paperwork error within 30 days of receiving notice from the Secretary of such violation.CommentsClose CommentsPermalink
`(C) OTHER PENALTIES- Notwithstanding subparagraphs (A) and (B), the Secretary may impose additional penalties for violations, including cease and desist orders, specially designed compliance plans to prevent further violations, suspended fines to take effect in the event of a further violation, and in appropriate cases, the civil penalty described in subsection (f)(2).CommentsClose CommentsPermalink
`(D) REDUCTION OF PENALTIES- Notwithstanding subparagraphs (A), (B), and (C), the Secretary is authorized to reduce or mitigate penalties imposed upon employers, based upon factors including the employer's hiring volume, compliance history, good-faith implementation of a compliance program, participation in a temporary worker program, and voluntary disclosure of violations of this subsection to the Secretary.CommentsClose CommentsPermalink
`(5) JUDICIAL REVIEW-CommentsClose CommentsPermalink
`(A) IN GENERAL- An employer adversely affected by a final determination may, within 45 days after the date the final determination is issued, obtain judicial review of such determination.CommentsClose CommentsPermalink
`(B) REPORT- Not later than 180 days after the date of enactment of the STRIVE Act of 2007, the Director of the Federal Judicial Center shall submit to Congress a report on judicial review of a final determination. The report shall contain recommendations on jurisdiction and procedures that shall be instituted to seek adequate and timely review of such decision.CommentsClose CommentsPermalink
`(6) ENFORCEMENT OF ORDERS- If an employer fails to comply with a final determination issued against that employer under this subsection, and the final determination is not subject to review as provided in paragraph (5), the Attorney General may file suit to enforce compliance with the final determination, not earlier than 46 days and not later than 90 days, after the date the final determination is issued, in any appropriate district court of the United States. The burden shall remain on the employer to show that the final determination was not supported by a preponderance of the evidence.CommentsClose CommentsPermalink
`(7) RECOVERY OF COSTS AND ATTORNEYS' FEES- In any appeal brought under paragraph (5) or suit brought under paragraph (6), the employer shall be entitled to recover from the Secretary reasonable costs and attorneys' fees if such employer prevails on the merits of the case. The award of attorneys' fees shall not exceed $50,000. Such amount shall be subject to annual inflation adjustments per the United States Consumer Price Index - All Urban Consumers (CPI-U) compiled by the Bureau of Labor Statistics. Any costs and attorneys' fees assessed against the Secretary shall be charged against the operating expenses of the Department of Homeland Security for the fiscal year in which the assessment is made, and shall not be reimbursed from any other source.CommentsClose CommentsPermalink
`(e) Criminal Penalties and Injunctions for Pattern or Practice Violations-CommentsClose CommentsPermalink
`(1) CRIMINAL PENALTY- An employer that engages in a pattern or practice of knowing violations of paragraph (1)(A) or (2) of subsection (a) shall be fined not more than $20,000 for each unauthorized alien with respect to whom such a violation occurs, imprisoned for not more than 3 years for the entire pattern or practice, or both.CommentsClose CommentsPermalink
`(2) ENJOINING OF PATTERN OR PRACTICE VIOLATIONS- If the Secretary or the Attorney General has reasonable cause to believe that an employer is engaged in a pattern or practice of employment in violation of paragraph (1)(A) or (2) of subsection (a), the Attorney General may bring a civil action in the appropriate district court of the United States requesting such relief, including a permanent or temporary injunction, restraining order, or other order against the employer, as the Secretary deems necessary.CommentsClose CommentsPermalink
`(f) Adjustment for Inflation- All penalties and limitations on the recovery of costs and attorney's fees in this section shall be increased every 4 years beginning January 2010 to reflect the percentage increase in the consumer price index for all urban consumers (all items; United States city average) for the 48 month period ending with September of the year preceding the year such adjustment is made. Any adjustment under this subparagraph shall be rounded to the nearest dollar.CommentsClose CommentsPermalink
`(g) Prohibition of Indemnity Bonds-CommentsClose CommentsPermalink
`(1) PROHIBITION- It is unlawful for an employer, in the hiring of an individual, to require the individual to post a bond or security, to pay or agree to pay an amount, or otherwise to provide a financial guaranty or indemnity, against any potential liability arising under this section relating to such hiring of the individual.CommentsClose CommentsPermalink
`(2) CIVIL PENALTY- Any employer which is determined, after notice and opportunity for mitigation of the monetary penalty under subsection (d), to have violated paragraph (1) shall be subject to a civil penalty of $10,000 for each violation and to an administrative order requiring the return of any amounts received in violation of such paragraph to the individual.CommentsClose CommentsPermalink
`(h) Prohibition on Award of Government Contracts, Grants, and Agreements-CommentsClose CommentsPermalink
`(1) EMPLOYERS WITH NO CONTRACTS, GRANTS, OR AGREEMENTS-CommentsClose CommentsPermalink
`(A) IN GENERAL- If an employer who does not hold a Federal contract, grant, or cooperative agreement is determined by the Secretary to be a repeat violator of this section the employer shall be debarred from the receipt of a Federal contract, grant, or cooperative agreement for a period of 5 years. The Secretary or the Attorney General shall advise the Administrator of General Services of such a debarment, and the Administrator of General Services shall list the employer on the List of Parties Excluded from Federal Procurement and Nonprocurement Programs for a period of 5 years.CommentsClose CommentsPermalink
`(B) WAIVER- The Administrator of General Services, in consultation with the Secretary and the Attorney General, may waive operation of this subsection or may limit the duration or scope of the debarment.CommentsClose CommentsPermalink
`(2) EMPLOYERS WITH CONTRACTS, GRANTS, OR AGREEMENTS-CommentsClose CommentsPermalink
`(A) IN GENERAL- An employer who holds a Federal contract, grant, or cooperative agreement and is determined by the Secretary to be a repeat violator of this section or is convicted of a crime under this section, shall be debarred from the receipt of new Federal contracts, grants, or cooperative agreements for a period of 5 years.CommentsClose CommentsPermalink
`(B) NOTICE TO AGENCIES- Prior to debarring the employer under subparagraph (A), the Secretary, in cooperation with the Administrator of General Services, shall advise any agency or department holding a contract, grant, or cooperative agreement with the employer of the Government's intention to debar the employer from the receipt of new Federal contracts, grants, or cooperative agreements for a period of 5 years.CommentsClose CommentsPermalink
`(C) WAIVER- After consideration of the views of any agency or department that holds a contract, grant, or cooperative agreement with the employer, the Secretary may, in lieu of debarring the employer from the receipt of new Federal contracts, grants, or cooperative agreements for a period of 5 years, waive operation of this subsection, limit the duration or scope of the debarment, or may refer to an appropriate lead agency the decision of whether to debar the employer, for what duration, and under what scope in accordance with the procedures and standards prescribed by the Federal Acquisition Regulation. However, any proposed debarment predicated on an administrative determination of liability for civil penalty by the Secretary or the Attorney General shall not be reviewable in any debarment proceeding.CommentsClose CommentsPermalink
`(D) REVIEW- The decision of whether to debar or take alternate action under this paragraph shall be reviewable pursuant to section 9, Federal Acquisition Regulation.CommentsClose CommentsPermalink
`(3) SUSPENSION- Indictments for violations of this section or adequate evidence of actions that could form the basis for debarment under this subsection shall be considered a cause for suspension under the procedures and standards for suspension prescribed by the Federal Acquisition Regulation.CommentsClose CommentsPermalink
`(4) REPEAT VIOLATOR DEFINED- In this subsection, the term `repeat violator' means, with respect to an employer, that the employer has violated paragraph (1)(A), (1)(B), or (2) of subsection (a) more than 1 time and that such violations were discovered as a result of more than 1 separate investigation of the employer. A violation of such paragraph (1)(B) that is inadvertent and unrelated to a violation of subsection (a)(1)(A) and (a)(2) may not be considered to be a violation of such paragraph (1)(B) for the purposes of this paragraph.CommentsClose CommentsPermalink
`(i) Miscellaneous Provisions-CommentsClose CommentsPermalink
`(1) DOCUMENTATION- In providing documentation or endorsement of authorization of aliens (other than aliens lawfully admitted for permanent residence) eligible to be employed in the United States, the Secretary shall provide that any limitations with respect to the period or type of employment or employer shall be conspicuously stated on the documentation or endorsement.CommentsClose CommentsPermalink
`(2) PREEMPTION- The provisions of this section preempt any State or local law from--CommentsClose CommentsPermalink
`(A) imposing civil or criminal sanctions upon employers who employ or otherwise do business with unauthorized aliens;CommentsClose CommentsPermalink
`(B) requiring, authorizing, or permitting the use of a federally mandated employment verification system for any other purpose other than the one mandated in Federal law, including verifying status of renters, determining eligibility for receipt of benefits, enrollment in school, obtaining or retaining a business license or other license provided by the unit of government, or conducting a background check; andCommentsClose CommentsPermalink
`(C) requiring employers to use an employment verification system, unless otherwise mandated by Federal law, for purposes such as--CommentsClose CommentsPermalink
`(i) as a condition of receiving a government contract;CommentsClose CommentsPermalink
`(ii) as a condition of receiving a business license; orCommentsClose CommentsPermalink
`(iii) as a penalty.CommentsClose CommentsPermalink
`(j) Definitions- In this section--CommentsClose CommentsPermalink
`(1) EMPLOYER- The term `employer' means any person or entity, including any entity of the Government of the United States, hiring an individual for employment in the United States.CommentsClose CommentsPermalink
`(2) INDEPENDENT CONTRACTOR- The term `independent contractor' includes a person who carries on independent business, contracts to do a piece of work according to the person's own means and methods, and are subject to control only as to results. Whether a person is an independent contractor, regardless of any self-designation, will be determined on a case-by-case basis. Factors to be considered in that determination include whether the person--CommentsClose CommentsPermalink
`(A) supplies the tools or materials;CommentsClose CommentsPermalink
`(B) makes services available to the general public;CommentsClose CommentsPermalink
`(C) works for a number of clients at the same time;CommentsClose CommentsPermalink
`(D) has an opportunity for profit or loss as a result of labor or services provided;CommentsClose CommentsPermalink
`(E) invests in facilities to carry out the work;CommentsClose CommentsPermalink
`(F) directs the order or sequence in which the work is to be done; andCommentsClose CommentsPermalink
`(G) determines the hours during which the work is to be done.CommentsClose CommentsPermalink
`(3) SECRETARY- Except as otherwise provided, the term `Secretary' means the Secretary of Homeland Security.CommentsClose CommentsPermalink
`(4) UNAUTHORIZED ALIEN- The term `unauthorized alien' means, with respect to the employment of an alien at a particular time, that the alien is not at that time either--CommentsClose CommentsPermalink
`(A) an alien lawfully admitted for permanent residence; orCommentsClose CommentsPermalink
`(B) authorized to be so employed by this Act or by the Secretary.'.CommentsClose CommentsPermalink
(b) Antifraud Measures for Social Security Cards-CommentsClose CommentsPermalink
(1) IN GENERAL- Section 205(c)(2)(G) of the Social Security Act (
(A) by inserting `(i)' after `(G)';CommentsClose CommentsPermalink
(B) by striking `banknote paper' and inserting `durable plastic or similar material'; andCommentsClose CommentsPermalink
(C) by adding at the end the following new clauses:CommentsClose CommentsPermalink
`(ii) Each social security card issued under this subparagraph shall include an encrypted machine-readable electronic identification strip which shall be unique to the individual to whom the card is issued. The Commissioner shall develop such electronic identification strip in consultation with the Secretary of Homeland Security, so as to enable employers to use such strip in accordance with section 274A(a)(1)(B) of the Immigration and Nationality Act (
`(iii) Each social security card issued under this subparagraph shall--CommentsClose CommentsPermalink
`(I) contain physical security features designed to prevent tampering, counterfeiting, or duplication of the card for fraudulent purposes;CommentsClose CommentsPermalink
`(II) be consistent with the biometric standards for documents described in section 737 of this Act; andCommentsClose CommentsPermalink
`(III) contain a disclaimer stating the following:CommentsClose CommentsPermalink
131`This card shall not be used for the purpose of identification.CommentsClose CommentsPermalink
`(iv) The Commissioner shall provide for the issuance (or reissuance) to each individual who--CommentsClose CommentsPermalink
`(I) has been assigned a Social Security account number under subparagraph (B),CommentsClose CommentsPermalink
`(II) has attained the minimum age applicable, in the jurisdiction in which such individual engages in employment, for legally engaging in such employment, andCommentsClose CommentsPermalink
`(III) files application for such card under this clause in such form and manner as shall be prescribed by the Commissioner, a Social Security card which meets the preceding requirements of this subparagraph and which includes a recent digitized photograph of the individual to whom the card is issued.CommentsClose CommentsPermalink
`(v) The Commissioner shall maintain an ongoing effort to develop measures in relation to the Social Security card and the issuance thereof to preclude fraudulent use thereof.'.CommentsClose CommentsPermalink
(2) SHARING OF INFORMATION WITH THE SECRETARY OF HOMELAND SECURITY- Section 205(c)(2) of such Act is amended by adding at the end the following new subparagraph:CommentsClose CommentsPermalink
`(I) Upon the issuance of a Social Security account number under subparagraph (B) to any individual or the issuance of a Social Security card under subparagraph (G) to any individual, the Commissioner of Social Security shall transmit to the Secretary of Homeland Security such information received by the Commissioner in the individual's application for such number or such card as such Secretary determines necessary and appropriate for administration of the STRIVE Act of 2007. Such information shall be used solely for inclusion in the Electronic Employment Eligibility Verification System established pursuant to title III of such Act.'.CommentsClose CommentsPermalink
(3) EFFECTIVE DATES- The amendment made by paragraph (1) shall apply with respect to Social Security cards issued 2 years after the date of the enactment of this Act. The amendment made by paragraph (2) shall apply with respect to the issuance of Social Security account numbers and Social Security cards after 2 years after the date of the enactment of this Act.CommentsClose CommentsPermalink
(c) Conforming Amendments-CommentsClose CommentsPermalink
(1) AMENDMENTS-CommentsClose CommentsPermalink
(A) REPEAL OF BASIC PILOT- Sections 401, 402, 403, 404, and 405 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (division C of
(B) REPEAL OF REPORTING REQUIREMENTS-CommentsClose CommentsPermalink
(i) REPORT ON EARNINGS OF ALIENS NOT AUTHORIZED TO WORK- Subsection (c) of section 290 (
(ii) REPORT ON FRAUDULENT USE OF SOCIAL SECURITY ACCOUNT NUMBERS- Subsection (b) of section 414 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (division C of
(C) REPEAL OF DEFINITION- Paragraph (1)(F) of
(2) CONSTRUCTION- Nothing in this subsection or in subsection (c) of section 274A, as amended by subsection (a), may be construed to limit the authority of the Secretary to allow or continue to allow the participation of employers who participated in the basic pilot program under such sections 401, 402, 403, 404, and 405 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (division C of
(d) Technical Amendments-CommentsClose CommentsPermalink
(1) DEFINITION OF UNAUTHORIZED ALIEN- Sections 218(i)(1) (
(2) DOCUMENT REQUIREMENTS- Section 274B (
(A) in subsections (a)(6) and (g)(2)(B), by striking `274A(b)' and inserting `274A(d)'; andCommentsClose CommentsPermalink
(B) in subsection (g)(2)(B)(ii), by striking `274A(b)(5)' and inserting `274A(d)(9)'.CommentsClose CommentsPermalink
(e) Office of Electronic Verification-CommentsClose CommentsPermalink
(1) IN GENERAL- The Secretary shall establish the Office of Electronic Verification within the Office of Screening Coordination of the Department.CommentsClose CommentsPermalink
(2) RESPONSIBILITIES- The head of the Office of Electronic Verification shall work with the Commissioner of Social Security--CommentsClose CommentsPermalink
(A) to ensure the information maintained in the Electronic Employment Verification System established in subsection (c) of section 274A of the Immigration and Nationality Act, as amended by subsection (a), is updated in a manner that promotes maximum accuracy;CommentsClose CommentsPermalink
(B) to ensure a process is provided for correcting erroneous information continued in such System;CommentsClose CommentsPermalink
(C) to ensure that the data received from field offices of United States Customs and Border Protection or from other points of contact between aliens and the Department of Homeland Security is registered in all relevant databases;CommentsClose CommentsPermalink
(D) to ensure that the data received from field offices of the Social Security Administration and other points of contact between nationals of the United States and the Social Security Administration is registered within all relevant databases;CommentsClose CommentsPermalink
(E) to ensure that the Department has a sufficient number of personnel to conduct manual verifications described in paragraph (2)(ii) of such subsection (c);CommentsClose CommentsPermalink
(F) to establish and promote telephone help lines accessible to employers and individuals 24-hours a day that provide information regarding the functioning of such System or specific issues related to the issuance of a tentative nonconfirmations issued by the System;CommentsClose CommentsPermalink
(G) to establish an outreach and education program to ensure that all new employers are fully informed of their responsibilities under such System;CommentsClose CommentsPermalink
(H) to conduct random audits of individual's files in the Government's database each year to determine accuracy rates and require corrections of errors in a timely manner; andCommentsClose CommentsPermalink
(I) to provide to the employer anti-discrimination notices issued by the Office of Special Counsel for Immigration-Related Unfair Employment Practices of the Civil Rights Division of the Department of Justice.CommentsClose CommentsPermalink
(f) Requirement for Reports- Not later than 2 years after the date of enactment of this Act, and annually thereafter, the Comptroller General of the United States shall submit to the Secretary and to Congress a report on the impact of the Electronic Employment Verification System described in section 274A(c) of the Immigration and Nationality Act, as amended by subsection (a), on employers and employees in the United States. Each such report shall include the following:CommentsClose CommentsPermalink
(1) An assessment of the impact of the System on the employment of aliens who are not eligible for employment in the United States, including whether the System has indirectly caused an increase in exploitation of unauthorized workers.CommentsClose CommentsPermalink
(2) An assessment of the accuracy of the databases utilized by the System and of the timeliness and accuracy of the responses provided through the System to employers.CommentsClose CommentsPermalink
(3) An assessment of the privacy and confidentiality of the System and of the overall security of the System with respect to cybertheft and theft or misuse of private data.CommentsClose CommentsPermalink
(4) An assessment of whether the System is being implemented in a nondiscriminatory and nonretaliatory manner.CommentsClose CommentsPermalink
(5) An assessment of the most common causes for the erroneous issuance of nonconfirmations by the System and recommendations to correct such causes.CommentsClose CommentsPermalink
(6) Recommendations regarding a funding scheme for the maintenance of the System which may include minimal costs to employers or individuals.CommentsClose CommentsPermalink
(7) The recommendations of the Comptroller General regarding whether or not the System should be modified prior to further expansion.CommentsClose CommentsPermalink
(g) Effective Date- The amendments made by subsections (a), (b), and (c) shall take effect on the date that is 180 days after the date of the enactment of this Act.CommentsClose CommentsPermalink
SEC. 302. CLARIFICATION OF INELIGIBILITY FOR MISREPRESENTATION.
Section 212(a)(6)(C)(ii)(I) (
SEC. 303. ANTIDISCRIMINATION PROTECTIONS.
(a) Application of Prohibition of Discrimination to Verification System- Section 274B(a)(1) (
(b) Classes of Aliens as Protected Individuals- Section 274B(a)(3)(B) (
`(B) is an alien who is--CommentsClose CommentsPermalink
`(i) lawfully admitted for permanent residence;CommentsClose CommentsPermalink
`(ii) granted the status of an alien lawfully admitted for temporary residence under section 210(a) or 245A(a);CommentsClose CommentsPermalink
`(iii) admitted as a refugee under section 207;CommentsClose CommentsPermalink
`(iv) granted asylum under section 208;CommentsClose CommentsPermalink
`(v) granted the nonimmigrant status under section 101(a)(15)(H)(ii)(c);CommentsClose CommentsPermalink
`(vi) granted temporary protected status under section 244; orCommentsClose CommentsPermalink
`(vii) granted parole under section 212(d)(5).'.CommentsClose CommentsPermalink
(c) Requirements for Electronic Employment Verification- Section 274B(a) (
`(7) ANTIDISCRIMINATION REQUIREMENTS OF THE ELECTRONIC EMPLOYMENT VERIFICATION SYSTEM- It is an unfair immigration-related employment practice for a person or other entity, in the course of the Electronic Employment Verification System described in section 274A(c)--CommentsClose CommentsPermalink
`(A) to terminate the employment of an individual due to a tentative nonconfirmation issued by such System, with respect to that individual;CommentsClose CommentsPermalink
`(B) to use the System for screening of an applicant for employment prior to making the individual an offer of employment;CommentsClose CommentsPermalink
`(C) to reverify the employment authorization of current employees beyond the time period set out in 274A(c)(2); orCommentsClose CommentsPermalink
`(D) to use the System selectively to exclude certain individuals from consideration for employment as a result of a perceived likelihood that additional verification will be required, beyond what is required for most job applicants.'.CommentsClose CommentsPermalink
(d) Increase in Civil Money Penalties- Section 274B(g)(2) (
(1) in subparagraph (B)(iv)--CommentsClose CommentsPermalink
(A) in subclause (I), by striking `$250 and not more than $1,000' and inserting `$2,000 and not more than $4,000';CommentsClose CommentsPermalink
(B) in subclause (II), by striking `$2,000 and not more than $5,000' and inserting `$4,000 and not more than $10,000';CommentsClose CommentsPermalink
(C) in subclause (III), by striking `$3,000 and not more than $10,000' and inserting `$6,000 and not more than $20,000';CommentsClose CommentsPermalink
(D) in subclause (IV), by striking `$100 and not more than $1,000' and inserting `$500 and not more than $5,000.'CommentsClose CommentsPermalink
(e) Increased Funding of Information Campaign- Section 274B(l)(3) (
(f) Effective Date- The amendments made by this title shall take effect on the date of the enactment of this Act and shall apply to violations occurring on or after such date.CommentsClose CommentsPermalink
SEC. 304. ADDITIONAL PROTECTIONS.
Section 274B (
(1) in subsection (a), by amending paragraph (1) to read as follows:CommentsClose CommentsPermalink
`(1) IN GENERAL- It is an unfair immigration-related employment practice for a person or other entity to discriminate against any individual (other than an unauthorized alien defined in section 274A(h)(3)) with respect to--CommentsClose CommentsPermalink
`(A) the hiring, or recruitment or referral for a fee, of the individual for employment or the discharging of the individual from employment--CommentsClose CommentsPermalink
`(i) because of such individual's national origin; orCommentsClose CommentsPermalink
`(ii) in the case of a protected individual, because of such individual's citizenship status; orCommentsClose CommentsPermalink
`(B) the compensation, terms, or conditions of the employment of the individual.';CommentsClose CommentsPermalink
(2) in subsection (a)(6), by striking `if made for the purpose or with the intent of discriminating against an individual in violation of paragraph (1)' and inserting `in violation of paragraph (1), subject to additional information and compliance assistance being provided to employers to assist them in complying with the law';CommentsClose CommentsPermalink
(3) in subsection (d)--CommentsClose CommentsPermalink
(A) in paragraph (1), by striking `and, based on such an investigation and subject to paragraph (3), file a complaint before such a judge' and inserting `Any such investigation shall begin not later than 180 days after the alleged discriminatory act. Any such complaint filed with an administrative law judge shall be filed not later than 1 year after the commencement of the independent investigation.'; andCommentsClose CommentsPermalink
(B) by striking paragraph (3); andCommentsClose CommentsPermalink
(4) in subsection (g)(2)(B)(iii), by inserting `, and to provide such other relief as the administrative law judge determines appropriate to make the individual whole' before the semicolon at the end.CommentsClose CommentsPermalink
SEC. 305. ADDITIONAL WORKSITE ENFORCEMENT AND FRAUD DETECTION AGENTS.
(a) Increase in Number of Personnel- The Secretary shall, subject to the availability of appropriations for such purpose, annually increase, by not less than 2,200, the number of personnel of the Bureau of Immigration and Customs Enforcement during the 5-year period beginning on the date of the enactment of this Act.CommentsClose CommentsPermalink
(b) Use of Personnel- The Secretary shall ensure that not less than 25 percent of all the hours expended by personnel of the Bureau of Immigration and Customs Enforcement shall be used to enforce compliance with sections 274A and 274C of the Immigration and Nationality Act (
(c) Authorization of Appropriations- There are authorized to be appropriated to the Secretary for each of the fiscal years 2007 through 2011 such sums as may be necessary to carry out this section.CommentsClose CommentsPermalink
SEC. 306. AMENDMENTS TO THE SOCIAL SECURITY ACT AND THE INTERNAL REVENUE CODE.
(a) Social Security Act- Section 205(c)(2) of the Social Security Act (
`(I)(i) The Commissioner of Social Security shall, subject to the provisions of title III of the STRIVE Act of 2007, establish a reliable, secure method to provide through the Electronic Employment Verification System established pursuant to section 274A(c) of the Immigration and Nationality Act (referred to in this subparagraph as the `System'), within the time periods required by such subsection--CommentsClose CommentsPermalink
`(I) a determination of whether the name, date of birth, employer identification number, and social security account number of an individual provided in an inquiry made to the System by an employer is consistent with such information maintained by the Commissioner in order to confirm the validity of the information provided;CommentsClose CommentsPermalink
`(II) a determination of the citizenship status associated with such name and social security account number, according to the records maintained by the Commissioner;CommentsClose CommentsPermalink
`(III) a determination of whether the name and number belongs to an individual who is deceased, according to the records maintained by the Commissioner;CommentsClose CommentsPermalink
`(IV) a determination of whether the name and number is blocked in accordance with clause (ii); andCommentsClose CommentsPermalink
`(V) a confirmation or a nonconfirmation described in such subsection (c), in a manner that ensures that other information maintained by the Commissioner is not disclosed or released to employers through the System.CommentsClose CommentsPermalink
`(ii) The Commissioner of Social Security shall prevent the fraudulent or other misuse of a social security account number by establishing procedures under which an individual who has been assigned a social security account number may block the use of such number under the System and remove such block.CommentsClose CommentsPermalink
`(J) In assigning social security account numbers to aliens who are authorized to work in the United States under section 218A of the Immigration and Nationality Act, the Commissioner of Social Security shall, to the maximum extent practicable, assign such numbers by employing the enumeration procedure administered jointly by the Commissioner, the Secretary of State, and the Secretary.'.CommentsClose CommentsPermalink
(b) Disclosure of Certain Taxpayer Identity Information-CommentsClose CommentsPermalink
(1) IN GENERAL- Section 6103(l) of the Internal Revenue Code of 1986 is amended by adding at the end the following new paragraph:CommentsClose CommentsPermalink
`(21) DISCLOSURE OF CERTAIN TAXPAYER IDENTITY INFORMATION BY SOCIAL SECURITY ADMINISTRATION TO DEPARTMENT OF HOMELAND SECURITY-CommentsClose CommentsPermalink
`(A) IN GENERAL- From taxpayer identity information which has been disclosed to the Social Security Administration and upon written request by the Secretary of Homeland Security, the Commissioner of Social Security shall disclose directly to officers, employees, and contractors of the Department of Homeland Security the following information:CommentsClose CommentsPermalink
`(i) DISCLOSURE OF EMPLOYER NO-MATCH NOTICES- Taxpayer identity information of each person who has filed an information return required by reason of section 6051 during calendar year 2006, 2007, or 2008 which contains--CommentsClose CommentsPermalink
`(I) more than 100 names and taxpayer identifying numbers of employees (within the meaning of such section) that did not match the records maintained by the Commissioner of Social Security; orCommentsClose CommentsPermalink
`(II) more than 10 names of employees (within the meaning of such section) with the same taxpayer identifying number.CommentsClose CommentsPermalink
`(ii) DISCLOSURE OF INFORMATION REGARDING USE OF DUPLICATE EMPLOYEE TAXPAYER IDENTIFYING INFORMATION- Taxpayer identity information of each person who has filed an information return required by reason of section 6051 which the Commissioner of Social Security has reason to believe, based on a comparison with information submitted by the Secretary of Homeland Security, contains evidence of identity fraud due to the multiple use of the same taxpayer identifying number (assigned under section 6109) of an employee (within the meaning of section 6051).CommentsClose CommentsPermalink
`(iii) DISCLOSURE OF INFORMATION REGARDING NONPARTICIPATING EMPLOYERS- Taxpayer identity information of each person who has filed an information return required by reason of section 6051 which the Commissioner of Social Security has reason to believe, based on a comparison with information submitted by the Secretary of Homeland Security, contains evidence of such person's failure to register and participate in the Electronic Employment Verification System authorized under section 274A(c) of the Immigration and Nationality Act (hereafter in this paragraph referred to as the `System').CommentsClose CommentsPermalink
`(iv) DISCLOSURE OF INFORMATION REGARDING NEW EMPLOYEES OF NONPARTICIPATING EMPLOYERS- Taxpayer identity information of all employees (within the meaning of section 6051) hired after the date a person identified in clause (iii) is required to participate in the System under section 274A(c)(10) of the Immigration and Nationality Act.CommentsClose CommentsPermalink
`(v) DISCLOSURE OF INFORMATION REGARDING EMPLOYEES OF CERTAIN DESIGNATED EMPLOYERS- Taxpayer identity information of all employees (within the meaning of section 6051) of each person who is required to participate in the System under such section 274A(c)(10) of the Immigration and Nationality Act.CommentsClose CommentsPermalink
`(vi) DISCLOSURE OF NEW HIRE TAXPAYER IDENTITY INFORMATION- Taxpayer identity information of each person participating in the System and taxpayer identity information of all employees (within the meaning of section 6051) of such person hired during the period beginning with the later of--CommentsClose CommentsPermalink
`(I) the date such person begins to participate in the System; orCommentsClose CommentsPermalink
`(II) the date of the request immediately preceding the most recent request under this clause,CommentsClose CommentsPermalink
ending with the date of the most recent request under this clause.CommentsClose CommentsPermalink
`(B) RESTRICTION ON DISCLOSURE- The Commissioner of Social Security shall disclose taxpayer identity information under subparagraph (A) only for purposes of, and to the extent necessary in--CommentsClose CommentsPermalink
`(i) establishing and enforcing employer participation in the System;CommentsClose CommentsPermalink
`(ii) carrying out, including through civil administrative and civil judicial proceedings, of sections 212, 217, 235, 237, 238, 274A, 274B, and 274C of the Immigration and Nationality Act; andCommentsClose CommentsPermalink
`(iii) the civil operation of the Alien Terrorist Removal Court.CommentsClose CommentsPermalink
`(C) REIMBURSEMENT- The Commissioner of Social Security shall prescribe a reasonable fee schedule for furnishing taxpayer identity information under this paragraph and collect such fees in advance from the Secretary of Homeland Security.CommentsClose CommentsPermalink
`(D) TERMINATION- This paragraph shall not apply to any request made after the date which is 3 years after the date of the enactment of this paragraph.'.CommentsClose CommentsPermalink
(2) COMPLIANCE BY DHS CONTRACTORS WITH CONFIDENTIALITY SAFEGUARDS-CommentsClose CommentsPermalink
(A) IN GENERAL- Section 6103(p) of such Code is amended by adding at the end the following new paragraph:CommentsClose CommentsPermalink
`(9) DISCLOSURE TO DHS CONTRACTORS- Notwithstanding any other provision of this section, no return or return information shall be disclosed to any contractor of the Department of Homeland Security unless the Secretary of Homeland Security, to the satisfaction of the Secretary--CommentsClose CommentsPermalink
`(A) has requirements in effect which require each such contractor which would have access to returns or return information to provide safeguards (within the meaning of paragraph (4)) to protect the confidentiality of such returns or return information;CommentsClose CommentsPermalink
`(B) agrees to conduct an on-site review every 3 years (mid-point review in the case of contracts or agreements of less than 1 year in duration) of each contractor to determine compliance with such requirements;CommentsClose CommentsPermalink
`(C) submits the findings of the most recent review conducted under subparagraph (B) to the Secretary as part of the report required by paragraph (4)(E); andCommentsClose CommentsPermalink
`(D) certifies to the Secretary for the most recent annual period that such contractor is in compliance with all such requirements.CommentsClose CommentsPermalink
The certification required by subparagraph (D) shall include the name and address of each contractor, a description of the contract or agreement with such contractor, and the duration of such contract or agreement.'.CommentsClose CommentsPermalink
(3) CONFORMING AMENDMENTS-CommentsClose CommentsPermalink
(A) Section 6103(a)(3) of such Code is amended by striking `or (20)' and inserting `(20), or (21)'.CommentsClose CommentsPermalink
(B) Section 6103(p)(3)(A) of such Code is amended by adding at the end the following new sentence: `The Commissioner of Social Security shall provide to the Secretary such information as the Secretary may require in carrying out this paragraph with respect to return information inspected or disclosed under the authority of subsection (l)(21).'.CommentsClose CommentsPermalink
(C) Section 6103(p)(4) of such Code is amended--CommentsClose CommentsPermalink
(i) by striking `or (17)' both places it appears and inserting `(17), or (21)'; andCommentsClose CommentsPermalink
(ii) by striking `or (20)' each place it appears and inserting `(20), or (21)'.CommentsClose CommentsPermalink
(D) Section 6103(p)(8)(B) of such Code is amended by inserting `or paragraph (9)' after `subparagraph (A)'.CommentsClose CommentsPermalink
(E) Section 7213(a)(2) of such Code is amended by striking `or (20)' and inserting `(20), or (21)'.CommentsClose CommentsPermalink
(c) Authorization of Appropriations-CommentsClose CommentsPermalink
(1) IN GENERAL- There are authorized to be appropriated to the Secretary such sums as are necessary to carry out the amendments made by this section.CommentsClose CommentsPermalink
(2) LIMITATION ON VERIFICATION RESPONSIBILITIES OF COMMISSIONER OF SOCIAL SECURITY- The Commissioner of Social Security is authorized to perform activities with respect to carrying out the Commissioner's responsibilities in this title or the amendments made by this title, but only to the extent the Secretary has provided, in advance, funds to cover the Commissioner's full costs in carrying out such responsibilities. In no case shall funds from the Federal Old-Age and Survivors Insurance Trust Fund or the Federal Disability Insurance Trust Fund be used to carry out such responsibilities.CommentsClose CommentsPermalink
(d) Effective Dates-CommentsClose CommentsPermalink
(1) SOCIAL SECURITY ACT- The amendments made by subsection (a) shall take effect on the date that is 180 days after the date of the enactment of this Act.CommentsClose CommentsPermalink
(2) INTERNAL REVENUE CODE-CommentsClose CommentsPermalink
(A) IN GENERAL- The amendments made by subsection (b) shall apply to disclosures made after the date of the enactment of this Act.CommentsClose CommentsPermalink
(B) CERTIFICATIONS- The first certification under section 6103(p)(9)(D) of the Internal Revenue Code of 1986, as added by subsection (b)(2), shall be made with respect to calendar year 2007.CommentsClose CommentsPermalink
TITLE IV--NEW WORKER PROGRAM
SEC. 401. NONIMMIGRANT WORKER.
Section 101(a)(15)(H) (
`(H) an alien--CommentsClose CommentsPermalink
`(i)(b) subject to section 212(j)(2)--CommentsClose CommentsPermalink
`(aa) who is coming temporarily to the United States to perform services (other than services described in clause (ii)(a) or subparagraph (O) or (P)) in a specialty occupation described in section 214(i)(1) or as a fashion model;CommentsClose CommentsPermalink
`(bb) who meets the requirements for the occupation specified in section 214(i)(2) or, in the case of a fashion model, is of distinguished merit and ability; andCommentsClose CommentsPermalink
`(cc) with respect to whom the Secretary of Labor determines and certifies to the Secretary of Homeland Security that the intending employer has filed an application with the Secretary in accordance with section 212(n)(1);CommentsClose CommentsPermalink
`(b1)(aa) who is entitled to enter the United States under the provisions of an agreement listed in section 214(g)(8)(A);CommentsClose CommentsPermalink
`(bb) who is engaged in a specialty occupation described in section 214(i)(3); andCommentsClose CommentsPermalink
`(cc) with respect to whom the Secretary of Labor determines and certifies to the Secretary of Homeland Security and the Secretary of State that the intending employer has filed an attestation with the Secretary of Labor in accordance with section 212(t)(1); orCommentsClose CommentsPermalink
`(c)(aa) who is coming temporarily to the United States to perform services as a registered nurse;CommentsClose CommentsPermalink
`(bb) who meets the qualifications described in section 212(m)(1); andCommentsClose CommentsPermalink
`(cc) with respect to whom the Secretary of Labor determines and certifies to the Secretary of Homeland Security that an unexpired attestation is on file and in effect under section 212(m)(2) for the facility (as defined in section 212(m)(6)) for which the alien will perform the services; orCommentsClose CommentsPermalink
`(ii)(a) who--CommentsClose CommentsPermalink
`(aa) has a residence in a foreign country which the alien has no intention of abandoning; andCommentsClose CommentsPermalink
`(bb) is coming temporarily to the United States to perform agricultural labor or services (as defined by the Secretary of Labor), including agricultural labor (as defined in section 3121(g) of the Internal Revenue Code of 1986), agriculture (as defined in section 3(f) of the Fair Labor Standards Act of 1938 (
`(b) who--CommentsClose CommentsPermalink
`(aa) has a residence in a foreign country which the alien has no intention of abandoning;CommentsClose CommentsPermalink
`(bb) is coming temporarily to the United States to perform nonagricultural work or services of a temporary or seasonal nature (if unemployed persons capable of performing such work or services cannot be found in the United States), excluding medical school graduates coming to the United States to perform services as members of the medical profession; orCommentsClose CommentsPermalink
`(c) who--CommentsClose CommentsPermalink
`(aa) is coming temporarily to the United States to initially perform temporary labor or services other than the labor or services described in clause (i)(b), (i)(b1), (i)(c), (ii)(a), or (iii), subparagraph (D), (E), (I), (L), (O), (P), or (R), or section 214(e) (if United States workers who are able, willing, and qualified to perform such labor or services cannot be found in the United States); andCommentsClose CommentsPermalink
`(bb) meets the requirements of section 218A, including the filing of a petition under such section on behalf of the alien;CommentsClose CommentsPermalink
`(iii) who--CommentsClose CommentsPermalink
`(a) has a residence in a foreign country which the alien has no intention of abandoning; andCommentsClose CommentsPermalink
`(b) is coming temporarily to the United States as a trainee (other than to receive graduate medical education or training) in a training program that is not designed primarily to provide productive employment; orCommentsClose CommentsPermalink
`(iv) who--CommentsClose CommentsPermalink
`(a) is the spouse or a minor child of an alien described in this subparagraph; andCommentsClose CommentsPermalink
`(b) is accompanying or following to join such alien.'.CommentsClose CommentsPermalink
SEC. 402. ADMISSION OF NONIMMIGRANT WORKERS.
(a) New Workers- Chapter 2 of title II (
`SEC. 218A. ADMISSION OF H-2C NONIMMIGRANTS.
`(a) Authorization- The Secretary of State may grant a temporary visa to an H-2C nonimmigrant who demonstrates an intent to perform labor or services in the United States (other than the labor or services described in clause (i)(b), (i)(b1), (i)(c), (ii)(a), or (iii) of section 101(a)(15)(H), subparagraph (D), (E), (I), (L), (O), (P), or (R) of section 101(a)(15), or section 214(e) (if United States workers who are able, willing, and qualified to perform such labor or services cannot be found in the United States).CommentsClose CommentsPermalink
`(b) Requirements for Admission- An alien shall be eligible for H-2C nonimmigrant status if the alien meets the following requirements:CommentsClose CommentsPermalink
`(1) ELIGIBILITY TO WORK- The alien shall establish that the alien is capable of performing the labor or services required for an occupation described in section 101(a)(15)(H)(ii)(c).CommentsClose CommentsPermalink
`(2) EVIDENCE OF EMPLOYMENT OFFER- The alien's evidence of employment shall be provided in accordance with the requirements issued by the Secretary of State, in consultation with the Secretary of Labor. In carrying out this paragraph, the Secretary may consider evidence from employers, employer associations, and labor representatives.CommentsClose CommentsPermalink
`(3) FEE- The alien shall pay a $500 visa issuance fee in addition to the cost of processing and adjudicating such application. Nothing in this paragraph shall be construed to affect consular procedures for charging reciprocal fees.CommentsClose CommentsPermalink
`(4) MEDICAL EXAMINATION- The alien shall undergo a medical examination (including a determination of immunization status), at the alien's expense, that conforms to generally accepted standards of medical practice.CommentsClose CommentsPermalink
`(5) APPLICATION CONTENT AND WAIVER-CommentsClose CommentsPermalink
`(A) APPLICATION FORM- The alien shall submit to the Secretary of State a completed application, which contains evidence that the requirements under paragraphs (1) and (2) have been met.CommentsClose CommentsPermalink
`(B) CONTENT- In addition to any other information that the Secretary requires to determine an alien's eligibility for H-2C nonimmigrant status, the Secretary of State shall require an alien to provide information concerning the alien's--CommentsClose CommentsPermalink
`(i) physical and mental health;CommentsClose CommentsPermalink
`(ii) criminal history and gang membership;CommentsClose CommentsPermalink
`(iii) immigration history; andCommentsClose CommentsPermalink
`(iv) involvement with groups or individuals that have engaged in terrorism, genocide, persecution, or who seek the overthrow of the United States Government.CommentsClose CommentsPermalink
`(C) KNOWLEDGE- The alien shall include with the application submitted under this paragraph a signed certification in which the alien certifies that--CommentsClose CommentsPermalink
`(i) the alien has read and understands all of the questions and statements on the application form;CommentsClose CommentsPermalink
`(ii) the alien certifies under penalty of perjury under the laws of the United States that the application, and any evidence submitted with it, are all true and correct; andCommentsClose CommentsPermalink
`(iii) the applicant authorizes the release of any information contained in the application and any attached evidence for law enforcement purposes.CommentsClose CommentsPermalink
`(c) Grounds of Inadmissibility-CommentsClose CommentsPermalink
`(1) IN GENERAL- In determining an alien's admissibility as an H-2C nonimmigrant--CommentsClose CommentsPermalink
`(A) paragraphs (5), (6) (except subparagraph (E)), (7), (9), and (10)(B) of section 212(a) may not apply with respect to conduct that occurred before the effective date of the STRIVE Act;CommentsClose CommentsPermalink
`(B) the Secretary of Homeland Security may not waive the application of--CommentsClose CommentsPermalink
`(i) subparagraph (A), (B), (C), (D)(ii), (E), (G), (H), or (I) of section 212(a)(2);CommentsClose CommentsPermalink
`(ii) section 212(a)(3); orCommentsClose CommentsPermalink
`(iii) subparagraph (A), (C) or (D) of section 212(a)(10);CommentsClose CommentsPermalink
`(C) the Secretary of State may waive the application of any provision of section 212(a) not listed in subparagraph (B) on behalf of an individual alien--CommentsClose CommentsPermalink
`(i) for humanitarian purposes;CommentsClose CommentsPermalink
`(ii) to ensure family unity; orCommentsClose CommentsPermalink
`(iii) if such a waiver is otherwise in the public interest;CommentsClose CommentsPermalink
`(D) nothing in this paragraph shall be construed as affecting the authority of the Secretary other than under this paragraph to waive the provisions of section 212(a).CommentsClose CommentsPermalink
`(2) RENEWAL OF AUTHORIZED ADMISSION AND SUBSEQUENT ADMISSIONS- An alien seeking renewal of authorized admission or subsequent admission as an H-2C nonimmigrant shall establish that the alien is not inadmissible under section 212(a).CommentsClose CommentsPermalink
`(3) BACKGROUND CHECKS- The Secretary of Homeland Security shall not admit, and the Secretary of State shall not issue a visa to, an alien seeking H-2C nonimmigrant status unless all appropriate background checks have been completed.CommentsClose CommentsPermalink
`(d) Period of Authorized Admission-CommentsClose CommentsPermalink
`(1) AUTHORIZED PERIOD- The initial period of authorized admission as an H-2C nonimmigrant shall be 3 years.CommentsClose CommentsPermalink
`(2) RENEWAL- Before the expiration of the initial period under paragraph (1), an H-2C nonimmigrant may submit an application to the Secretary of Homeland Security to extend H-2C nonimmigrant status for 1 additional 3-year period. The Secretary may not require an applicant under this paragraph to depart the United States as a condition for granting such extension.CommentsClose CommentsPermalink
`(3) INTERNATIONAL COMMUTERS- An alien who maintains actual residence and place of abode outside the United States and commutes into the United States to work as an H-2C nonimmigrant, is not subject to the time limitations under paragraphs (1) and (2).CommentsClose CommentsPermalink
`(4) LOSS OF EMPLOYMENT-CommentsClose CommentsPermalink
`(A) IN GENERAL-CommentsClose CommentsPermalink
`(i) PERIOD OF UNEMPLOYMENT- Subject to clause (ii) and subsection (c), the period of authorized admission of an H-2C nonimmigrant shall terminate if the alien is unemployed for 60 or more consecutive days.CommentsClose CommentsPermalink
`(ii) EXCEPTION- The period of authorized admission of an H-2C nonimmigrant shall not terminate if the alien is unemployed for 60 or more consecutive days if the alien submits documentation to the Secretary of Homeland Security that establishes that such unemployment was caused by--CommentsClose CommentsPermalink
`(I) a period of physical or mental disability of the alien or the spouse, son, daughter, or parent (as defined in section 101 of the Family and Medical Leave Act of 1993 (
`(II) a period of vacation, medical leave, maternity leave, or similar leave from employment authorized by employer policy, State law, or Federal law; orCommentsClose CommentsPermalink
`(III) any other period of temporary unemployment that is the direct result of a major disaster or emergency (as defined under section 532 of the STRIVE Act.CommentsClose CommentsPermalink
`(B) RETURN TO FOREIGN RESIDENCE- Any alien whose period of authorized admission terminates under subparagraph (A) shall be required to leave the United States.CommentsClose CommentsPermalink
`(C) PERIOD OF VISA VALIDITY- Any alien, whose period of authorized admission terminates under subparagraph (A), who leaves the United States under subparagraph (B), may reenter the United States as an H-2C nonimmigrant to work for an employer, if the alien has complied with the requirements of subsection (b).CommentsClose CommentsPermalink
`(5) VISITS OUTSIDE THE UNITED STATES-CommentsClose CommentsPermalink
`(A) IN GENERAL- Under regulations established by the Secretary of Homeland Security, an H-2C nonimmigrant--CommentsClose CommentsPermalink
`(i) may travel outside of the United States; andCommentsClose CommentsPermalink
`(ii) may be readmitted without having to obtain a new visa if the period of authorized admission has not expired.CommentsClose CommentsPermalink
`(B) EFFECT ON PERIOD OF AUTHORIZED ADMISSION- Time spent outside the United States under subparagraph (A) shall not extend the period of authorized admission in the United States.CommentsClose CommentsPermalink
`(6) BARS TO EXTENSION OR ADMISSION- An alien may not be granted H-2C nonimmigrant status, or an extension of such status, if--CommentsClose CommentsPermalink
`(A) the alien has violated any material term or condition of such status granted previously, including failure to comply with the change of address reporting requirements under section 265;CommentsClose CommentsPermalink
`(B) the alien is inadmissible as a nonimmigrant; orCommentsClose CommentsPermalink
`(C) the granting of such status or extension of such status would allow the alien to exceed 6 years as an H-2C nonimmigrant, unless the alien has resided and been physically present outside the United States for at least 1 year after the expiration of such H-2C nonimmigrant status.CommentsClose CommentsPermalink
`(e) Evidence of Nonimmigrant Status- Each H-2C nonimmigrant shall be issued documentary evidence of nonimmigrant status, which--CommentsClose CommentsPermalink
`(1) shall be machine-readable, tamper-resistant, and allow for biometric authentication;CommentsClose CommentsPermalink
`(2) shall, during the alien's authorized period of admission under subsection (f), serve as a valid entry document for the purpose of applying for admission to the United States--CommentsClose CommentsPermalink
`(A) instead of a passport and visa if the alien--CommentsClose CommentsPermalink
`(i) is a national of a foreign territory contiguous to the United States; andCommentsClose CommentsPermalink
`(ii) is applying for admission at a land border port of entry; andCommentsClose CommentsPermalink
`(B) in conjunction with a valid passport, if the alien is applying for admission at an air or sea port of entry;CommentsClose CommentsPermalink
`(3) may be accepted during the period of its validity by an employer as evidence of employment authorization and identity under section 274A(b)(1)(B); andCommentsClose CommentsPermalink
`(4) shall be issued to the H-2C nonimmigrant by the Secretary of Homeland Security promptly after final adjudication of such status or, at the discretion of the Secretary of Homeland Security, may be issued by the Secretary of State at a consulate instead of a visa.CommentsClose CommentsPermalink
`(f) Penalties for Failure To Depart- If an H-2C nonimmigrant fails to depart the United States by the date that the alien's authorized admission as an H-2C nonimmigrant concludes, the visa of the alien shall be void under section 222(g)(1) and the alien shall be ineligible to be readmitted to the United States under section 222(g)(2). The alien may be removed if found to be within 1 or more of the classes of deportable aliens described in section 237.CommentsClose CommentsPermalink
`(g) Penalty for Illegal Entry or Overstay- Any alien who unlawfully enters, attempts to enter, or crosses the border after the date of the enactment of this section, and is physically present in the United States after such date in violation of the immigration laws of the United States, may not receive, for a period of 10 years--CommentsClose CommentsPermalink
`(1) any relief under section 240A(a), 240A(b)(1), or 240B; orCommentsClose CommentsPermalink
`(2) nonimmigrant status under section 101(a)(15) (except subparagraphs (T) and (U)).CommentsClose CommentsPermalink
`(h) Portability- A nonimmigrant alien described in this section, who was previously issued a visa or otherwise provided H-2C nonimmigrant status, may accept a new offer of employment with a subsequent employer, if--CommentsClose CommentsPermalink
`(1) the employer complies with section 218B; andCommentsClose CommentsPermalink
`(2) the alien, after lawful admission to the United States, did not work without authorization.CommentsClose CommentsPermalink
`(i) Change of Address- An H-2C nonimmigrant shall comply with the change of address reporting requirements under section 265 through electronic or paper notification.CommentsClose CommentsPermalink
`(j) Collection of Fees- All fees other than the application filing fee collected under this section shall be deposited in the Treasury in accordance with section 286(w).'.CommentsClose CommentsPermalink
(b) Clerical Amendment- The table of contents Immigration and Nationality Act (
`Sec. 218A. Admission of H-2C nonimmigrants.'.CommentsClose CommentsPermalink
SEC. 403. EMPLOYER OBLIGATIONS.
(a) In General- Title II (
`SEC. 218B. EMPLOYER OBLIGATIONS.
`(a) General Requirements- Each employer who employs an H-2C nonimmigrant shall--CommentsClose CommentsPermalink
`(1) file a petition in accordance with subsection (b); andCommentsClose CommentsPermalink
`(2) be required to pay--CommentsClose CommentsPermalink
`(A) an application filing fee for each alien, based on the cost of carrying out the processing duties under this subsection; andCommentsClose CommentsPermalink
`(B) a secondary fee, to be deposited in the Treasury in accordance with section 286(w), of--CommentsClose CommentsPermalink
`(i) $250, in the case of an employer employing 25 employees or less;CommentsClose CommentsPermalink
`(ii) $500, in the case of an employer employing between 26 and 150 employees;CommentsClose CommentsPermalink
`(iii) $750, in the case of an employer employing between 151 and 500 employees; orCommentsClose CommentsPermalink
`(iv) $1,000, in the case of an employer employing more than 500 employees. pay the appropriate fee.CommentsClose CommentsPermalink
`(b) Required Procedure- Except where the Secretary of Labor has determined that there is a shortage of United States workers in the occupation and area of intended employment to which the H-2C nonimmigrant is sought, each employer of H-2C nonimmigrants shall comply with the following requirements:CommentsClose CommentsPermalink
`(1) EFFORTS TO RECRUIT UNITED STATES WORKERS- During the period beginning not later than 90 days before the date on which a petition is filed under subsection (a)(1), and ending on the date that is 14 days before to such filing date, the employer involved shall recruit United States workers for the position for which the H-2C nonimmigrant is sought under the petition, by--CommentsClose CommentsPermalink
`(A) submitting a copy of the job opportunity, including a description of the wages and other terms and conditions of employment and the minimum education, training, experience and other requirements of the job, to the State Employment Service Agency that serves the area of employment in the State in which the employer is located;CommentsClose CommentsPermalink
`(B) authorizing the employment service agency of the State to post the job opportunity on the Internet website established under section 405 of the STRIVE Act, with local job banks, and with unemployment agencies and other labor referral and recruitment sources pertinent to the job involved;CommentsClose CommentsPermalink
`(C) authorizing the employment service agency of the State to notify--CommentsClose CommentsPermalink
`(i) labor organizations in the State in which the job is located; andCommentsClose CommentsPermalink
`(ii) if applicable, the office of the local union which represents the employees in the same or substantially equivalent job classification of the job opportunity;CommentsClose CommentsPermalink
`(D) posting the availability of the job opportunity for which the employer is seeking a worker in conspicuous locations at the place of employment for all employees to see;CommentsClose CommentsPermalink
`(E) advertising the availability of the job opportunity for which the employer is seeking a worker in a publication with the highest circulation in the labor market that is likely to be patronized by a potential worker for not fewer than 10 consecutive days; andCommentsClose CommentsPermalink
`(F) based on recommendations by the local job service, advertising the availability of the job opportunity in professional, trade, or ethnic publications that are likely to be patronized by a potential worker.CommentsClose CommentsPermalink
`(2) EFFORTS TO EMPLOY UNITED STATES WORKERS- An employer that seeks to employ an H-2C nonimmigrant shall first offer the job to any eligible United States worker who applies, is qualified for the job and is available at the time of need, notwithstanding any other valid employment criteria.CommentsClose CommentsPermalink
`(c) Petition- A petition to hire an H-2C nonimmigrant under this section shall be filed with the Secretary of Labor and shall include an attestation by the employer of the following:CommentsClose CommentsPermalink
`(1) PROTECTION OF UNITED STATES WORKERS- The employment of an H-2C nonimmigrant--CommentsClose CommentsPermalink
`(A) will not adversely affect the wages and working conditions of workers in the United States similarly employed; andCommentsClose CommentsPermalink
`(B) did not and will not cause the separation from employment of a United States worker employed by the employer within the 180-day period beginning 90 days before the date on which the petition is filed.CommentsClose CommentsPermalink
`(2) WAGES-CommentsClose CommentsPermalink
`(A) IN GENERAL- The H-2C nonimmigrant will be paid not less than the greater of--CommentsClose CommentsPermalink
`(i) the actual wage level paid by the employer to all other individuals with similar experience and qualifications for the specific employment in question; orCommentsClose CommentsPermalink
`(ii) the prevailing wage level for the occupational classification in the area of employment, taking into account experience and skill levels of employees.CommentsClose CommentsPermalink
`(B) CALCULATION- The wage levels under subparagraph (A) shall be calculated based on the best information available at the time of the filing of the application.CommentsClose CommentsPermalink
`(C) PREVAILING WAGE LEVEL- For purposes of subparagraph (A)(ii), the prevailing wage level shall be determined in accordance as follows:CommentsClose CommentsPermalink
`(i) If the job opportunity is covered by a collective bargaining agreement between a union and the employer, the prevailing wage shall be the wage rate set forth in the collective bargaining agreement.CommentsClose CommentsPermalink
`(ii) If the job opportunity is not covered by such an agreement and it is on a project that is covered by a wage determination under a provision of subchapter IV of chapter 31 of title 40, United States Code, or the Service Contract Act of 1965 (
`(iii)(I) If the job opportunity is not covered by such an agreement and it is not on a project that is covered by a wage determination under a provision of subchapter IV of chapter 31 of title 40, United States Code, or the Service Contract Act of 1965 (
`(II) The Secretary shall promulgate regulations applicable to approval of such other wage surveys that require, among other things, that the Bureau of Labor Statistics determine such surveys are statistically viable.CommentsClose CommentsPermalink
`(3) WORKING CONDITIONS- All workers in the occupation at the place of employment at which the H-2C nonimmigrant will be employed will be provided the working conditions and benefits that are normal to workers similarly employed in the area of intended employment.CommentsClose CommentsPermalink
`(4) LABOR DISPUTE- There is not a strike, lockout, or work stoppage in the course of a labor dispute in the occupation at the place of employment at which the H-2C nonimmigrant will be employed. If such strike, lockout, or work stoppage occurs following submission of the petition, the employer will provide notification in accordance with regulations promulgated by the Secretary of Labor.CommentsClose CommentsPermalink
`(5) PROVISION OF INSURANCE- If the position for which the H-2C nonimmigrant is sought is not covered by the State workers' compensation law, the employer will provide, at no cost to the H-2C nonimmigrant, insurance covering injury and disease arising out of, and in the course of, the worker's employment, which will provide benefits at least equal to those provided under the State workers' compensation law for comparable employment.CommentsClose CommentsPermalink
`(6) NOTICE TO EMPLOYEES-CommentsClose CommentsPermalink
`(A) IN GENERAL- The employer has provided notice of the filing of the petition to the bargaining representative of the employer's employees in the occupational classification and area of employment for which the H-2C nonimmigrant is sought.CommentsClose CommentsPermalink
`(B) NO BARGAINING REPRESENTATIVE- If there is no such bargaining representative, the employer has--CommentsClose CommentsPermalink
`(i) posted a notice of the filing of the petition in a conspicuous location at the place or places of employment for which the H-2C nonimmigrant is sought; orCommentsClose CommentsPermalink
`(ii) electronically disseminated such a notice to the employer's employees in the occupational classification for which the H-2C nonimmigrant is sought.CommentsClose CommentsPermalink
`(7) RECRUITMENT- Except where the Secretary of Labor has determined that there is a shortage of United States workers in the occupation and area of intended employment for which the H-2C nonimmigrant is sought--CommentsClose CommentsPermalink
`(A) there are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services involved in the petition; andCommentsClose CommentsPermalink
`(B) good faith efforts have been taken to recruit United States workers, in accordance with regulations promulgated by the Secretary of Labor, which efforts included--CommentsClose CommentsPermalink
`(i) the completion of recruitment during the period beginning on the date that is 90 days before the date on which the petition was filed with the Department of Homeland Security and ending on the date that is 14 days before such filing date; andCommentsClose CommentsPermalink
`(ii) the actual wage paid by the employer for the occupation in the areas of intended employment was used in conducting recruitment.CommentsClose CommentsPermalink
`(8) INELIGIBILITY- The employer is not currently ineligible from using the H-2C nonimmigrant program described in this section.CommentsClose CommentsPermalink
`(9) BONAFIDE OFFER OF EMPLOYMENT- The job for which the H-2C nonimmigrant is sought is a bona fide job--CommentsClose CommentsPermalink
`(A) for which the employer needs labor or services;CommentsClose CommentsPermalink
`(B) which has been and is clearly open to any United States worker; andCommentsClose CommentsPermalink
`(C) for which the employer will be able to place the H-2C nonimmigrant on the payroll.CommentsClose CommentsPermalink
`(10) PUBLIC AVAILABILITY AND RECORDS RETENTION- A copy of each petition filed under this section and documentation supporting each attestation, in accordance with regulations promulgated by the Secretary of Labor, will--CommentsClose CommentsPermalink
`(A) be provided to every H-2C nonimmigrant employed under the petition;CommentsClose CommentsPermalink
`(B) be made available for public examination at the employer's place of business or work site;CommentsClose CommentsPermalink
`(C) be made available to the Secretary of Labor during any audit; andCommentsClose CommentsPermalink
`(D) remain available for examination for 5 years after the date on which the petition is filed.CommentsClose CommentsPermalink
`(11) NOTIFICATION UPON SEPARATION FROM OR TRANSFER OF EMPLOYMENT- The employer will notify the Secretary of Labor and the Secretary of Homeland Security of an H-2C nonimmigrant's separation from employment or transfer to another employer not more than 3 business days after the date of such separation or transfer, in accordance with regulations promulgated by the Secretary of Homeland Security.CommentsClose CommentsPermalink
`(12) ACTUAL NEED FOR LABOR OR SERVICES- The petition was filed not more than 60 days before the date on which the employer needed labor or services for which the H-2C nonimmigrant is sought.CommentsClose CommentsPermalink
`(d) Audit of Attestations-CommentsClose CommentsPermalink
`(1) REFERRALS BY SECRETARY OF HOMELAND SECURITY- The Secretary of Homeland Security shall refer all approved petitions for H-2C nonimmigrants to the Secretary of Labor for potential audit.CommentsClose CommentsPermalink
`(2) AUDITS AUTHORIZED- The Secretary of Labor may audit any approved petition referred pursuant to paragraph (1), in accordance with regulations promulgated by the Secretary of Labor.CommentsClose CommentsPermalink
`(e) Ineligible Employers-CommentsClose CommentsPermalink
`(1) IN GENERAL- The Secretary of Labor shall not approve an employer's petitions, applications, certifications, or attestations under any immigrant or nonimmigrant program if the Secretary of Labor determines, after notice and an opportunity for a hearing, that the employer submitting such documents--CommentsClose CommentsPermalink
`(A) has, with respect to the attestations required under subsection (b)--CommentsClose CommentsPermalink
`(i) misrepresented a material fact;CommentsClose CommentsPermalink
`(ii) made a fraudulent statement; orCommentsClose CommentsPermalink
`(iii) failed to comply with the terms of such attestations; orCommentsClose CommentsPermalink
`(B) failed to cooperate in the audit process in accordance with regulations promulgated by the Secretary of Labor.CommentsClose CommentsPermalink
`(2) LENGTH OF INELIGIBILITY- An employer described in paragraph (1) shall be ineligible to participate in the labor certification programs of the Secretary of Labor for not less than the time period determined by the Secretary, not to exceed 3 years.CommentsClose CommentsPermalink
`(3) EMPLOYERS IN HIGH UNEMPLOYMENT AREAS- The Secretary of Labor may not approve any employer's petition under subsection (b) if the work to be performed by the H-2C nonimmigrant is not agriculture based and is located in a metropolitan or micropolitan statistical area (as defined by the Office of Management and Budget) in which the unemployment rate for workers who have not completed any education beyond a high school diploma during the most recently completed 6-month period averaged more than 9.0 percent.CommentsClose CommentsPermalink
`(f) Regulation of Foreign Labor Contractors-CommentsClose CommentsPermalink
`(1) COVERAGE- Notwithstanding any other provision of law--CommentsClose CommentsPermalink
`(A) an H-2C nonimmigrant is prohibited from being treated as an independent contractor; andCommentsClose CommentsPermalink
`(B) no person may treat an H-2C nonimmigrant as an independent contractor.CommentsClose CommentsPermalink
`(2) APPLICABILITY OF LAWS- An H-2C nonimmigrant shall not be denied any right or any remedy under Federal, State, or local labor or employment law that would be applicable to a United States worker employed in a similar position with the employer because of the alien's status as a nonimmigrant worker.CommentsClose CommentsPermalink
`(3) TAX RESPONSIBILITIES- With respect to each employed H-2C nonimmigrant, an employer shall comply with all applicable Federal, State, and local tax and revenue laws.CommentsClose CommentsPermalink
`(g) Whistleblower Protection-CommentsClose CommentsPermalink
`(1) PROHIBITED ACTIVITIES- It shall be unlawful for an employer or a labor contractor of an H-2C nonimmigrant to intimidate, threaten, restrain, coerce, retaliate, discharge, or in any other manner, discriminate against an employee or former employee because the employee or former employee--CommentsClose CommentsPermalink
`(A) discloses information to the employer or any other person that the employee or former employee reasonably believes demonstrates a violation of this Act, the STRIVE Act, or any other Federal labor or employment law; orCommentsClose CommentsPermalink
`(B) cooperates or seeks to cooperate in an investigation or other proceeding concerning compliance with the requirements of this Act, the STRIVE Act, or any other Federal labor or employment law.CommentsClose CommentsPermalink
`(2) RULEMAKING- The Secretary of Labor and the Secretary of Homeland Security shall jointly promulgate regulations that establish a process by which a nonimmigrant alien described in section 101(a)(15)(H) who files a nonfrivolous complaint (as defined by the Federal Rules of Civil Rules) regarding a violation of this Act, the STRIVE Act, or any other Federal labor or employment law, or any other rule or regulation pertaining to such laws and is otherwise eligible to remain and work in the United States may be allowed to seek other appropriate employment in the United States--CommentsClose CommentsPermalink
`(A) for a period not to exceed the maximum period of stay authorized for that nonimmigrant classification; orCommentsClose CommentsPermalink
`(B) until the conclusion of the proceedings governing the complaint.CommentsClose CommentsPermalink
`(h) Labor Recruiters-CommentsClose CommentsPermalink
`(1) IN GENERAL- Each employer that engages in foreign labor contracting activity and each foreign labor contractor shall ascertain and disclose, to each such worker who is recruited for employment at the time of the worker's recruitment--CommentsClose CommentsPermalink
`(A) the place of employment;CommentsClose CommentsPermalink
`(B) the compensation for the employment;CommentsClose CommentsPermalink
`(C) a description of employment activities;CommentsClose CommentsPermalink
`(D) the period of employment;CommentsClose CommentsPermalink
`(E) any other employee benefit to be provided and any costs to be charged for each benefit;CommentsClose CommentsPermalink
`(F) any travel or transportation expenses to be assessed;CommentsClose CommentsPermalink
`(G) the existence of any labor organizing effort, strike, lockout, or other labor dispute at the place of employment;CommentsClose CommentsPermalink
`(H) the existence of any arrangement with any owner, employer, foreign contractor, or its agent where such person receives a commission from the provision of items or services to workers;CommentsClose CommentsPermalink
`(I) the extent to which workers will be compensated through workers' compensation, private insurance, or otherwise for injuries or death, including--CommentsClose CommentsPermalink
`(i) work related injuries and death during the period of employment;CommentsClose CommentsPermalink
`(ii) the name of the State workers' compensation insurance carrier or the name of the policyholder of the private insurance;CommentsClose CommentsPermalink
`(iii) the name and the telephone number of each person who must be notified of an injury or death; andCommentsClose CommentsPermalink
`(iv) the time period within which such notice must be given;CommentsClose CommentsPermalink
`(J) any education or training to be provided or required, including--CommentsClose CommentsPermalink
`(i) the nature and cost of such training;CommentsClose CommentsPermalink
`(ii) the entity that will pay such costs; andCommentsClose CommentsPermalink
`(iii) whether the training is a condition of employment, continued employment, or future employment; andCommentsClose CommentsPermalink
`(K) a statement, in a form specified by the Secretary of Labor, describing the protections of this Act for workers recruited abroad.CommentsClose CommentsPermalink
`(2) FALSE OR MISLEADING INFORMATION- No foreign labor contractor or employer who engages in foreign labor contracting activity shall knowingly provide materially false or misleading information to any worker concerning any matter required to be disclosed in paragraph (1).CommentsClose CommentsPermalink
`(3) LANGUAGES- The information required to be disclosed under paragraph (1) shall be provided in writing in English or, as necessary and reasonable, in the language of the worker being recruited. The Secretary of Labor shall make forms available in English, Spanish, and other languages, as necessary, which may be used in providing workers with information required under this section.CommentsClose CommentsPermalink
`(4) FEES- A person conducting a foreign labor contracting activity shall not assess any fee to a worker for such foreign labor contracting activity.CommentsClose CommentsPermalink
`(5) TERMS- No employer or foreign labor contractor shall, without justification, violate the terms of any agreement made by that contractor or employer regarding employment under this program.CommentsClose CommentsPermalink
`(6) TRAVEL COSTS- If the foreign labor contractor or employer charges the employee for transportation such transportation costs shall be reasonable.CommentsClose CommentsPermalink
`(7) OTHER WORKER PROTECTIONS-CommentsClose CommentsPermalink
`(A) NOTIFICATION- Not less frequently than once every 2 years, each employer shall notify the Secretary of Labor of the identity of any foreign labor contractor engaged by the employer in any foreign labor contractor activity for, or on behalf of, the employer.CommentsClose CommentsPermalink
`(B) REGISTRATION OF FOREIGN LABOR CONTRACTORS-CommentsClose CommentsPermalink
`(i) IN GENERAL- No person shall engage in foreign labor recruiting activity unless such person has a certificate of registration from the Secretary of Labor specifying the activities that such person is authorized to perform. An employer who retains the services of a foreign labor contractor shall only use those foreign labor contractors who are registered under this subparagraph.CommentsClose CommentsPermalink
`(ii) ISSUANCE- The Secretary shall promulgate regulations to establish an efficient electronic process for the investigation and approval of an application for a certificate of registration of foreign labor contractors not later than 14 days after such application is filed, including--CommentsClose CommentsPermalink
`(I) requirements under paragraphs (1), (4), and (5) of section 102 of the Migrant and Seasonal Agricultural Worker Protection Act (
`(II) an expeditious means to update registrations and renew certificates; andCommentsClose CommentsPermalink
`(III) any other requirements that the Secretary may prescribe.CommentsClose CommentsPermalink
`(iii) TERM- Unless suspended or revoked, a certificate under this subparagraph shall be valid for 2 years.CommentsClose CommentsPermalink
`(iv) REFUSAL TO ISSUE; REVOCATION; SUSPENSION- In accordance with regulations promulgated by the Secretary of Labor, the Secretary may refuse to issue or renew, or may suspend or revoke, a certificate of registration under this subparagraph if--CommentsClose CommentsPermalink
`(I) the application or holder of the certification has knowingly made a material misrepresentation in the application for such certificate;CommentsClose CommentsPermalink
`(II) the applicant for, or holder of, the certification is not the real party in interest in the application or certificate of registration and the real party in interest--CommentsClose CommentsPermalink
`(aa) is a person who has been refused issuance or renewal of a certificate;CommentsClose CommentsPermalink
`(bb) has had a certificate suspended or revoked; orCommentsClose CommentsPermalink
`(cc) does not qualify for a certificate under this paragraph; orCommentsClose CommentsPermalink
`(III) the applicant for or holder of the certification has failed to comply with this Act.CommentsClose CommentsPermalink
`(C) REMEDY FOR VIOLATIONS- An employer engaging in foreign labor contracting activity and a foreign labor contractor that violates the provisions of this subsection shall be subject to remedies for foreign labor contractor violations under subsections (k) and (l). If a foreign labor contractor acting as an agent of an employer violates any provision of this subsection, the employer shall be subject to remedies under subsections (k) and (l). An employer that violates a provision of this subsection relating to employer obligations shall be subject to remedies under subsections (k) and (l).CommentsClose CommentsPermalink
`(D) EMPLOYER NOTIFICATION- An employer shall notify the Secretary of Labor if the employer becomes aware of a violation of this subsection by a foreign labor recruiter.CommentsClose CommentsPermalink
`(E) WRITTEN AGREEMENTS- A foreign labor contractor may not violate the terms of any written agreements made with an employer relating to any contracting activity or worker protection under this subsection.CommentsClose CommentsPermalink
`(F) BONDING REQUIREMENT- The Secretary of Labor may require a foreign labor contractor to post a bond in an amount sufficient to ensure the protection of individuals recruited by the foreign labor contractor. The Secretary may consider the extent to which the foreign labor contractor has sufficient ties to the United States to adequately enforce this subsection.CommentsClose CommentsPermalink
`(i) Waiver of Rights Prohibited- An H-2C nonimmigrant may not be required to waive any rights or protections under this Act. Nothing under this subsection shall be construed to affect the interpretation of other laws.CommentsClose CommentsPermalink
`(j) No Threatening of Employees- It shall be a violation of this section for an employer who has filed an attestation with the Department of Labor as part of the petition process under this section to threaten the alien beneficiary of such a petition with the withdrawal of such a petition in retaliation for the beneficiary's exercise of a right protected by this Act.CommentsClose CommentsPermalink
`(k) Enforcement-CommentsClose CommentsPermalink
`(1) IN GENERAL- The Secretary of Labor shall promulgate regulations for the receipt, investigation, and disposition of complaints by an aggrieved person respecting a violation of this section.CommentsClose CommentsPermalink
`(2) FILING DEADLINE- No investigation or hearing shall be conducted on a complaint concerning a violation under this section unless the complaint was filed not later than 12 months after the date of such violation.CommentsClose CommentsPermalink
`(3) REASONABLE BASIS- The Secretary of Labor shall conduct an investigation under this subsection if there is reasonable basis to believe that a violation of this section has occurred. The process established under this subsection shall provide that, not later than 30 days after a complaint is filed, the Secretary shall determine if there is reasonable cause to find such a violation.CommentsClose CommentsPermalink
`(4) NOTICE AND HEARING-CommentsClose CommentsPermalink
`(A) IN GENERAL- Not later than 60 days after the Secretary of Labor makes a determination of reasonable basis under paragraph (3), the Secretary shall issue a notice to the interested parties and offer an opportunity for a hearing on the complaint, in accordance with
`(B) COMPLAINT- If the Secretary of Labor, after receiving a complaint under this subsection, does not offer the aggrieved person or organization an opportunity for a hearing under subparagraph (A), the Secretary shall notify the aggrieved person or organization of such determination and the aggrieved person or organization may seek a hearing on the complaint under procedures established by the Secretary which comply with the requirements of section 556.CommentsClose CommentsPermalink
`(C) HEARING DEADLINE- Not later than 60 days after the date of a hearing under this paragraph, the Secretary of Labor shall make a finding on the matter in accordance with paragraph (5).CommentsClose CommentsPermalink
`(5) Attorneys' FEES- A complainant who prevails with respect to a claim under this subsection shall be entitled to an award of reasonable attorneys' fees and costs.CommentsClose CommentsPermalink
`(6) POWER OF THE SECRETARY- The Secretary may bring an action in any court of competent jurisdiction--CommentsClose CommentsPermalink
`(A) to seek remedial action, including injunctive relief;CommentsClose CommentsPermalink
`(B) to recover the damages described in subsection (i); orCommentsClose CommentsPermalink
`(C) to ensure compliance with terms and conditions described in subsection (g).CommentsClose CommentsPermalink
`(7) SOLICITOR OF LABOR- Except as provided in
`(8) PROCEDURES IN ADDITION TO OTHER RIGHTS OF EMPLOYEES- The rights and remedies provided to workers under this section are in addition to any other contractual or statutory rights and remedies of the workers, and are not intended to alter or affect such rights and remedies.CommentsClose CommentsPermalink
`(l) Penalties-CommentsClose CommentsPermalink
`(1) IN GENERAL- If, after notice and an opportunity for a hearing, the Secretary of Labor finds a violation of subsection (b), (e), (f), or (g), the Secretary may impose administrative remedies and penalties, including--CommentsClose CommentsPermalink
`(A) back wages;CommentsClose CommentsPermalink
`(B) benefits; andCommentsClose CommentsPermalink
`(C) civil monetary penalties.CommentsClose CommentsPermalink
`(2) CIVIL PENALTIES- The Secretary of Labor may impose, as a civil penalty--CommentsClose CommentsPermalink
`(A) for a violation of any of subsections (b) through (g)--CommentsClose CommentsPermalink
`(i) a fine in an amount not to exceed $2,000 per violation per affected worker;CommentsClose CommentsPermalink
`(ii) if the violation was willful, a fine in an amount not to exceed $5,000 per violation per affected worker;CommentsClose CommentsPermalink
`(iii) if the violation was willful and if in the course of such violation a United States worker was harmed, a fine in an amount not to exceed $25,000 per violation per affected worker; andCommentsClose CommentsPermalink
`(B) for a violation of subsection (h)--CommentsClose CommentsPermalink
`(i) a fine in an amount not less than $500 and not more than $4,000 per violation per affected worker;CommentsClose CommentsPermalink
`(ii) if the violation was willful, a fine in an amount not less than $2,000 and not more than $5,000 per violation per affected worker; andCommentsClose CommentsPermalink
`(iii) if the violation was willful and if in the course of such violation a United States worker was harmed, a fine in an amount not less than $6,000 and not more than $35,000 per violation per affected worker.CommentsClose CommentsPermalink
`(3) USE OF CIVIL PENALTIES- All penalties collected under this subsection shall be deposited in the Treasury in accordance with section 286(w).CommentsClose CommentsPermalink
`(4) CRIMINAL PENALTIES- If a willful and knowing violation of subsection (g) causes extreme physical or financial harm to an individual, the person in violation of such subsection may be imprisoned for not more than 6 months, fined in an amount not more than $35,000, or both.CommentsClose CommentsPermalink
`(m) Increased Penalties- Any employer of an H-2C nonimmigrant that is subject to a fine under section 16 of the Fair Labor Standards Act of 1938 (
`(n) Definitions- In this section and in sections 218A, 218C, and 218D:CommentsClose CommentsPermalink
`(1) AGGRIEVED PERSON- term `aggrieved person' means a person adversely affected by an alleged violation of this section, including--CommentsClose CommentsPermalink
`(A) a worker whose job, wages, or working conditions are adversely affected by the violation; andCommentsClose CommentsPermalink
`(B) a representative for workers whose jobs, wages, or working conditions are adversely affected by the violation who brings a complaint on behalf of such worker.CommentsClose CommentsPermalink
`(2) AREA OF EMPLOYMENT- The terms `area of employment' and `area of intended employment' mean the area within normal commuting distance of the worksite or physical location at which the work of the H-2C worker is or will be performed. If such worksite or location is within a Metropolitan Statistical Area, any place within such area is deemed to be within the area of employment.CommentsClose CommentsPermalink
`(3) ELIGIBLE INDIVIDUAL- The term `eligible individual' means, with respect to employment, an individual who is not an unauthorized alien (as defined in section 274A) with respect to that employment.CommentsClose CommentsPermalink
`(4) EMPLOY; EMPLOYEE; EMPLOYER- The terms `employ', `employee', and `employer' have the meanings given such terms in section 3 of the Fair Labor Standards Act of 1938 (
`(5) FOREIGN LABOR CONTRACTOR- The term `foreign labor contractor' means any person who for any compensation or other valuable consideration paid or promised to be paid, performs any foreign labor contracting activity.CommentsClose CommentsPermalink
`(6) FOREIGN LABOR CONTRACTING ACTIVITY- The term `foreign labor contracting activity' means recruiting, soliciting, hiring, employing, or furnishing, an individual who resides outside of the United States for employment in the United States as a nonimmigrant alien described in section 101(a)(15)(H)(ii)(c).CommentsClose CommentsPermalink
`(7) H-2C NONIMMIGRANT- The term `H-2C nonimmigrant' means a nonimmigrant described in section 101(a)(15)(H)(ii)(c).CommentsClose CommentsPermalink
`(8) SEPARATION FROM EMPLOYMENT- The term `separation from employment' means the worker's loss of employment, other than through a discharge for inadequate performance, violation of workplace rules, cause, voluntary departure, voluntary retirement, or the expiration of a grant or contract. The term does not include any situation in which the worker is offered, as an alternative to such loss of employment, a similar employment opportunity with the same employer at equivalent or higher compensation and benefits than the position from which the employee was discharged, regardless of whether the employee accepts the offer. Nothing in this paragraph shall limit an employee's rights under a collective bargaining agreement or other employment contract.CommentsClose CommentsPermalink
`(9) UNITED STATES WORKER- The term `United States worker' means an employee who is--CommentsClose CommentsPermalink
`(A) a citizen or national of the United States; orCommentsClose CommentsPermalink
`(B) an alien who is--CommentsClose CommentsPermalink
`(i) lawfully admitted for permanent residence;CommentsClose CommentsPermalink
`(ii) admitted as a refugee under section 207;CommentsClose CommentsPermalink
`(iii) granted asylum under section 208; orCommentsClose CommentsPermalink
`(iv) otherwise authorized, under this Act or by the Secretary of Homeland Security, to be employed in the United States.'.CommentsClose CommentsPermalink
(b) Clerical Amendment- The table of contents is amended by inserting after the item relating to section 218A, as added by section 402, the following:CommentsClose CommentsPermalink
`Sec. 218B. Employer obligations.'.CommentsClose CommentsPermalink
SEC. 404. ALIEN EMPLOYMENT MANAGEMENT SYSTEM.
(a) In General- Title II (
`SEC. 218C. ALIEN EMPLOYMENT MANAGEMENT SYSTEM.
`(a) Establishment- The Secretary of Homeland Security, in consultation with the Secretary of Labor, the Secretary of State, and the Commissioner of Social Security, shall develop and implement a program (referred to in this section as the `alien employment management system') to manage and track the employment of aliens described in sections 218A and 218D.CommentsClose CommentsPermalink
`(b) Requirements- The alien employment management system shall--CommentsClose CommentsPermalink
`(1) collect sufficient information from employers to enable the Secretary of Homeland Security to determine--CommentsClose CommentsPermalink
`(A) if the nonimmigrant is employed;CommentsClose CommentsPermalink
`(B) which employers have hired an H-2C nonimmigrant;CommentsClose CommentsPermalink
`(C) the number of H-2C nonimmigrants that an employer is authorized to hire and is currently employing;CommentsClose CommentsPermalink
`(D) the occupation, industry, and length of time that an H-2C nonimmigrant has been employed in the United States;CommentsClose CommentsPermalink
`(2) allow employers to request approval of multiple H-2C nonimmigrant workers; andCommentsClose CommentsPermalink
`(3) permit employers to submit applications under this section in an electronic form.'.CommentsClose CommentsPermalink
(b) Clerical Amendment- The table of contents for the Immigration and Nationality Act (
`Sec. 218C. Alien employment management system.'.CommentsClose CommentsPermalink
SEC. 405. RECRUITMENT OF UNITED STATES WORKERS.
(a) Electronic Job Registry- The Secretary of Labor shall establish a publicly accessible Web page on the Internet website of the Department of Labor that provides a single Internet link to each State workforce agency's statewide electronic registry of jobs available throughout the United States to United States workers.CommentsClose CommentsPermalink
(b) Recruitment of United States Workers-CommentsClose CommentsPermalink
(1) POSTING- An employer shall attest that the employer has posted an employment opportunity at a prevailing wage level (as described in section 218B(b)(2)(C) of the Immigration and Nationality Act).CommentsClose CommentsPermalink
(2) RECORDS- An employer shall maintain records for not less than 1 year after the date on which an H-2C nonimmigrant is hired that describe the reasons for not hiring any of the United States workers who may have applied for such position.CommentsClose CommentsPermalink
(c) Oversight and Maintenance of Records- The Secretary of Labor shall promulgate regulations regarding the maintenance of electronic job registry records for the purpose of audit or investigation.CommentsClose CommentsPermalink
(d) Access to Electronic Job Registry- The Secretary of Labor shall ensure that job opportunities advertised on an electronic job registry established under this section are accessible--CommentsClose CommentsPermalink
(1) by the State workforce agencies, which may further disseminate job opportunity information to other interested parties; andCommentsClose CommentsPermalink
(2) through the Internet, for access by workers, employers, labor organizations, and other interested parties.CommentsClose CommentsPermalink
SEC. 406. NUMERICAL LIMITATIONS.
Section 214(g)(1) (
(1) by striking `(beginning with fiscal year 1992)';CommentsClose CommentsPermalink
(2) in subparagraph (B), by striking the period at the end and inserting `; and'; andCommentsClose CommentsPermalink
(3) by adding at the end the following:CommentsClose CommentsPermalink
`(C) under section 101(a)(15)(H)(ii)(c), may not exceed--CommentsClose CommentsPermalink
`(i) 400,000 for the first fiscal year in which the program is implemented;CommentsClose CommentsPermalink
`(ii) in any subsequent fiscal year, subject to clause (iii)--CommentsClose CommentsPermalink
`(I) if the total number of visas allocated for that fiscal year are allotted within the first quarter of that fiscal year, then an additional 20 percent of the allocated number shall be made available immediately and the allocated amount for the following fiscal year shall increase by 20 percent of the original allocated amount in the prior fiscal year;CommentsClose CommentsPermalink
`(II) if the total number of visas allocated for that fiscal year are allotted within the second quarter of that fiscal year, then an additional 15 percent of the allocated number shall be made available immediately and the allocated amount for the following fiscal year shall increase by 15 percent of the original allocated amount in the prior fiscal year;CommentsClose CommentsPermalink
`(III) if the total number of visas allocated for that fiscal year are allotted within the third quarter of that fiscal year, then an additional 10 percent of the allocated number shall be made available immediately and the allocated amount for the following fiscal year shall increase by 10 percent of the original allocated amount in the prior fiscal year;CommentsClose CommentsPermalink
`(IV) if the total number of visas allocated for that fiscal year are allotted within the last quarter of that fiscal year, the allocated amount for the following fiscal year shall increase by 10 percent of the original allocated amount in the prior fiscal year; andCommentsClose CommentsPermalink
`(V) with the exception of the first subsequent fiscal year to the fiscal year in which the program is implemented, if fewer visas were allotted the previous fiscal year than the number of visas allocated for that year and the reason was not due to processing delays or delays in promulgating regulations, then the allocated amount for the following fiscal year shall decrease by 10 percent of the allocated amount in the prior fiscal year; andCommentsClose CommentsPermalink
`(iii) 600,000 for any fiscal year.'.CommentsClose CommentsPermalink
SEC. 407. ADJUSTMENT TO LAWFUL PERMANENT RESIDENT STATUS.
Section 245 of the Immigration and Nationality Act (
`(n)(1) For purposes of adjustment of status under subsection (a), employment-based immigrant visas shall be made available to an alien having nonimmigrant status described in section 101(a)(15)(H)(ii)(c) upon the filing of a petition for such a visa--CommentsClose CommentsPermalink
`(A) by the alien's employer; orCommentsClose CommentsPermalink
`(B) by the alien, if the alien has been employed as an H-2C nonimmigrant in the United States for a cumulative total of 5 years.CommentsClose CommentsPermalink
`(2) An alien applying for adjustment of status under paragraph (1)(B) shall--CommentsClose CommentsPermalink
`(A) pay an application fee of $500 which shall be credited to the State Impact Assistance Account established under section 286(x), in addition to the fee established by the Secretary of Homeland Security to process an application for adjustment of status;CommentsClose CommentsPermalink
`(B) be physically present in the United States;CommentsClose CommentsPermalink
`(C) establish evidence of employment; andCommentsClose CommentsPermalink
`(D)(i) meet the requirements under section 312; orCommentsClose CommentsPermalink
`(ii) be satisfactorily pursuing a course of study to achieve such an understanding of English and knowledge and understanding of the history and government of the United States.CommentsClose CommentsPermalink
`(3)(A) Notwithstanding any other provision of this section, an alien described in paragraph (1)(B) shall be considered, at the time of obtaining the status of an alien lawfully admitted for permanent residence, to have obtained such status on a conditional basis for a period not to exceed two years subject to the provisions of this subsection.CommentsClose CommentsPermalink
`(B) In order for the conditional basis established under this subsection for an alien to be removed, the alien shall submit to the Secretary, during the 90-day period before the second anniversary of the alien's obtaining the status of lawful admission for permanent residence, a petition which requests the removal of such conditional basis and states, under penalty of perjury, the facts and information described in subparagraph (G).CommentsClose CommentsPermalink
`(C) In the case of an alien with permanent resident status on a conditional basis under this subsection, if no petition is filed with respect to the alien in accordance with the provisions of this paragraph, status shall be terminated.CommentsClose CommentsPermalink
`(D) In any removal proceeding with respect to an alien whose permanent resident status is terminated under subparagraph (B), the burden of proof shall be on the alien to establish compliance with the conditions of this subsection.CommentsClose CommentsPermalink
`(E) If the Secretary determines that such facts and information are true, the Secretary shall so notify the parties involved and shall remove the conditional basis of the party effective as of the second anniversary of the alien's obtaining the status of lawful admission for permanent residenceCommentsClose CommentsPermalink
`(F) If the Secretary determines that such facts and information are not true, the Secretary shall so notify the parties involved and, shall terminate the permanent resident status of an alien as of the date of the determination.CommentsClose CommentsPermalink
`(G) Each petition under this paragraph for removal of conditional status shall contain the following facts and information:CommentsClose CommentsPermalink
`(i) Evidence of continued employment.CommentsClose CommentsPermalink
`(ii) Evidence of employment in an area that is not a high unemployment area described in section 218B.CommentsClose CommentsPermalink
`(iii) Evidence of compliance with--CommentsClose CommentsPermalink
`(I) section 602(g) of the STRIVE Act of 2007, regarding payment of income taxesCommentsClose CommentsPermalink
`(II) section 602(h) of such Act, regarding basic citizenship skillsCommentsClose CommentsPermalink
`(III) section 602(i) of such Act, regarding security and law enforcement background checks;CommentsClose CommentsPermalink
`(IV) section 602(j) of such Act, regarding military selective service; andCommentsClose CommentsPermalink
`(V) section 602(k) of such Act, regarding treatment of conditional nonimmigrant dependents.CommentsClose CommentsPermalink
`(4) An alien shall demonstrate evidence of employment in accordance with section 602(a)(3) of the STRIVE Act. It is the sense of the Congress that the requirement under this paragraph should be interpreted and implemented in a manner that recognizes and takes into account the difficulties encountered by aliens in obtaining evidence of employment. Such alien shall prove, by a preponderance of the evidence, that the alien has satisfied the requirements of this subsection. An alien may meet such burden of proof by producing sufficient evidence to demonstrate such employment as a matter of reasonable inference.CommentsClose CommentsPermalink
`(5) An alien who demonstrates that the alien meets the requirements of section 312 may be considered to have satisfied the requirements of that section for purposes of becoming naturalized as a citizen of the United States under title III.CommentsClose CommentsPermalink
`(6) Filing a petition under paragraph (1) on behalf of an alien or otherwise seeking permanent residence in the United States for such alien shall not constitute evidence of the alien's ineligibility for nonimmigrant status under section 101(a)(15)(H)(ii)(c).CommentsClose CommentsPermalink
`(7) The limitation regarding the period of authorized stay under section 218D(9)(d) shall not apply to an H-2C nonimmigrant if--CommentsClose CommentsPermalink
`(A) a labor certification petition filed under section 203(b) on behalf of such alien is pending;CommentsClose CommentsPermalink
`(B) an immigrant visa petition filed under section 204(b) on behalf of such alien is pending; orCommentsClose CommentsPermalink
`(C) an application for adjustment of status under paragraph (1)(B) is pending.CommentsClose CommentsPermalink
`(8) The Secretary of Homeland Security shall extend the stay of an alien who qualifies for an exemption under paragraph (6) in 1-year increments until a final decision is made on the alien's lawful permanent residence.CommentsClose CommentsPermalink
`(9) Nothing in this subsection shall be construed to prevent an alien having nonimmigrant status described in section 101(a)(15)(H)(ii)(c) from filing an application for adjustment of status under this section in accordance with any other provision of law.'.CommentsClose CommentsPermalink
SEC. 408. REQUIREMENTS FOR PARTICIPATING COUNTRIES.
(a) In General- The Secretary of State, in cooperation with the Secretary and the Attorney General, shall negotiate with each home country of aliens described in section 101(a)(15)(H)(ii)(c) of the Immigration and Nationality Act, as added by section 401, to enter into a bilateral agreement with the United States that conforms to the requirements under subsection (b).CommentsClose CommentsPermalink
(b) Requirements of Bilateral Agreements- Each agreement negotiated under subsection (a) shall require the participating home country to--CommentsClose CommentsPermalink
(1) accept the return of nationals who are ordered removed from the United States within 3 days of such removal;CommentsClose CommentsPermalink
(2) cooperate with the United States Government to--CommentsClose CommentsPermalink
(A) identify, track, and reduce gang membership, violence, and human trafficking and smuggling; andCommentsClose CommentsPermalink
(B) control illegal immigration;CommentsClose CommentsPermalink
(3) provide the United States Government with--CommentsClose CommentsPermalink
(A) passport information and criminal records of aliens who are seeking admission to, or are present in, the United States; andCommentsClose CommentsPermalink
(B) admission and entry data to facilitate United States entry-exit data systems;CommentsClose CommentsPermalink
(4) educate nationals of the home country regarding United States temporary worker programs to ensure that such nationals are not exploited; andCommentsClose CommentsPermalink
(5) evaluate means to provide housing incentives in the alien's home country for returning workers.CommentsClose CommentsPermalink
SEC. 409. COMPLIANCE INVESTIGATORS.
The Secretary of Labor, subject to the availability of appropriations for such purpose, shall annually increase, by not less than 2,000, the number of positions for compliance investigators dedicated to enforcing compliance with this title, and the amendments made by this title.CommentsClose CommentsPermalink
SEC. 410. STANDING COMMISSION ON IMMIGRATION AND LABOR MARKETS.
(a) Establishment of Commission-CommentsClose CommentsPermalink
(1) IN GENERAL- There is established an independent Federal agency within the Executive Branch to be known as the Standing Commission on Immigration and Labor Markets (referred to in this section as the `Commission').CommentsClose CommentsPermalink
(2) PURPOSES- The purposes of the Commission are--CommentsClose CommentsPermalink
(A) to study the new worker program established under this title to admit H-2C nonimmigrants (referred to in this section as the `Program');CommentsClose CommentsPermalink
(B) to make recommendations to the President and Congress with respect to the Program.CommentsClose CommentsPermalink
(3) MEMBERSHIP- The Commission shall be composed of--CommentsClose CommentsPermalink
(A) 6 voting members--CommentsClose CommentsPermalink
(i) who shall be appointed by the President, with the advice and consent of the Senate, not later than 6 months after the establishment of the Program;CommentsClose CommentsPermalink
(ii) who shall serve for 3-year staggered terms, which can be extended for 1 additional 3-year term;CommentsClose CommentsPermalink
(iii) who shall select a Chair from among the voting members to serve a 2-year term, which can be extended for 1 additional 2-year term;CommentsClose CommentsPermalink
(iv) who shall have expertise in economics, demography, labor, business, or immigration or other pertinent qualifications or experience;CommentsClose CommentsPermalink
(v) who may not be an employee of the Federal Government or of any State or local government; andCommentsClose CommentsPermalink
(vi) not more than 3 of whom may be members of the same political party.CommentsClose CommentsPermalink
(B) 7 ex-officio members, including--CommentsClose CommentsPermalink
(i) the Secretary;CommentsClose CommentsPermalink
(ii) the Secretary of State;CommentsClose CommentsPermalink
(iii) the Attorney General;CommentsClose CommentsPermalink
(iv) the Secretary of Labor;CommentsClose CommentsPermalink
(v) the Secretary of Commerce;CommentsClose CommentsPermalink
(vi) the Secretary of Health and Human Services; andCommentsClose CommentsPermalink
(vii) the Secretary of Agriculture.CommentsClose CommentsPermalink
(4) VACANCIES- Any vacancy in the Commission shall be filled in the same manner as the original appointment.CommentsClose CommentsPermalink
(5) MEETINGS-CommentsClose CommentsPermalink
(A) INITIAL MEETING- The Commission shall meet and begin carrying out the duties described in subsection (b) as soon as practicable.CommentsClose CommentsPermalink
(B) SUBSEQUENT MEETINGS- After its initial meeting, the Commission shall meet upon the call of the Chair or a majority of its members.CommentsClose CommentsPermalink
(C) QUORUM- Four voting members of the Commission shall constitute a quorum.CommentsClose CommentsPermalink
(b) Duties of the Commission- The Commission shall--CommentsClose CommentsPermalink
(1) examine and analyze--CommentsClose CommentsPermalink
(A) the development and implementation of the Program;CommentsClose CommentsPermalink
(B) the criteria for the admission of temporary workers under the Program;CommentsClose CommentsPermalink
(C) the formula for determining the annual numerical limitations of the Program;CommentsClose CommentsPermalink
(D) the impact of the Program on immigration;CommentsClose CommentsPermalink
(E) the impact of the Program on the economy, unemployment rate, wages, workforce, and businesses of the United States; andCommentsClose CommentsPermalink
(F) any other matters regarding the Program that the Commission considers appropriate;CommentsClose CommentsPermalink
(2) not later than February 1, 2009, and every 2 years thereafter, submit a report to the President and Congress that--CommentsClose CommentsPermalink
(A) contains the findings of the analysis conducted under paragraph (1);CommentsClose CommentsPermalink
(B) makes recommendations regarding the necessary adjustments to the numerical limits of the Program in section 214(g)(1)(C) of the Immigration and Nationality Act, as added by section 406, to meet the labor market needs of the United States; andCommentsClose CommentsPermalink
(C) makes other recommendations regarding the Program, including legislative or administrative action, that the Commission determines to be in the national interest.CommentsClose CommentsPermalink
(3) upon receiving a request from Congress, examine, analyze, and report findings or recommendations regarding any other employment-based immigration and visa program.CommentsClose CommentsPermalink
(c) Information and Assistance From Federal Agencies-CommentsClose CommentsPermalink
(1) INFORMATION- The head of any Federal department or agency that receives a request from the Commission for information, including suggestions, estimates, and statistics, as the Commission considers necessary to carry out the provisions of this section, shall furnish such information to the Commission, to the extent allowed by law.CommentsClose CommentsPermalink
(2) ASSISTANCE-CommentsClose CommentsPermalink
(A) GENERAL SERVICES ADMINISTRATION- The Administrator of General Services shall, on a reimbursable basis, provide the Commission with administrative support and other services for the performance of the Commission's functions.CommentsClose CommentsPermalink
(B) OTHER FEDERAL AGENCIES- The departments and agencies of the United States may provide the Commission with such services, funds, facilities, staff, and other support services as the heads of such departments and agencies determine advisable and authorized by law.CommentsClose CommentsPermalink
(d) Personnel Matters-CommentsClose CommentsPermalink
(1) STAFF-CommentsClose CommentsPermalink
(A) APPOINTMENT AND COMPENSATION- The Chair, in accordance with rules agreed upon by the Commission, may appoint and fix the compensation of a staff director and such other personnel as may be necessary to enable the Commission to carry out its functions.CommentsClose CommentsPermalink
(B) FEDERAL EMPLOYEES-CommentsClose CommentsPermalink
(i) IN GENERAL- Except as provided under clause (ii), the executive director and any personnel of the Commission who are employees shall be considered to be employees under
(ii) COMMISSION MEMBERS - Clause (i) shall not apply to members of the Commission.CommentsClose CommentsPermalink
(2) DETAILEES- Any employee of the Federal Government may be detailed to the Commission without reimbursement from the Commission. Such detailee shall retain the rights, status, and privileges of his or her regular employment without interruption.CommentsClose CommentsPermalink
(3) CONSULTANT SERVICES- The Commission may procure the services of experts and consultants in accordance with
(e) Compensation and Travel Expenses-CommentsClose CommentsPermalink
(1) COMPENSATION- Each voting member of the Commission may be compensated at a rate not to exceed the daily equivalent of the annual rate of basic pay in effect for a position at level IV of the Executive Schedule under
(2) TRAVEL EXPENSES- Members of the Commission shall be allowed travel expenses, including per diem in lieu of subsistence, in the same manner as persons employed intermittently in the Government service are allowed expenses under
(f) Determination of New Levels of Program Visas- The numeric levels for visas under the Program shall be set automatically for the first fiscal year beginning after the report is submitted under subsection (b)(2) based on the numeric levels determined in the most recent fiscal year, as adjusted by section 214(g)(1)(C) of the Immigration and Nationality Act, unless Congress enacts legislation before September 30, 2009, that--CommentsClose CommentsPermalink
(1) establishes the baseline numeric levels of Program visas for such fiscal year; andCommentsClose CommentsPermalink
(2) makes amendments, as necessary, to such section 214(g)(1)(C).CommentsClose CommentsPermalink
(g) Funding- Fees and fines deposited into the New Worker and Conditional Nonimmigrants Fee Account under section 286(w)(3)(B) of the Immigration and Nationality Act may be used by the Commission to carry out its duties under this section.CommentsClose CommentsPermalink
SEC. 411. ADMISSION OF NONIMMIGRANTS.
(a) Presumption of Nonimmigrant Status- Section 214(b) (
(b) Evidence To Abandon Foreign Residence- Section 214(h) (
SEC. 412. AGENCY REPRESENTATION AND COORDINATION.
Section 274A(e) (
(1) in paragraph (2)--CommentsClose CommentsPermalink
(A) in subparagraph (A), by striking the comma at the end and inserting a semicolon;CommentsClose CommentsPermalink
(B) in subparagraph (B), by striking `, and' and inserting a semicolon;CommentsClose CommentsPermalink
(C) in subparagraph (C), by striking `paragraph (2).' And inserting `paragraph (1); and'; andCommentsClose CommentsPermalink
(D) by inserting after subparagraph (C) the following:CommentsClose CommentsPermalink
`(D) United States Immigration and Customs Enforcement officials may not misrepresent to employees or employers that they are a member of any agency or organization that provides domestic violence services, enforces health and safety law or other labor laws, provides health care services, or any other services intended to protect life and safety.'; andCommentsClose CommentsPermalink
(2) by adding at the end the following:CommentsClose CommentsPermalink
`(10) COORDINATION- An investigation under paragraph (1)(C) shall be coordinated with the appropriate regional office of the National Labor Relations Board, the Department of Labor, and all relevant State and local agencies that are charged with enforcing workplace standards. Evidence gathered from such agencies shall be considered in determining whether the entity under investigation has violated subsection (a).'.CommentsClose CommentsPermalink
SEC. 413. SENSE OF CONGRESS REGARDING PERSONAL PROTECTIVE EQUIPMENT.
(a) In General- It is the sense of the Congress that the Secretary of Labor, not later than 90 days after the date of the enactment of this Act, should amend section 1910.132(a) of title 29, Code of Federal Regulations, to require employers to provide personal protective equipment to employees at no cost. Any future regulation promulgated under such section should require such equipment be provided to employees at no cost.CommentsClose CommentsPermalink
(b) Defined Term- In this section, the term `personal protective equipment' has the meaning given the term in section 1910.132(a) of title 29, Code of Federal Regulations (or any corresponding similar regulation or ruling).CommentsClose CommentsPermalink
SEC. 414. RULEMAKING; EFFECTIVE DATE.
(a) Rulemaking- Not later than 6 months after the date of enactment of the STRIVE Act, the Secretary of Labor shall promulgate regulations, in accordance with the notice and comment provisions of
(b) Effective Date- The amendments made by sections 402, 403, and 404 shall take effect on the date that is 1 year after the date of the enactment of this Act with regard to aliens, who, on such effective date, are in the foreign country where they maintain residence.CommentsClose CommentsPermalink
SEC. 415. AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be appropriated such sums as may be necessary to carry out this title.CommentsClose CommentsPermalink
TITLE V--VISA REFORMS
Subtitle A--Backlog Reduction
SEC. 501. ELIMINATION OF EXISTING BACKLOGS.
(a) Family-Sponsored Immigrants- Section 201(c) (
`(c) Worldwide Level of Family-Sponsored Immigrants- The worldwide level of family-sponsored immigrants under this subsection for a fiscal year is equal to the sum of--CommentsClose CommentsPermalink
`(1) 480,000;CommentsClose CommentsPermalink
`(2) the difference between the maximum number of visas authorized to be issued under this subsection during the previous fiscal year and the number of visas issued during the previous fiscal year;CommentsClose CommentsPermalink
`(3) the difference between--CommentsClose CommentsPermalink
`(A) the maximum number of visas authorized to be issued under this subsection during fiscal years 2001 through 2005 minus the number of visas issued under this subsection during those fiscal years; andCommentsClose CommentsPermalink
`(B) the number of visas calculated under subparagraph (A) that were issued after fiscal year 2005.'.CommentsClose CommentsPermalink
(b) Employment-Based Immigrants- Section 201(d) (
`(d) Worldwide Level of Employment-Based Immigrants-CommentsClose CommentsPermalink
`(1) IN GENERAL- The worldwide level of employment-based immigrants under this subsection for a fiscal year is equal to the sum of--CommentsClose CommentsPermalink
`(A) 290,000;CommentsClose CommentsPermalink
`(B) the difference between the maximum number of visas authorized to be issued under this subsection during the previous fiscal year and the number of visas issued during the previous fiscal year; andCommentsClose CommentsPermalink
`(C) the difference between--CommentsClose CommentsPermalink
`(i) the maximum number of visas authorized to be issued under this subsection during fiscal years 2001 through 2005 and the number of visa numbers issued under this subsection during those fiscal years; andCommentsClose CommentsPermalink
`(ii) the number of visas calculated under clause (i) that were issued after fiscal year 2005.CommentsClose CommentsPermalink
`(2) VISAS FOR SPOUSES AND CHILDREN-CommentsClose CommentsPermalink
`(A) IN GENERAL- Except as provided in subparagraph (B), immigrant visas issued on or after October 1, 2004, to spouses and children of employment-based immigrants shall not be counted against the numerical limitation set forth in paragraph (1).CommentsClose CommentsPermalink
`(B) NUMERICAL LIMITATION- The total number of visas issued under paragraph (A) may not exceed 800,000 during any fiscal year.'.CommentsClose CommentsPermalink
(c) Exception to Nondiscrimination- Section 202(a)(1)(A) (
SEC. 502. INCREASING COUNTRY LIMITS AND EXEMPTING FAMILY-SPONSORED AND EMPLOYMENT-BASED IMMIGRANTS.
Section 202(a)(2) (
SEC. 503. ALLOCATION OF IMMIGRANT VISAS.
(a) Preference Allocation for Family-Sponsored Immigrants- Section 203(a) (
`(a) Preference Allocations for Family-Sponsored Immigrants- Aliens subject to the worldwide level set forth in section 201(c) for family-sponsored immigrants shall be allocated visas as follows:CommentsClose CommentsPermalink
`(1) UNMARRIED SONS AND DAUGHTERS OF CITIZENS- Qualified immigrants who are the unmarried sons or daughters of citizens of the United States shall be allocated visas in a quantity not to exceed the sum of--CommentsClose CommentsPermalink
`(A) 10 percent of such worldwide level; andCommentsClose CommentsPermalink
`(B) any visas not required for the class specified in paragraph (4).CommentsClose CommentsPermalink
`(2) SPOUSES AND UNMARRIED SONS AND DAUGHTERS OF PERMANENT RESIDENT ALIENS-CommentsClose CommentsPermalink
`(A) IN GENERAL- Visas in a quantity not to exceed 50 percent of such worldwide level plus any visas not required for the class specified in paragraph (1) shall be allocated to qualified immigrants who are--CommentsClose CommentsPermalink
`(i) the spouses or children of an alien lawfully admitted for permanent residence; orCommentsClose CommentsPermalink
`(ii) the unmarried sons or daughters of an alien lawfully admitted for permanent residence.CommentsClose CommentsPermalink
`(B) MINIMUM PERCENTAGE- Visas allocated to individuals described in subparagraph (A)(i) shall constitute not less than 77 percent of the visas allocated under this paragraph.CommentsClose CommentsPermalink
`(3) MARRIED SONS AND DAUGHTERS OF CITIZENS- Qualified immigrants who are the married sons and daughters of citizens of the United States shall be allocated visas in a quantity not to exceed the sum of--CommentsClose CommentsPermalink
`(A) 10 percent of such worldwide level; andCommentsClose CommentsPermalink
`(B) any visas not required for the classes specified in paragraphs (1) and (2).CommentsClose CommentsPermalink
`(4) BROTHERS AND SISTERS OF CITIZENS- Qualified immigrants who are the brothers or sisters of a citizen of the United States who is at least 21 years of age shall be allocated visas in a quantity not to exceed 30 percent of the worldwide level.'.CommentsClose CommentsPermalink
(b) Preference Allocation for Employment-Based Immigrants- Section 203(b) (
(1) in paragraph (1), by striking `28.6 percent' and inserting `15 percent';CommentsClose CommentsPermalink
(2) in paragraph (2)(A), by striking `28.6 percent' and inserting `15 percent';CommentsClose CommentsPermalink
(3) in paragraph (3)(A)--CommentsClose CommentsPermalink
(A) by striking `28.6 percent' and inserting `35 percent'; andCommentsClose CommentsPermalink
(B) by striking clause (iii);CommentsClose CommentsPermalink
(4) by striking paragraph (4);CommentsClose CommentsPermalink
(5) by redesignating paragraph (5) as paragraph (4);CommentsClose CommentsPermalink
(6) in paragraph (4)(A), as redesignated, by striking `7.1 percent' and inserting `5 percent';CommentsClose CommentsPermalink
(7) by inserting after paragraph (4), as redesignated, the following:CommentsClose CommentsPermalink
`(5) OTHER WORKERS-CommentsClose CommentsPermalink
`(A) IN GENERAL- Visas shall be made available, in a number not to exceed 30 percent of such worldwide level, plus any visa numbers not required for the classes specified in paragraphs (1) through (4), to qualified immigrants who are capable, at the time of petitioning for classification under this paragraph, of performing unskilled labor that is not of a temporary or seasonal nature, for which qualified workers are determined to be unavailable in the United States.CommentsClose CommentsPermalink
`(B) PRIORITY IN ALLOCATING VISAS- In allocating visas under subparagraph (A) for each of the fiscal years 2007 through 2017, the Secretary shall reserve 30 percent of such visas for qualified immigrants who were physically present in the United States before January 7, 2004.'; andCommentsClose CommentsPermalink
(8) by striking paragraph (6).CommentsClose CommentsPermalink
(c) Special Immigrants Not Subject to Numerical Limitations- Section 201(b)(1)(A) (
(d) Temporary Increase in Number of Iraqi and Afghan Translators Who May Be Provided Status as Special Immigrants- Section 1059(c)(1) of the National Defense Authorization Act for Fiscal Year 2006 (
`(A) 300 during each of the fiscal years 2007, 2008, and 2009; andCommentsClose CommentsPermalink
`(B) 50 during any subsequent fiscal year.'.CommentsClose CommentsPermalink
(e) Conforming Amendments-CommentsClose CommentsPermalink
(1) DEFINITION OF SPECIAL IMMIGRANT- Section 101(a)(27)(M) (
(2) REPEAL OF TEMPORARY REDUCTION IN WORKERS' VISAS- Section 203(e) of the Nicaraguan Adjustment and Central American Relief Act (
SEC. 504. NURSING SHORTAGE.
(a) Exception to Direct Numerical Limitations- Section 201(b)(1) (
`(F)(i) During the period beginning on the date of the enactment the STRIVE Act and ending on September 30, 2017, an alien--CommentsClose CommentsPermalink
`(I) who is otherwise described in section 203(b); andCommentsClose CommentsPermalink
`(II) who is seeking admission to the United States to perform labor in shortage occupations designated by the Secretary of Labor for blanket certification under section 212(a)(5)(A) due to the lack of sufficient United States workers able, willing, qualified, and available for such occupations and for which the employment of aliens will not adversely affect the terms and conditions of similarly employed United States workers.CommentsClose CommentsPermalink
`(ii) During the period described in clause (i), the spouse or dependents of an alien described in clause (i), if accompanying or following to join such alien.'.CommentsClose CommentsPermalink
(b) Exception to Nondiscrimination Requirements- Section 202(a)(1)(A) (
(c) Exception to Per Country Levels for Family-Sponsored and Employment-Based Immigrants- Section 202(a)(2) (
(d) Increasing the Domestic Supply of Nurses and Physical Therapists- Not later than January 1, 2007, the Secretary of Health and Human Services shall--CommentsClose CommentsPermalink
(1) submit to Congress a report on the source of newly licensed nurses and physical therapists in each State, which report shall--CommentsClose CommentsPermalink
(A) include the past 3 years for which data are available;CommentsClose CommentsPermalink
(B) provide separate data for each occupation and for each State;CommentsClose CommentsPermalink
(C) separately identify those receiving their initial license and those licensed by endorsement from another State;CommentsClose CommentsPermalink
(D) within those receiving their initial license in each year, identify the number who received their professional education in the United States and those who received such education outside the United States; andCommentsClose CommentsPermalink
(E) to the extent possible, identify, by State of residence and country of education, the number of nurses and physical therapists who were educated in any of the 5 countries (other than the United States) from which the most nurses and physical therapists arrived;CommentsClose CommentsPermalink
(F) identify the barriers to increasing the supply of nursing faculty, domestically trained nurses, and domestically trained physical therapists;CommentsClose CommentsPermalink
(G) recommend strategies to be followed by Federal and State governments that would be effective in removing such barriers, including strategies that address barriers to advancement to become registered nurses for other health care workers, such as home health aides and nurses assistants;CommentsClose CommentsPermalink
(H) recommend amendments to Federal legislation that would increase the supply of nursing faculty, domestically trained nurses, and domestically trained physical therapists;CommentsClose CommentsPermalink
(I) recommend Federal grants, loans, and other incentives that would provide increases in nurse educators, nurse training facilities, and other steps to increase the domestic education of new nurses and physical therapists;CommentsClose CommentsPermalink
(J) identify the effects of nurse emigration on the health care systems in their countries of origin; andCommentsClose CommentsPermalink
(K) recommend amendments to Federal law that would minimize the effects of health care shortages in the countries of origin from which immigrant nurses arrived;CommentsClose CommentsPermalink
(2) enter into a contract with the National Academy of Sciences Institute of Medicine to determine the level of Federal investment under titles VII and VIII of the Public Health Service Act necessary to eliminate the domestic nursing and physical therapist shortage not later than 7 years from the date on which the report is published; andCommentsClose CommentsPermalink
(3) collaborate with other agencies, as appropriate, in working with ministers of health or other appropriate officials of the 5 countries from which the most nurses and physical therapists arrived, to--CommentsClose CommentsPermalink
(A) address health worker shortages caused by emigration;CommentsClose CommentsPermalink
(B) ensure that there is sufficient human resource planning or other technical assistance needed to reduce further health worker shortages in such countries.CommentsClose CommentsPermalink
(e) Authority of Consular Officer To Grant Preference Status- Section 204(b) of the Immigration and Nationality Act (
(1) by striking `(b)' and inserting `(b)(1)'; andCommentsClose CommentsPermalink
(2) by adding at the end the following:CommentsClose CommentsPermalink
`(2) Notwithstanding paragraph (1), for individual beneficiaries outside of the United States seeking classification under section 203(b) who will perform labor in shortage occupations designated by the Secretary of Labor for blanket certification under section 212(a)(5)(A) as lacking sufficient United States workers able, willing, qualified, and available for such occupations and for which the employment of aliens will not adversely affect the terms and conditions of similarly employed United States workers, a consular officer, upon petition of the importing employer, shall have authority to determine eligibility if the officer determines that the facts stated in the petition are true and the alien is eligible for the preference. The consular officer shall also have authority to grant the preference status.'.CommentsClose CommentsPermalink
SEC. 505. EXPEDITED ADJUDICATION OF EMPLOYER PETITIONS FOR ALIENS OF EXTRAORDINARY ARTISTIC ABILITY.
Section 214(c) (
(1) by striking `Attorney General' each place it appears and inserting `Secretary of Homeland Security'; andCommentsClose CommentsPermalink
(2) in paragraph (6)(D)--CommentsClose CommentsPermalink
(A) by striking `Any person' and inserting `(i) Except as provided in clause (ii), any person'; andCommentsClose CommentsPermalink
(B) adding at the end the following:CommentsClose CommentsPermalink
`(ii) The Secretary of Homeland Security shall adjudicate each petition for an alien with extraordinary ability in the arts (as described in section 101(a)(15)(O)(i)), an alien accompanying such an alien (as described in clauses (ii) and (iii) of section 101(a)(15)(O)), or an alien described in section 101(a)(15)(P) not later than 30 days after--CommentsClose CommentsPermalink
`(I) the date on which the petitioner submits the petition with a written advisory opinion, letter of no objection, or request for a waiver; orCommentsClose CommentsPermalink
`(II) the date on which the 15-day period described in clause (i) has expired, if the petitioner has had an opportunity, as appropriate, to supply rebuttal evidence.CommentsClose CommentsPermalink
`(iii) If a petition described in clause (ii) is not adjudicated before the end of the 30-day period described in clause (ii) and the petitioner is a qualified nonprofit organization or an individual or entity petitioning primarily on behalf of a qualified nonprofit organization, the Secretary of Homeland Security shall provide the petitioner with the premium-processing services referred to in section 286(u), without a fee.'.CommentsClose CommentsPermalink
SEC. 506. POWERLINE WORKERS AND BOILERMAKERS.
Section 214(e) (
`(7) A citizen of Canada shall be admitted in the same manner and under the same authority as a citizen of Canada described in paragraph (2) if the citizen--CommentsClose CommentsPermalink
`(A) is a powerline worker or boilermaker;CommentsClose CommentsPermalink
`(B) has received significant training; andCommentsClose CommentsPermalink
`(C) seeks admission to the United States to perform powerline repair and maintenance services or boilermaker repair or maintenance services.'.CommentsClose CommentsPermalink
SEC. 507. H-1B VISAS.
(a) In General- Section 214(g)(5) (
(1) in subparagraph (B)--CommentsClose CommentsPermalink
(A) by striking `nonprofit research' and inserting `nonprofit';CommentsClose CommentsPermalink
(B) by inserting `Federal, State, or local' before `governmental'; andCommentsClose CommentsPermalink
(C) by striking `or' at the end;CommentsClose CommentsPermalink
(2) in subparagraph (C)--CommentsClose CommentsPermalink
(A) by striking `until the number of aliens who are exempted from such numerical limitation during such fiscal year exceeds 20,000.' and inserting `or has been awarded a medical specialty certification based on post-doctoral training and experience in the United States.'; andCommentsClose CommentsPermalink
(B) by striking the period at the end and inserting `; or'; andCommentsClose CommentsPermalink
(3) by adding at the end the following:CommentsClose CommentsPermalink
`(D) has earned a master's or higher degree in science, technology, engineering, or mathematics from an institution of higher education outside of the United States.'.CommentsClose CommentsPermalink
(b) Applicability- The amendments made by subsection (a) shall apply to any petition or visa application pending on the date of enactment of this Act and any petition or visa application filed on or after such date.CommentsClose CommentsPermalink
(c) Market-Based Visa Limits- Section 214(g) (
(1) in paragraph (1)--CommentsClose CommentsPermalink
(A) in the matter preceding subparagraph (A), by striking `(beginning with fiscal year 1992)'; andCommentsClose CommentsPermalink
(B) by amending subparagraph (A) to read as follows:CommentsClose CommentsPermalink
`(A) under section 101(a)(15)(H)(i)(b), may not exceed--CommentsClose CommentsPermalink
`(i) 115,000 in fiscal year 2007; andCommentsClose CommentsPermalink
`(ii) the sum of 115,000 and the number calculated under paragraph (9) in fiscal year 2008 and each subsequent fiscal year;'.CommentsClose CommentsPermalink
(2) in paragraph (8)--CommentsClose CommentsPermalink
(A) in subparagraph (B), by striking clause (iv); andCommentsClose CommentsPermalink
(B) by striking subparagraph (D);CommentsClose CommentsPermalink
(3) by redesignating paragraphs (9), (10), and (11) as paragraphs (10), (11), and (12), respectively; andCommentsClose CommentsPermalink
(4) by inserting after paragraph (8) the following:CommentsClose CommentsPermalink
`(9) If the numerical limitation in paragraph (1)(A)--CommentsClose CommentsPermalink
`(A) is reached during a given fiscal year, the numerical limitation under paragraph (1)(A) for the subsequent fiscal year shall be equal to 120 percent of the numerical limitation of the given fiscal year, not to exceed 180,000; orCommentsClose CommentsPermalink
`(B) is not reached during a given fiscal year, the numerical limitation under paragraph (1)(A) for the subsequent fiscal year shall be equal to the numerical limitation of the given fiscal year.'.CommentsClose CommentsPermalink
SEC. 508. UNITED STATES EDUCATED IMMIGRANTS.
(a) Exemption From Numerical Limitations-CommentsClose CommentsPermalink
(1) IN GENERAL- Section 201(b)(1) (
`(G) Aliens who have earned a master's or higher degree from an accredited university in the United States.CommentsClose CommentsPermalink
`(H) Aliens who have been awarded medical specialty certification based on post-doctoral training and experience in the United States preceding their application for an immigrant visa under section 203(b).CommentsClose CommentsPermalink
`(I) Aliens who will perform labor in shortage occupations designated by the Secretary of Labor for blanket certification under section 212(a)(5)(A) as lacking sufficient United States workers able, willing, qualified, and available for such occupations and for which the employment of aliens will not adversely affect the terms and conditions of similarly employed United States workers.CommentsClose CommentsPermalink
`(J) Aliens who have earned a master's degree or higher in science, technology, engineering, or math and have been working in a related field in the United States in a nonimmigrant status during the 3-year period preceding their application for an immigrant visa under section 203(b).CommentsClose CommentsPermalink
`(K) Aliens described in subparagraph (A) or (B) of section 203(b)(1) or who have received a national interest waiver under section 203(b)(2)(B).CommentsClose CommentsPermalink
`(L) The spouse and minor children of an alien described in subparagraph (G), (H), (I), (J), or (K).'.CommentsClose CommentsPermalink
(2) APPLICABILITY- The amendment made by paragraph (1) shall apply to any visa application--CommentsClose CommentsPermalink
(A) pending on the date of the enactment of this Act; orCommentsClose CommentsPermalink
(B) filed on or after such date of enactment.CommentsClose CommentsPermalink
(b) Labor Certifications- Section 212(a)(5)(A)(ii) (
(1) in subclause (I), by striking `, or' and inserting a semicolon;CommentsClose CommentsPermalink
(2) in subclause (II), by striking the period at the end and inserting `; or'; andCommentsClose CommentsPermalink
(3) by adding at the end the following:CommentsClose CommentsPermalink
`(III) is a member of the professions and has a master's degree or higher from an accredited university in the United States or has been awarded medical specialty certification based on post-doctoral training and experience in the United States.'.CommentsClose CommentsPermalink
(c) Attestation by Healthcare Workers-CommentsClose CommentsPermalink
(1) REQUIREMENT FOR ATTESTATION- Section 212(a)(5) (
`(E) HEALTHCARE WORKERS WITH OTHER OBLIGATIONS-CommentsClose CommentsPermalink
`(i) IN GENERAL- An alien who seeks to enter the United States for the purpose of performing labor as a physician or other healthcare worker is inadmissible unless the alien submits to the Secretary of Homeland Security or the Secretary of State, as appropriate, an attestation that the alien is not seeking to enter the United States for such purpose during any period in which the alien has an outstanding obligation to the government of the alien's country of origin or the alien's country of residence.CommentsClose CommentsPermalink
`(ii) OBLIGATION DEFINED- In this subparagraph, the term `obligation' means an obligation incurred as part of a valid, voluntary individual agreement in which the alien received financial assistance to defray the costs of education or training to qualify as a physician or other healthcare worker in consideration for a commitment to work as a physician or other healthcare worker in the alien's country of origin or the alien's country of residence.CommentsClose CommentsPermalink
`(iii) WAIVER- The Secretary of Homeland Security may waive a finding of inadmissibility under clause (i) if the Secretary determines that--CommentsClose CommentsPermalink
`(I) the obligation was incurred by coercion or other improper means;CommentsClose CommentsPermalink
`(II) the alien and the government of the country to which the alien has an outstanding obligation have reached a valid, voluntary agreement, pursuant to which the alien's obligation has been deemed satisfied, or the alien has shown to the satisfaction of the Secretary that the alien has been unable to reach such an agreement because of coercion or other improper means; orCommentsClose CommentsPermalink
`(III) the obligation should not be enforced due to other extraordinary circumstances, including undue hardship that would be suffered by the alien in the absence of a waiver.'.CommentsClose CommentsPermalink
(2) EFFECTIVE DATE AND APPLICATION-CommentsClose CommentsPermalink
(A) EFFECTIVE DATE- The amendment made by paragraph (1) shall become effective 180 days after the date of the enactment of this Act.CommentsClose CommentsPermalink
(B) APPLICATION BY THE SECRETARY- The Secretary shall begin to carry out section 212(a)(5)(E) of the Immigration and Nationality Act, as added by paragraph (1), not later than the effective date described in subparagraph (A), including the requirement for the attestation and the granting of a waiver described in such section, regardless of whether regulations to implement such section have been promulgated.CommentsClose CommentsPermalink
SEC. 509. STUDENT VISA REFORM.
(a) In General-CommentsClose CommentsPermalink
(1) NONIMMIGRANT CLASSIFICATION- Section 101(a)(15)(F) (
`(F) an alien--CommentsClose CommentsPermalink
`(i) who--CommentsClose CommentsPermalink
`(I) is a bona fide student qualified to pursue a full course of study in mathematics, engineering, technology, or the sciences leading to a bachelors or graduate degree and who seeks to enter the United States for the purpose of pursuing such a course of study consistent with section 214(m) at an institution of higher education (as defined by section 101(a) of the Higher Education Act of 1965 (
`(II) is engaged in temporary employment for optional practical training related to such alien's area of study following completion of the course of study described in subclause (I) for a period or periods of not more than 24 months;CommentsClose CommentsPermalink
`(ii) who--CommentsClose CommentsPermalink
`(I) has a residence in a foreign country which the alien has no intention of abandoning, who is a bona fide student qualified to pursue a full course of study, and who seeks to enter the United States temporarily and solely for the purpose of pursuing such a course of study consistent with section 214(m) at an established college, university, seminary, conservatory, academic high school, elementary school, or other academic institution or in a language training program in the United States, particularly designated by the alien and approved by the Secretary of Homeland Security, after consultation with the Secretary of Education, which institution or place of study shall have agreed to report to the Secretary the termination of attendance of each nonimmigrant student, and if any such institution of learning or place of study fails to make reports promptly the approval shall be withdrawn; orCommentsClose CommentsPermalink
`(II) is engaged in temporary employment for optional practical training related to such alien's area of study following completion of the course of study described in subclause (I) for a period or periods of not more than 24 months;CommentsClose CommentsPermalink
`(iii) who is the spouse or minor child of an alien described in clause (i) or (ii) if accompanying or following to join such an alien;CommentsClose CommentsPermalink
`(iv) who--CommentsClose CommentsPermalink
`(I) is a national of Canada or Mexico, who maintains actual residence and place of abode in the country of nationality, who is described in clause (i) or (ii) except that the alien's qualifications for and actual course of study may be full or part-time, and who commutes to the United States institution or place of study from Canada or Mexico; orCommentsClose CommentsPermalink
`(II) is engaged in temporary employment for optional practical training related to such the student's area of study following completion of the course of study described in subclause (I) for a period or periods of not more than 24 months; orCommentsClose CommentsPermalink
`(v) who--CommentsClose CommentsPermalink
`(I) maintains actual residence and place of abode in the alien's country of nationality; andCommentsClose CommentsPermalink
`(II) is described in clause (i), except that the alien's actual course of study may involve a distance learning program, for which the alien is temporarily visiting the United States for a period of up to 30 days.'.CommentsClose CommentsPermalink
(2) ADMISSION- Section 214(b) (
(3) CONFORMING AMENDMENT- Section 214(m)(1) (
(b) Off-Campus Work Authorization for Foreign Students-CommentsClose CommentsPermalink
(1) IN GENERAL- Aliens admitted as nonimmigrant students described in section 101(a)(15)(F), as amended by subsection (a), (
(A) the alien has enrolled full-time at the educational institution and is maintaining good academic standing;CommentsClose CommentsPermalink
(B) the employer provides the educational institution and the Secretary of Labor with an attestation that the employer--CommentsClose CommentsPermalink
(i) has spent at least 21 days recruiting United States citizens to fill the position; andCommentsClose CommentsPermalink
(ii) will pay the alien and other similarly situated workers at a rate equal to not less than the greater of--CommentsClose CommentsPermalink
(I) the actual wage level for the occupation at the place of employment; orCommentsClose CommentsPermalink
(II) the prevailing wage level for the occupation in the area of employment; andCommentsClose CommentsPermalink
(C) the alien will not be employed more than--CommentsClose CommentsPermalink
(i) 20 hours per week during the academic term; orCommentsClose CommentsPermalink
(ii) 40 hours per week during vacation periods and between academic terms.CommentsClose CommentsPermalink
(2) DISQUALIFICATION- If the Secretary of Labor determines that an employer has provided an attestation under paragraph (1)(B) that is materially false or has failed to pay wages in accordance with the attestation, the employer, after notice and opportunity for a hearing, shall be disqualified from employing an alien student under paragraph (1).CommentsClose CommentsPermalink
SEC. 510. L-1 VISA HOLDERS SUBJECT TO VISA BACKLOG.
Section 214(c)(2) (
`(G) The limitations contained in subparagraph (D) with respect to the duration of authorized stay shall not apply to any nonimmigrant alien previously issued a visa or otherwise provided nonimmigrant status under section 101(a)(15)(L) on whose behalf a petition under section 204(b) to accord the alien immigrant status under section 203(b), or an application for labor certification (if such certification is required for the alien to obtain status under such section 203(b)) has been filed, if 365 days or more have elapsed since such filing. The Secretary of Homeland Security shall extend the stay of an alien who qualifies for an exemption under this subparagraph until such time as a final decision is made on the alien's lawful permanent residence.'.CommentsClose CommentsPermalink
SEC. 511. RETAINING WORKERS SUBJECT TO GREEN CARD BACKLOG.
(a) Adjustment of Status-CommentsClose CommentsPermalink
(1) IN GENERAL- Section 245 (
`(n) Adjustment of Status for Employment-Based Immigrants-CommentsClose CommentsPermalink
`(1) ELIGIBILITY- The Secretary of Homeland Security shall promulgate regulations to provide for the filing of an application for adjustment of status by an alien (and any eligible dependents of such alien), regardless of whether an immigrant visa is immediately available at the time the application is filed, if the alien--CommentsClose CommentsPermalink
`(A) has an approved petition under subparagraph (E) or (F) of section 204(a)(1); orCommentsClose CommentsPermalink
`(B) at the discretion of the Secretary, has a pending petition under subparagraph (E) or (F) of section 204(a)(1).CommentsClose CommentsPermalink
`(2) VISA AVAILABILITY- An application filed pursuant to paragraph (1) may not be approved until an immigrant visa becomes available.CommentsClose CommentsPermalink
`(3) FEES- If an application is filed pursuant to paragraph (1), the beneficiary of such application shall pay a supplemental fee of $500. Such fee may not be charged to any dependent accompanying or following to join such beneficiary.CommentsClose CommentsPermalink
`(4) EXTENSION OF EMPLOYMENT AUTHORIZATION AND ADVANCED PAROLE DOCUMENT-CommentsClose CommentsPermalink
`(A) IN GENERAL- The Secretary of Homeland Security shall provide employment authorization and advanced parole documents, in 3-year increments, to beneficiaries of an application for adjustment of status based on a petition that is filed or, at the discretion of the Secretary, pending, under subparagraph (E) or (F) of section 204(a)(1).CommentsClose CommentsPermalink
`(B) FEE ADJUSTMENTS- Application fees under this subsection may be adjusted in accordance with the 3-year period of validity assigned to the employment authorization or advanced parole documents under subparagraph (A).'.CommentsClose CommentsPermalink
(b) Use of Fees- Section 286 (
(1) in subsection (m)--CommentsClose CommentsPermalink
(A) by striking `Notwithstanding any other provisions of law,' and inserting the following:CommentsClose CommentsPermalink
`(c) Immigration Examinations Fee Account-CommentsClose CommentsPermalink
`(1) IN GENERAL- Notwithstanding any other provision of law, all fees collected under section 245(n)(3) and';CommentsClose CommentsPermalink
(B) by striking `: Provided, however, That all' and inserting the following:CommentsClose CommentsPermalink
`(2) VIRGIN ISLANDS; GUAM- All'; andCommentsClose CommentsPermalink
(C) by striking `: Provided further, That fees' and inserting the following:CommentsClose CommentsPermalink
`(3) COST RECOVERY- Fees'.CommentsClose CommentsPermalink
(2) in subsection (n)--CommentsClose CommentsPermalink
(A) by striking `(n) All deposits' and inserting the following:CommentsClose CommentsPermalink
`(4) USE OF FUNDS-CommentsClose CommentsPermalink
`(A) IN GENERAL- Except as provided under subparagraph (B), all deposits'; andCommentsClose CommentsPermalink
(B) adding at the end the following:CommentsClose CommentsPermalink
`(C) SUPPLEMENTAL FEE FOR ADJUSTMENT OF STATUS OF EMPLOYMENT-BASED IMMIGRANTS- Any amounts deposited into the Immigration Examinations Fee Account that were collected under section 245(n)(3) shall remain available until expended by the Secretary of Homeland Security for backlog reduction and clearing security background check delays.';CommentsClose CommentsPermalink
(3) in subsection (o), by striking `(o) The Attorney General' and inserting the following:CommentsClose CommentsPermalink
`(5) ANNUAL FINANCIAL REPORT TO CONGRESS- The Attorney General'; andCommentsClose CommentsPermalink
(4) in subsection (p), by striking `(p) The provisions set forth in subsections (m), (n), and (o) of this section' and inserting the following:CommentsClose CommentsPermalink
`(6) APPLICABILITY- The provisions set forth in this subsection shall'.CommentsClose CommentsPermalink
SEC. 512. STREAMLINING THE ADJUDICATION PROCESS FOR ESTABLISHED EMPLOYERS.
Section 214(c) (8. U.S.C. 1184) is amended by adding at the end the following:CommentsClose CommentsPermalink
`(15) Not later than 180 days after the date of the enactment of the STRIVE Act, the Secretary of Homeland Security shall establish a pre-certification procedure for employers who file multiple petitions described in this subsection or section 203(b). Such precertification procedure shall enable an employer to avoid repeatedly submitting documentation that is common to multiple petitions and establish through a single filing criteria relating to the employer and the offered employment opportunity.'.CommentsClose CommentsPermalink
SEC. 513. PROVIDING PREMIUM PROCESSING OF EMPLOYMENT-BASED VISA PETITIONS.
(a) In General- Pursuant to section 286(u) of the Immigration and Nationality Act (
(b) Appeals- Pursuant to such section 286(u), the Secretary of Homeland Security shall establish and collect a fee for premium processing of an administrative appeal of any decision on a permanent employment-based immigrant petition.CommentsClose CommentsPermalink
SEC. 514. ELIMINATING PROCEDURAL DELAYS IN LABOR CERTIFICATION PROCESS.
(a) Prevailing Wage Rate-CommentsClose CommentsPermalink
(1) REQUIREMENT TO PROVIDE- The Secretary of Labor shall provide prevailing wage determinations to employers seeking a labor certification for aliens pursuant to part 656 of title 20, Code of Federal Regulations (or any successor regulation). The Secretary of Labor may not delegate this function to any agency of a State.CommentsClose CommentsPermalink
(2) SCHEDULE FOR DETERMINATION- Except as provided in paragraph (3), the Secretary of Labor shall provide a response to an employer's request for a prevailing wage determination not later than 20 calendar days after the date the Secretary of Labor receives such a request. If the Secretary of Labor fails to reply during such 20-day period, the wage proposed by the employer shall be the valid prevailing wage rate.CommentsClose CommentsPermalink
(3) USE OF SURVEYS- The Secretary of Labor shall accept an alternative wage survey provided by the employer unless the Secretary of Labor determines that the wage component of the Occupational Employment Statistics Survey is more accurate for the occupation in the labor market area.CommentsClose CommentsPermalink
(b) Placement of Job Order- The Secretary of Labor shall maintain a website with links to the official website of each workforce agency of a State, and such official website shall contain instructions on the filing of a job order in order to satisfy the job order requirements of section 656.17(e)(1) of title 20, Code of Federal Regulations (or any successor regulation).CommentsClose CommentsPermalink
(c) Technical Corrections- The Secretary of Labor shall establish a process by which employers seeking certification under section 212(a)(5) of the Immigration and Nationality Act (
(d) Administrative Appeals- Motions to reconsider, and administrative appeals of, a denial of a permanent labor certification application, shall be decided by the Secretary of Labor not later than 60 days after the date of the filing of such motion or such appeal.CommentsClose CommentsPermalink
(e) Applications Under Previous System- Not later than 180 days after the date of the enactment of this Act, the Secretary of Labor shall process and issue decisions on all applications for permanent alien labor certification that were filed before March 28, 2005.CommentsClose CommentsPermalink
(f) Effective Date- This section shall take effect 90 days after the date of the enactment of this Act, whether or not the Secretary of Labor has amended the regulations under part 656 of title 20, Code of Federal Regulations, to implement such changes.CommentsClose CommentsPermalink
SEC. 515. VISA REVALIDATION.
(a) In General- Section 222 (
`(i) The Secretary of State shall permit an alien granted a nonimmigrant visa under subparagraph (E), (H), (I), (L), (O), or (P) of section 101(a)(15) to apply for a renewal of such visa within the United States if--CommentsClose CommentsPermalink
`(1) such visa is valid or did not expire more than 12 months before the date of such application;CommentsClose CommentsPermalink
`(2) the alien is seeking a nonimmigrant visa under the same subparagraph under which the alien had previously received a visa; andCommentsClose CommentsPermalink
`(3) the alien has complied with the immigration laws and regulations of the United States.'.CommentsClose CommentsPermalink
(b) Conforming Amendment- Section 222(h) of such Act is amended, in the matter preceding subparagraph (1), by inserting `and except as provided under subsection (i),' after `Act'.CommentsClose CommentsPermalink
SEC. 516. RELIEF FOR MINOR CHILDREN AND WIDOWS.
(a) In General- Section 201(b)(2) (
`(2)(A)(i) Aliens admitted under section 211(a) on the basis of a prior issuance of a visa under section 203(a) to their accompanying parent who is an immediate relative.CommentsClose CommentsPermalink
`(ii) In this subparagraph, the term `immediate relative' means a child, spouse, or parent of a citizen of the United States (and each child of such child, spouse, or parent who is accompanying or following to join the child, spouse, or parent), except that, in the case of parents, such citizens shall be at least 21 years of age.CommentsClose CommentsPermalink
`(iii) An alien who was the spouse of a citizen of the United States for not less than 2 years at the time of the citizen's death or, if married for less than 2 years at the time of the citizen's death, proves by a preponderance of the evidence that the marriage was entered into in good faith and not solely for the purpose of obtaining an immigration benefit and was not legally separated from the citizen at the time of the citizen's death, and each child of such alien, shall be considered, for purposes of this subsection, to remain an immediate relative after the date of the citizen's death if the spouse files a petition under section 204(a)(1)(A)(ii) before the earlier of--CommentsClose CommentsPermalink
`(I) 2 years after such date; orCommentsClose CommentsPermalink
`(II) the date on which the spouse remarries.CommentsClose CommentsPermalink
`(iv) In this clause, an alien who has filed a petition under clause (iii) or (iv) of section 204(a)(1)(A) remains an immediate relative if the United States citizen spouse or parent loses United States citizenship on account of the abuse.CommentsClose CommentsPermalink
`(B) Aliens born to an alien lawfully admitted for permanent residence during a temporary visit abroad.'.CommentsClose CommentsPermalink
(b) Petition- Section 204(a)(1)(A)(ii) (
(c) Retention of Immediate Relative Status-CommentsClose CommentsPermalink
(1) IN GENERAL- In applying clause (iii) of section 201(b)(2)(A) of the Immigration and Nationality Act, as added by subsection (a), to an alien whose citizen relative died before the date of the enactment of this Act, the alien relative, notwithstanding the deadlines specified in such clause, may file the classification petition under section 204(a)(1)(A)(ii) of such Act not later than 2 years after the date of the enactment of this Act.CommentsClose CommentsPermalink
(2) ELIGIBILITY FOR PAROLE- If an alien was excluded, deported, removed or departed voluntarily before the date of the enactment of this Act based solely upon the alien's lack of classification as an immediate relative (as defined by 201(b)(2)(A)(ii) of the Immigration and Nationality Act) due to the citizen's death--CommentsClose CommentsPermalink
(A) such alien shall be eligible for parole into the United States pursuant to the Attorney General's discretionary authority under section 212(d)(5) of such Act; andCommentsClose CommentsPermalink
(B) such alien's application for adjustment of status shall be considered notwithstanding section 212(a)(9) of such Act.CommentsClose CommentsPermalink
(d) Adjustment of Status-CommentsClose CommentsPermalink
(1) IN GENERAL- Section 245 (
`(o) Application for Adjustment of Status by Surviving Spouses, Parents, and Children-CommentsClose CommentsPermalink
`(1) IN GENERAL- Any alien described in paragraph (2) who applies for adjustment of status before the death of the qualifying relative, may have such application adjudicated as if such death had not occurred.CommentsClose CommentsPermalink
`(2) ALIEN DESCRIBED- An alien described in this paragraph is an alien who--CommentsClose CommentsPermalink
`(A) is an immediate relative (as described in section 201(b)(2)(A));CommentsClose CommentsPermalink
`(B) is a family-sponsored immigrant (as described in subsection (a) or (d) of section 203);CommentsClose CommentsPermalink
`(C) is a derivative beneficiary of an employment-based immigrant under section 203(b) (as described in section 203(d)); orCommentsClose CommentsPermalink
`(D) is a derivative beneficiary of a diversity immigrant (as described in section 203(c)).'.CommentsClose CommentsPermalink
(2) TRANSITION PERIOD-CommentsClose CommentsPermalink
(A) IN GENERAL- Notwithstanding a denial of an application for adjustment of status for an alien whose qualifying relative died before the date of the enactment of this Act, such application may be renewed by the alien through a motion to reopen, without fee, if such motion is filed not later than 2 years after such date of enactment.CommentsClose CommentsPermalink
(B) ELIGIBILITY FOR PAROLE- If an alien was excluded, deported, removed or departed voluntarily before the date of the enactment of this Act--CommentsClose CommentsPermalink
(i) such alien shall be eligible for parole into the United States pursuant to the Attorney General's discretionary authority under section 212(d)(5) of the Immigration and Nationality Act; andCommentsClose CommentsPermalink
(ii) such alien's application for adjustment of status shall be considered notwithstanding section 212(a)(9) of such Act.CommentsClose CommentsPermalink
(e) Processing of Immigrant Visas-CommentsClose CommentsPermalink
(1) IN GENERAL- Section 204(b) (
(A) by striking `After an investigation' and inserting the following:CommentsClose CommentsPermalink
`(1) IN GENERAL- After an investigation'; andCommentsClose CommentsPermalink
(B) by adding at the end the following:CommentsClose CommentsPermalink
`(2) DEATH OF QUALIFYING RELATIVE-CommentsClose CommentsPermalink
`(A) IN GENERAL- Any alien described in paragraph (2) whose qualifying relative died before the completion of immigrant visa processing may have an immigrant visa application adjudicated as if such death had not occurred. An immigrant visa issued before the death of the qualifying relative shall remain valid after such death.CommentsClose CommentsPermalink
`(B) ALIEN DESCRIBED- An alien described in this paragraph is an alien who--CommentsClose CommentsPermalink
`(i) is an immediate relative (as described in section 201(b)(2)(A));CommentsClose CommentsPermalink
`(ii) is a family-sponsored immigrant (as described in subsection (a) or (d) of section 203);CommentsClose CommentsPermalink
`(iii) is a derivative beneficiary of an employment-based immigrant under section 203(b) (as described in section 203(d)); orCommentsClose CommentsPermalink
`(iv) is a derivative beneficiary of a diversity immigrant (as described in section 203(c)).'.CommentsClose CommentsPermalink
(2) TRANSITION PERIOD-CommentsClose CommentsPermalink
(A) IN GENERAL- Notwithstanding a denial or revocation of an application for an immigrant visa for an alien whose qualifying relative died before the date of the enactment of this Act, such application may be renewed by the alien through a motion to reopen, without fee, if such motion is filed not later than 2 years after such date of enactment.CommentsClose CommentsPermalink
(B) INAPPLICABILITY OF BARS- Notwithstanding section 212(a)(9) of the Immigration and Nationality Act (
(f) Naturalization- Section 319(a) (
SEC. 517. RELIEF FOR WIDOWS AND ORPHANS.
(a) New Special Immigrant Category-CommentsClose CommentsPermalink
(1) CERTAIN CHILDREN AND WOMEN AT RISK OF HARM- Section 101(a)(27) (
(A) in subparagraph (L), by adding a semicolon at the end;CommentsClose CommentsPermalink
(B) in subparagraph (M), by striking the period at the end and inserting `; or'; andCommentsClose CommentsPermalink
(C) by adding at the end the following:CommentsClose CommentsPermalink
`(N) subject to subsection (j), an immigrant who is not present in the United States--CommentsClose CommentsPermalink
`(i) who is--CommentsClose CommentsPermalink
`(I) referred to a consular, immigration, or other designated official by a United States Government agency, an international organization, or recognized nongovernmental entity designated by the Secretary of State for purposes of such referrals; andCommentsClose CommentsPermalink
`(II) determined by such official to be a minor under 18 years of age (as determined under subsection (j)(5))--CommentsClose CommentsPermalink
`(aa) for whom no parent or legal guardian is able to provide adequate care;CommentsClose CommentsPermalink
`(bb) who faces a credible fear of harm related to his or her age;CommentsClose CommentsPermalink
`(cc) who lacks adequate protection from such harm; andCommentsClose CommentsPermalink
`(dd) for whom it has been determined to be in his or her best interests to be admitted to the United States; orCommentsClose CommentsPermalink
`(ii) who is--CommentsClose CommentsPermalink
`(I) referred to a consular or immigration official by a United States Government agency, an international organization or recognized nongovernmental entity designated by the Secretary of State for purposes of such referrals; andCommentsClose CommentsPermalink
`(II) determined by such official to be a female who has--CommentsClose CommentsPermalink
`(aa) a credible fear of harm related to her sex; andCommentsClose CommentsPermalink
`(bb) a lack of adequate protection from such harm.'.CommentsClose CommentsPermalink
(2) STATUTORY CONSTRUCTION- Section 101 (
`(j)(1) No natural parent or prior adoptive parent of any alien provided special immigrant status under subsection (a)(27)(N)(i) shall thereafter, by virtue of such parentage, be accorded any right, privilege, or status under this Act.CommentsClose CommentsPermalink
`(2)(A) No alien who qualifies for a special immigrant visa under subsection (a)(27)(N)(ii) may apply for derivative status or petition for any spouse who is represented by the alien as missing, deceased, or the source of harm at the time of the alien's application and admission. The Secretary of Homeland Security may waive this requirement for an alien who demonstrates that the alien's representations regarding the spouse were bona fide.CommentsClose CommentsPermalink
`(B) An alien who qualifies for a special immigrant visa under subsection (a)(27)(N) may apply for derivative status or petition for any sibling under the age of 18 years or children under the age of 18 years of any such alien, if accompanying or following to join the alien. For purposes of this subparagraph, a determination of age shall be made using the age of the alien on the date the petition is filed with the Department of Homeland Security.CommentsClose CommentsPermalink
`(3) An alien who qualifies for a special immigrant visa under subsection (a)(27)(N) shall be treated in the same manner as a refugee solely for purposes of section 412.CommentsClose CommentsPermalink
`(4) The provisions of paragraphs (4), (5), and (7)(A) of section 212(a) shall not be applicable to any alien seeking admission to the United States under subsection (a)(27)(N), and the Secretary of Homeland Security may waive any other provision of such section (other than paragraph 2(C) or subparagraph (A), (B), (C), or (E) of paragraph (3)) with respect to such an alien for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest. Any such waiver by the Secretary shall be in writing and shall be granted only on an individual basis following an investigation. The Secretary shall submit an annual report to Congress on the number of waivers granted under this paragraph during the previous fiscal year and a summary of the reasons for granting such waivers.CommentsClose CommentsPermalink
`(5) For purposes of subsection (a)(27)(N)(i)(II), a determination of age shall be made using the age of the alien on the date on which the alien was referred to the consular, immigration, or other designated official.CommentsClose CommentsPermalink
`(6) The Secretary of Homeland Security shall waive any application fee for a special immigrant visa for an alien described in section 101(a)(27)(N).'.CommentsClose CommentsPermalink
(3) EXPEDITED PROCESS- Not later than 45 days after the date of referral to a consular, immigration, or other designated official (as described in section 101(a)(27)(N) of the Immigration and Nationality Act, as added by paragraph (1))--CommentsClose CommentsPermalink
(A) special immigrant status shall be adjudicated; andCommentsClose CommentsPermalink
(B) if special immigrant status is granted, the alien shall be paroled into the United States pursuant to section 212(d)(5) of that Act (
(4) REPORT TO CONGRESS- Not later than 1 year after the date of the enactment of this Act, the Secretary shall submit a report to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives that includes--CommentsClose CommentsPermalink
(A) data related to the implementation of this section and the amendments made by this section;CommentsClose CommentsPermalink
(B) data regarding the number of placements of females and children who faces a credible fear of harm as referred to in section 101(a)(27)(N) of the Immigration and Nationality Act, as added by paragraph (1); andCommentsClose CommentsPermalink
(C) any other information that the Secretary considers appropriate.CommentsClose CommentsPermalink
(5) AUTHORIZATION OF APPROPRIATIONS- There are authorized to be appropriated such sums as may be necessary to carry out this subsection and the amendments made by this subsection.CommentsClose CommentsPermalink
(b) Requirements for Aliens-CommentsClose CommentsPermalink
(1) REQUIREMENT BEFORE ENTRY INTO THE UNITED STATES-CommentsClose CommentsPermalink
(A) DATABASE SEARCH- An alien may not be admitted to the United States unless the Secretary has ensured that a search of each database maintained by an agency or department of the United States has been conducted to determine whether such alien is ineligible to be admitted to the United States on criminal, security, or related grounds.CommentsClose CommentsPermalink
(B) COOPERATION AND SCHEDULE- The Secretary and the head of each appropriate agency or department of the United States shall cooperate to ensure that each database search required under subparagraph (A) is completed not later than 45 days after the date on which an alien files a petition seeking a special immigration visa under section 101(a)(27)(N) of the Immigration and Nationality Act, as added by subsection (a)(1).CommentsClose CommentsPermalink
(2) REQUIREMENT AFTER ENTRY INTO THE UNITED STATES-CommentsClose CommentsPermalink
(A) REQUIREMENT TO SUBMIT FINGERPRINTS-CommentsClose CommentsPermalink
(i) IN GENERAL- Not later than 30 days after the date that an alien enters the United States, the alien shall be fingerprinted and submit to the Secretary such fingerprints and any other personal biometric data required by the Secretary.CommentsClose CommentsPermalink
(ii) OTHER REQUIREMENTS- The Secretary may prescribe regulations that permit fingerprints submitted by an alien under section 262 of the Immigration and Nationality Act (
(B) DATABASE SEARCH- The Secretary shall ensure that a search of each database that contains fingerprints that is maintained by an agency or department of the United States be conducted to determine whether such alien is ineligible for an adjustment of status under any provision of the Immigration and Nationality Act (
(C) COOPERATION AND SCHEDULE- The Secretary and the head of each appropriate agency or department of the United States shall work cooperatively to ensure that each database search required by subparagraph (B) is completed not later than 180 days after the date on which the alien enters the United States.CommentsClose CommentsPermalink
(D) ADMINISTRATIVE AND JUDICIAL REVIEW-CommentsClose CommentsPermalink
(i) IN GENERAL- There may be no review of a determination by the Secretary, after a search required by subparagraph (B), that an alien is ineligible for an adjustment of status, under any provision of the Immigration and Nationality Act (
(ii) ADMINISTRATIVE REVIEW- An alien may appeal a determination described in clause (i) through the Administrative Appeals Office of the Bureau of Citizenship and Immigration Services. The Secretary shall ensure that a determination on such appeal is made not later than 60 days after the date that the appeal is filed.CommentsClose CommentsPermalink
(iii) JUDICIAL REVIEW- There may be no judicial review of a determination described in clause (i).CommentsClose CommentsPermalink
SEC. 518. SONS AND DAUGHTERS OF FILIPINO WORLD WAR II VETERANS.
Section 201(b)(1) (
`(M) Aliens who are eligible for a visa under paragraph (1) or (3) of section 203(a) and are the son or daughter of a citizen of the United States who was naturalized pursuant to section 405 of the Immigration Act of 1990 (
SEC. 519. DETERMINATIONS UNDER THE HAITIAN REFUGEE IMMIGRATION FAIRNESS ACT OF 1998.
(a) In General- Section 902(d) of the Haitian Refugee Immigration Fairness Act of 1998 (
`(3) DETERMINATIONS WITH RESPECT TO CHILDREN-CommentsClose CommentsPermalink
`(A) USE OF APPLICATION FILING DATE- Determinations made under this subsection as to whether an individual is a child of a parent shall be made using the age and status of the individual on October 21, 1998.CommentsClose CommentsPermalink
`(B) APPLICATION SUBMISSION BY PARENT- Notwithstanding paragraph (1)(C), an application under this subsection filed based on status as a child may be filed for the benefit of such child by a parent or guardian of the child, if the child is physically present in the United States on such filing date.'.CommentsClose CommentsPermalink
(b) New Applications and Motions To Reopen-CommentsClose CommentsPermalink
(1) NEW APPLICATIONS- Notwithstanding section 902(a)(1)(A) of the Haitian Refugee Immigration Fairness Act of 1998, an alien who is eligible for adjustment of status under such Act may submit an application for adjustment of status under such Act not later than the later of--CommentsClose CommentsPermalink
(A) 2 years after the date of the enactment of this Act; orCommentsClose CommentsPermalink
(B) 1 year after the date on which final regulations are promulgated to implement this section and the amendment made by subsection (a).CommentsClose CommentsPermalink
(2) MOTIONS TO REOPEN- The Secretary shall establish procedures for the reopening and reconsideration of applications for adjustment of status under the Haitian Refugee Immigration Fairness Act of 1998 that are affected by the amendment made by subsection (a).CommentsClose CommentsPermalink
(3) RELATIONSHIP OF APPLICATION TO CERTAIN ORDERS- Section 902(a)(3) of the Haitian Refugee Immigration Fairness Act of 1998 shall apply to an alien present in the United States who has been ordered excluded, deported, removed, or ordered to depart voluntarily, and who files an application under paragraph (1) or a motion under paragraph (2), in the same manner as such section 902(a)(3) applied to aliens filing applications for adjustment of status under such Act prior to April 1, 2000.CommentsClose CommentsPermalink
(c) Inadmissibility Determination- Section 902 of the Haitian Refugee Immigration Fairness Act of 1998 (
SEC. 520. S VISAS.
(a) Expansion of S Visa Classification- Section 101(a)(15)(S) (
(1) in clause (i)--CommentsClose CommentsPermalink
(A) by striking `Attorney General' each place it appears and inserting `Secretary of Homeland Security';CommentsClose CommentsPermalink
(B) in subclause (I), by inserting before the semicolon, `, including a criminal enterprise undertaken by a foreign government, its agents, representatives, or officials';CommentsClose CommentsPermalink
(C) in subclause (III), by inserting `if the information concerns a criminal enterprise undertaken by an individual or organization that is not a foreign government, its agents, representatives, or officials,' before `whose'; andCommentsClose CommentsPermalink
(D) by striking `or' at the end; andCommentsClose CommentsPermalink
(2) in clause (ii)--CommentsClose CommentsPermalink
(A) by striking `Attorney General' and inserting `Secretary of Homeland Security'; andCommentsClose CommentsPermalink
(B) by striking `1956,' and all that follows through `the alien;' and inserting the following: `1956; orCommentsClose CommentsPermalink
`(iii) the Secretary of Homeland Security and the Secretary of State, in consultation with the Director of Central Intelligence, jointly determine--CommentsClose CommentsPermalink
`(I) is in possession of critical reliable information concerning the activities of governments or organizations, or their agents, representatives, or officials, with respect to weapons of mass destruction and related delivery systems, if such governments or organizations are at risk of developing, selling, or transferring such weapons or related delivery systems; andCommentsClose CommentsPermalink
`(II) is willing to supply or has supplied, fully and in good faith, information described in subclause (I) to appropriate persons within the United States Government; andCommentsClose CommentsPermalink
if the Secretary of Homeland Security (or with respect to clause (ii), the Secretary of State and the Secretary of Homeland Security jointly) considers it to be appropriate, the spouse, children, married and unmarried sons and daughters, and parents of an alien described in clause (i), (ii), or (iii) if accompanying, or following to join, the alien;'.CommentsClose CommentsPermalink
(b) Numerical Limitation- Section 214(k)(1) (
`(1) The number of aliens who may be provided a visa as nonimmigrants under section 101(a)(15)(S) in any fiscal year may not exceed 1,000.'.CommentsClose CommentsPermalink
(c) Reports-CommentsClose CommentsPermalink
(1) CONTENT- Section 214(k)(4) (
(A) in the matter preceding subparagraph (A)--CommentsClose CommentsPermalink
(i) by striking `Attorney General' and inserting `Secretary of Homeland Security'; andCommentsClose CommentsPermalink
(ii) by striking `concerning' and inserting `that includes';CommentsClose CommentsPermalink
(B) in subparagraph (D), by striking `and' at the end;CommentsClose CommentsPermalink
(C) in subparagraph (E), by striking the period at the end and inserting `; and'; andCommentsClose CommentsPermalink
(D) by adding at the end the following:CommentsClose CommentsPermalink
`(F) if the total number of such nonimmigrants admitted is fewer than 25 percent of the total number provided for under paragraph (1)--CommentsClose CommentsPermalink
`(i) the reasons for the reduced number of such nonimmigrants;CommentsClose CommentsPermalink
`(ii) the efforts made by the Secretary of Homeland Security to admit such nonimmigrants; andCommentsClose CommentsPermalink
`(iii) any extenuating circumstances that contributed to the reduced number of such nonimmigrants.'.CommentsClose CommentsPermalink
(2) FORM OF REPORT- Section 214(k) (
`(5) To the extent required by law and if it is in the interests of national security or the security of such nonimmigrants that are admitted, as determined by the Secretary of Homeland Security--CommentsClose CommentsPermalink
`(A) the information contained in a report described in paragraph (4) may be classified; andCommentsClose CommentsPermalink
`(B) the Secretary of Homeland Security shall, to the extent feasible, submit a non-classified version of the report to the Committee on the Judiciary of the House of Representatives and the Committee on the Judiciary of the Senate.'.CommentsClose CommentsPermalink
SEC. 521. L VISA LIMITATIONS.
Section 214(c)(2) (
(1) by striking `Attorney General' each place it appears and inserting `Secretary of Homeland Security';CommentsClose CommentsPermalink
(2) in subparagraph (E), by striking `In the case of an alien spouse admitted under section 101(a)(15)(L), who' and inserting `Except as provided in subparagraph (H), if an alien spouse admitted under section 101(a)(15)(L)'; andCommentsClose CommentsPermalink
(3) by adding at the end the following:CommentsClose CommentsPermalink
`(G)(i) If the beneficiary of a petition under this subsection is coming to the United States to open, or be employed in, a new facility, the petition may be approved for a period not to exceed 12 months only if the employer operating the new facility has--CommentsClose CommentsPermalink
`(I) a business plan;CommentsClose CommentsPermalink
`(II) sufficient physical premises to carry out the proposed business activities; andCommentsClose CommentsPermalink
`(III) the financial ability to commence doing business immediately upon the approval of the petition.CommentsClose CommentsPermalink
`(ii) An extension of the approval period under clause (i) may not be granted until the importing employer submits to the Secretary of Homeland Security--CommentsClose CommentsPermalink
`(I) evidence that the importing employer meets the requirements of this subsection;CommentsClose CommentsPermalink
`(II) evidence that the beneficiary meets the requirements of section 101(a)(15)(L);CommentsClose CommentsPermalink
`(III) a statement summarizing the original petition;CommentsClose CommentsPermalink
`(IV) evidence that the importing employer has fully complied with the business plan submitted under clause (i);CommentsClose CommentsPermalink
`(V) evidence of the truthfulness of any representations made in connection with the filing of the original petition;CommentsClose CommentsPermalink
`(VI) evidence that the importing employer, during the previous 12 months, has been doing business at the new facility through regular, systematic, and continuous provision of goods or services, or has otherwise been taking commercially reasonable steps to establish the new facility as a commercial enterprise;CommentsClose CommentsPermalink
`(VII) a statement of the duties the beneficiary has performed at the new facility during the preceding 12-month period and the duties the beneficiary will perform at the new facility during the extension period approved under this clause;CommentsClose CommentsPermalink
`(VIII) a statement describing the staffing at the new facility, including the number of employees and the types of positions held by such employees;CommentsClose CommentsPermalink
`(IX) evidence of wages paid to employees if the beneficiary will be employed in a managerial or executive capacity;CommentsClose CommentsPermalink
`(X) evidence of the financial status of the new facility; andCommentsClose CommentsPermalink
`(XI) any other evidence or data prescribed by the Secretary.CommentsClose CommentsPermalink
`(iii) Notwithstanding subclauses (I) through (VI) of clause (ii) and subject to the maximum period of authorized admission set forth in subparagraph (D), the Secretary of Homeland Security may approve a subsequently filed petition on behalf of the beneficiary to continue employment at the facility described in this subsection for a period beyond the initially granted 12-month period if the importing employer demonstrates that the failure to satisfy any of the requirements described in those subclauses was directly caused by extraordinary circumstances beyond the control of the importing employer.CommentsClose CommentsPermalink
`(H)(i) The Secretary of Homeland Security may not authorize the spouse of an alien described under section 101(a)(15)(L), who is a dependent of a beneficiary under subparagraph (G), to engage in employment in the United States during the initial 12-month period described in subparagraph (G)(i).CommentsClose CommentsPermalink
`(ii) A spouse described in clause (i) may be provided employment authorization upon the approval of an extension under subparagraph (G)(ii).CommentsClose CommentsPermalink
`(I) For purposes of determining the eligibility of an alien for classification under section 101(a)(15)(L), the Secretary of Homeland Security shall establish a program to work cooperatively with the Secretary of State to verify a company or facility's existence in the United States and abroad.'.CommentsClose CommentsPermalink
SEC. 522. ESTABLISHMENT OF NEW FASHION MODEL NONIMMIGRANT CLASSIFICATION.
(a) In General-CommentsClose CommentsPermalink
(1) NEW CLASSIFICATION- Section 101(a)(15)(O) (
(A) in clause (i), by striking `or' at the end;CommentsClose CommentsPermalink
(B) in clause (ii), by striking `or' at the end;CommentsClose CommentsPermalink
(C) by redesignating clause (iii) as clause (iv);CommentsClose CommentsPermalink
(D) in clause (iv), as redesignated, by striking `clause (i) or (ii)' and inserting `clause (i), (ii), or (iii)'; andCommentsClose CommentsPermalink
(E) by inserting after clause (ii) the following:CommentsClose CommentsPermalink
`(iii) is a fashion model who is of distinguished merit and ability and who is seeking to enter the United States temporarily to perform fashion modeling services that involve events or productions which have a distinguished reputation or that are performed for an organization or establishment that has a distinguished reputation for, or a record of, utilizing prominent modeling talent; or'.CommentsClose CommentsPermalink
(2) NUMERICAL LIMITATION- Section 214(a)(2)(A) (
(b) Elimination of H-1B Classification for Fashion Models- Section 101(a)(15)(H)(i)(b) (
(1) in item (aa), by striking `or as a fashion model'; andCommentsClose CommentsPermalink
(2) in item (bb), by striking `or, in the case of a fashion model, is of distinguished merit and ability'.CommentsClose CommentsPermalink
(c) Effective Dates-CommentsClose CommentsPermalink
(1) IMPLEMENTATION OF NEW FASHION MODEL NONIMMIGRANT CLASSIFICATION- Not later than 60 days after the date of the enactment of this Act, the Secretary shall promulgate regulations to carry out the amendments made by subsection (a). Nothing in this section shall be construed as preventing an alien who is a fashion model from obtaining nonimmigrant status under section 101(a)(15)(O)(i) of the Immigration and Nationality Act (
(2) ELIMINATION OF H-1B CLASSIFICATION FOR FASHION MODELS- The amendments made by subsection (b)--CommentsClose CommentsPermalink
(A) shall apply on the effective date of the regulations promulgated under paragraph (1); andCommentsClose CommentsPermalink
(B) shall not apply to the classification of an alien under section 101(a)(15)(H)(i)(b) of the Immigration and Nationality Act (
SEC. 523. EB-5 REGIONAL CENTER PROGRAM.
(a) Concurrent Processing for Employement Creation Immigrants- Section 245 (
`(o) Concurrent Processing for Employement Creation Immigrants- If, at the time an alien fils a petition for classification under section 203(b)(5), approval of the petition would make a visa immediately available to the alien beneficiary, the alien beneficiary's application for adjustment of status under this section shall be considered properly filed whether submitted concurrently with, or subsequent to, such petition.'.CommentsClose CommentsPermalink
(b) Regional Center Designation Fees- Section 610 of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1993 (
(1) in subsection (b), by striking `for 15 years'; andCommentsClose CommentsPermalink
(2) by adding at the end the following:CommentsClose CommentsPermalink
`(e) In addition to any other fees authorized by law, the Secretary of Homeland Security shall impose a $2,500 fee to apply for designation as a regional center under this section. Fees collected under this subsection shall be deposited in the Treasury in accordance with section 286(w) of the Immigration and Nationality Act (
(c) Immigrant Entrepreneur Regional Center Account-CommentsClose CommentsPermalink
(1) ESTABLISHMENT- Section 286 (
`(y) Immigrant Entrepreneur Regional Center Account-CommentsClose CommentsPermalink
`(1) IN GENERAL- There is established in the general fund of the Treasury a separate account, which shall be known as the `Immigrant Entrepreneur Regional Center Account'. Notwithstanding any other provision of law, there shall be deposited as offsetting receipts into the account all fees collected under section 610(e) of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1993 (
`(2) USE OF FEES- Fees deposited in the account established under paragraph (1) may only be used to carry out the EB-5 immigrant investor program.'.CommentsClose CommentsPermalink
(2) EFFECTIVE DATE- The amendment made by paragraph (1)--CommentsClose CommentsPermalink
(A) shall take effect on the date on which regulations are published to carry out this section and the amendments made by this section; andCommentsClose CommentsPermalink
(B) shall apply to regional center applications filed on or after such date.CommentsClose CommentsPermalink
SEC. 524. RETURN OF TALENT PROGRAM.
(a) Short Title- This section may be cited as the `Return of Talent Act'.CommentsClose CommentsPermalink
(b) Establishment-CommentsClose CommentsPermalink
(1) IN GENERAL- Title III (
`SEC. 317A. TEMPORARY ABSENCE OF PERSONS PARTICIPATING IN THE RETURN OF TALENT PROGRAM.
`(a) In General- The Secretary of Homeland Security, in consultation with the Secretary of State, shall establish the Return of Talent Program to permit eligible aliens to temporarily return to the alien's country of citizenship in order to make a material contribution to that country if the country is engaged in post-conflict or natural disaster reconstruction activities, for a period not longer than 2 years, unless an exception is granted under subsection (d).CommentsClose CommentsPermalink
`(b) Eligible Alien- An alien is eligible to participate in the Return of Talent Program established under subsection (a) if the alien meets the special immigrant description under section 101(a)(27)(N).CommentsClose CommentsPermalink
`(c) Family Members- The spouse, parents, siblings, and any minor children of an alien who participates in the Return of Talent Program established under subsection (a) may return to such alien's country of citizenship with the alien and reenter the United States with the alien.CommentsClose CommentsPermalink
`(d) Extension of Time- The Secretary of Homeland Security may extend the 2-year period referred to in subsection (a) upon a showing that circumstances warrant that an extension is necessary for post-conflict or natural disaster reconstruction efforts.CommentsClose CommentsPermalink
`(e) Residency Requirements- An immigrant described in section 101(a)(27)(N) who participates in the Return of Talent Program established under subsection (a), and the spouse, parents, siblings, and any minor children who accompany such immigrant to that immigrant's country of citizenship, shall be considered, during such period of participation in the program--CommentsClose CommentsPermalink
`(1) for purposes of section 316(a), physically present and residing in the United States for purposes of naturalization within the meaning of that section; andCommentsClose CommentsPermalink
`(2) for purposes of section 316(b), to meet the continuous residency requirements in that section.CommentsClose CommentsPermalink
`(f) Oversight and Enforcement- The Secretary of Homeland Security, in consultation with the Secretary of State, shall oversee and enforce the requirements of this section.'.CommentsClose CommentsPermalink
(2) TABLE OF CONTENTS- The table of contents (
`317A. Temporary absence of persons participating in the Return of Talent Program.'.CommentsClose CommentsPermalink
(c) Eligible Immigrants- Section 101(a)(27) (
(1) in subparagraph (L), by inserting a semicolon after `Improvement Act of 1998';CommentsClose CommentsPermalink
(2) in subparagraph (M), by striking the period and inserting `; or'; andCommentsClose CommentsPermalink
(3) by adding at the end the following:CommentsClose CommentsPermalink
`(N) an immigrant who--CommentsClose CommentsPermalink
`(i) has been lawfully admitted to the United States for permanent residence;CommentsClose CommentsPermalink
`(ii) demonstrates an ability and willingness to make a material contribution to the post-conflict or natural disaster reconstruction in the alien's country of citizenship; andCommentsClose CommentsPermalink
`(iii) as determined by the Secretary of State in consultation with the Secretary of Homeland Security--CommentsClose CommentsPermalink
`(I) is a citizen of a country in which Armed Forces of the United States are engaged, or have engaged in the 10 years preceding such determination, in combat or peacekeeping operations;CommentsClose CommentsPermalink
`(II) is a citizen of a country where authorization for United Nations peacekeeping operations was initiated by the United Nations Security Council during the 10 years preceding such determination; orCommentsClose CommentsPermalink
`(III) is a citizen of a country which received, during the preceding 2 years, funding from the Office of Foreign Disaster Assistance of the United States Agency for International Development in response to a declared disaster in such country by the United States Ambassador, the Chief of the U.S. Mission, or the appropriate Assistant Secretary of State, that is beyond the ability of such country's response capacity and warrants a response by the United States Government.'.CommentsClose CommentsPermalink
(d) Report to Congress- Not later than 2 years after the date of the enactment of this Act, the Secretary, in consultation with the Secretary of State, shall submit a report to Congress that describes--CommentsClose CommentsPermalink
(1) the countries of citizenship of the participants in the Return of Talent Program established under section 317A of the Immigration and Nationality Act, as added by subsection (b);CommentsClose CommentsPermalink
(2) the post-conflict or natural disaster reconstruction efforts that benefitted, or were made possible, through participation in the program; andCommentsClose CommentsPermalink
(3) any other information that the Secretary determines to be appropriate.CommentsClose CommentsPermalink
(e) Regulations- Not later than 6 months after the date of the enactment of this Act, the Secretary shall promulgate regulations to carry out this section and the amendments made by this section.CommentsClose CommentsPermalink
(f) Authorization of Appropriations- There are authorized to be appropriated to United States Citizenship and Immigration Services, such sums as may be necessary to carry out this section and the amendments made by this section.CommentsClose CommentsPermalink
Subtitle B--Preservation of Immigration Benefits for Victims of a Major Disaster or Emergency
SEC. 531. SHORT TITLE.
This subtitle may be cited as the `Major Disaster and Emergency Victims Immigration Benefits Preservation Act'.CommentsClose CommentsPermalink
SEC. 532. DEFINITIONS.
In this subtitle:CommentsClose CommentsPermalink
(1) APPLICATION OF DEFINITIONS FROM THE IMMIGRATION AND NATIONALITY ACT- Except as otherwise specifically provided in this subtitle, the definitions in the Immigration and Nationality Act shall apply in the administration of this subtitle.CommentsClose CommentsPermalink
(2) DIRECT RESULT OF A MAJOR DISASTER OR EMERGENCY- The term `direct result of a major disaster or emergency'--CommentsClose CommentsPermalink
(A) means physical damage, disruption of communications or transportation, forced or voluntary evacuation, business closures, or other circumstances directly caused by a major disaster or emergency; andCommentsClose CommentsPermalink
(B) does not include collateral or consequential economic effects in or on the United States or global economies.CommentsClose CommentsPermalink
(3) EMERGENCY- The term `emergency' has the meaning given the term in section 102(1) of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (
(4) LAST BUSINESS DAY- The term `last business day' means the last business day preceding a major disaster or emergency. For purposes of Hurricane Katrina and Hurricane Rita, the last business day is August 26, 2005.CommentsClose CommentsPermalink
(5) MAJOR DISASTER- The term `major disaster' has the meaning given the term in section 102(2) of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (
SEC. 533. SPECIAL IMMIGRANT STATUS.
(a) Provision of Status-CommentsClose CommentsPermalink
(1) IN GENERAL- For purposes of the Immigration and Nationality Act (
(A) files a petition with the Secretary under section 204 of such Act (
(B) is otherwise eligible to receive an immigrant visa; andCommentsClose CommentsPermalink
(C) is otherwise admissible to the United States for permanent residence.CommentsClose CommentsPermalink
(2) INAPPLICABLE PROVISION- In determining admissibility under paragraph (1)(C), the grounds for inadmissibility specified in section 212(a)(4) of such Act (
(b) Aliens Described-CommentsClose CommentsPermalink
(1) PRINCIPAL ALIENS- An alien is described in this subsection if--CommentsClose CommentsPermalink
(A) the alien was the beneficiary of--CommentsClose CommentsPermalink
(i) a petition that was filed with the Secretary on or before the last business day--CommentsClose CommentsPermalink
(I) under section 204 of the Immigration and Nationality Act (
(II) under section 214(d) of such Act (
(ii) an application for labor certification under section 212(a)(5)(A) of such Act (
(B) such petition or application was revoked or terminated before or after its approval, solely due to--CommentsClose CommentsPermalink
(i) the death or disability of the petitioner, applicant, or alien beneficiary as a direct result of a major disaster or emergency; orCommentsClose CommentsPermalink
(ii) loss of employment as a direct result of a major disaster or emergency.CommentsClose CommentsPermalink
(2) SPOUSES AND CHILDREN-CommentsClose CommentsPermalink
(A) IN GENERAL- An alien is described in this subsection if--CommentsClose CommentsPermalink
(i) the alien, as of the last business day, was the spouse or child of a principal alien described in paragraph (1); andCommentsClose CommentsPermalink
(ii) the alien--CommentsClose CommentsPermalink
(I) is accompanying such principal alien; orCommentsClose CommentsPermalink
(II) is following to join such principal alien within a reasonable period after a major disaster or emergency, as determined by the Attorney General.CommentsClose CommentsPermalink
(B) CONSTRUCTION-CommentsClose CommentsPermalink
(i) DEATH DISREGARDED- In construing the terms `accompanying' and `following to join' in subparagraph (A)(ii), the death of a principal alien described in paragraph (1)(B)(i) shall be disregarded.CommentsClose CommentsPermalink
(ii) REASONABLE PERIOD- The reasonable period described in subparagraph (A)(ii)(II), as applied to Hurricane Katrina and Hurricane Rita, shall end 90 days after the date of the enactment of this Act.CommentsClose CommentsPermalink
(3) GRANDPARENTS OR LEGAL GUARDIANS OF ORPHANS- An alien is described in this subsection if the alien is a grandparent or legal guardian of a child whose parents died as a direct result of a major disaster or emergency, if either of the deceased parents was, as of the last business day, a citizen or national of the United States or an alien lawfully admitted for permanent residence in the United States.CommentsClose CommentsPermalink
(c) Priority Date- Immigrant visas made available under this section shall be issued to aliens in the order in which a petition on behalf of each such alien is filed with the Secretary under subsection (a)(1), except that if an alien was assigned a priority date with respect to a petition described in subsection (b)(1)(A)(i), the alien may maintain that priority date.CommentsClose CommentsPermalink
(d) Numerical Limitations- In applying sections 201 through 203 of the Immigration and Nationality Act (
SEC. 534. EXTENSION OF FILING OR REENTRY DEADLINES.
(a) Automatic Extension of Nonimmigrant Status-CommentsClose CommentsPermalink
(1) IN GENERAL- Notwithstanding section 214 of the Immigration and Nationality Act (
(A) the date on which such lawful nonimmigrant status would have otherwise terminated absent the enactment of this subsection;CommentsClose CommentsPermalink
(B) 1 year after the death or onset of disability described in paragraph (2); orCommentsClose CommentsPermalink
(C) 3 months after the date of the enactment of this Act, for victims of Hurricane Katrina or Hurricane Rita.CommentsClose CommentsPermalink
(2) ALIENS DESCRIBED-CommentsClose CommentsPermalink
(A) PRINCIPAL ALIENS- An alien is described in this paragraph if the alien was disabled as a direct result of a major disaster or emergency.CommentsClose CommentsPermalink
(B) SPOUSES AND CHILDREN- An alien is described in this paragraph if the alien, as of the last business day, was the spouse or child of--CommentsClose CommentsPermalink
(i) a principal alien described in subparagraph (A); orCommentsClose CommentsPermalink
(ii) an alien who died as a direct result of a major disaster or emergency.CommentsClose CommentsPermalink
(3) AUTHORIZED EMPLOYMENT- During the period in which a principal alien or alien spouse is in lawful nonimmigrant status under paragraph (1), the alien may be provided an `employment authorized' endorsement or other appropriate document signifying authorization of employment.CommentsClose CommentsPermalink
(b) New Deadlines for Extension or Change of Nonimmigrant Status-CommentsClose CommentsPermalink
(1) FILING DELAYS-CommentsClose CommentsPermalink
(A) IN GENERAL- If an alien, who was lawfully present in the United States as a nonimmigrant on the last business day, was prevented from filing a timely application for an extension or change of nonimmigrant status as a direct result of a major disaster or emergency, the alien's application may be considered timely filed if it is filed within a reasonable period, as determined by the Secretary, after the application would have otherwise been due. For victims of Hurricane Katrina or Hurricane Rita, this period shall end 3 months after the date of the enactment of this Act.CommentsClose CommentsPermalink
(B) CIRCUMSTANCES PREVENTING TIMELY ACTION- For purposes of subparagraph (A), circumstances preventing an alien from timely acting are--CommentsClose CommentsPermalink
(i) office closures;CommentsClose CommentsPermalink
(ii) mail or courier service cessations or delays;CommentsClose CommentsPermalink
(iii) other closures, cessations, or delays affecting case processing or travel necessary to satisfy legal requirements;CommentsClose CommentsPermalink
(iv) mandatory evacuation and relocation; orCommentsClose CommentsPermalink
(v) other circumstances, including medical problems or financial hardship.CommentsClose CommentsPermalink
(2) DEPARTURE DELAYS-CommentsClose CommentsPermalink
(A) IN GENERAL- If an alien, who was lawfully present in the United States as a nonimmigrant on the last business day, is unable to timely depart the United States as a direct result of a major disaster or emergency, the alien shall not be considered to have been unlawfully present in the United States during the period beginning on the last business day, and ending on the date of the alien's departure, if such departure occurred within a reasonable period, as determined by the Secretary. If a victim of Hurricane Katrina or Hurricane Rita departs the United States not later than 3 months after the date of the enactment of this Act, such departure shall be considered to have been within a reasonable period under this subparagraph.CommentsClose CommentsPermalink
(B) CIRCUMSTANCES PREVENTING TIMELY ACTION- For purposes of subparagraph (A), circumstances preventing an alien from timely acting are--CommentsClose CommentsPermalink
(i) office closures;CommentsClose CommentsPermalink
(ii) transportation cessations or delays;CommentsClose CommentsPermalink
(iii) other closures, cessations, or delays affecting case processing or travel necessary to satisfy legal requirements;CommentsClose CommentsPermalink
(iv) mandatory evacuation and relocation; orCommentsClose CommentsPermalink
(v) other circumstances, including medical problems or financial hardship.CommentsClose CommentsPermalink
(c) Diversity Immigrants- Section 204(a)(1)(I)(ii)(II) (
`(II) An immigrant visa made available under subsection 203(c) for fiscal year 1998, or for a subsequent fiscal year, may be issued, or adjustment of status under section 245(a) based upon the availability of such visa may be granted, to an eligible qualified alien who has properly applied for such visa or adjustment in the fiscal year for which the alien was selected notwithstanding the end of such fiscal year. Such visa or adjustment of status shall be counted against the worldwide level set forth in subsection 201(e) for the fiscal year for which the alien was selected.'.CommentsClose CommentsPermalink
(d) Extension of Filing Period- If an alien is unable to timely file an application to register or reregister for temporary protected status under section 244 of the Immigration and Nationality Act (
(e) Voluntary Departure-CommentsClose CommentsPermalink
(1) IN GENERAL- Notwithstanding section 240B of the Immigration and Nationality Act (
(2) CIRCUMSTANCES PREVENTING DEPARTURE- For purposes of this subsection, circumstances preventing an alien from voluntarily departing the United States are--CommentsClose CommentsPermalink
(A) office closures;CommentsClose CommentsPermalink
(B) transportation cessations or delays;CommentsClose CommentsPermalink
(C) other closures, cessations, or delays affecting case processing or travel necessary to satisfy legal requirements;CommentsClose CommentsPermalink
(D) mandatory evacuation and removal; andCommentsClose CommentsPermalink
(E) other circumstances, including medical problems or financial hardship.CommentsClose CommentsPermalink
(f) Current Nonimmigrant Visa Holders-CommentsClose CommentsPermalink
(1) IN GENERAL- An alien, who was lawfully present in the United States on the last business day, as a nonimmigrant under section 101(a)(15)(H) of the Immigration and Nationality Act (
(2) CONTINUATION OF EMPLOYMENT AUTHORIZATION- Employment authorization shall continue for such alien until the new petition is adjudicated. If the new petition is denied, such employment shall cease.CommentsClose CommentsPermalink
(3) SAVINGS PROVISION- Nothing in this subsection shall be construed to limit eligibility for portability under section 214(n) of the Immigration and Nationality Act (
SEC. 535. HUMANITARIAN RELIEF FOR CERTAIN SURVIVING SPOUSES AND CHILDREN.
(a) Treatment as Immediate Relatives-CommentsClose CommentsPermalink
(1) SPOUSES- Notwithstanding the second sentence of section 201(b)(2)(A)(i) of the Immigration and Nationality Act (
(2) CHILDREN-CommentsClose CommentsPermalink
(A) IN GENERAL- In the case of an alien who was the child of a citizen of the United States at the time of the citizen's death, if the citizen died as a direct result of a major disaster or emergency, the alien may be considered, for purposes of section 201(b) of the Immigration and Nationality Act (
(B) PETITIONS- An alien described in subparagraph (A) may file a petition with the Secretary for classification of the alien under section 201(b)(2)(A)(i) of the Immigration and Nationality Act (
(b) Spouses, Children, Unmarried Sons and Daughters of Lawful Permanent Resident Aliens-CommentsClose CommentsPermalink
(1) IN GENERAL- Any spouse, child, or unmarried son or daughter of an alien described in paragraph (3) who is included in a petition for classification as a family-sponsored immigrant under section 203(a)(2) of the Immigration and Nationality Act (
(2) SELF-PETITIONS- Any spouse, child, or unmarried son or daughter of an alien described in paragraph (3) who is not a beneficiary of a petition for classification as a family-sponsored immigrant under section 203(a)(2) of the Immigration and Nationality Act may file a petition for such classification with the Secretary, if the spouse, child, son, or daughter was present in the United States on the last business day. Such spouse, child, son, or daughter may be eligible for deferred action and work authorization.CommentsClose CommentsPermalink
(3) ALIENS DESCRIBED- An alien is described in this paragraph if the alien--CommentsClose CommentsPermalink
(A) died as a direct result of a major disaster or emergency; andCommentsClose CommentsPermalink
(B) on the day of such death, was lawfully admitted for permanent residence in the United States.CommentsClose CommentsPermalink
(c) Applications for Adjustment of Status by Surviving Spouses and Children of Employment-Based Immigrants-CommentsClose CommentsPermalink
(1) IN GENERAL- Any alien who was, on the last business day, the spouse or child of an alien described in paragraph (2), and who applied for adjustment of status before the death described in paragraph (2)(A), may have such application adjudicated as if such death had not occurred.CommentsClose CommentsPermalink
(2) ALIENS DESCRIBED- An alien is described in this paragraph if the alien--CommentsClose CommentsPermalink
(A) died as a direct result of a major disaster or emergency; andCommentsClose CommentsPermalink
(B) on the day before such death, was--CommentsClose CommentsPermalink
(i) an alien lawfully admitted for permanent residence in the United States by reason of having been allotted a visa under section 203(b) of the Immigration and Nationality Act (
(ii) an applicant for adjustment of status to that of an alien described in clause (i), and admissible to the United States for permanent residence.CommentsClose CommentsPermalink
(d) Applications by Surviving Spouses and Children of Refugees and Asylees-CommentsClose CommentsPermalink
(1) IN GENERAL- Any alien who, on the last business day, was the spouse or child of an alien described in paragraph (2), may have his or her eligibility to be admitted under section 207(c)(2)(A) or 208(b)(3)(A) of the Immigration and Nationality Act (
(2) ALIENS DESCRIBED- An alien is described in this paragraph if the alien--CommentsClose CommentsPermalink
(A) died as a direct result of a major disaster or emergency; andCommentsClose CommentsPermalink
(B) on the day before such death, was--CommentsClose CommentsPermalink
(i) an alien admitted as a refugee under section 207 of the Immigration and Nationality Act (
(ii) granted asylum under section 208 of such Act (
(e) Waiver of Public Charge Grounds- In determining the admissibility of any alien accorded an immigration benefit under this section, the grounds for inadmissibility specified in section 212(a)(4) of the Immigration and Nationality Act (
SEC. 536. RECIPIENT OF PUBLIC BENEFITS.
An alien shall not be inadmissible under section 212(a)(4) of the Immigration and Nationality Act (
SEC. 537. AGE-OUT PROTECTION.
In administering the immigration laws, the Secretary and the Attorney General may grant any application or benefit notwithstanding the applicant or beneficiary (including a derivative beneficiary of the applicant or beneficiary) reaching an age that would render the alien ineligible for the benefit sought, if the alien's failure to meet the age requirement occurred as a direct result of a major disaster or emergency.CommentsClose CommentsPermalink
SEC. 538. EMPLOYMENT ELIGIBILITY VERIFICATION.
(a) In General- The Secretary may suspend or modify any requirement under section 274A(b) of the Immigration and Nationality Act (
(b) Notification- If the Secretary suspends or modifies any requirement under section 274A(b) of the Immigration and Nationality Act pursuant to subsection (a), the Secretary shall send notice of such decision, including the reasons for the suspension or modification, to--CommentsClose CommentsPermalink
(1) the Committee on the Judiciary of the Senate; andCommentsClose CommentsPermalink
(2) the Committee on the Judiciary of the House of Representatives.CommentsClose CommentsPermalink
(c) Sunset Date- The authority under subsection (a) shall expire on August 26, 2008.CommentsClose CommentsPermalink
SEC. 539. NATURALIZATION.
The Secretary may, with respect to applicants for naturalization in any district of the United States Citizenship and Immigration Services affected by a major disaster or emergency, administer the provisions of Title III of the Immigration and Nationality Act (
SEC. 540. DISCRETIONARY AUTHORITY.
The Secretary or the Attorney General may waive violations of the immigration laws committed by an alien--CommentsClose CommentsPermalink
(1) who was in lawful status on the last business day; andCommentsClose CommentsPermalink
(2) whose failure to comply with the immigration laws--CommentsClose CommentsPermalink
(A) was a direct result of a major disaster or emergency;CommentsClose CommentsPermalink
(B) occurred within a period to be determined by the Attorney General; andCommentsClose CommentsPermalink
(C) for the victims of Hurricane Katrina or Hurricane Rita, occurred on or before March 1, 2006.CommentsClose CommentsPermalink
SEC. 541. EVIDENTIARY STANDARDS AND REGULATIONS.
The Secretary shall establish appropriate evidentiary standards for demonstrating, for purposes of this subtitle, that a major disaster or emergency directly resulted in--CommentsClose CommentsPermalink
(1) death;CommentsClose CommentsPermalink
(2) disability; orCommentsClose CommentsPermalink
(3) loss of employment due to physical damage to, or destruction of, a business.CommentsClose CommentsPermalink
SEC. 542. IDENTIFICATION DOCUMENTS.
(a) Temporary Identification- The Secretary shall have the authority to instruct any Federal agency to issue temporary identification documents to individuals affected by a major disaster or emergency. Such documents shall be acceptable for identification purposes under any Federal law until 1 year after the relevant major disaster or emergency. For victims of Hurricane Katrina or Hurricane Rita, such documents shall be valid until August 29, 2007.CommentsClose CommentsPermalink
(b) Issuance- An agency may not issue identity documents under this section after January 1, 2006.CommentsClose CommentsPermalink
(c) No Compulsion To Accept or Carry Identification Documents- Nationals of the United States shall not be compelled to accept or carry documents issued under this section.CommentsClose CommentsPermalink
(d) No Proof of Citizenship- Identity documents issued under this section shall not constitute proof of citizenship or immigration status.CommentsClose CommentsPermalink
SEC. 543. WAIVER OF REGULATIONS.
The Secretary shall carry out the provisions of this subtitle as expeditiously as possible. The Secretary is not required to promulgate regulations before implementing this subtitle. The requirements of chapter 5 of title 5, United States Code (commonly referred to as the `Administrative Procedure Act') or any other law relating to rule making, information collection, or publication in the Federal Register, shall not apply to any action to implement this subtitle to the extent the Secretary, the Secretary of Labor, or the Secretary of State determine that compliance with such requirement would impede the expeditious implementation of such Act.CommentsClose CommentsPermalink
SEC. 544. NOTICES OF CHANGE OF ADDRESS.
(a) In General- If a notice of change of address otherwise required to be submitted to the Secretary by an alien described in subsection (b) relates to a change of address occurring during the period beginning on the last business day, and ending on a date to be determined by the Secretary, the alien may submit such notice. For victims of Hurricane Katrina or Hurricane Rita, such period shall end on the date of the enactment of this Act.CommentsClose CommentsPermalink
(b) Aliens Described- An alien is described in this subsection if the alien--CommentsClose CommentsPermalink
(1) resided, on the last business day, within a district of the United States that was declared by the President to be affected by a major disaster or emergency; andCommentsClose CommentsPermalink
(2) is required, under section 265 of the Immigration and Nationality Act (
SEC. 545. FOREIGN STUDENTS AND EXCHANGE PROGRAM PARTICIPANTS.
(a) In General- The nonimmigrant status of an alien described in subsection (b) shall be deemed to have been maintained during the period beginning on the last business day, and ending on a date to be determined by the Attorney General, if on such later date, the alien is enrolled in a course of study, or participating in a designated exchange visitor program, sufficient to satisfy the terms and conditions of the alien's nonimmigrant status on the last business day. For victims of Hurricane Katrina or Hurricane Rita, the relevant period shall be deemed to have ended on September 15, 2006.CommentsClose CommentsPermalink
(b) Aliens Described- An alien is described in this subsection if the alien--CommentsClose CommentsPermalink
(1) was, on the last business day, lawfully present in the United States in the status of a nonimmigrant described in subparagraph (F), (J), or (M) of section 101(a)(15) of the Immigration and Nationality Act (
(2) fails to satisfy a term or condition of such status as a direct result of a major disaster or emergency.CommentsClose CommentsPermalink
TITLE VI--LEGALIZATION OF UNDOCUMENTED INDIVIDUALS
Subtitle A--Conditional Nonimmigrants
SEC. 601. CONDITIONAL NONIMMIGRANTS.
(a) In General- Notwithstanding any other provision of law, including section 244(h) of the Immigration and Nationality Act (
(1) submits an application for such classification; andCommentsClose CommentsPermalink
(2) meets the requirements of this section.CommentsClose CommentsPermalink
(b) Presence in the United States-CommentsClose CommentsPermalink
(1) IN GENERAL- The alien shall establish that the alien--CommentsClose CommentsPermalink
(A) was present in the United States before June 1, 2006;CommentsClose CommentsPermalink
(B) has been continuously present in the United States since the date described in subparagraph (A); andCommentsClose CommentsPermalink
(C) was not legally present in the United States on that date under any classification described in section 101(a)(15) of the Immigration and Nationality Act (
(2) CONTINUOUS PRESENCE- For purposes of this subsection, an absence from the United States without authorization for a continuous period of more than 180 days between June 1, 2006, and the beginning of the application period for classification as a conditional nonimmigrant shall constitute a break in continuous physical presence.CommentsClose CommentsPermalink
(c) Conditional Nonimmigrant Dependents- Notwithstanding any other provision of law, the Secretary shall classify the spouse or child of a conditional nonimmigrant as a conditional nonimmigrant dependent, or provide the spouse or child with a conditional nonimmigrant dependent visa if--CommentsClose CommentsPermalink
(1) the spouse or child meets the applicable eligibility requirements under this section; orCommentsClose CommentsPermalink
(2) the alien was, before the date on which this Act was introduced in Congress, the spouse or child of an alien who was subsequently classified as a conditional nonimmigrant under this section, or is eligible for such classification, if--CommentsClose CommentsPermalink
(A) the termination of the relationship with such spouse or parent was connected to domestic violence; andCommentsClose CommentsPermalink
(B) the spouse or child has been battered or subjected to extreme cruelty by the spouse or parent who is a conditional nonimmigrant.CommentsClose CommentsPermalink
(d) Other Criteria-CommentsClose CommentsPermalink
(1) IN GENERAL- An alien may be classified as a conditional nonimmigrant or conditional nonimmigrant dependent if the Secretary determines that the alien--CommentsClose CommentsPermalink
(A) is not inadmissible to the United States under section 212(a) of the Immigration and Nationality Act (
(B) has not ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion; andCommentsClose CommentsPermalink
(C) is not an alien--CommentsClose CommentsPermalink
(i) who has been convicted by final judgment of a particularly serious crime and constitutes a danger to the community of the United States;CommentsClose CommentsPermalink
(ii) for whom there are reasonable grounds for believing that the alien has committed a particularly serious crime outside the United States before arriving in the United States; orCommentsClose CommentsPermalink
(iii) for whom there are reasonable grounds for regarding the alien as a danger to the security of the United States; andCommentsClose CommentsPermalink
(D) has been convicted of a felony or 3 or more misdemeanors under Federal or State law.CommentsClose CommentsPermalink
(2) GROUNDS OF INADMISSIBILITY- In determining an alien's admissibility under paragraph (1)(A)--CommentsClose CommentsPermalink
(A) paragraphs (5), (6) (excluding subparagraph (E)), (7), (9), and (10)(B) of section 212(a) of such Act shall not apply;CommentsClose CommentsPermalink
(B) the Secretary may not waive--CommentsClose CommentsPermalink
(i) subparagraph (A), (B), (C), (D)(ii), (E), (G), (H), or (I) of section 212(a)(2) of such Act (relating to criminals);CommentsClose CommentsPermalink
(ii) section 212(a)(3) of such Act (relating to security and related grounds); orCommentsClose CommentsPermalink
(iii) subparagraph (A), (C), or (D) of section 212(a)(10) of such Act (relating to polygamists and child abductors);CommentsClose CommentsPermalink
(C) the Secretary may waive the application of any provision of section 212(a) of such Act not listed in subparagraph (B) on behalf of an individual alien for humanitarian purposes, to ensure family unity, or if such waiver is otherwise in the public interest; andCommentsClose CommentsPermalink
(D) nothing in this paragraph shall be construed as affecting the authority of the Secretary other than under this paragraph to waive the provisions of section 212(a) of such Act.CommentsClose CommentsPermalink
(3) APPLICABILITY OF OTHER PROVISIONS- Sections 240B(d) and 241(a)(5) of the Immigration and Nationality Act (
(e) Attestation of Employment- The Secretary may not classify an alien as a conditional nonimmigrant unless the alien--CommentsClose CommentsPermalink
(1) attests, under penalty of perjury, that the alien--CommentsClose CommentsPermalink
(A) was employed full time, part time, or seasonally in the United States or was self-employed before June 1, 2006, and has been employed in the United States since that date; orCommentsClose CommentsPermalink
(B) was otherwise physically present before June 1, 2006, under the limitations described in subsections (b) and (c) of section 602; andCommentsClose CommentsPermalink
(2) submits evidence that the Secretary determines to be necessary to establish prima facie evidence of employment or physical presence in the United States.CommentsClose CommentsPermalink
(f) Security and Law Enforcement Background Checks-CommentsClose CommentsPermalink
(1) SUBMISSION OF FINGERPRINTS- The Secretary may not classify an alien as a conditional nonimmigrant or a conditional nonimmigrant dependent unless the alien submits fingerprints in accordance with procedures established by the Secretary.CommentsClose CommentsPermalink
(2) BACKGROUND CHECKS- The Secretary shall utilize fingerprints and other biometric data provided by the alien to conduct a background check of such alien to search for criminal, national security, or other law enforcement actions that would render the alien ineligible for classification under this section.CommentsClose CommentsPermalink
(3) EXPEDITIOUS PROCESSING- The background checks required under paragraph (2) shall be conducted as expeditiously as possible.CommentsClose CommentsPermalink
(g) Period of Authorized Stay; Application Fee and Fine-CommentsClose CommentsPermalink
(1) PERIOD OF AUTHORIZED STAY-CommentsClose CommentsPermalink
(A) IN GENERAL- Except as provided under subparagraph (C), the period of authorized stay for a conditional nonimmigrant or a conditional nonimmigrant dependent shall be 6 years from the date on which such status is conferred.CommentsClose CommentsPermalink
(B) LIMITATION- The Secretary may not adjust or change the status of a conditional nonimmigrant or a conditional nonimmigrant dependent to any other immigrant or nonimmigrant classification until the termination of the 6-year period described in subparagraph (A).CommentsClose CommentsPermalink
(C) EXTENSION- The Secretary may only extend the period described in subparagraph (A) to accommodate the processing of an application for adjustment of status under section 602.CommentsClose CommentsPermalink
(2) APPLICATION FEE AND FINES-CommentsClose CommentsPermalink
(A) APPLICATION FEE- The Secretary shall impose a fee for filing an application under this section. Such fee shall be sufficient to cover the administrative and other expenses incurred in connection with the review of such applications.CommentsClose CommentsPermalink
(B) FINES-CommentsClose CommentsPermalink
(i) IN GENERAL- Except as provided under clause (ii), an alien filing an application under this section shall submit to the Secretary, in addition to the fee required under subparagraph (A), a fine of $500.CommentsClose CommentsPermalink
(ii) EXCEPTION- An alien who is younger than 21 years of age shall not be required to pay a fine under this paragraph.CommentsClose CommentsPermalink
(C) DISPOSITION OF FEES AND FINES-CommentsClose CommentsPermalink
(i) FEES- Fees collected under this paragraph shall be deposited into the Immigration Examination Fee Account and remain available as provided under subsections (m) and (n) of section 286.CommentsClose CommentsPermalink
(ii) FINES- Fines collected under this paragraph shall be deposited into the New Worker Program and Conditional Nonimmigrant Fee Account established under section 286(w).CommentsClose CommentsPermalink
(h) Treatment of Applicants-CommentsClose CommentsPermalink
(1) IN GENERAL- An alien who files an application under this section to become a conditional nonimmigrant or a conditional nonimmigrant dependent--CommentsClose CommentsPermalink
(A) shall be granted employment authorization pending final adjudication of the alien's application;CommentsClose CommentsPermalink
(B) shall be granted permission to travel abroad;CommentsClose CommentsPermalink
(C) may not be detained for immigration purposes, determined inadmissible or deportable, or removed pending final adjudication of the alien's application, unless the alien, due to conduct or criminal conviction, becomes ineligible for conditional nonimmigrant classification; andCommentsClose CommentsPermalink
(D) may not be considered an unauthorized alien (as defined in section 274A(h)(3) of the Immigration and Nationality Act (
(2) DOCUMENT OF AUTHORIZATION- The Secretary shall provide each alien described in paragraph (1) with a counterfeit-resistant document of authorization that--CommentsClose CommentsPermalink
(A) meets all current requirements established by the Secretary for travel documents, including the requirements under section 403 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (
(B) reflects the benefits and status set forth in paragraph (1).CommentsClose CommentsPermalink
(3) BEFORE APPLICATION PERIOD- If an alien is apprehended between the date of the enactment of this Act and the date on which regulations are promulgated to implement this section, and the alien can establish prima facie eligibility as a conditional nonimmigrant or a conditional nonimmigrant dependent, the Secretary shall provide the alien with a reasonable opportunity to file an application under this section after such regulations are promulgated.CommentsClose CommentsPermalink
(4) DURING CERTAIN PROCEEDINGS- Notwithstanding any provision of the Immigration and Nationality Act, if an immigration judge determines that an alien who is in removal proceedings has made a prima facie case of eligibility for classification as a conditional nonimmigrant or a conditional nonimmigrant dependent, the judge shall administratively close such proceedings and permit the alien a reasonable opportunity to apply for such classification.CommentsClose CommentsPermalink
(5) RELATIONSHIPS OF APPLICATION TO CERTAIN ORDERS-CommentsClose CommentsPermalink
(A) IN GENERAL- An alien who is present in the United States and has been ordered excluded, deported, removed, or ordered to depart voluntarily from the United States under any provision of the Immigration and Nationality Act--CommentsClose CommentsPermalink
(i) notwithstanding such order, may apply for classification as a conditional nonimmigrant or conditional nonimmigrant dependent under this subtitle; andCommentsClose CommentsPermalink
(ii) shall not be required to file a separate motion to reopen, reconsider, or vacate the exclusion, deportation, removal, or voluntary departure order.CommentsClose CommentsPermalink
(B) APPLICATION GRANTED- If the Secretary grants the application described in subparagraph (A)(i), the Secretary shall cancel the order described in subparagraph (A).CommentsClose CommentsPermalink
(C) APPLICATION DENIED- If the Secretary renders a final administrative decision to deny the application described in subparagraph (A)(i), the order described in subparagraph (A) shall be effective and enforceable to the same extent as if the application had not been made.CommentsClose CommentsPermalink
(i) Classification- If the Secretary determines that an alien is eligible for classification as a conditional nonimmigrant or conditional nonimmigrant dependent, the alien shall be entitled to all benefits described in subsection (h)(1). The Secretary may authorize the use of a document described in subsection (h)(2) as evidence of such classification or may issue additional documentation as evidence of classification as a conditional nonimmigrant or conditional nonimmigrant dependent.CommentsClose CommentsPermalink
(j) Termination of Benefits-CommentsClose CommentsPermalink
(1) IN GENERAL- Any benefit provided to an alien seeking classification as a conditional nonimmigrant or conditional nonimmigrant dependent, or who is classified as such, under this section shall terminate if--CommentsClose CommentsPermalink
(A) the Secretary determines that the alien is ineligible for such classification and all review procedures under section 603 have been exhausted or waived by the alien;CommentsClose CommentsPermalink
(B) the alien is found removable from the United States under section 237 of the Immigration and Nationality Act (
(C) the alien has used documentation issued under this section for unlawful or fraudulent purposes; orCommentsClose CommentsPermalink
(D) in the case of the spouse or child of an alien applying for classification as a conditional nonimmigrant or classified as a conditional nonimmigrant under this section, the benefits for the principal alien are terminated.CommentsClose CommentsPermalink
(k) Dissemination of Information on Conditional Nonimmigrant Program- During the 12-month period immediately after the issuance of regulations implementing this section, the Secretary, in cooperation with entities approved by the Secretary, shall broadly disseminate information respecting conditional nonimmigrant or conditional nonimmigrant dependent classification under this section and the requirements to be satisfied to obtain such classification. The Secretary shall disseminate information to employers and labor unions to advise them of the rights and protections available to them and to workers who file applications under this section. Such information shall be broadly disseminated, in the principal languages, as determined by the Secretary, spoken by aliens who would qualify for classification under this section, including to television, radio, and print media to which such aliens would have access.CommentsClose CommentsPermalink
SEC. 602. ADJUSTMENT OF STATUS FOR CONDITIONAL NONIMMIGRANTS.
(a) Requirements-CommentsClose CommentsPermalink
(1) IN GENERAL- Notwithstanding any other provision of law, including section 244(h) of the Immigration and Nationality Act (
(2) COMPLETION OF EMPLOYMENT OR EDUCATION REQUIREMENT- A conditional nonimmigrant applying for adjustment of status under this section shall establish that during the 6-year period immediately preceding the application for adjustment of status, he or she--CommentsClose CommentsPermalink
(A) has been employed full-time, part-time, or seasonally in the United States;CommentsClose CommentsPermalink
(B) has been self-employed in the United States; orCommentsClose CommentsPermalink
(C) has met the education requirements under subsection (c).CommentsClose CommentsPermalink
(3) EVIDENCE OF EMPLOYMENT-CommentsClose CommentsPermalink
(A) CONCLUSIVE DOCUMENTS- An alien may conclusively establish employment status in compliance with paragraph (2) by submitting records to the Secretary that demonstrate such employment, and have been maintained by the Social Security Administration, the Internal Revenue Service, or any other Federal, State, or local government agency.CommentsClose CommentsPermalink
(B) OTHER DOCUMENTS- An alien who is unable to submit a document described in subparagraph (A) may satisfy the requirement under paragraph (1) by submitting to the Secretary at least 2 other types of reliable documents that provide evidence of employment, including--CommentsClose CommentsPermalink
(i) bank records;CommentsClose CommentsPermalink
(ii) business records;CommentsClose CommentsPermalink
(iii) employer records;CommentsClose CommentsPermalink
(iv) records of a labor union, day labor center, or organization that assists workers in employment;CommentsClose CommentsPermalink
(v) sworn affidavits from nonrelatives who have direct knowledge of the alien's work, that contain--CommentsClose CommentsPermalink
(I) the name, address, and telephone number of the affiant;CommentsClose CommentsPermalink
(II) the nature and duration of the relationship between the affiant and the alien; andCommentsClose CommentsPermalink
(III) other verification or information; andCommentsClose CommentsPermalink
(vi) remittance records.CommentsClose CommentsPermalink
(C) ADDITIONAL DOCUMENTS AND RESTRICTIONS- The Secretary may--CommentsClose CommentsPermalink
(i) designate additional documents to evidence employment in the United States; andCommentsClose CommentsPermalink
(ii) set such terms and conditions on the use of affidavits as is necessary to verify and confirm the identity of any affiant or otherwise prevent fraudulent submissions.CommentsClose CommentsPermalink
(4) SENSE OF CONGRESS- It is the sense of the Congress that the requirement under this subsection should be interpreted and implemented in a manner that recognizes and takes into account the difficulties encountered by aliens in obtaining evidence of employment due to the undocumented status of the alien.CommentsClose CommentsPermalink
(5) BURDEN OF PROOF- An alien described in paragraph (1) who is applying for adjustment of status under this section shall prove, by a preponderance of the evidence, that the alien has satisfied the requirements of this subsection. An alien may meet such burden of proof by producing sufficient evidence to demonstrate such employment as a matter of reasonable inference.CommentsClose CommentsPermalink
(6) PORTABILITY- An alien shall not be required to complete the employment requirements under this section with a single employer.CommentsClose CommentsPermalink
(b) Exceptions and Special Rules-CommentsClose CommentsPermalink
(1) EXCEPTIONS BASED ON AGE- The employment requirements under this section shall not apply--CommentsClose CommentsPermalink
(A) to any alien who is classified as a conditional nonimmigrant dependent who was younger than 21 years of age on the date of the enactment of this Act; orCommentsClose CommentsPermalink
(B) to any alien who is 65 years of age or older on the date of the enactment of this Act.CommentsClose CommentsPermalink
(2) DISABILITIES; PREGNANCY- The employment requirements under this section shall be reduced for an alien who cannot demonstrate employment based on a physical or mental disability (as defined under section 3(2) of the Americans with Disabilities Act of 1990 (
(c) Application Procedure and Fee-CommentsClose CommentsPermalink
(1) IN GENERAL- The Secretary shall promulgate regulations establishing procedures for submitting an application for adjustment of status under this section. The Secretary shall impose a fee for filing an application for adjustment of status under this section which shall be sufficient to cover the administrative and other expenses incurred in connection with the review of such applications.CommentsClose CommentsPermalink
(2) FINES-CommentsClose CommentsPermalink
(A) IN GENERAL- Except as provided under subparagraph (B), an alien filing an application for adjustment of status under this section shall pay a $1500 fine to the Secretary, in addition to the fee required under paragraph (1).CommentsClose CommentsPermalink
(B) EXCEPTION- An alien who is classified as a conditional nonimmigrant dependent who was under 21 years of age on the date of enactment of this Act shall not be required to pay a fine under this paragraph.CommentsClose CommentsPermalink
(3) STATE IMPACT ASSISTANCE FEE-CommentsClose CommentsPermalink
(A) IN GENERAL- In addition to any other amounts required to be paid under this subsection, a conditional nonimmigrant shall submit a State impact assistance fee equal to $500 with the application for adjustment filed under this section.CommentsClose CommentsPermalink
(B) USE OF FEE- Fees collected under subparagraph (A) shall be deposited in the State Impact Assistance Account and shall remain available under 286(x) of the Immigration and Nationality Act.CommentsClose CommentsPermalink
(4) DEPOSIT OF FEES- Fees collected under this paragraph shall be deposited into the Immigration Examination Fee Account and shall remain available as provided under subsections (m) and (n) of section 286 of the Immigration and Nationality Act (
(5) DEPOSIT OF FINES- Fines collected under this paragraph shall be deposited into the New Worker Program and Conditional Nonimmigrant Fee Account and shall remain available as provided under section 286(w) of the Immigration and Nationality Act.CommentsClose CommentsPermalink
(d) Admissible Under Immigration Laws- A conditional nonimmigrant or conditional nonimmigrant dependent applying for adjustment of status under this section shall establish that he or she is not inadmissible under section 212(a), except for any provision under that section that is not applicable or waived under paragraph (2) or (3) of section 601(d). For purposes of an application filed under this section, any prior waiver of inadmissibility granted to an alien under section 601(d)(2(C) shall remain in effect with respect to the specific conduct considered by the Secretary at the time of classification under section 601.CommentsClose CommentsPermalink
(e) Legal Reentry-CommentsClose CommentsPermalink
(1) IN GENERAL- A conditional nonimmigrant applying for adjustment of status under this section shall physically depart the United States and after such departure, be admitted to the United States as a conditional nonimmigrant or applicant for conditional nonimmigrant status, as evidenced by documentation issued by the Secretary. A record of such admission shall be created by the Secretary through the US-VISIT exit and entry system, or any other system maintained by the Secretary to create a record of a lawful entry.CommentsClose CommentsPermalink
(2) DEPARTURE AND REENTRY- A conditional nonimmigrant seeking to establish lawful admission under paragraph (1)(B) may seek admission to the United States at any port of entry at which the US-VISIT exit and entry system, or any other system maintained by the Secretary to record lawful admission, is in operation. Departure and subsequent lawful admission to the United States shall occur not later than 90 days before the conditional nonimmigrant files an application for adjustment to lawful permanent resident status under this section.CommentsClose CommentsPermalink
(3) EXEMPTIONS- Paragraph (2) shall not apply to an alien who, on the date on which the application for adjustment of status is filed under this section--CommentsClose CommentsPermalink
(A) has served in the Armed Forces of the United States;CommentsClose CommentsPermalink
(B) has a son or daughter who has served or is serving in the Armed Forces of the United States;CommentsClose CommentsPermalink
(C) has a pending or approved application under section 244 of the Immigration and Nationality Act (
(D) is at least 65 years of age;CommentsClose CommentsPermalink
(E) is younger than 21 years of age;CommentsClose CommentsPermalink
(F) suffers from an ongoing physical or mental disability (as defined in section 3(2) of the Americans with Disabilities Act of 1990 (
(G) is a single parent head of household; orCommentsClose CommentsPermalink
(H) cannot comply with such paragraph due to extreme hardship to the alien or an immediate family member, as determined by the Secretary.CommentsClose CommentsPermalink
(4) FAILURE TO ESTABLISH LAWFUL ADMISSION TO THE UNITED STATES- Unless exempted under paragraph (3), a conditional nonimmigrant who fails to depart and reenter the United States in accordance with paragraph (1) may not become a lawful permanent resident under this section.CommentsClose CommentsPermalink
(f) Medical Examination- A conditional nonimmigrant or a conditional nonimmigrant dependent shall undergo an appropriate medical examination (including a determination of immunization status) that conforms to generally accepted professional standards of medical practice.CommentsClose CommentsPermalink
(g) Payment of Income Taxes-CommentsClose CommentsPermalink
(1) IN GENERAL- Not later than the date on which status is adjusted under this section, a conditional nonimmigrant or conditional nonimmigrant dependent shall satisfy any applicable Federal tax liability by establishing that--CommentsClose CommentsPermalink
(A) no such tax liability exists;CommentsClose CommentsPermalink
(B) all outstanding liabilities have been paid; orCommentsClose CommentsPermalink
(C) the conditional nonimmigrant has entered into, and is in compliance with, an agreement for payment of all outstanding liabilities with the Internal Revenue Service.CommentsClose CommentsPermalink
(2) APPLICABLE FEDERAL TAX LIABILITY- For purposes of paragraph (1), the term `applicable Federal tax liability' means liability for Federal taxes, including penalties and interest, owed for any year during the period of employment required under subsection (a)(2) for which the statutory period for assessment of any deficiency for such taxes has not expired.CommentsClose CommentsPermalink
(3) IRS COOPERATION- The Secretary of the Treasury shall establish rules and procedures under which the Commissioner of Internal Revenue shall provide documentation to--CommentsClose CommentsPermalink
(A) a conditional nonimmigrant or conditional nonimmigrant dependent, upon request, to establish the payment of all taxes required under this subsection; orCommentsClose CommentsPermalink
(B) the Secretary, upon request, regarding the payment of Federal taxes by an alien applying for a benefit under this section.CommentsClose CommentsPermalink
(4) COMPLIANCE- The alien may satisfy proof of compliance with this subsection by submitting documentation that establishes that--CommentsClose CommentsPermalink
(A) no such tax liability exists;CommentsClose CommentsPermalink
(B) all outstanding liabilities have been met; orCommentsClose CommentsPermalink
(C) the alien has entered into, and is in compliance with, an agreement for payment of all outstanding liabilities with the Internal Revenue Service.CommentsClose CommentsPermalink
(h) Basic Citizenship Skills-CommentsClose CommentsPermalink
(1) IN GENERAL- Except as provided under paragraph (2), a conditional nonimmigrant or conditional nonimmigrant dependent shall establish that he or she--CommentsClose CommentsPermalink
(A) meets the requirements under section 312 of the Immigration and Nationality Act (
(B) is satisfactorily pursuing a course of study to achieve such an understanding of English and knowledge and understanding of the history and Government of the United States.CommentsClose CommentsPermalink
(2) RELATION TO NATURALIZATION EXAMINATION- A conditional nonimmigrant or conditional nonimmigrant dependent who demonstrates that he or she meets the requirements under such section 312 may be considered to have satisfied the requirements of that section for purposes of becoming naturalized as a citizen of the United States under title III of the Immigration and Nationality Act (
(3) EXCEPTIONS-CommentsClose CommentsPermalink
(A) MANDATORY- Paragraph (1) shall not apply to any person who is unable to comply with those requirements because of a physical or developmental disability or mental impairment as described in section 312(b)(1) of the Immigration and Nationality Act.CommentsClose CommentsPermalink
(B) DISCRETIONARY- The Secretary may waive all or part of paragraph (1) for a conditional nonimmigrant who is at least 65 years of age on the date on which an application is filed for adjustment of status under this section.CommentsClose CommentsPermalink
(i) Security and Law Enforcement Background Checks- The Secretary shall conduct a security and law enforcement background check in accordance with procedures described in section 601(f).CommentsClose CommentsPermalink
(j) Military Selective Service- If a conditional nonimmigrant or conditional nonimmigrant dependent is within the age period required under the Military Selective Service Act (50 U.S.C. App. 451 et seq.), the conditional nonimmigrant shall establish proof of registration under that Act.CommentsClose CommentsPermalink
(k) Treatment of Conditional Nonimmigrant Dependents-CommentsClose CommentsPermalink
(1) ADJUSTMENT OF STATUS- Notwithstanding any other provision of law, the Secretary may--CommentsClose CommentsPermalink
(A) adjust the status of a conditional nonimmigrant dependent to that of a person admitted for lawful permanent residence if the principal conditional nonimmigrant spouse or parent has been found eligible for adjustment of status under this section;CommentsClose CommentsPermalink
(B) adjust the status of a conditional nonimmigrant dependent who was the spouse or child of an alien who was classified as a conditional nonimmigrant or was eligible for such classification under section 601, to that of a person admitted for permanent residence if--CommentsClose CommentsPermalink
(i) the termination of the relationship with such spouse or parent was connected to domestic violence; andCommentsClose CommentsPermalink
(ii) the spouse or child has been battered or subjected to extreme cruelty by the spouse or parent.CommentsClose CommentsPermalink
(2) APPLICATION OF OTHER LAW- In processing applications under this subsection on behalf of aliens who have been battered or subjected to extreme cruelty, the Secretary shall apply--CommentsClose CommentsPermalink
(A) the provisions under section 204(a)(1)(J) of the Immigration and Nationality Act (
(B) the protections, prohibitions, and penalties under section 384 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (
(l) Back of the Line- An alien may not adjust status to that of a lawful permanent resident status under the Development, Relief, and Education for Alien Minors Act of 2007 until that earlier of--CommentsClose CommentsPermalink
(1) 30 days after an immigrant visa becomes available for petitions filed under sections 201, 202, and 203 that were filed before the date of enactment of the STRIVE Act of 2007; orCommentsClose CommentsPermalink
(2) 8 years after the enactment of the Development, Relief, and Education for Alien Minors Act of 2007.CommentsClose CommentsPermalink
(m) Ineligibility for Public Benefits- For purposes of section 403 of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (
SEC. 603. ADMINISTRATIVE AND JUDICIAL REVIEW.
(a) Administrative Review-CommentsClose CommentsPermalink
(1) SINGLE LEVEL OF ADMINISTRATIVE APPELLATE REVIEW- The Secretary shall establish an appellate review process within United States Citizenship and Immigration Services to provide for a single level of administrative appellate review of a final determination respecting an application for classification or adjustment of status under this subtitle.CommentsClose CommentsPermalink
(2) STANDARD FOR REVIEW- Administrative appellate review under paragraph (1) shall be based solely upon the administrative record established at the time of the determination on the application and upon the presentation of additional or newly discovered evidence during the time of the pending appeal.CommentsClose CommentsPermalink
(b) Judicial Review-CommentsClose CommentsPermalink
(1) IN GENERAL- The circuit courts of appeal of the United States shall have jurisdiction to review the denial of an application for classification or adjustment of status under this subtitle. Notwithstanding any other provision of law, the standard for review of such a denial shall be governed by paragraph (2).CommentsClose CommentsPermalink
(2) STANDARD FOR JUDICIAL REVIEW- Judicial review of a denial of an application under this subtitle shall be based solely upon the administrative record established at the time of the review. The findings of fact and other determinations contained in the record shall be conclusive unless the applicant can establish abuse of discretion or findings that are directly contrary to clear and convincing facts contained in the record, considered as a whole.CommentsClose CommentsPermalink
(3) JURISDICTION OF COURTS-CommentsClose CommentsPermalink
(A) IN GENERAL- Notwithstanding any other provision of law, the district courts of the United States shall have jurisdiction over any cause or claim arising from a pattern or practice of the Secretary in the operation or implementation of this subtitle that is arbitrary, capricious, or otherwise contrary to law, and may order any appropriate relief.CommentsClose CommentsPermalink
(B) REMEDIES- A district court may order any appropriate relief under subparagraph (A) if the court determines that--CommentsClose CommentsPermalink
(i) resolution of such cause or claim will serve judicial and administrative efficiency; orCommentsClose CommentsPermalink
(ii) a remedy would otherwise not be reasonably available or practicable.CommentsClose CommentsPermalink
(c) Stay of Removal- An alien seeking administrative or judicial review under this section may not be removed from the United States until a final decision is rendered establishing that the alien is ineligible for classification or adjustment of status under this subtitle unless such removal is based on criminal or national security grounds.CommentsClose CommentsPermalink
SEC. 604. MANDATORY DISCLOSURE OF INFORMATION.
(a) Mandatory Disclosure- The Secretary and the Secretary of State shall provide a duly recognized law enforcement entity that submits a written request with the information furnished pursuant to an application filed under this subtitle, and any other information derived from such furnished information, in connection with a criminal investigation or prosecution or a national security investigation or prosecution, of an individual suspect or group of suspects.CommentsClose CommentsPermalink
(b) Limitations- Except as otherwise provided under this section, no Federal agency, or any officer, employee, or agent of such agency, may--CommentsClose CommentsPermalink
(1) use the information furnished by the applicant pursuant to an application for benefits under this subtitle for any purpose other than to make a determination on the application;CommentsClose CommentsPermalink
(2) make any publication through which the information furnished by any particular applicant can be identified; orCommentsClose CommentsPermalink
(3) permit anyone other than the sworn officers and employees of such agency to examine individual applications.CommentsClose CommentsPermalink
(c) Criminal Penalty- Any person who knowingly uses, publishes, or permits information to be examined in violation of this section shall be fined not more than $10,000.CommentsClose CommentsPermalink
SEC. 605. PENALTIES FOR FALSE STATEMENTS IN APPLICATIONS.
(a) Criminal Penalty-CommentsClose CommentsPermalink
(1) VIOLATION- It shall be unlawful for any person--CommentsClose CommentsPermalink
(A) to file, or assist in filing, an application for benefits under this subtitle; andCommentsClose CommentsPermalink
(i) to knowingly and willfully falsify, misrepresent, conceal, or cover up a material fact;CommentsClose CommentsPermalink
(ii) to make any false, fictitious, or fraudulent statements or representations; orCommentsClose CommentsPermalink
(iii) to make or use any false writing or document knowing the same to contain any false, fictitious, or fraudulent statement or entry; orCommentsClose CommentsPermalink
(B) to create or supply a false writing or document for use in making such an application.CommentsClose CommentsPermalink
(2) PENALTY- Any person who violates paragraph (1) shall be fined in accordance with title 18, United States Code, imprisoned not more than 5 years, or both.CommentsClose CommentsPermalink
(b) Inadmissibility- An alien who is convicted of violating subsection (a) shall be considered to be inadmissible to the United States on the ground described in section 212(a)(6)(C)(i) of the Immigration and Nationality Act (
(c) Exception- Notwithstanding subsections (a) and (b), any alien or other entity (including an employer or union) that submits an employment record that contains incorrect data used by the alien to obtain such employment, shall not, on that ground, be determined to have violated this section.CommentsClose CommentsPermalink
SEC. 606. ALIENS NOT SUBJECT TO DIRECT NUMERICAL LIMITATIONS.
Section 201(b)(1) (
(1) in subparagraph (A), by striking `subparagraph (A) or (B) of'; andCommentsClose CommentsPermalink
(2) by adding at the end the following:CommentsClose CommentsPermalink
`(N) Aliens whose status is adjusted from that of a conditional nonimmigrant or conditional nonimmigrant dependent.'.CommentsClose CommentsPermalink
SEC. 607. EMPLOYER PROTECTIONS.
(a) Immigration Status of Alien- Employers of aliens applying for conditional nonimmigrant or conditional nonimmigrant dependent classification or adjustment of status under section 601 or 602 shall not be subject to civil and criminal tax liability relating directly to the employment of such alien before receiving employment authorization under this subtitle.CommentsClose CommentsPermalink
(b) Provision of Employment Records- Employers that provide unauthorized aliens with copies of employment records or other evidence of employment pursuant to an application for conditional nonimmigrant or conditional nonimmigrant dependent classification or adjustment of status under section 601 or 602 or any other application or petition pursuant to any other immigration law, shall not be subject to civil and criminal liability under section 274A of the Immigration and Nationality Act (
(c) Applicability of Other Law- Nothing in this section may be used to shield an employer from liability under section 274B of the Immigration and Nationality Act (
SEC. 608. LIMITATIONS ON ELIGIBILITY.
(a) In General- An alien is not ineligible for any immigration benefit under any provision of this title, or any amendment made by this title, solely on the basis that the alien violated section 1543, 1544, or 1546 of title 18, United States Code, or any amendments made by this Act, during the period beginning on the date of the enactment of this Act and ending on the date on which the alien applies for any benefits under this title.CommentsClose CommentsPermalink
(b) Prosecution- An alien who commits a violation of section 1543, 1544, or 1546 of such title or any amendments made by this Act, during the period beginning on the date of the enactment of this Act and ending on the date that the alien applies for eligibility for such benefit may be prosecuted for the violation if the alien's application for such benefit is denied.CommentsClose CommentsPermalink
SEC. 609. RULEMAKING.
The Secretary shall promulgate regulations regarding the timely filing and processing of applications for benefits under this subtitle.CommentsClose CommentsPermalink
SEC. 610. AUTHORIZATION OF APPROPRIATIONS.
(a) In General- There are authorized to be appropriated to the Secretary such sums as may be necessary to carry out this subtitle and the amendments made by this subtitle.CommentsClose CommentsPermalink
(b) Availability of Funds- Funds appropriated pursuant to subsection (a) shall remain available until expended.CommentsClose CommentsPermalink
(c) Sense of Congress- It is the sense of the Congress that funds authorized to be appropriated under subsection (a) should be directly appropriated so as to facilitate the orderly and timely commencement of the processing of applications filed under sections 601 and 602.CommentsClose CommentsPermalink
Subtitle B--DREAM Act of 2007
SEC. 621. SHORT TITLE.
This subtitle may be cited as the `Development, Relief, and Education for Alien Minors Act of 2007' or the `DREAM Act of 2007'.CommentsClose CommentsPermalink
SEC. 622. DEFINITIONS.
In this subtitle:CommentsClose CommentsPermalink
(1) INSTITUTION OF HIGHER EDUCATION- The term `institution of higher education' has the meaning given that term in section 101 of the Higher Education Act of 1965 (
(2) UNIFORMED SERVICES- The term `uniformed services' has the meaning given that term in
SEC. 623. RESTORATION OF STATE OPTION TO DETERMINE RESIDENCY FOR PURPOSES OF HIGHER EDUCATION BENEFITS.
(a) In General- Section 505 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (
(b) Effective Date- The repeal under subsection (a) shall take effect as if included in the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (division C of
SEC. 624. CANCELLATION OF REMOVAL AND ADJUSTMENT OF STATUS OF CERTAIN LONG-TERM RESIDENTS WHO ENTERED THE UNITED STATES AS CHILDREN.
(a) Special Rule for Certain Long-Term Residents Who Entered the United States as Children-CommentsClose CommentsPermalink
(1) IN GENERAL- Notwithstanding any other provision of law and except as otherwise provided in this subtitle, the Secretary may cancel removal of, and adjust to the status of an alien lawfully admitted for permanent residence, subject to the conditional basis described in section 625, an alien who is inadmissible or deportable from the United States, if the alien demonstrates that--CommentsClose CommentsPermalink
(A) the alien has been physically present in the United States for a continuous period of not less than 5 years immediately preceding the date of enactment of this Act, and had not yet reached the age of 16 years at the time of initial entry;CommentsClose CommentsPermalink
(B) the alien has been a person of good moral character since the time of application;CommentsClose CommentsPermalink
(C) the alien--CommentsClose CommentsPermalink
(i) is not inadmissible under paragraph (2), (3), (6)(E), or (10)(C) of section 212(a) of the Immigration and Nationality Act (
(ii) is not deportable under paragraph (1)(E), (2), or (4) of section 237(a) of the Immigration and Nationality Act (
(D) the alien, at the time of application, has been admitted to an institution of higher education in the United States, or has earned a high school diploma or obtained a general education development certificate in the United States; andCommentsClose CommentsPermalink
(E) the alien has never been under a final administrative or judicial order of exclusion, deportation, or removal, unless the alien--CommentsClose CommentsPermalink
(i) has remained in the United States under color of law after such order was issued; orCommentsClose CommentsPermalink
(ii) received the order before attaining the age of 16 years.CommentsClose CommentsPermalink
(2) WAIVER- Notwithstanding paragraph (1), the Secretary may waive the ground of ineligibility under section 212(a)(6)(E) of the Immigration and Nationality Act and the ground of deportability under paragraph (1)(E) of section 237(a) of that Act for humanitarian purposes or family unity or when it is otherwise in the public interest.CommentsClose CommentsPermalink
(3) PROCEDURES- The Secretary shall provide a procedure by regulation allowing eligible individuals to apply affirmatively for the relief available under this subsection without being placed in removal proceedings.CommentsClose CommentsPermalink
(b) Termination of Continuous Period- For purposes of this section, any period of continuous residence or continuous physical presence in the United States of an alien who applies for cancellation of removal under this section shall not terminate when the alien is served a notice to appear under section 239(a) of the Immigration and Nationality Act (
(c) Treatment of Certain Breaks in Presence-CommentsClose CommentsPermalink
(1) IN GENERAL- An alien shall be considered to have failed to maintain continuous physical presence in the United States under subsection (a) if the alien has departed from the United States for any period in excess of 90 days or for any periods in the aggregate exceeding 180 days.CommentsClose CommentsPermalink
(2) EXTENSIONS FOR EXCEPTIONAL CIRCUMSTANCES- The Secretary may extend the time periods described in paragraph (1) if the alien demonstrates that the failure to timely return to the United States was due to exceptional circumstances. The exceptional circumstances determined sufficient to justify an extension should be no less compelling than serious illness of the alien, or death or serious illness of a parent, grandparent, sibling, or child.CommentsClose CommentsPermalink
(d) Exemption From Numerical Limitations- Nothing in this section may be construed to apply a numerical limitation on the number of aliens who may be eligible for cancellation of removal or adjustment of status under this section.CommentsClose CommentsPermalink
(e) Rulemaking-CommentsClose CommentsPermalink
(1) PROPOSED REGULATIONS- Not later than 180 days after the date of enactment of this Act, the Secretary shall publish regulations implementing this section. Such regulations shall be effective immediately on an interim basis, but are subject to change and revision after public notice and opportunity for a period for public comment.CommentsClose CommentsPermalink
(2) INTERIM, FINAL REGULATIONS- Within a reasonable time after publication of the interim regulations in accordance with paragraph (1), the Secretary shall publish final regulations implementing this section.CommentsClose CommentsPermalink
(f) Removal of Alien- The Secretary may not remove any alien who has a pending application for conditional status under this subtitle.CommentsClose CommentsPermalink
SEC. 625. CONDITIONAL PERMANENT RESIDENT STATUS.
(a) In General-CommentsClose CommentsPermalink
(1) CONDITIONAL BASIS FOR STATUS- Notwithstanding any other provision of law, and except as provided in section 626, an alien whose status has been adjusted under section 624 to that of an alien lawfully admitted for permanent residence shall be considered to have obtained such status on a conditional basis subject to the provisions of this section. Such conditional permanent resident status shall be valid for a period of 6 years, subject to termination under subsection (b).CommentsClose CommentsPermalink
(2) NOTICE OF REQUIREMENTS-CommentsClose CommentsPermalink
(A) AT TIME OF OBTAINING PERMANENT RESIDENCE- At the time an alien obtains permanent resident status on a conditional basis under paragraph (1), the Secretary shall provide for notice to the alien regarding the provisions of this section and the requirements of subsection (c) to have the conditional basis of such status removed.CommentsClose CommentsPermalink
(B) EFFECT OF FAILURE TO PROVIDE NOTICE- The failure of the Secretary to provide a notice under this paragraph--CommentsClose CommentsPermalink
(i) shall not affect the enforcement of the provisions of this Act with respect to the alien; andCommentsClose CommentsPermalink
(ii) shall not give rise to any private right of action by the alien.CommentsClose CommentsPermalink
(b) Termination of Status-CommentsClose CommentsPermalink
(1) IN GENERAL- The Secretary shall terminate the conditional permanent resident status of any alien who obtained such status under this subtitle, if the Secretary determines that the alien--CommentsClose CommentsPermalink
(A) ceases to meet the requirements of subparagraph (B) or (C) of section 624(a)(1);CommentsClose CommentsPermalink
(B) has become a public charge; orCommentsClose CommentsPermalink
(C) has received a dishonorable or other than honorable discharge from the uniformed services.CommentsClose CommentsPermalink
(2) RETURN TO PREVIOUS IMMIGRATION STATUS- Any alien whose conditional permanent resident status is terminated under paragraph (1) shall return to the immigration status the alien had immediately prior to receiving conditional permanent resident status under this subtitle.CommentsClose CommentsPermalink
(c) Requirements of Timely Petition for Removal of Condition-CommentsClose CommentsPermalink
(1) IN GENERAL- In order for the conditional basis of permanent resident status obtained by an alien under subsection (a) to be removed, the alien shall file with the Secretary, in accordance with paragraph (3), a petition which--CommentsClose CommentsPermalink
(A) requests the removal of such conditional basis; andCommentsClose CommentsPermalink
(B) provides, under penalty of perjury, the facts and information needed by the Secretary to make the determination described in paragraph (2)(A).CommentsClose CommentsPermalink
(2) ADJUDICATION OF PETITION TO REMOVE CONDITION-CommentsClose CommentsPermalink
(A) IN GENERAL- If a petition is filed in accordance with paragraph (1) for an alien, the Secretary shall make a determination as to whether the alien meets the requirements set forth in subparagraphs (A) through (E) of subsection (d)(1).CommentsClose CommentsPermalink
(B) REMOVAL OF CONDITIONAL BASIS IF FAVORABLE DETERMINATION- If the Secretary determines that the alien meets such requirements, the Secretary shall notify the alien of such determination and immediately remove the conditional basis of the status of the alien.CommentsClose CommentsPermalink
(C) TERMINATION IF ADVERSE DETERMINATION- If the Secretary determines that the alien does not meet such requirements, the Secretary shall notify the alien of such determination and terminate the conditional permanent resident status of the alien as of the date of the determination.CommentsClose CommentsPermalink
(3) TIME TO FILE PETITION-CommentsClose CommentsPermalink
(A) IN GENERAL- An alien may petition to remove the conditional basis to lawful resident status during the period beginning 180 days before and ending 2 years after the date that is 6 years after--CommentsClose CommentsPermalink
(i) the date of the granting of conditional permanent resident status; orCommentsClose CommentsPermalink
(ii) any other expiration date of the conditional permanent resident status as extended by the Secretary in accordance with this subtitle.CommentsClose CommentsPermalink
(B) STATUS- The alien shall be deemed in conditional permanent resident status in the United States during the period in which a petition under subparagraph (A) is pending.CommentsClose CommentsPermalink
(d) Details of Petition-CommentsClose CommentsPermalink
(1) CONTENTS OF PETITION- Each petition for an alien under subsection (c)(1) shall contain information to permit the Secretary to determine whether each of the following requirements is met:CommentsClose CommentsPermalink
(A) The alien has demonstrated good moral character during the entire period the alien has been a conditional permanent resident.CommentsClose CommentsPermalink
(B) The alien is in compliance with section 624(a)(1)(C).CommentsClose CommentsPermalink
(C) The alien has not abandoned the alien's residence in the United States. The Secretary shall presume that the alien has abandoned such residence if the alien is absent from the United States for more than 365 days, in the aggregate, during the period of conditional residence, unless the alien demonstrates that the alien has not abandoned the alien's residence. An alien who is absent from the United States due to active service in the uniformed services has not abandoned the alien's residence in the United States during the period of such service.CommentsClose CommentsPermalink
(D) The alien has completed at least 1 of the following:CommentsClose CommentsPermalink
(i) The alien has acquired a degree from an institution of higher education in the United States or has completed at least 2 years, in good standing, in a program for a bachelor's degree or higher degree in the United States.CommentsClose CommentsPermalink
(ii) The alien has served in the uniformed services for at least 2 years and, if discharged, has received an honorable discharge.CommentsClose CommentsPermalink
(E) The alien has provided a list of each secondary school (as that term is defined in section 9101 of the Elementary and Secondary Education Act of 1965 (
(2) HARDSHIP EXCEPTION-CommentsClose CommentsPermalink
(A) IN GENERAL- The Secretary may remove the conditional status of an alien if the alien--CommentsClose CommentsPermalink
(i) satisfies the requirements of subparagraphs (A), (B), and (C) of paragraph (1);CommentsClose CommentsPermalink
(ii) demonstrates compelling circumstances for the inability to complete the requirements described in paragraph (1)(D); andCommentsClose CommentsPermalink
(iii) demonstrates that the alien's removal from the United States would result in exceptional and extremely unusual hardship to the alien or the alien's spouse, parent, or child who is a citizen or a lawful permanent resident of the United States.CommentsClose CommentsPermalink
(B) EXTENSION- Upon a showing of good cause, the Secretary may extend the period of conditional resident status for the purpose of completing the requirements described in paragraph (1)(D).CommentsClose CommentsPermalink
(e) Treatment of Period for Purposes of Naturalization- For purposes of title III of the Immigration and Nationality Act (
SEC. 626. RETROACTIVE BENEFITS UNDER THIS ACT.
If, on the date of the enactment of this Act, an alien has satisfied all the requirements of subparagraphs (A) through (E) of section 624(a)(1) and section 625(d)(1)(D), the Secretary may adjust the status of the alien to that of a conditional resident in accordance with section 624. The alien may petition for removal of such condition at the end of the conditional residence period in accordance with section 625(c) if the alien has met the requirements of subparagraphs (A), (B), and (C) of section 625(d)(1) during the entire period of conditional residence.CommentsClose CommentsPermalink
SEC. 627. EXCLUSIVE JURISDICTION.
(a) In General- The Secretary shall have exclusive jurisdiction to determine eligibility for relief under this subtitle, except if the alien has been placed into deportation, exclusion, or removal proceedings either prior to or after filing an application for relief under this Act, in which case the Attorney General shall have exclusive jurisdiction and shall assume all the powers and duties of the Secretary until proceedings are terminated, or if a final order of deportation, exclusion, or removal is entered the Secretary shall resume all powers and duties delegated to the Secretary under this subtitle.CommentsClose CommentsPermalink
(b) Stay of Removal of Certain Aliens Enrolled in Primary or Secondary School- The Attorney General shall stay the removal proceedings of any alien who--CommentsClose CommentsPermalink
(1) meets all the requirements of subparagraphs (A), (B), (C), and (E) of section 624(a)(1);CommentsClose CommentsPermalink
(2) is at least 12 years of age; andCommentsClose CommentsPermalink
(3) is enrolled full time in a primary or secondary school.CommentsClose CommentsPermalink
(c) Employment- An alien whose removal is stayed pursuant to subsection (b) may be engaged in employment in the United States consistent with the Fair Labor Standards Act (
(d) Lift of Stay- The Attorney General shall lift the stay granted pursuant to subsection (b) if the alien--CommentsClose CommentsPermalink
(1) is no longer enrolled in a primary or secondary school; orCommentsClose CommentsPermalink
(2) ceases to meet the requirements of subsection (b)(1).CommentsClose CommentsPermalink
SEC. 628. PENALTIES FOR FALSE STATEMENTS IN APPLICATION.
Any person who files an application for relief under this subtitle and willfully and knowingly falsifies, misrepresents, or conceals a material fact or makes any false or fraudulent statement or representation, or makes or uses any false writing or document knowing the same to contain any false or fraudulent statement or entry, shall be fined in accordance with title 18, United States Code, imprisoned not more than 5 years, or both.CommentsClose CommentsPermalink
SEC. 629. CONFIDENTIALITY OF INFORMATION.
(a) Prohibition- Except as provided in subsection (b), no officer or employee of the United States may--CommentsClose CommentsPermalink
(1) use the information furnished by the applicant pursuant to an application filed under this Act to initiate removal proceedings against any persons identified in the application;CommentsClose CommentsPermalink
(2) make any publication whereby the information furnished by any particular individual pursuant to an application under this Act can be identified; orCommentsClose CommentsPermalink
(3) permit anyone other than an officer or employee of the United States Government or, in the case of applications filed under this Act with a designated entity, that designated entity, to examine applications filed under this Act.CommentsClose CommentsPermalink
(b) Required Disclosure- The Secretary or the Attorney General shall provide the information furnished under this section, and any other information derived from such furnished information, to--CommentsClose CommentsPermalink
(1) a duly recognized law enforcement entity in connection with an investigation or prosecution of an offense described in paragraph (2) or (3) of section 212(a) of the Immigration and Nationality Act (
(2) an official coroner for purposes of affirmatively identifying a deceased individual (whether or not such individual is deceased as a result of a crime).CommentsClose CommentsPermalink
(c) Penalty- Any person who knowingly uses, publishes, or permits information to be examined in violation of this section shall be fined not more than $10,000.CommentsClose CommentsPermalink
SEC. 630. EXPEDITED PROCESSING OF APPLICATIONS; PROHIBITION ON FEES.
Regulations promulgated under this subtitle shall provide that applications under this subtitle will be considered on an expedited basis and without a requirement for the payment by the applicant of any additional fee for such expedited processing.CommentsClose CommentsPermalink
SEC. 631. HIGHER EDUCATION ASSISTANCE.
Notwithstanding any provision of the Higher Education Act of 1965 (
(1) Student loans under parts B, D, and E of such title IV (
(2) Federal work-study programs under part C of such title IV (
(3) Services under such title IV (
SEC. 632. GAO REPORT.
Not later than 7 years after the date of the enactment of this Act, the Comptroller General of the United States shall submit a report to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives that sets forth--CommentsClose CommentsPermalink
(1) the number of aliens who were eligible for cancellation of removal and adjustment of status under section 624(a);CommentsClose CommentsPermalink
(2) the number of aliens who applied for adjustment of status under section 624(a);CommentsClose CommentsPermalink
(3) the number of aliens who were granted adjustment of status under section 624(a); andCommentsClose CommentsPermalink
(4) the number of aliens whose conditional permanent resident status was removed under section 625.CommentsClose CommentsPermalink
Subtitle C--AgJOBS Act of 2007
SEC. 641. SHORT TITLE.
This subtitle may be cited as the `Agricultural Job Opportunities, Benefits, and Security Act of 2007' or the `AgJOBS Act of 2007'.CommentsClose CommentsPermalink
SEC. 642. DEFINITIONS.
In this subtitle:CommentsClose CommentsPermalink
(1) AGRICULTURAL EMPLOYMENT- The term `agricultural employment' means any service or activity that is considered to be agricultural under section 3(f) of the Fair Labor Standards Act of 1938 (
(2) BLUE CARD STATUS- The term `blue card status' means the status of an alien who has been lawfully admitted into the United States for temporary residence under section 101(a).CommentsClose CommentsPermalink
(3) DEPARTMENT- The term `Department' means the Department of Homeland Security.CommentsClose CommentsPermalink
(4) EMPLOYER- The term `employer' means any person or entity, including any farm labor contractor and any agricultural association, that employs workers in agricultural employment.CommentsClose CommentsPermalink
(5) SECRETARY- Except as otherwise provided, the term `Secretary' means the Secretary of Homeland Security.CommentsClose CommentsPermalink
(6) TEMPORARY- A worker is employed on a `temporary' basis when the employment is intended not to exceed 10 months.CommentsClose CommentsPermalink
(7) WORK DAY- The term `work day' means any day in which the individual is employed 5.75 or more hours in agricultural employment.CommentsClose CommentsPermalink
CHAPTER 1--PILOT PROGRAM FOR EARNED STATUS ADJUSTMENT OF AGRICULTURAL WORKERS
Subchapter A--Blue Card Status
SEC. 643. REQUIREMENTS FOR BLUE CARD STATUS.
(a) Requirement To Grant Blue Card Status- Notwithstanding any other provision of law, the Secretary shall, pursuant to the requirements of this section, grant blue card status to an alien who qualifies under this section if the Secretary determines that the alien--CommentsClose CommentsPermalink
(1) has performed agricultural employment in the United States for at least 863 hours or 150 work days during the 24-month period ending on December 31, 2006;CommentsClose CommentsPermalink
(2) applied for such status during the 18-month application period beginning on the first day of the seventh month that begins after the date of enactment of this Act;CommentsClose CommentsPermalink
(3) is otherwise admissible to the United States under section 212 of the Immigration and Nationality Act (
(4) has not been convicted of any felony or a misdemeanor, an element of which involves bodily injury, threat of serious bodily injury, or harm to property in excess of $500.CommentsClose CommentsPermalink
(b) Authorized Travel- An alien who is granted blue card status is authorized to travel outside the United States (including commuting to the United States from a residence in a foreign country) in the same manner as an alien lawfully admitted for permanent residence.CommentsClose CommentsPermalink
(c) Authorized Employment- The Secretary shall provide an alien who is granted blue card status an employment authorized endorsement or other appropriate work permit, in the same manner as an alien lawfully admitted for permanent residence.CommentsClose CommentsPermalink
(d) Termination of Blue Card Status-CommentsClose CommentsPermalink
(1) IN GENERAL- The Secretary may terminate blue card status granted to an alien under this section only if the Secretary determines that the alien is deportable.CommentsClose CommentsPermalink
(2) GROUNDS FOR TERMINATION OF BLUE CARD STATUS- Before any alien becomes eligible for adjustment of status under section 645, the Secretary may deny adjustment to permanent resident status and provide for termination of the blue card status granted such alien under paragraph (1) if--CommentsClose CommentsPermalink
(A) the Secretary finds, by a preponderance of the evidence, that the adjustment to blue card status was the result of fraud or willful misrepresentation (as described in section 212(a)(6)(C)(i) of the Immigration and Nationality Act (
(B) the alien--CommentsClose CommentsPermalink
(i) commits an act that makes the alien inadmissible to the United States as an immigrant, except as provided under section 647(b);CommentsClose CommentsPermalink
(ii) is convicted of a felony or 3 or more misdemeanors committed in the United States;CommentsClose CommentsPermalink
(iii) is convicted of an offense, an element of which involves bodily injury, threat of serious bodily injury, or harm to property in excess of $500; orCommentsClose CommentsPermalink
(iv) fails to perform the agricultural employment required under section 645(a)(1)(A) unless the alien was unable to work in agricultural employment due to the extraordinary circumstances described in section 645(a)(3).CommentsClose CommentsPermalink
(e) Record of Employment-CommentsClose CommentsPermalink
(1) IN GENERAL- Each employer of an alien granted blue card status under this section shall annually--CommentsClose CommentsPermalink
(A) provide a written record of employment to the alien; andCommentsClose CommentsPermalink
(B) provide a copy of such record to the Secretary.CommentsClose CommentsPermalink
(2) SUNSET- The obligation under paragraph (1) shall terminate on the date that is 6 years after the date of the enactment of this Act.CommentsClose CommentsPermalink
(f) Required Features of Identity Card- The Secretary shall provide each alien granted blue card status, and the spouse and any child of each such alien residing in the United States, with a card that contains--CommentsClose CommentsPermalink
(1) an encrypted, machine-readable, electronic identification strip that is unique to the alien to whom the card is issued;CommentsClose CommentsPermalink
(2) biometric identifiers, including fingerprints and a digital photograph; andCommentsClose CommentsPermalink
(3) physical security features designed to prevent tampering, counterfeiting, or duplication of the card for fraudulent purposes.CommentsClose CommentsPermalink
(g) Fine- An alien granted blue card status shall pay a fine of $100 to the Secretary.CommentsClose CommentsPermalink
(h) Maximum Number- The Secretary may not issue more than 1,500,000 blue cards during the 5-year period beginning on the date of the enactment of this Act.CommentsClose CommentsPermalink
SEC. 644. TREATMENT OF ALIENS GRANTED BLUE CARD STATUS.
(a) In General- Except as otherwise provided under this section, an alien granted blue card status shall be considered to be an alien lawfully admitted for permanent residence for purposes of any law other than any provision of the Immigration and Nationality Act (
(b) Delayed Eligibility for Certain Federal Public Benefits- An alien granted blue card status shall not be eligible, by reason of such status, for any form of assistance or benefit described in section 403(a) of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (
(c) Terms of Employment-CommentsClose CommentsPermalink
(1) PROHIBITION- No alien granted blue card status may be terminated from employment by any employer during the period of blue card status except for just cause.CommentsClose CommentsPermalink
(2) TREATMENT OF COMPLAINTS-CommentsClose CommentsPermalink
(A) ESTABLISHMENT OF PROCESS- The Secretary shall establish a process for the receipt, initial review, and disposition of complaints by aliens granted blue card status who allege that they have been terminated without just cause. No proceeding shall be conducted under this paragraph with respect to a termination unless the Secretary determines that the complaint was filed not later than 6 months after the date of the termination.CommentsClose CommentsPermalink
(B) INITIATION OF ARBITRATION- If the Secretary finds that an alien has filed a complaint in accordance with subparagraph (A) and there is reasonable cause to believe that the alien was terminated from employment without just cause, the Secretary shall initiate binding arbitration proceedings by requesting the Federal Mediation and Conciliation Service to appoint a mutually agreeable arbitrator from the roster of arbitrators maintained by such Service for the geographical area in which the employer is located. The procedures and rules of such Service shall be applicable to the selection of such arbitrator and to such arbitration proceedings. The Secretary shall pay the fee and expenses of the arbitrator, subject to the availability of appropriations for such purpose.CommentsClose CommentsPermalink
(C) ARBITRATION PROCEEDINGS- The arbitrator shall conduct the proceeding under this paragraph in accordance with the policies and procedures promulgated by the American Arbitration Association applicable to private arbitration of employment disputes. The arbitrator shall make findings respecting whether the termination was for just cause. The arbitrator may not find that the termination was for just cause unless the employer so demonstrates by a preponderance of the evidence. If the arbitrator finds that the termination was not for just cause, the arbitrator shall make a specific finding of the number of days or hours of work lost by the employee as a result of the termination. The arbitrator shall have no authority to order any other remedy, including reinstatement, back pay, or front pay to the affected employee. Not later than 30 days after the date of the conclusion of the arbitration proceeding, the arbitrator shall transmit the findings in the form of a written opinion to the parties to the arbitration and the Secretary. Such findings shall be final and conclusive, and no official or court of the United States shall have the power or jurisdiction to review any such findings.CommentsClose CommentsPermalink
(D) EFFECT OF ARBITRATION FINDINGS- If the Secretary receives a finding of an arbitrator that an employer has terminated the employment of an alien who is granted blue card status without just cause, the Secretary shall credit the alien for the number of days or hours of work not performed during such period of termination for the purpose of determining if the alien meets the qualifying employment requirement of section 645(a).CommentsClose CommentsPermalink
(E) TREATMENT OF ATTORNEY'S FEES- Each party to an arbitration under this paragraph shall bear the cost of their own attorney's fees for the arbitration.CommentsClose CommentsPermalink
(F) NONEXCLUSIVE REMEDY- The complaint process provided for in this paragraph is in addition to any other rights an employee may have in accordance with applicable law.CommentsClose CommentsPermalink
(G) EFFECT ON OTHER ACTIONS OR PROCEEDINGS- Any finding of fact or law, judgment, conclusion, or final order made by an arbitrator in the proceeding before the Secretary shall not be conclusive or binding in any separate or subsequent action or proceeding between the employee and the employee's current or prior employer brought before an arbitrator, administrative agency, court, or judge of any State or the United States, regardless of whether the prior action was between the same or related parties or involved the same facts, except that the arbitrator's specific finding of the number of days or hours of work lost by the employee as a result of the employment termination may be referred to the Secretary pursuant to subparagraph (D).CommentsClose CommentsPermalink
(3) CIVIL PENALTIES-CommentsClose CommentsPermalink
(A) IN GENERAL- If the Secretary finds, after notice and opportunity for a hearing, that an employer of an alien granted blue card status has failed to provide the record of employment required under section 643(e) or has provided a false statement of material fact in such a record, the employer shall be subject to a civil money penalty in an amount not to exceed $1,000 per violation.CommentsClose CommentsPermalink
(B) LIMITATION- The penalty applicable under subparagraph (A) for failure to provide records shall not apply unless the alien has provided the employer with evidence of employment authorization granted under this section.CommentsClose CommentsPermalink
SEC. 645. ADJUSTMENT TO PERMANENT RESIDENCE.
(a) In General- Except as provided in subsection (b), the Secretary shall adjust the status of an alien granted blue card status to that of an alien lawfully admitted for permanent residence if the Secretary determines that the following requirements are satisfied:CommentsClose CommentsPermalink
(1) QUALIFYING EMPLOYMENT-CommentsClose CommentsPermalink
(A) IN GENERAL- Subject to subparagraph (B), the alien has performed at least--CommentsClose CommentsPermalink
(i) 5 years of agricultural employment in the United States for at least 100 work days per year, during the 5-year period beginning on the date of the enactment of this Act; orCommentsClose CommentsPermalink
(ii) 3 years of agricultural employment in the United States for at least 150 work days per year, during the 3-year period beginning on the date of the enactment of this Act.CommentsClose CommentsPermalink
(B) 4-year PERIOD OF EMPLOYMENT- An alien shall be considered to meet the requirements of subparagraph (A) if the alien has performed 4 years of agricultural employment in the United States for at least 150 work days during 3 years of those 4 years and at least 100 work days during the remaining year, during the 4-year period beginning on the date of the enactment of this Act.CommentsClose CommentsPermalink
(2) PROOF- An alien may demonstrate compliance with the requirement under paragraph (1) by submitting--CommentsClose CommentsPermalink
(A) the record of employment described in section 643(e); orCommentsClose CommentsPermalink
(B) such documentation as may be submitted under section 646(c).CommentsClose CommentsPermalink
(3) EXTRAORDINARY CIRCUMSTANCES- In determining whether an alien has met the requirement of paragraph (1)(A), the Secretary may credit the alien with not more than 12 additional months to meet the requirement of that subparagraph if the alien was unable to work in agricultural employment due to--CommentsClose CommentsPermalink
(A) pregnancy, injury, or disease, if the alien can establish such pregnancy, disabling injury, or disease through medical records;CommentsClose CommentsPermalink
(B) illness, disease, or other special needs of a minor child, if the alien can establish such illness, disease, or special needs through medical records; orCommentsClose CommentsPermalink
(C) severe weather conditions that prevented the alien from engaging in agricultural employment for a significant period of time.CommentsClose CommentsPermalink
(4) APPLICATION PERIOD- The alien applies for adjustment of status not later than 7 years after the date of the enactment of this Act.CommentsClose CommentsPermalink
(5) FINE- The alien pays a fine of $400 to the Secretary.CommentsClose CommentsPermalink
(b) Grounds for Denial of Adjustment of Status- The Secretary may deny an alien granted blue card status an adjustment of status under this section and provide for termination of such blue card status if--CommentsClose CommentsPermalink
(1) the Secretary finds by a preponderance of the evidence that the adjustment to blue card status was the result of fraud or willful misrepresentation, as described in section 212(a)(6)(C)(i) of the Immigration and Nationality Act (
(2) the alien--CommentsClose CommentsPermalink
(A) commits an act that makes the alien inadmissible to the United States under section 212 of the Immigration and Nationality Act (
(B) is convicted of a felony or 3 or more misdemeanors committed in the United States; orCommentsClose CommentsPermalink
(C) is convicted of an offense, an element of which involves bodily injury, threat of serious bodily injury, or harm to property in excess of $500.CommentsClose CommentsPermalink
(c) Grounds for Removal- Any alien granted blue card status who does not apply for adjustment of status under this section before the expiration of the application period described in subsection (a)(4) or who fails to meet the other requirements of subsection (a) by the end of the application period, is deportable and may be removed under section 240 of the Immigration and Nationality Act (
(d) Payment of Taxes-CommentsClose CommentsPermalink
(1) IN GENERAL- Not later than the date on which an alien's status is adjusted under this section, the alien shall establish that the alien does not owe any applicable Federal tax liability by establishing that--CommentsClose CommentsPermalink
(A) no such tax liability exists;CommentsClose CommentsPermalink
(B) all such outstanding tax liabilities have been paid; orCommentsClose CommentsPermalink
(C) the alien has entered into an agreement for payment of all outstanding liabilities with the Internal Revenue Service.CommentsClose CommentsPermalink
(2) APPLICABLE FEDERAL TAX LIABILITY- In paragraph (1) the term `applicable Federal tax liability' means liability for Federal taxes, including penalties and interest, owed for any year during the period of employment required under subsection (a)(1) for which the statutory period for assessment of any deficiency for such taxes has not expired.CommentsClose CommentsPermalink
(3) IRS COOPERATION- The Secretary of the Treasury shall establish rules and procedures under which the Commissioner of Internal Revenue shall provide documentation to an alien upon request to establish the payment of all taxes required by this subsection.CommentsClose CommentsPermalink
(e) Spouses and Minor Children-CommentsClose CommentsPermalink
(1) IN GENERAL- Notwithstanding any other provision of law, the Secretary shall confer the status of lawful permanent resident on the spouse and minor child of an alien granted any adjustment of status under subsection (a), including any individual who was a minor child on the date such alien was granted blue card status, if the spouse or minor child applies for such status, or if the principal alien includes the spouse or minor child in an application for adjustment of status to that of a lawful permanent resident.CommentsClose CommentsPermalink
(2) TREATMENT OF SPOUSES AND MINOR CHILDREN-CommentsClose CommentsPermalink
(A) GRANTING OF STATUS AND REMOVAL- The Secretary may grant derivative status to the alien spouse and any minor child residing in the United States of an alien granted blue card status and shall not remove such derivative spouse or child during the period that the alien granted blue card status maintains such status, except as provided in paragraph (3). A grant of derivative status to such a spouse or child under this subparagraph shall not decrease the number of aliens who may receive blue card status under subsection (h) of section 643.CommentsClose CommentsPermalink
(B) TRAVEL- The derivative spouse and any minor child of an alien granted blue card status may travel outside the United States in the same manner as an alien lawfully admitted for permanent residence.CommentsClose CommentsPermalink
(C) EMPLOYMENT- The derivative spouse of an alien granted blue card status may apply to the Secretary for a work permit to authorize such spouse to engage in any lawful employment in the United States while such alien maintains blue card status.CommentsClose CommentsPermalink
(3) GROUNDS FOR DENIAL OF ADJUSTMENT OF STATUS AND REMOVAL- The Secretary may deny an alien spouse or child adjustment of status under paragraph (1) and may remove such spouse or child under section 240 of the Immigration and Nationality Act (
(A) commits an act that makes the alien spouse or child inadmissible to the United States under section 212 of such Act (
(B) is convicted of a felony or 3 or more misdemeanors committed in the United States; orCommentsClose CommentsPermalink
(C) is convicted of an offense, an element of which involves bodily injury, threat of serious bodily injury, or harm to property in excess of $500.CommentsClose CommentsPermalink
SEC. 646. APPLICATIONS.
(a) Submission- The Secretary shall provide that--CommentsClose CommentsPermalink
(1) applications for blue card status under section 643 may be submitted--CommentsClose CommentsPermalink
(A) to the Secretary if the applicant is represented by an attorney or a nonprofit religious, charitable, social service, or similar organization recognized by the Board of Immigration Appeals under section 292.2 of title 8, Code of Federal Regulations; orCommentsClose CommentsPermalink
(B) to a qualified designated entity if the applicant consents to the forwarding of the application to the Secretary; andCommentsClose CommentsPermalink
(2) applications for adjustment of status under section 645 shall be filed directly with the Secretary.CommentsClose CommentsPermalink
(b) Qualified Designated Entity Defined- In this section, the term `qualified designated entity' means--CommentsClose CommentsPermalink
(1) a qualified farm labor organization or an association of employers designated by the Secretary; orCommentsClose CommentsPermalink
(2) any such other person designated by the Secretary if that Secretary determines such person is qualified and has substantial experience, demonstrated competence, and has a history of long-term involvement in the preparation and submission of applications for adjustment of status under section 209, 210, or 245 of the Immigration and Nationality Act (
(c) Proof of Eligibility-CommentsClose CommentsPermalink
(1) IN GENERAL- An alien may establish that the alien meets the requirement of section 643(a)(1) or 645(a)(1) through government employment records or records supplied by employers or collective bargaining organizations, and other reliable documentation as the alien may provide. The Secretary shall establish special procedures to properly credit work in cases in which an alien was employed under an assumed name.CommentsClose CommentsPermalink
(2) DOCUMENTATION OF WORK HISTORY-CommentsClose CommentsPermalink
(A) BURDEN OF PROOF- An alien applying for status under section 643(a) or 645(a) has the burden of proving by a preponderance of the evidence that the alien has worked the requisite number of hours or days required under section 643(a)(1) or 645(a)(1), as applicable.CommentsClose CommentsPermalink
(B) TIMELY PRODUCTION OF RECORDS- If an employer or farm labor contractor employing such an alien has kept proper and adequate records respecting such employment, the alien's burden of proof under subparagraph (A) may be met by securing timely production of those records under regulations to be promulgated by the Secretary.CommentsClose CommentsPermalink
(C) SUFFICIENT EVIDENCE- An alien may meet the burden of proof under subparagraph (A) to establish that the alien has performed the days or hours of work required by section 643(a)(1) or 645(a)(1) by producing sufficient evidence to show the extent of that employment as a matter of just and reasonable inference.CommentsClose CommentsPermalink
(d) Applications Submitted to Qualified Designated Entities-CommentsClose CommentsPermalink
(1) REQUIREMENTS- Each qualified designated entity shall agree--CommentsClose CommentsPermalink
(A) to forward to the Secretary an application submitted to that entity pursuant to subsection (a)(1)(B) if the applicant has consented to such forwarding;CommentsClose CommentsPermalink
(B) not to forward to the Secretary any such application if the applicant has not consented to such forwarding; andCommentsClose CommentsPermalink
(C) to assist an alien in obtaining documentation of the alien's work history, if the alien requests such assistance.CommentsClose CommentsPermalink
(2) NO AUTHORITY TO MAKE DETERMINATIONS- No qualified designated entity may make a determination required by this subtitle to be made by the Secretary.CommentsClose CommentsPermalink
(e) Limitation on Access to Information- Files and records collected or compiled by a qualified designated entity for the purposes of this section are confidential and the Secretary shall not have access to such a file or record relating to an alien without the consent of the alien, except as allowed by a court order issued pursuant to subsection (f).CommentsClose CommentsPermalink
(f) Confidentiality of Information-CommentsClose CommentsPermalink
(1) IN GENERAL- Except as otherwise provided in this section, the Secretary or any other official or employee of the Department or a bureau or agency of the Department is prohibited from--CommentsClose CommentsPermalink
(A) using information furnished by the applicant pursuant to an application filed under this subtitle, the information provided by an applicant to a qualified designated entity, or any information provided by an employer or former employer for any purpose other than to make a determination on the application or for imposing the penalties described in subsection (g);CommentsClose CommentsPermalink
(B) making any publication in which the information furnished by any particular individual can be identified; orCommentsClose CommentsPermalink
(C) permitting a person other than a sworn officer or employee of the Department or a bureau or agency of the Department or, with respect to applications filed with a qualified designated entity, that qualified designated entity, to examine individual applications.CommentsClose CommentsPermalink
(2) REQUIRED DISCLOSURES- The Secretary shall provide the information furnished under this subtitle or any other information derived from such furnished information to--CommentsClose CommentsPermalink
(A) a duly recognized law enforcement entity in connection with a criminal investigation or prosecution, if such information is requested in writing by such entity; orCommentsClose CommentsPermalink
(B) an official coroner, for purposes of affirmatively identifying a deceased individual, whether or not the death of such individual resulted from a crime.CommentsClose CommentsPermalink
(3) CONSTRUCTION-CommentsClose CommentsPermalink
(A) IN GENERAL- Nothing in this subsection shall be construed to limit the use, or release, for immigration enforcement purposes or law enforcement purposes, of information contained in files or records of the Department pertaining to an application filed under this section, other than information furnished by an applicant pursuant to the application, or any other information derived from the application, that is not available from any other source.CommentsClose CommentsPermalink
(B) CRIMINAL CONVICTIONS- Notwithstanding any other provision of this subsection, information concerning whether the alien applying for blue card status under section 643 or an adjustment of status under section 645 has been convicted of a crime at any time may be used or released for immigration enforcement or law enforcement purposes.CommentsClose CommentsPermalink
(4) CRIME- Any person who knowingly uses, publishes, or permits information to be examined in violation of this subsection shall be subject to a fine in an amount not to exceed $10,000.CommentsClose CommentsPermalink
(g) Penalties for False Statements in Applications-CommentsClose CommentsPermalink
(1) CRIMINAL PENALTY- Any person who--CommentsClose CommentsPermalink
(A) files an application for blue card status under section 643 or an adjustment of status under section 645 and knowingly and willfully falsifies, conceals, or covers up a material fact or makes any false, fictitious, or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious, or fraudulent statement or entry; orCommentsClose CommentsPermalink
(B) creates or supplies a false writing or document for use in making such an application,CommentsClose CommentsPermalink
shall be fined in accordance with title 18, United States Code, imprisoned not more than 5 years, or both.CommentsClose CommentsPermalink
(2) INADMISSIBILITY- An alien who is convicted of a crime under paragraph (1) shall be considered to be inadmissible to the United States on the ground described in section 212(a)(6)(C)(i) of the Immigration and Nationality Act (
(h) Eligibility for Legal Services- Section 504(a)(11) of
(i) Application Fees-CommentsClose CommentsPermalink
(1) FEE SCHEDULE- The Secretary shall provide for a schedule of fees that--CommentsClose CommentsPermalink
(A) shall be charged for the filing of an application for blue card status under section 643 or for an adjustment of status under section 645; andCommentsClose CommentsPermalink
(B) may be charged by qualified designated entities to help defray the costs of services provided to such applicants.CommentsClose CommentsPermalink
(2) PROHIBITION ON EXCESS FEES BY QUALIFIED DESIGNATED ENTITIES- A qualified designated entity may not charge any fee in excess of, or in addition to, the fees authorized under paragraph (1)(B) for services provided to applicants.CommentsClose CommentsPermalink
(3) DISPOSITION OF FEES-CommentsClose CommentsPermalink
(A) IN GENERAL- There is established in the general fund of the Treasury a separate account, which shall be known as the `Agricultural Worker Immigration Status Adjustment Account'. Notwithstanding any other provision of law, there shall be deposited as offsetting receipts into the account all fees collected under paragraph (1)(A).CommentsClose CommentsPermalink
(B) USE OF FEES FOR APPLICATION PROCESSING- Amounts deposited in the `Agricultural Worker Immigration Status Adjustment Account' shall remain available to the Secretary until expended for processing applications for blue card status under section 643 or an adjustment of status under section 645.CommentsClose CommentsPermalink
SEC. 647. WAIVER OF NUMERICAL LIMITATIONS AND CERTAIN GROUNDS FOR INADMISSIBILITY.
(a) Numerical Limitations Do Not Apply- The numerical limitations of sections 201 and 202 of the Immigration and Nationality Act (
(b) Waiver of Certain Grounds of Inadmissibility- In the determination of an alien's eligibility for status under section 101(a) or an alien's eligibility for adjustment of status under section 645(b)(2)(A) the following rules shall apply:CommentsClose CommentsPermalink
(1) GROUNDS OF EXCLUSION NOT APPLICABLE- The provisions of paragraphs (5), (6)(A), (7), and (9) of section 212(a) of the Immigration and Nationality Act (
(2) WAIVER OF OTHER GROUNDS-CommentsClose CommentsPermalink
(A) IN GENERAL- Except as provided in subparagraph (B), the Secretary may waive any other provision of such section 212(a) in the case of individual aliens for humanitarian purposes, to ensure family unity, or if otherwise in the public interest.CommentsClose CommentsPermalink
(B) GROUNDS THAT MAY NOT BE WAIVED- Paragraphs (2)(A), (2)(B), (2)(C), (3), and (4) of such section 212(a) may not be waived by the Secretary under subparagraph (A).CommentsClose CommentsPermalink
(C) CONSTRUCTION- Nothing in this paragraph shall be construed as affecting the authority of the Secretary other than under this subparagraph to waive provisions of such section 212(a).CommentsClose CommentsPermalink
(3) SPECIAL RULE FOR DETERMINATION OF PUBLIC CHARGE- An alien is not ineligible for blue card status under section 643 or an adjustment of status under section 645 by reason of a ground of inadmissibility under section 212(a)(4) of the Immigration and Nationality Act (
(c) Temporary Stay of Removal and Work Authorization for Certain Applicants-CommentsClose CommentsPermalink
(1) BEFORE APPLICATION PERIOD- Effective on the date of enactment of this Act, the Secretary shall provide that, in the case of an alien who is apprehended before the beginning of the application period described in section 643(a)(2) and who can establish a nonfrivolous case of eligibility for blue card status (but for the fact that the alien may not apply for such status until the beginning of such period), until the alien has had the opportunity during the first 30 days of the application period to complete the filing of an application for blue card status, the alien--CommentsClose CommentsPermalink
(A) may not be removed; andCommentsClose CommentsPermalink
(B) shall be granted authorization to engage in employment in the United States and be provided an employment authorized endorsement or other appropriate work permit for such purpose.CommentsClose CommentsPermalink
(2) DURING APPLICATION PERIOD- The Secretary shall provide that, in the case of an alien who presents a nonfrivolous application for blue card status during the application period described in section 643(a)(2), including an alien who files such an application within 30 days of the alien's apprehension, and until a final determination on the application has been made in accordance with this section, the alien--CommentsClose CommentsPermalink
(A) may not be removed; andCommentsClose CommentsPermalink
(B) shall be granted authorization to engage in employment in the United States and be provided an employment authorized endorsement or other appropriate work permit for such purpose.CommentsClose CommentsPermalink
SEC. 648. ADMINISTRATIVE AND JUDICIAL REVIEW.
(a) In General- There shall be no administrative or judicial review of a determination respecting an application for blue card status under section 643 or adjustment of status under section 645 except in accordance with this section.CommentsClose CommentsPermalink
(b) Administrative Review-CommentsClose CommentsPermalink
(1) SINGLE LEVEL OF ADMINISTRATIVE APPELLATE REVIEW- The Secretary shall establish an appellate authority to provide for a single level of administrative appellate review of such a determination.CommentsClose CommentsPermalink
(2) STANDARD FOR REVIEW- Such administrative appellate review shall be based solely upon the administrative record established at the time of the determination on the application and upon such additional or newly discovered evidence as may not have been available at the time of the determination.CommentsClose CommentsPermalink
(c) Judicial Review-CommentsClose CommentsPermalink
(1) LIMITATION TO REVIEW OF REMOVAL- There shall be judicial review of such a determination only in the judicial review of an order of removal under section 242 of the Immigration and Nationality Act (
(2) STANDARD FOR JUDICIAL REVIEW- Such judicial review shall be based solely upon the administrative record established at the time of the review by the appellate authority and the findings of fact and determinations contained in such record shall be conclusive unless the applicant can establish abuse of discretion or that the findings are directly contrary to clear and convincing facts contained in the record considered as a whole.CommentsClose CommentsPermalink
SEC. 649. USE OF INFORMATION.
Beginning not later than the first day of the application period described in section 643(a)(2), the Secretary, in cooperation with qualified designated entities (as that term is defined in section 646(b)), shall broadly disseminate information respecting the benefits that aliens may receive under this subtitle and the requirements that an alien is required to meet to receive such benefits.CommentsClose CommentsPermalink
SEC. 650. REGULATIONS, EFFECTIVE DATE, AUTHORIZATION OF APPROPRIATIONS.
(a) Regulations- The Secretary shall issue regulations to implement this subtitle not later than the first day of the seventh month that begins after the date of enactment of this Act.CommentsClose CommentsPermalink
(b) Effective Date- This subtitle shall take effect on the date that regulations required by subsection (a) are issued, regardless of whether such regulations are issued on an interim basis or on any other basis.CommentsClose CommentsPermalink
(c) Authorization of Appropriations- There are authorized to be appropriated to the Secretary such sums as may be necessary to implement this subtitle, including any sums needed for costs associated with the initiation of such implementation, for fiscal years 2007 and 2008.CommentsClose CommentsPermalink
Subchapter B--Correction of Social Security Records
SEC. 651. CORRECTION OF SOCIAL SECURITY RECORDS.
(a) In General- Section 208(e)(1) of the Social Security Act (
(1) in subparagraph (B)(ii), by striking `or' at the end;CommentsClose CommentsPermalink
(2) in subparagraph (C), by inserting `or' at the end;CommentsClose CommentsPermalink
(3) by inserting after subparagraph (C) the following:CommentsClose CommentsPermalink
`(D) who is granted blue card status under the Agricultural Job Opportunity, Benefits, and Security Act of 2007,'; andCommentsClose CommentsPermalink
(4) by striking `1990.' and inserting `1990, or in the case of an alien described in subparagraph (D), if such conduct is alleged to have occurred before the date on which the alien was granted blue card status.'.CommentsClose CommentsPermalink
(b) Effective Date- The amendments made by subsection (a) shall take effect on the first day of the seventh month that begins after the date of the enactment of this Act.CommentsClose CommentsPermalink
CHAPTER 2--REFORM OF H-2A WORKER PROGRAM
SEC. 652. AMENDMENT TO THE IMMIGRATION AND NATIONALITY ACT.
(a) In General- Title II of the Immigration and Nationality Act (
`SEC. 218. H-2A EMPLOYER APPLICATIONS.
`(a) Applications to the Secretary of Labor-CommentsClose CommentsPermalink
`(1) IN GENERAL- No alien may be admitted to the United States as an H-2A worker, or otherwise provided status as an H-2A worker, unless the employer has filed with the Secretary of Labor an application containing--CommentsClose CommentsPermalink
`(A) the assurances described in subsection (b);CommentsClose CommentsPermalink
`(B) a description of the nature and location of the work to be performed;CommentsClose CommentsPermalink
`(C) the anticipated period (expected beginning and ending dates) for which the workers will be needed; andCommentsClose CommentsPermalink
`(D) the number of job opportunities in which the employer seeks to employ the workers.CommentsClose CommentsPermalink
`(2) ACCOMPANIED BY JOB OFFER- Each application filed under paragraph (1) shall be accompanied by a copy of the job offer describing the wages and other terms and conditions of employment and the bona fide occupational qualifications that shall be possessed by a worker to be employed in the job opportunity in question.CommentsClose CommentsPermalink
`(b) Assurances for Inclusion in Applications- The assurances referred to in subsection (a)(1) are the following:CommentsClose CommentsPermalink
`(1) JOB OPPORTUNITIES COVERED BY COLLECTIVE BARGAINING AGREEMENTS- With respect to a job opportunity that is covered under a collective bargaining agreement:CommentsClose CommentsPermalink
`(A) UNION CONTRACT DESCRIBED- The job opportunity is covered by a union contract which was negotiated at arm's length between a bona fide union and the employer.CommentsClose CommentsPermalink
`(B) STRIKE OR LOCKOUT- The specific job opportunity for which the employer is requesting an H-2A worker is not vacant because the former occupant is on strike or being locked out in the course of a labor dispute.CommentsClose CommentsPermalink
`(C) NOTIFICATION OF BARGAINING REPRESENTATIVES- The employer, at the time of filing the application, has provided notice of the filing under this paragraph to the bargaining representative of the employer's employees in the occupational classification at the place or places of employment for which aliens are sought.CommentsClose CommentsPermalink
`(D) TEMPORARY OR SEASONAL JOB OPPORTUNITIES- The job opportunity is temporary or seasonal.CommentsClose CommentsPermalink
`(E) OFFERS TO UNITED STATES WORKERS- The employer has offered or will offer the job to any eligible United States worker who applies and is equally or better qualified for the job for which the nonimmigrant is, or the nonimmigrants are, sought and who will be available at the time and place of need.CommentsClose CommentsPermalink
`(F) PROVISION OF INSURANCE- If the job opportunity is not covered by the State workers' compensation law, the employer will provide, at no cost to the worker, insurance covering injury and disease arising out of, and in the course of, the worker's employment which will provide benefits at least equal to those provided under the State's workers' compensation law for comparable employment.CommentsClose CommentsPermalink
`(2) JOB OPPORTUNITIES NOT COVERED BY COLLECTIVE BARGAINING AGREEMENTS- With respect to a job opportunity that is not covered under a collective bargaining agreement:CommentsClose CommentsPermalink
`(A) STRIKE OR LOCKOUT- The specific job opportunity for which the employer has applied for an H-2A worker is not vacant because the former occupant is on strike or being locked out in the course of a labor dispute.CommentsClose CommentsPermalink
`(B) TEMPORARY OR SEASONAL JOB OPPORTUNITIES- The job opportunity is temporary or seasonal.CommentsClose CommentsPermalink
`(C) BENEFIT, WAGE, AND WORKING CONDITIONS- The employer will provide, at a minimum, the benefits, wages, and working conditions required by section 218A to all workers employed in the job opportunities for which the employer has applied for an H-2A worker under subsection (a) and to all other workers in the same occupation at the place of employment.CommentsClose CommentsPermalink
`(D) NONDISPLACEMENT OF UNITED STATES WORKERS- The employer did not displace and will not displace a United States worker employed by the employer during the period of employment and for a period of 30 days preceding the period of employment in the occupation at the place of employment for which the employer has applied for an H-2A worker.CommentsClose CommentsPermalink
`(E) REQUIREMENTS FOR PLACEMENT OF THE NONIMMIGRANT WITH OTHER EMPLOYERS- The employer will not place the nonimmigrant with another employer unless--CommentsClose CommentsPermalink
`(i) the nonimmigrant performs duties in whole or in part at 1 or more worksites owned, operated, or controlled by such other employer;CommentsClose CommentsPermalink
`(ii) there are indicia of an employment relationship between the nonimmigrant and such other employer; andCommentsClose CommentsPermalink
`(iii) the employer has inquired of the other employer as to whether, and has no actual knowledge or notice that, during the period of employment and for a period of 30 days preceding the period of employment, the other employer has displaced or intends to displace a United States worker employed by the other employer in the occupation at the place of employment for which the employer seeks approval to employ H-2A workers.CommentsClose CommentsPermalink
`(F) STATEMENT OF LIABILITY- The application form shall include a clear statement explaining the liability under subparagraph (E) of an employer if the other employer described in such subparagraph displaces a United States worker as described in such subparagraph.CommentsClose CommentsPermalink
`(G) PROVISION OF INSURANCE- If the job opportunity is not covered by the State workers' compensation law, the employer will provide, at no cost to the worker, insurance covering injury and disease arising out of and in the course of the worker's employment which will provide benefits at least equal to those provided under the State's workers' compensation law for comparable employment.CommentsClose CommentsPermalink
`(H) EMPLOYMENT OF UNITED STATES WORKERS-CommentsClose CommentsPermalink
`(i) RECRUITMENT- The employer has taken or will take the following steps to recruit United States workers for the job opportunities for which the H-2A nonimmigrant is, or H-2A nonimmigrants are, sought:CommentsClose CommentsPermalink
`(I) CONTACTING FORMER WORKERS- The employer shall make reasonable efforts through the sending of a letter by United States Postal Service mail, or otherwise, to contact any United States worker the employer employed during the previous season in the occupation at the place of intended employment for which the employer is applying for workers and has made the availability of the employer's job opportunities in the occupation at the place of intended employment known to such previous workers, unless the worker was terminated from employment by the employer for a lawful job-related reason or abandoned the job before the worker completed the period of employment of the job opportunity for which the worker was hired.CommentsClose CommentsPermalink
`(II) FILING A JOB OFFER WITH THE LOCAL OFFICE OF THE STATE EMPLOYMENT SECURITY AGENCY- Not later than 28 days before the date on which the employer desires to employ an H-2A worker in a temporary or seasonal agricultural job opportunity, the employer shall submit a copy of the job offer described in subsection (a)(2) to the local office of the State employment security agency which serves the area of intended employment and authorize the posting of the job opportunity on `America's Job Bank' or other electronic job registry, except that nothing in this subclause shall require the employer to file an interstate job order under section 653 of title 20, Code of Federal Regulations.CommentsClose CommentsPermalink
`(III) ADVERTISING OF JOB OPPORTUNITIES- Not later than 14 days before the date on which the employer desires to employ an H-2A worker in a temporary or seasonal agricultural job opportunity, the employer shall advertise the availability of the job opportunities for which the employer is seeking workers in a publication in the local labor market that is likely to be patronized by potential farm workers.CommentsClose CommentsPermalink
`(IV) EMERGENCY PROCEDURES- The Secretary of Labor shall, by regulation, provide a procedure for acceptance and approval of applications in which the employer has not complied with the provisions of this subparagraph because the employer's need for H-2A workers could not reasonably have been foreseen.CommentsClose CommentsPermalink
`(ii) JOB OFFERS- The employer has offered or will offer the job to any eligible United States worker who applies and is equally or better qualified for the job for which the nonimmigrant is, or nonimmigrants are, sought and who will be available at the time and place of need.CommentsClose CommentsPermalink
`(iii) PERIOD OF EMPLOYMENT- The employer will provide employment to any qualified United States worker who applies to the employer during the period beginning on the date on which the H-2A worker departs for the employer's place of employment and ending on the date on which 50 percent of the period of employment for which the H-2A worker who is in the job was hired has elapsed, subject to the following requirements:CommentsClose CommentsPermalink
`(I) PROHIBITION- No person or entity shall willfully and knowingly withhold United States workers before the arrival of H-2A workers in order to force the hiring of United States workers under this clause.CommentsClose CommentsPermalink
`(II) COMPLAINTS- Upon receipt of a complaint by an employer that a violation of subclause (I) has occurred, the Secretary of Labor shall immediately investigate. The Secretary of Labor shall, within 36 hours of the receipt of the complaint, issue findings concerning the alleged violation. If the Secretary of Labor finds that a violation has occurred, the Secretary of Labor shall immediately suspend the application of this clause with respect to that certification for that date of need.CommentsClose CommentsPermalink
`(III) PLACEMENT OF UNITED STATES WORKERS- Before referring a United States worker to an employer during the period described in the matter preceding subclause (I), the Secretary of Labor shall make all reasonable efforts to place the United States worker in an open job acceptable to the worker, if there are other job offers pending with the job service that offer similar job opportunities in the area of intended employment.CommentsClose CommentsPermalink
`(iv) STATUTORY CONSTRUCTION- Nothing in this subparagraph shall be construed to prohibit an employer from using such legitimate selection criteria relevant to the type of job that are normal or customary to the type of job involved so long as such criteria are not applied in a discriminatory manner.CommentsClose CommentsPermalink
`(c) Applications by Associations on Behalf of Employer Members-CommentsClose CommentsPermalink
`(1) IN GENERAL- An agricultural association may file an application under subsection (a) on behalf of 1 or more of its employer members that the association certifies in its application has or have agreed in writing to comply with the requirements of this section and sections 218A, 218B, and 218C.CommentsClose CommentsPermalink
`(2) TREATMENT OF ASSOCIATIONS ACTING AS EMPLOYERS- If an association filing an application under paragraph (1) is a joint or sole employer of the temporary or seasonal agricultural workers requested on the application, the certifications granted under subsection (e)(2)(B) to the association may be used for the certified job opportunities of any of its producer members named on the application, and such workers may be transferred among such producer members to perform the agricultural services of a temporary or seasonal nature for which the certifications were granted.CommentsClose CommentsPermalink
`(d) Withdrawal of Applications-CommentsClose CommentsPermalink
`(1) IN GENERAL- An employer may withdraw an application filed pursuant to subsection (a), except that if the employer is an agricultural association, the association may withdraw an application filed pursuant to subsection (a) with respect to 1 or more of its members. To withdraw an application, the employer or association shall notify the Secretary of Labor in writing, and the Secretary of Labor shall acknowledge in writing the receipt of such withdrawal notice. An employer who withdraws an application under subsection (a), or on whose behalf an application is withdrawn, is relieved of the obligations undertaken in the application.CommentsClose CommentsPermalink
`(2) LIMITATION- An application may not be withdrawn while any alien provided status under section 101(a)(15)(H)(ii)(a) pursuant to such application is employed by the employer.CommentsClose CommentsPermalink
`(3) OBLIGATIONS UNDER OTHER STATUTES- Any obligation incurred by an employer under any other law or regulation as a result of the recruitment of United States workers or H-2A workers under an offer of terms and conditions of employment required as a result of making an application under subsection (a) is unaffected by withdrawal of such application.CommentsClose CommentsPermalink
`(e) Review and Approval of Applications-CommentsClose CommentsPermalink
`(1) RESPONSIBILITY OF EMPLOYERS- The employer shall make available for public examination, within 1 working day after the date on which an application under subsection (a) is filed, at the employer's principal place of business or worksite, a copy of each such application (and such accompanying documents as are necessary).CommentsClose CommentsPermalink
`(2) RESPONSIBILITY OF THE SECRETARY OF LABOR-CommentsClose CommentsPermalink
`(A) COMPILATION OF LIST- The Secretary of Labor shall compile, on a current basis, a list (by employer and by occupational classification) of the applications filed under subsection (a). Such list shall include the wage rate, number of workers sought, period of intended employment, and date of need. The Secretary of Labor shall make such list available for examination in the District of Columbia.CommentsClose CommentsPermalink
`(B) REVIEW OF APPLICATIONS- The Secretary of Labor shall review such an application only for completeness and obvious inaccuracies. Unless the Secretary of Labor finds that the application is incomplete or obviously inaccurate, the Secretary of Labor shall certify that the intending employer has filed with the Secretary of Labor an application as described in subsection (a). Such certification shall be provided within 7 days of the filing of the application.'CommentsClose CommentsPermalink
`SEC. 218A. H-2A EMPLOYMENT REQUIREMENTS.
`(a) Preferential Treatment of Aliens Prohibited- Employers seeking to hire United States workers shall offer the United States workers no less than the same benefits, wages, and working conditions that the employer is offering, intends to offer, or will provide to H-2A workers. Conversely, no job offer may impose on United States workers any restrictions or obligations which will not be imposed on the employer's H-2A workers.CommentsClose CommentsPermalink
`(b) Minimum Benefits, Wages, and Working Conditions- Except in cases where higher benefits, wages, or working conditions are required by the provisions of subsection (a), in order to protect similarly employed United States workers from adverse effects with respect to benefits, wages, and working conditions, every job offer which shall accompany an application under section 218(b)(2) shall include each of the following benefit, wage, and working condition provisions:CommentsClose CommentsPermalink
`(1) REQUIREMENT TO PROVIDE HOUSING OR A HOUSING ALLOWANCE-CommentsClose CommentsPermalink
`(A) IN GENERAL- An employer applying under section 218(a) for H-2A workers shall offer to provide housing at no cost to all workers in job opportunities for which the employer has applied under that section and to all other workers in the same occupation at the place of employment, whose place of residence is beyond normal commuting distance.CommentsClose CommentsPermalink
`(B) TYPE OF HOUSING- In complying with subparagraph (A), an employer may, at the employer's election, provide housing that meets applicable Federal standards for temporary labor camps or secure housing that meets applicable local standards for rental or public accommodation housing or other substantially similar class of habitation, or in the absence of applicable local standards, State standards for rental or public accommodation housing or other substantially similar class of habitation. In the absence of applicable local or State standards, Federal temporary labor camp standards shall apply.CommentsClose CommentsPermalink
`(C) FAMILY HOUSING- If it is the prevailing practice in the occupation and area of intended employment to provide family housing, family housing shall be provided to workers with families who request it.CommentsClose CommentsPermalink
`(D) WORKERS ENGAGED IN THE RANGE PRODUCTION OF LIVESTOCK- The Secretary of Labor shall issue regulations that address the specific requirements for the provision of housing to workers engaged in the range production of livestock.CommentsClose CommentsPermalink
`(E) LIMITATION- Nothing in this paragraph shall be construed to require an employer to provide or secure housing for persons who were not entitled to such housing under the temporary labor certification regulations in effect on June 1, 1986.CommentsClose CommentsPermalink
`(F) CHARGES FOR HOUSING-CommentsClose CommentsPermalink
`(i) CHARGES FOR PUBLIC HOUSING- If public housing provided for migrant agricultural workers under the auspices of a local, county, or State government is secured by an employer, and use of the public housing unit normally requires charges from migrant workers, such charges shall be paid by the employer directly to the appropriate individual or entity affiliated with the housing's management.CommentsClose CommentsPermalink
`(ii) DEPOSIT CHARGES- Charges in the form of deposits for bedding or other similar incidentals related to housing shall not be levied upon workers by employers who provide housing for their workers. An employer may require a worker found to have been responsible for damage to such housing which is not the result of normal wear and tear related to habitation to reimburse the employer for the reasonable cost of repair of such damage.CommentsClose CommentsPermalink
`(G) HOUSING ALLOWANCE AS ALTERNATIVE-CommentsClose CommentsPermalink
`(i) IN GENERAL- If the requirement set out in clause (ii) is satisfied, the employer may provide a reasonable housing allowance instead of offering housing under subparagraph (A). Upon the request of a worker seeking assistance in locating housing, the employer shall make a good faith effort to assist the worker in identifying and locating housing in the area of intended employment. An employer who offers a housing allowance to a worker, or assists a worker in locating housing which the worker occupies, pursuant to this clause shall not be deemed a housing provider under section 203 of the Migrant and Seasonal Agricultural Worker Protection Act (
`(ii) CERTIFICATION- The requirement of this clause is satisfied if the Governor of the State certifies to the Secretary of Labor that there is adequate housing available in the area of intended employment for migrant farm workers and H-2A workers who are seeking temporary housing while employed in agricultural work. Such certification shall expire after 3 years unless renewed by the Governor of the State.CommentsClose CommentsPermalink
`(iii) AMOUNT OF ALLOWANCE-CommentsClose CommentsPermalink
`(I) NONMETROPOLITAN COUNTIES- If the place of employment of the workers provided an allowance under this subparagraph is a nonmetropolitan county, the amount of the housing allowance under this subparagraph shall be equal to the statewide average fair market rental for existing housing for nonmetropolitan counties for the State, as established by the Secretary of Housing and Urban Development pursuant to section 8(c) of the United States Housing Act of 1937 (
`(II) METROPOLITAN COUNTIES- If the place of employment of the workers provided an allowance under this paragraph is in a metropolitan county, the amount of the housing allowance under this subparagraph shall be equal to the statewide average fair market rental for existing housing for metropolitan counties for the State, as established by the Secretary of Housing and Urban Development pursuant to section 8(c) of the United States Housing Act of 1937 (
`(2) REIMBURSEMENT OF TRANSPORTATION-CommentsClose CommentsPermalink
`(A) TO PLACE OF EMPLOYMENT- A worker who completes 50 percent of the period of employment of the job opportunity for which the worker was hired shall be reimbursed by the employer for the cost of the worker's transportation and subsistence from the place from which the worker came to work for the employer (or place of last employment, if the worker traveled from such place) to the place of employment.CommentsClose CommentsPermalink
`(B) FROM PLACE OF EMPLOYMENT- A worker who completes the period of employment for the job opportunity involved shall be reimbursed by the employer for the cost of the worker's transportation and subsistence from the place of employment to the place from which the worker, disregarding intervening employment, came to work for the employer, or to the place of next employment, if the worker has contracted with a subsequent employer who has not agreed to provide or pay for the worker's transportation and subsistence to such subsequent employer's place of employment.CommentsClose CommentsPermalink
`(C) LIMITATION-CommentsClose CommentsPermalink
`(i) AMOUNT OF REIMBURSEMENT- Except as provided in clause (ii), the amount of reimbursement provided under subparagraph (A) or (B) to a worker or alien shall not exceed the lesser of--CommentsClose CommentsPermalink
`(I) the actual cost to the worker or alien of the transportation and subsistence involved; orCommentsClose CommentsPermalink
`(II) the most economical and reasonable common carrier transportation charges and subsistence costs for the distance involved.CommentsClose CommentsPermalink
`(ii) DISTANCE TRAVELED- No reimbursement under subparagraph (A) or (B) shall be required if the distance traveled is 100 miles or less, or the worker is not residing in employer-provided housing or housing secured through an allowance as provided in paragraph (1)(G).CommentsClose CommentsPermalink
`(D) EARLY TERMINATION- If the worker is laid off or employment is terminated for contract impossibility (as described in paragraph (4)(D)) before the anticipated ending date of employment, the employer shall provide the transportation and subsistence required by subparagraph (B) and, notwithstanding whether the worker has completed 50 percent of the period of employment, shall provide the transportation reimbursement required by subparagraph (A).CommentsClose CommentsPermalink
`(E) TRANSPORTATION BETWEEN LIVING QUARTERS AND WORKSITE- The employer shall provide transportation between the worker's living quarters and the employer's worksite without cost to the worker, and such transportation will be in accordance with applicable laws and regulations.CommentsClose CommentsPermalink
`(3) REQUIRED WAGES-CommentsClose CommentsPermalink
`(A) IN GENERAL- An employer applying for workers under section 218(a) shall offer to pay, and shall pay, all workers in the occupation for which the employer has applied for workers, not less (and is not required to pay more) than the greater of the prevailing wage in the occupation in the area of intended employment or the adverse effect wage rate. No worker shall be paid less than the greater of the hourly wage prescribed under section 6(a)(1) of the Fair Labor Standards Act of 1938 (
`(B) LIMITATION- Effective on the date of the enactment of the Agricultural Job Opportunities, Benefits, and Security Act of 2007 and continuing for 3 years thereafter, no adverse effect wage rate for a State may be more than the adverse effect wage rate for that State in effect on January 1, 2003, as established by section 655.107 of title 20, Code of Federal Regulations.CommentsClose CommentsPermalink
`(C) REQUIRED WAGES AFTER 3-YEAR FREEZE-CommentsClose CommentsPermalink
`(i) FIRST ADJUSTMENT- If Congress does not set a new wage standard applicable to this section before the first March 1 that is not less than 3 years after the date of enactment of this section, the adverse effect wage rate for each State beginning on such March 1 shall be the wage rate that would have resulted if the adverse effect wage rate in effect on January 1, 2003, had been annually adjusted, beginning on March 1, 2006, by the lesser of--CommentsClose CommentsPermalink
`(I) the 12-month percentage change in the Consumer Price Index for All Urban Consumers between December of the second preceding year and December of the preceding year; andCommentsClose CommentsPermalink
`(II) 4 percent.CommentsClose CommentsPermalink
`(ii) SUBSEQUENT ANNUAL ADJUSTMENTS- Beginning on the first March 1 that is not less than 4 years after the date of enactment of this section, and each March 1 thereafter, the adverse effect wage rate then in effect for each State shall be adjusted by the lesser of--CommentsClose CommentsPermalink
`(I) the 12-month percentage change in the Consumer Price Index for All Urban Consumers between December of the second preceding year and December of the preceding year; andCommentsClose CommentsPermalink
`(II) 4 percent.CommentsClose CommentsPermalink
`(D) DEDUCTIONS- The employer shall make only those deductions from the worker's wages that are authorized by law or are reasonable and customary in the occupation and area of employment. The job offer shall specify all deductions not required by law which the employer will make from the worker's wages.CommentsClose CommentsPermalink
`(E) FREQUENCY OF PAY- The employer shall pay the worker not less frequently than twice monthly, or in accordance with the prevailing practice in the area of employment, whichever is more frequent.CommentsClose CommentsPermalink
`(F) HOURS AND EARNINGS STATEMENTS- The employer shall furnish to the worker, on or before each payday, in 1 or more written statements--CommentsClose CommentsPermalink
`(i) the worker's total earnings for the pay period;CommentsClose CommentsPermalink
`(ii) the worker's hourly rate of pay, piece rate of pay, or both;CommentsClose CommentsPermalink
`(iii) the hours of employment which have been offered to the worker (broken out by hours offered in accordance with and over and above the 3/4 guarantee described in paragraph (4);CommentsClose CommentsPermalink
`(iv) the hours actually worked by the worker;CommentsClose CommentsPermalink
`(v) an itemization of the deductions made from the worker's wages; andCommentsClose CommentsPermalink
`(vi) if piece rates of pay are used, the units produced daily.CommentsClose CommentsPermalink
`(G) REPORT ON WAGE PROTECTIONS- Not later than December 31, 2009, the Comptroller General of the United States shall prepare and transmit to the Secretary of Labor, the Committee on the Judiciary of the Senate, and Committee on the Judiciary of the House of Representatives, a report that addresses--CommentsClose CommentsPermalink
`(i) whether the employment of H-2A or unauthorized aliens in the United States agricultural workforce has depressed United States farm worker wages below the levels that would otherwise have prevailed if alien farm workers had not been employed in the United States;CommentsClose CommentsPermalink
`(ii) whether an adverse effect wage rate is necessary to prevent wages of United States farm workers in occupations in which H-2A workers are employed from falling below the wage levels that would have prevailed in the absence of the employment of H-2A workers in those occupations;CommentsClose CommentsPermalink
`(iii) whether alternative wage standards, such as a prevailing wage standard, would be sufficient to prevent wages in occupations in which H-2A workers are employed from falling below the wage level that would have prevailed in the absence of H-2A employment;CommentsClose CommentsPermalink
`(iv) whether any changes are warranted in the current methodologies for calculating the adverse effect wage rate and the prevailing wage; andCommentsClose CommentsPermalink
`(v) recommendations for future wage protection under this section.CommentsClose CommentsPermalink
`(H) COMMISSION ON WAGE STANDARDS-CommentsClose CommentsPermalink
`(i) ESTABLISHMENT- There is established the Commission on Agricultural Wage Standards under the H-2A program (in this subparagraph referred to as the `Commission').CommentsClose CommentsPermalink
`(ii) COMPOSITION- The Commission shall consist of 10 members as follows:CommentsClose CommentsPermalink
`(I) Four representatives of agricultural employers and 1 representative of the Department of Agriculture, each appointed by the Secretary of Agriculture.CommentsClose CommentsPermalink
`(II) Four representatives of agricultural workers and 1 representative of the Department of Labor, each appointed by the Secretary of Labor.CommentsClose CommentsPermalink
`(iii) FUNCTIONS- The Commission shall conduct a study that shall address--CommentsClose CommentsPermalink
`(I) whether the employment of H-2A or unauthorized aliens in the United States agricultural workforce has depressed United States farm worker wages below the levels that would otherwise have prevailed if alien farm workers had not been employed in the United States;CommentsClose CommentsPermalink
`(II) whether an adverse effect wage rate is necessary to prevent wages of United States farm workers in occupations in which H-2A workers are employed from falling below the wage levels that would have prevailed in the absence of the employment of H-2A workers in those occupations;CommentsClose CommentsPermalink
`(III) whether alternative wage standards, such as a prevailing wage standard, would be sufficient to prevent wages in occupations in which H-2A workers are employed from falling below the wage level that would have prevailed in the absence of H-2A employment;CommentsClose CommentsPermalink
`(IV) whether any changes are warranted in the current methodologies for calculating the adverse effect wage rate and the prevailing wage rate; andCommentsClose CommentsPermalink
`(V) recommendations for future wage protection under this section.CommentsClose CommentsPermalink
`(iv) FINAL REPORT- Not later than December 31, 2009, the Commission shall submit a report to the Congress setting forth the findings of the study conducted under clause (iii).CommentsClose CommentsPermalink
`(v) TERMINATION DATE- The Commission shall terminate upon submitting its final report.CommentsClose CommentsPermalink
`(4) GUARANTEE OF EMPLOYMENT-CommentsClose CommentsPermalink
`(A) OFFER TO WORKER- The employer shall guarantee to offer the worker employment for the hourly equivalent of at least 3/4 of the work days of the total period of employment, beginning with the first work day after the arrival of the worker at the place of employment and ending on the expiration date specified in the job offer. For purposes of this subparagraph, the hourly equivalent means the number of hours in the work days as stated in the job offer and shall exclude the worker's Sabbath and Federal holidays. If the employer affords the United States or H-2A worker less employment than that required under this paragraph, the employer shall pay such worker the amount which the worker would have earned had the worker, in fact, worked for the guaranteed number of hours.CommentsClose CommentsPermalink
`(B) FAILURE TO WORK- Any hours which the worker fails to work, up to a maximum of the number of hours specified in the job offer for a work day, when the worker has been offered an opportunity to do so, and all hours of work actually performed (including voluntary work in excess of the number of hours specified in the job offer in a work day, on the worker's Sabbath, or on Federal holidays) may be counted by the employer in calculating whether the period of guaranteed employment has been met.CommentsClose CommentsPermalink
`(C) ABANDONMENT OF EMPLOYMENT, TERMINATION FOR CAUSE- If the worker voluntarily abandons employment before the end of the contract period, or is terminated for cause, the worker is not entitled to the ` 3/4 guarantee' described in subparagraph (A).CommentsClose CommentsPermalink
`(D) CONTRACT IMPOSSIBILITY- If, before the expiration of the period of employment specified in the job offer, the services of the worker are no longer required for reasons beyond the control of the employer due to any form of natural disaster, including a flood, hurricane, freeze, earthquake, fire, drought, plant or animal disease or pest infestation, or regulatory drought, before the guarantee in subparagraph (A) is fulfilled, the employer may terminate the worker's employment. In the event of such termination, the employer shall fulfill the employment guarantee in subparagraph (A) for the work days that have elapsed from the first work day after the arrival of the worker to the termination of employment. In such cases, the employer will make efforts to transfer the United States worker to other comparable employment acceptable to the worker. If such transfer is not effected, the employer shall provide the return transportation required in paragraph (2)(D).CommentsClose CommentsPermalink
`(5) MOTOR VEHICLE SAFETY-CommentsClose CommentsPermalink
`(A) MODE OF TRANSPORTATION SUBJECT TO COVERAGE-CommentsClose CommentsPermalink
`(i) IN GENERAL- Except as provided in clauses (iii) and (iv), this subsection applies to any H-2A employer that uses or causes to be used any vehicle to transport an H-2A worker within the United States.CommentsClose CommentsPermalink
`(ii) DEFINED TERM- In this paragraph, the term `uses or causes to be used'--CommentsClose CommentsPermalink
`(I) applies only to transportation provided by an H-2A employer to an H-2A worker, or by a farm labor contractor to an H-2A worker at the request or direction of an H-2A employer; andCommentsClose CommentsPermalink
`(II) does not apply to--CommentsClose CommentsPermalink
`(aa) transportation provided, or transportation arrangements made, by an H-2A worker, unless the employer specifically requested or arranged such transportation; orCommentsClose CommentsPermalink
`(bb) car pooling arrangements made by H-2A workers themselves, using 1 of the workers' own vehicles, unless specifically requested by the employer directly or through a farm labor contractor.CommentsClose CommentsPermalink
`(iii) CLARIFICATION- Providing a job offer to an H-2A worker that causes the worker to travel to or from the place of employment, or the payment or reimbursement of the transportation costs of an H-2A worker by an H-2A employer, shall not constitute an arrangement of, or participation in, such transportation.CommentsClose CommentsPermalink
`(iv) AGRICULTURAL MACHINERY AND EQUIPMENT EXCLUDED- This subsection does not apply to the transportation of an H-2A worker on a tractor, combine, harvester, picker, or other similar machinery or equipment while such worker is actually engaged in the planting, cultivating, or harvesting of agricultural commodities or the care of livestock or poultry or engaged in transportation incidental thereto.CommentsClose CommentsPermalink
`(v) COMMON CARRIERS EXCLUDED- This subsection does not apply to common carrier motor vehicle transportation in which the provider holds itself out to the general public as engaging in the transportation of passengers for hire and holds a valid certification of authorization for such purposes from an appropriate Federal, State, or local agency.CommentsClose CommentsPermalink
`(B) APPLICABILITY OF STANDARDS, LICENSING, AND INSURANCE REQUIREMENTS-CommentsClose CommentsPermalink
`(i) IN GENERAL- When using, or causing to be used, any vehicle for the purpose of providing transportation to which this subparagraph applies, each employer shall--CommentsClose CommentsPermalink
`(I) ensure that each such vehicle conforms to the standards prescribed by the Secretary of Labor under section 401(b) of the Migrant and Seasonal Agricultural Worker Protection Act (
`(II) ensure that each driver has a valid and appropriate license, as provided by State law, to operate the vehicle; andCommentsClose CommentsPermalink
`(III) have an insurance policy or a liability bond that is in effect which insures the employer against liability for damage to persons or property arising from the ownership, operation, or causing to be operated, of any vehicle used to transport any H-2A worker.CommentsClose CommentsPermalink
`(ii) AMOUNT OF INSURANCE REQUIRED- The level of insurance required shall be determined by the Secretary of Labor pursuant to regulations to be issued under this subsection.CommentsClose CommentsPermalink
`(iii) EFFECT OF WORKERS' COMPENSATION COVERAGE- If the employer of any H-2A worker provides workers' compensation coverage for such worker in the case of bodily injury or death as provided by State law, the following adjustments in the requirements of subparagraph (B)(i)(III) relating to having an insurance policy or liability bond apply:CommentsClose CommentsPermalink
`(I) No insurance policy or liability bond shall be required of the employer, if such workers are transported only under circumstances for which there is coverage under such State law.CommentsClose CommentsPermalink
`(II) An insurance policy or liability bond shall be required of the employer for circumstances under which coverage for the transportation of such workers is not provided under such State law.CommentsClose CommentsPermalink
`(c) Compliance With Labor Laws- An employer shall assure that, except as otherwise provided in this section, the employer will comply with all applicable Federal, State, and local labor laws, including laws affecting migrant and seasonal agricultural workers, with respect to all United States workers and alien workers employed by the employer, except that a violation of this assurance shall not constitute a violation of the Migrant and Seasonal Agricultural Worker Protection Act (
`(d) Copy of Job Offer- The employer shall provide to the worker, not later than the day the work commences, a copy of the employer's application and job offer described in section 218(a), or, if the employer will require the worker to enter into a separate employment contract covering the employment in question, such separate employment contract.CommentsClose CommentsPermalink
`(e) Range Production of Livestock- Nothing in this section, section 218, or section 218B shall preclude the Secretary of Labor and the Secretary from continuing to apply special procedures and requirements to the admission and employment of aliens in occupations involving the range production of livestock.CommentsClose CommentsPermalink
`SEC. 218B. PROCEDURE FOR ADMISSION AND EXTENSION OF STAY OF H-2A WORKERS.
`(a) Petitioning for Admission- An employer, or an association acting as an agent or joint employer for its members, that seeks the admission into the United States of an H-2A worker may file a petition with the Secretary. The petition shall be accompanied by an accepted and currently valid certification provided by the Secretary of Labor under section 218(e)(2)(B) covering the petitioner.CommentsClose CommentsPermalink
`(b) Expedited Adjudication by the Secretary- The Secretary shall establish a procedure for expedited adjudication of petitions filed under subsection (a) and within 7 working days shall, by fax, cable, or other means assuring expedited delivery, transmit a copy of notice of action on the petition to the petitioner and, in the case of approved petitions, to the appropriate immigration officer at the port of entry or United States consulate (as the case may be) where the petitioner has indicated that the alien beneficiary (or beneficiaries) will apply for a visa or admission to the United States.CommentsClose CommentsPermalink
`(c) Criteria for Admissibility-CommentsClose CommentsPermalink
`(1) IN GENERAL- An H-2A worker shall be considered admissible to the United States if the alien is otherwise admissible under this section, section 218, and section 218A, and the alien is not ineligible under paragraph (2).CommentsClose CommentsPermalink
`(2) DISQUALIFICATION- An alien shall be considered inadmissible to the United States and ineligible for nonimmigrant status under section 101(a)(15)(H)(ii)(a) if the alien has, at any time during the past 5 years--CommentsClose CommentsPermalink
`(A) violated a material provision of this section, including the requirement to promptly depart the United States when the alien's authorized period of admission under this section has expired; orCommentsClose CommentsPermalink
`(B) otherwise violated a term or condition of admission into the United States as a nonimmigrant, including overstaying the period of authorized admission as such a nonimmigrant.CommentsClose CommentsPermalink
`(3) WAIVER OF INELIGIBILITY FOR UNLAWFUL PRESENCE-CommentsClose CommentsPermalink
`(A) IN GENERAL- An alien who has not previously been admitted into the United States pursuant to this section, and who is otherwise eligible for admission in accordance with paragraphs (1) and (2), shall not be deemed inadmissible by virtue of section 212(a)(9)(B). If an alien described in the preceding sentence is present in the United States, the alien may apply from abroad for H-2A status, but may not be granted that status in the United States.CommentsClose CommentsPermalink
`(B) MAINTENANCE OF WAIVER- An alien provided an initial waiver of ineligibility pursuant to subparagraph (A) shall remain eligible for such waiver unless the alien violates the terms of this section or again becomes ineligible under section 212(a)(9)(B) by virtue of unlawful presence in the United States after the date of the initial waiver of ineligibility pursuant to subparagraph (A).CommentsClose CommentsPermalink
`(d) Period of Admission-CommentsClose CommentsPermalink
`(1) IN GENERAL- The alien shall be admitted for the period of employment in the application certified by the Secretary of Labor pursuant to section 218(e)(2)(B), not to exceed 10 months, supplemented by a period of not more than 1 week before the beginning of the period of employment for the purpose of travel to the worksite and a period of 14 days following the period of employment for the purpose of departure or extension based on a subsequent offer of employment, except that--CommentsClose CommentsPermalink
`(A) the alien is not authorized to be employed during such 14-day period except in the employment for which the alien was previously authorized; andCommentsClose CommentsPermalink
`(B) the total period of employment, including such 14-day period, may not exceed 10 months.CommentsClose CommentsPermalink
`(2) CONSTRUCTION- Nothing in this subsection shall limit the authority of the Secretary to extend the stay of the alien under any other provision of this Act.CommentsClose CommentsPermalink
`(e) Abandonment of Employment-CommentsClose CommentsPermalink
`(1) IN GENERAL- An alien admitted or provided status under section 101(a)(15)(H)(ii)(a) who abandons the employment which was the basis for such admission or status shall be considered to have failed to maintain nonimmigrant status as an H-2A worker and shall depart the United States or be subject to removal under section 237(a)(1)(C)(i).CommentsClose CommentsPermalink
`(2) REPORT BY EMPLOYER- The employer, or association acting as agent for the employer, shall notify the Secretary not later than 7 days after an H-2A worker prematurely abandons employment.CommentsClose CommentsPermalink
`(3) REMOVAL BY THE SECRETARY- The Secretary shall promptly remove from the United States any H-2A worker who violates any term or condition of the worker's nonimmigrant status.CommentsClose CommentsPermalink
`(4) VOLUNTARY TERMINATION- Notwithstanding paragraph (1), an alien may voluntarily terminate his or her employment if the alien promptly departs the United States upon termination of such employment.CommentsClose CommentsPermalink
`(f) Replacement of Alien-CommentsClose CommentsPermalink
`(1) IN GENERAL- Upon presentation of the notice to the Secretary required by subsection (e)(2), the Secretary of State shall promptly issue a visa to, and the Secretary shall admit into the United States, an eligible alien designated by the employer to replace an H-2A worker--CommentsClose CommentsPermalink
`(A) who abandons or prematurely terminates employment; orCommentsClose CommentsPermalink
`(B) whose employment is terminated after a United States worker is employed pursuant to section 218(b)(2)(H)(iii), if the United States worker voluntarily departs before the end of the period of intended employment or if the employment termination is for a lawful job-related reason.CommentsClose CommentsPermalink
`(2) CONSTRUCTION- Nothing in this subsection is intended to limit any preference required to be accorded United States workers under any other provision of this Act.CommentsClose CommentsPermalink
`(g) Identification Document-CommentsClose CommentsPermalink
`(1) IN GENERAL- Each alien authorized to be admitted under section 101(a)(15)(H)(ii)(a) shall be provided an identification and employment eligibility document to verify eligibility for employment in the United States and verify the alien's identity.CommentsClose CommentsPermalink
`(2) REQUIREMENTS- No identification and employment eligibility document may be issued which does not meet the following requirements:CommentsClose CommentsPermalink
`(A) The document shall be capable of reliably determining whether--CommentsClose CommentsPermalink
`(i) the individual with the identification and employment eligibility document whose eligibility is being verified is in fact eligible for employment;CommentsClose CommentsPermalink
`(ii) the individual whose eligibility is being verified is claiming the identity of another person; andCommentsClose CommentsPermalink
`(iii) the individual whose eligibility is being verified is authorized to be admitted into, and employed in, the United States as an H-2A worker.CommentsClose CommentsPermalink
`(B) The document shall be in a form that is resistant to counterfeiting and to tampering.CommentsClose CommentsPermalink
`(C) The document shall--CommentsClose CommentsPermalink
`(i) be compatible with other databases of the Secretary for the purpose of excluding aliens from benefits for which they are not eligible and determining whether the alien is unlawfully present in the United States; andCommentsClose CommentsPermalink
`(ii) be compatible with law enforcement databases to determine if the alien has been convicted of criminal offenses.CommentsClose CommentsPermalink
`(h) Extension of Stay of H-2A Aliens in the United States-CommentsClose CommentsPermalink
`(1) EXTENSION OF STAY- If an employer seeks approval to employ an H-2A alien who is lawfully present in the United States, the petition filed by the employer or an association pursuant to subsection (a), shall request an extension of the alien's stay and a change in the alien's employment.CommentsClose CommentsPermalink
`(2) LIMITATION ON FILING A PETITION FOR EXTENSION OF STAY- A petition may not be filed for an extension of an alien's stay--CommentsClose CommentsPermalink
`(A) for a period of more than 10 months; orCommentsClose CommentsPermalink
`(B) to a date that is more than 3 years after the date of the alien's last admission to the United States under this section.CommentsClose CommentsPermalink
`(3) WORK AUTHORIZATION UPON FILING A PETITION FOR EXTENSION OF STAY-CommentsClose CommentsPermalink
`(A) IN GENERAL- An alien who is lawfully present in the United States may commence the employment described in a petition under paragraph (1) on the date on which the petition is filed.CommentsClose CommentsPermalink
`(B) DEFINITION- For purposes of subparagraph (A), the term `file' means sending the petition by certified mail via the United States Postal Service, return receipt requested, or delivered by guaranteed commercial delivery which will provide the employer with a documented acknowledgment of the date of receipt of the petition.CommentsClose CommentsPermalink
`(C) HANDLING OF PETITION- The employer shall provide a copy of the employer's petition to the alien, who shall keep the petition with the alien's identification and employment eligibility document as evidence that the petition has been filed and that the alien is authorized to work in the United States.CommentsClose CommentsPermalink
`(D) APPROVAL OF PETITION- Upon approval of a petition for an extension of stay or change in the alien's authorized employment, the Secretary shall provide a new or updated employment eligibility document to the alien indicating the new validity date, after which the alien is not required to retain a copy of the petition.CommentsClose CommentsPermalink
`(4) LIMITATION ON EMPLOYMENT AUTHORIZATION OF ALIENS WITHOUT VALID IDENTIFICATION AND EMPLOYMENT ELIGIBILITY DOCUMENT- An expired identification and employment eligibility document, together with a copy of a petition for extension of stay or change in the alien's authorized employment that complies with the requirements of paragraph (1), shall constitute a valid work authorization document for a period of not more than 60 days beginning on the date on which such petition is filed, after which time only a currently valid identification and employment eligibility document shall be acceptable.CommentsClose CommentsPermalink
`(5) LIMITATION ON AN INDIVIDUAL'S STAY IN STATUS-CommentsClose CommentsPermalink
`(A) MAXIMUM PERIOD- The maximum continuous period of authorized status as an H-2A worker (including any extensions) is 3 years.CommentsClose CommentsPermalink
`(B) REQUIREMENT TO REMAIN OUTSIDE THE UNITED STATES-CommentsClose CommentsPermalink
`(i) IN GENERAL- Subject to clause (ii), in the case of an alien outside the United States whose period of authorized status as an H-2A worker (including any extensions) has expired, the alien may not again apply for admission to the United States as an H-2A worker unless the alien has remained outside the United States for a continuous period equal to at least 1/5 the duration of the alien's previous period of authorized status as an H-2A worker (including any extensions).CommentsClose CommentsPermalink
`(ii) EXCEPTION- Clause (i) shall not apply in the case of an alien if the alien's period of authorized status as an H-2A worker (including any extensions) was for a period of not more than 10 months and such alien has been outside the United States for at least 2 months during the 12 months preceding the date the alien again is applying for admission to the United States as an H-2A worker.CommentsClose CommentsPermalink
`(i) Special Rules for Aliens Employed as Sheepherders, Goat Herders, or Dairy Workers- Notwithstanding any provision of the Agricultural Job Opportunities, Benefits, and Security Act of 2007, an alien admitted under section 101(a)(15)(H)(ii)(a) for employment as a sheepherder, goat herder, or dairy worker--CommentsClose CommentsPermalink
`(1) may be admitted for an initial period of 12 months;CommentsClose CommentsPermalink
`(2) subject to subsection (j)(5), may have such initial period of admission extended for a period of up to 3 years; andCommentsClose CommentsPermalink
`(3) shall not be subject to the requirements of subsection (h)(5) (relating to periods of absence from the United States).CommentsClose CommentsPermalink
`(j) Adjustment to Lawful Permanent Resident Status for Aliens Employed as Sheepherders, Goat Herders, or Dairy Workers-CommentsClose CommentsPermalink
`(1) ELIGIBLE ALIEN- For purposes of this subsection, the term `eligible alien' means an alien--CommentsClose CommentsPermalink
`(A) having nonimmigrant status under section 101(a)(15)(H)(ii)(a) based on employment as a sheepherder, goat herder, or dairy worker;CommentsClose CommentsPermalink
`(B) who has maintained such nonimmigrant status in the United States for a cumulative total of 36 months (excluding any period of absence from the United States); andCommentsClose CommentsPermalink
`(C) who is seeking to receive an immigrant visa under section 203(b)(3)(A)(iii).CommentsClose CommentsPermalink
`(2) CLASSIFICATION PETITION- In the case of an eligible alien, the petition under section 204 for classification under section 203(b)(3)(A)(iii) may be filed by--CommentsClose CommentsPermalink
`(A) the alien's employer on behalf of the eligible alien; orCommentsClose CommentsPermalink
`(B) the eligible alien.CommentsClose CommentsPermalink
`(3) NO LABOR CERTIFICATION REQUIRED- Notwithstanding section 203(b)(3)(C), no determination under section 212(a)(5)(A) is required with respect to an immigrant visa described in paragraph (1)(C) for an eligible alien.CommentsClose CommentsPermalink
`(4) EFFECT OF PETITION- The filing of a petition described in paragraph (2) or an application for adjustment of status based on the approval of such a petition shall not constitute evidence of an alien's ineligibility for nonimmigrant status under section 101(a)(15)(H)(ii)(a).CommentsClose CommentsPermalink
`(5) EXTENSION OF STAY- The Secretary shall extend the stay of an eligible alien having a pending or approved classification petition described in paragraph (2) in 1-year increments until a final determination is made on the alien's eligibility for adjustment of status to that of an alien lawfully admitted for permanent residence.CommentsClose CommentsPermalink
`(6) CONSTRUCTION- Nothing in this subsection shall be construed to prevent an eligible alien from seeking adjustment of status in accordance with any other provision of law.CommentsClose CommentsPermalink
`SEC. 218C. WORKER PROTECTIONS AND LABOR STANDARDS ENFORCEMENT.
`(a) Enforcement Authority-CommentsClose CommentsPermalink
`(1) INVESTIGATION OF COMPLAINTS-CommentsClose CommentsPermalink
`(A) AGGRIEVED PERSON OR THIRD-PARTY COMPLAINTS- The Secretary of Labor shall establish a process for the receipt, investigation, and disposition of complaints respecting a petitioner's failure to meet a condition specified in section 218(b), or an employer's misrepresentation of material facts in an application under section 218(a). Complaints may be filed by any aggrieved person or organization (including bargaining representatives). No investigation or hearing shall be conducted on a complaint concerning such a failure or misrepresentation unless the complaint was filed not later than 12 months after the date of the failure, or misrepresentation, respectively. The Secretary of Labor shall conduct an investigation under this subparagraph if there is reasonable cause to believe that such a failure or misrepresentation has occurred.CommentsClose CommentsPermalink
`(B) DETERMINATION ON COMPLAINT- Under such process, the Secretary of Labor shall provide, within 30 days after the date such a complaint is filed, for a determination as to whether or not a reasonable basis exists to make a finding described in subparagraph (C), (D), (E), or (G). If the Secretary of Labor determines that such a reasonable basis exists, the Secretary of Labor shall provide for notice of such determination to the interested parties and an opportunity for a hearing on the complaint, in accordance with
`(C) FAILURES TO MEET CONDITIONS- If the Secretary of Labor finds, after notice and opportunity for a hearing, a failure to meet a condition of paragraph (1)(A), (1)(B), (1)(D), (1)(F), (2)(A), (2)(B), or (2)(G) of section 218(b), a substantial failure to meet a condition of paragraph (1)(C), (1)(E), (2)(C), (2)(D), (2)(E), or (2)(H) of section 218(b), or a material misrepresentation of fact in an application under section 218(a)--CommentsClose CommentsPermalink
`(i) the Secretary of Labor shall notify the Secretary of such finding and may, in addition, impose such other administrative remedies (including civil money penalties in an amount not to exceed $1,000 per violation) as the Secretary of Labor determines to be appropriate; andCommentsClose CommentsPermalink
`(ii) the Secretary may disqualify the employer from the employment of aliens described in section 101(a)(15)(H)(ii)(a) for a period of 1 year.CommentsClose CommentsPermalink
`(D) WILLFUL FAILURES AND WILLFUL MISREPRESENTATIONS- If the Secretary of Labor finds, after notice and opportunity for hearing, a willful failure to meet a condition of section 218(b), a willful misrepresentation of a material fact in an application under section 218(a), or a violation of subsection (d)(1)--CommentsClose CommentsPermalink
`(i) the Secretary of Labor shall notify the Secretary of such finding and may, in addition, impose such other administrative remedies (including civil money penalties in an amount not to exceed $5,000 per violation) as the Secretary of Labor determines to be appropriate;CommentsClose CommentsPermalink
`(ii) the Secretary of Labor may seek appropriate legal or equitable relief to effectuate the purposes of subsection (d)(1); andCommentsClose CommentsPermalink
`(iii) the Secretary may disqualify the employer from the employment of H-2A workers for a period of 2 years.CommentsClose CommentsPermalink
`(E) DISPLACEMENT OF UNITED STATES WORKERS- If the Secretary of Labor finds, after notice and opportunity for hearing, a willful failure to meet a condition of section 218(b) or a willful misrepresentation of a material fact in an application under section 218(a), in the course of which failure or misrepresentation the employer displaced a United States worker employed by the employer during the period of employment on the employer's application under section 218(a) or during the period of 30 days preceding such period of employment--CommentsClose CommentsPermalink
`(i) the Secretary of Labor shall notify the Secretary of such finding and may, in addition, impose such other administrative remedies (including civil money penalties in an amount not to exceed $15,000 per violation) as the Secretary of Labor determines to be appropriate; andCommentsClose CommentsPermalink
`(ii) the Secretary may disqualify the employer from the employment of H-2A workers for a period of 3 years.CommentsClose CommentsPermalink
`(F) LIMITATIONS ON CIVIL MONEY PENALTIES- The Secretary of Labor shall not impose total civil money penalties with respect to an application under section 218(a) in excess of $90,000.CommentsClose CommentsPermalink
`(G) FAILURES TO PAY WAGES OR REQUIRED BENEFITS- If the Secretary of Labor finds, after notice and opportunity for a hearing, that the employer has failed to pay the wages, or provide the housing allowance, transportation, subsistence reimbursement, or guarantee of employment, required under section 218A(b), the Secretary of Labor shall assess payment of back wages, or other required benefits, due any United States worker or H-2A worker employed by the employer in the specific employment in question. The back wages or other required benefits under section 218A(b) shall be equal to the difference between the amount that should have been paid and the amount that actually was paid to such worker.CommentsClose CommentsPermalink
`(2) STATUTORY CONSTRUCTION- Nothing in this section shall be construed as limiting the authority of the Secretary of Labor to conduct any compliance investigation under any other labor law, including any law affecting migrant and seasonal agricultural workers, or, in the absence of a complaint under this section, under section 218 or 218A.CommentsClose CommentsPermalink
`(b) Rights Enforceable by Private Right of Action- H-2A workers may enforce the following rights through the private right of action provided in subsection (c), and no other right of action shall exist under Federal or State law to enforce such rights:CommentsClose CommentsPermalink
`(1) The providing of housing or a housing allowance as required under section 218A(b)(1).CommentsClose CommentsPermalink
`(2) The reimbursement of transportation as required under section 218A(b)(2).CommentsClose CommentsPermalink
`(3) The payment of wages required under section 218A(b)(3) when due.CommentsClose CommentsPermalink
`(4) The benefits and material terms and conditions of employment expressly provided in the job offer described in section 218(a)(2), not including the assurance to comply with other Federal, State, and local labor laws described in section 218A(c), compliance with which shall be governed by the provisions of such laws.CommentsClose CommentsPermalink
`(5) The guarantee of employment required under section 218A(b)(4).CommentsClose CommentsPermalink
`(6) The motor vehicle safety requirements under section 218A(b)(5).CommentsClose CommentsPermalink
`(7) The prohibition of discrimination under subsection (d)(2).CommentsClose CommentsPermalink
`(c) Private Right of Action-CommentsClose CommentsPermalink
`(1) MEDIATION- Upon the filing of a complaint by an H-2A worker aggrieved by a violation of rights enforceable under subsection (b), and within 60 days of the filing of proof of service of the complaint, a party to the action may file a request with the Federal Mediation and Conciliation Service to assist the parties in reaching a satisfactory resolution of all issues involving all parties to the dispute. Upon a filing of such request and giving of notice to the parties, the parties shall attempt mediation within the period specified in subparagraph (B).CommentsClose CommentsPermalink
`(A) MEDIATION SERVICES- The Federal Mediation and Conciliation Service shall be available to assist in resolving disputes arising under subsection (b) between H-2A workers and agricultural employers without charge to the parties.CommentsClose CommentsPermalink
`(B) 90-day LIMIT- The Federal Mediation and Conciliation Service may conduct mediation or other nonbinding dispute resolution activities for a period not to exceed 90 days beginning on the date on which the Federal Mediation and Conciliation Service receives the request for assistance unless the parties agree to an extension of this period of time.CommentsClose CommentsPermalink
`(C) AUTHORIZATION-CommentsClose CommentsPermalink
`(i) IN GENERAL- Subject to clause (ii), there are authorized to be appropriated to the Federal Mediation and Conciliation Service $500,000 for each fiscal year to carry out this section.CommentsClose CommentsPermalink
`(ii) MEDIATION- Notwithstanding any other provision of law, the Director of the Federal Mediation and Conciliation Service is authorized to conduct the mediation or other dispute resolution activities from any other appropriated funds available to the Director and to reimburse such appropriated funds when the funds are appropriated pursuant to this authorization, such reimbursement to be credited to appropriations currently available at the time of receipt.CommentsClose CommentsPermalink
`(2) MAINTENANCE OF CIVIL ACTION IN DISTRICT COURT BY AGGRIEVED PERSON- An H-2A worker aggrieved by a violation of rights enforceable under subsection (b) by an agricultural employer or other person may file suit in any district court of the United States having jurisdiction over the parties, without regard to the amount in controversy, without regard to the citizenship of the parties, and without regard to the exhaustion of any alternative administrative remedies under this Act, not later than 3 years after the date the violation occurs.CommentsClose CommentsPermalink
`(3) ELECTION- An H-2A worker who has filed an administrative complaint with the Secretary of Labor may not maintain a civil action under paragraph (2) unless a complaint based on the same violation filed with the Secretary of Labor under subsection (a)(1) is withdrawn before the filing of such action, in which case the rights and remedies available under this subsection shall be exclusive.CommentsClose CommentsPermalink
`(4) PREEMPTION OF STATE CONTRACT RIGHTS- Nothing in this Act shall be construed to diminish the rights and remedies of an H-2A worker under any other Federal or State law or regulation or under any collective bargaining agreement, except that no court or administrative action shall be available under any State contract law to enforce the rights created by this Act.CommentsClose CommentsPermalink
`(5) WAIVER OF RIGHTS PROHIBITED- Agreements by employees purporting to waive or modify their rights under this Act shall be void as contrary to public policy, except that a waiver or modification of the rights or obligations in favor of the Secretary of Labor shall be valid for purposes of the enforcement of this Act. The preceding sentence may not be construed to prohibit agreements to settle private disputes or litigation.CommentsClose CommentsPermalink
`(6) AWARD OF DAMAGES OR OTHER EQUITABLE RELIEF-CommentsClose CommentsPermalink
`(A) If the court finds that the respondent has intentionally violated any of the rights enforceable under subsection (b), it shall award actual damages, if any, or equitable relief.CommentsClose CommentsPermalink
`(B) Any civil action brought under this section shall be subject to appeal as provided in chapter 83 of title 28, United States Code.CommentsClose CommentsPermalink
`(7) Workers' COMPENSATION BENEFITS; EXCLUSIVE REMEDY-CommentsClose CommentsPermalink
`(A) Notwithstanding any other provision of this section, where a State's workers' compensation law is applicable and coverage is provided for an H-2A worker, the workers' compensation benefits shall be the exclusive remedy for the loss of such worker under this section in the case of bodily injury or death in accordance with such State's workers' compensation law.CommentsClose CommentsPermalink
`(B) The exclusive remedy prescribed in subparagraph (A) precludes the recovery under paragraph (6) of actual damages for loss from an injury or death but does not preclude other equitable relief, except that such relief shall not include back or front pay or in any manner, directly or indirectly, expand or otherwise alter or affect--CommentsClose CommentsPermalink
`(i) a recovery under a State workers' compensation law; orCommentsClose CommentsPermalink
`(ii) rights conferred under a State workers' compensation law.CommentsClose CommentsPermalink
`(8) TOLLING OF STATUTE OF LIMITATIONS- If it is determined under a State workers' compensation law that the workers' compensation law is not applicable to a claim for bodily injury or death of an H-2A worker, the statute of limitations for bringing an action for actual damages for such injury or death under subsection (c) shall be tolled for the period during which the claim for such injury or death under such State workers' compensation law was pending. The statute of limitations for an action for actual damages or other equitable relief arising out of the same transaction or occurrence as the injury or death of the H-2A worker shall be tolled for the period during which the claim for such injury or death was pending under the State workers' compensation law.CommentsClose CommentsPermalink
`(9) PRECLUSIVE EFFECT- Any settlement by an H-2A worker and an H-2A employer or any person reached through the mediation process required under subsection (c)(1) shall preclude any right of action arising out of the same facts between the parties in any Federal or State court or administrative proceeding, unless specifically provided otherwise in the settlement agreement.CommentsClose CommentsPermalink
`(10) SETTLEMENTS- Any settlement by the Secretary of Labor with an H-2A employer on behalf of an H-2A worker of a complaint filed with the Secretary of Labor under this section or any finding by the Secretary of Labor under subsection (a)(1)(B) shall preclude any right of action arising out of the same facts between the parties under any Federal or State court or administrative proceeding, unless specifically provided otherwise in the settlement agreement.CommentsClose CommentsPermalink
`(d) Discrimination Prohibited-CommentsClose CommentsPermalink
`(1) IN GENERAL- It is a violation of this subsection for any person who has filed an application under section 218(a), to intimidate, threaten, restrain, coerce, blacklist, discharge, or in any other manner discriminate against an employee (which term, for purposes of this subsection, includes a former employee and an applicant for employment) because the employee has disclosed information to the employer, or to any other person, that the employee reasonably believes evidences a violation of section 218 or 218A or any rule or regulation pertaining to section 218 or 218A, or because the employee cooperates or seeks to cooperate in an investigation or other proceeding concerning the employer's compliance with the requirements of section 218 or 218A or any rule or regulation pertaining to either of such sections.CommentsClose CommentsPermalink
`(2) DISCRIMINATION AGAINST H-2A WORKERS- It is a violation of this subsection for any person who has filed an application under section 218(a), to intimidate, threaten, restrain, coerce, blacklist, discharge, or in any manner discriminate against an H-2A employee because such worker has, with just cause, filed a complaint with the Secretary of Labor regarding a denial of the rights enumerated and enforceable under subsection (b) or instituted, or caused to be instituted, a private right of action under subsection (c) regarding the denial of the rights enumerated under subsection (b), or has testified or is about to testify in any court proceeding brought under subsection (c).CommentsClose CommentsPermalink
`(e) Authorization To Seek Other Appropriate Employment- The Secretary of Labor and the Secretary shall establish a process under which an H-2A worker who files a complaint regarding a violation of subsection (d) and is otherwise eligible to remain and work in the United States may be allowed to seek other appropriate employment in the United States for a period not to exceed the maximum period of stay authorized for such nonimmigrant classification.CommentsClose CommentsPermalink
`(f) Role of Associations-CommentsClose CommentsPermalink
`(1) VIOLATION BY A MEMBER OF AN ASSOCIATION- An employer on whose behalf an application is filed by an association acting as its agent is fully responsible for such application, and for complying with the terms and conditions of sections 218 and 218A, as though the employer had filed the application itself. If such an employer is determined, under this section, to have committed a violation, the penalty for such violation shall apply only to that member of the association unless the Secretary of Labor determines that the association or other member participated in, had knowledge, or reason to know, of the violation, in which case the penalty shall be invoked against the association or other association member as well.CommentsClose CommentsPermalink
`(2) VIOLATIONS BY AN ASSOCIATION ACTING AS AN EMPLOYER- If an association filing an application as a sole or joint employer is determined to have committed a violation under this section, the penalty for such violation shall apply only to the association unless the Secretary of Labor determines that an association member or members participated in or had knowledge, or reason to know of the violation, in which case the penalty shall be invoked against the association member or members as well.CommentsClose CommentsPermalink
`SEC. 218D. DEFINITIONS.
`For purposes of this section and section 218, 218A, 218B, and 218C:CommentsClose CommentsPermalink
`(1) AGRICULTURAL EMPLOYMENT- The term `agricultural employment' means any service or activity that is considered to be agricultural under section 3(f) of the Fair Labor Standards Act of 1938 (
`(2) BONA FIDE UNION- The term `bona fide union' means any organization in which employees participate and which exists for the purpose of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other terms and conditions of work for agricultural employees. Such term does not include an organization formed, created, administered, supported, dominated, financed, or controlled by an employer or employer association or its agents or representatives.CommentsClose CommentsPermalink
`(3) DISPLACE- The term `displace', in the case of an application with respect to 1 or more H-2A workers by an employer, means laying off a United States worker from a job for which the H-2A worker or workers is or are sought.CommentsClose CommentsPermalink
`(4) ELIGIBLE- The term `eligible', when used with respect to an individual, means an individual who is not an unauthorized alien (as defined in section 274A).CommentsClose CommentsPermalink
`(5) EMPLOYER- The term `employer' means any person or entity, including any farm labor contractor and any agricultural association, that employs workers in agricultural employment.CommentsClose CommentsPermalink
`(6) H-2A EMPLOYER- The term `H-2A employer' means an employer who seeks to hire 1 or more nonimmigrant aliens described in section 101(a)(15)(H)(ii)(a).CommentsClose CommentsPermalink
`(7) H-2A WORKER- The term `H-2A worker' means a nonimmigrant described in section 101(a)(15)(H)(ii)(a).CommentsClose CommentsPermalink
`(8) JOB OPPORTUNITY- The term `job opportunity' means a job opening for temporary or seasonal full-time employment at a place in the United States to which United States workers can be referred.CommentsClose CommentsPermalink
`(9) LAYING OFF-CommentsClose CommentsPermalink
`(A) IN GENERAL- The term `laying off', with respect to a worker--CommentsClose CommentsPermalink
`(i) means to cause the worker's loss of employment, other than through a discharge for inadequate performance, violation of workplace rules, cause, voluntary departure, voluntary retirement, contract impossibility (as described in section 218A(b)(4)(D)), or temporary suspension of employment due to weather, markets, or other temporary conditions; butCommentsClose CommentsPermalink
`(ii) does not include any situation in which the worker is offered, as an alternative to such loss of employment, a similar employment opportunity with the same employer (or, in the case of a placement of a worker with another employer under section 218(b)(2)(E), with either employer described in such section) at equivalent or higher compensation and benefits than the position from which the employee was discharged, regardless of whether or not the employee accepts the offer.CommentsClose CommentsPermalink
`(B) STATUTORY CONSTRUCTION- Nothing in this paragraph is intended to limit an employee's rights under a collective bargaining agreement or other employment contract.CommentsClose CommentsPermalink
`(10) REGULATORY DROUGHT- The term `regulatory drought' means a decision subsequent to the filing of the application under section 218 by an entity not under the control of the employer making such filing which restricts the employer's access to water for irrigation purposes and reduces or limits the employer's ability to produce an agricultural commodity, thereby reducing the need for labor.CommentsClose CommentsPermalink
`(11) SEASONAL- Labor is performed on a `seasonal' basis if--CommentsClose CommentsPermalink
`(A) ordinarily, it pertains to or is of the kind exclusively performed at certain seasons or periods of the year; andCommentsClose CommentsPermalink
`(B) from its nature, it may not be continuous or carried on throughout the year.CommentsClose CommentsPermalink
`(12) SECRETARY- Except as otherwise provided, the term `Secretary' means the Secretary of Homeland Security.CommentsClose CommentsPermalink
`(13) TEMPORARY- A worker is employed on a `temporary' basis where the employment is intended not to exceed 10 months.CommentsClose CommentsPermalink
`(14) UNITED STATES WORKER- The term `United States worker' means any worker, whether a national of the United States, an alien lawfully admitted for permanent residence, or any other alien, who is authorized to work in the job opportunity within the United States, except an alien admitted or otherwise provided status under section 101(a)(15)(H)(ii)(a).'.CommentsClose CommentsPermalink
(b) Table of Contents- The table of contents of the Immigration and Nationality Act (
`Sec. 218. H-2A employer applications.CommentsClose CommentsPermalink
`Sec. 218A. H-2A employment requirements.CommentsClose CommentsPermalink
`Sec. 218B. Procedure for admission and extension of stay of H-2A workers.CommentsClose CommentsPermalink
`Sec. 218C. Worker protections and labor standards enforcement.CommentsClose CommentsPermalink
`Sec. 218D. Definitions.'.CommentsClose CommentsPermalink
CHAPTER 3--MISCELLANEOUS PROVISIONS
SEC. 653. DETERMINATION AND USE OF USER FEES.
(a) Schedule of Fees- The Secretary shall establish and periodically adjust a schedule of fees for the employment of aliens pursuant to the amendment made by section 652(a) of this Act and a collection process for such fees from employers. Such fees shall be the only fees chargeable to employers for services provided under such amendment.CommentsClose CommentsPermalink
(b) Determination of Schedule-CommentsClose CommentsPermalink
(1) IN GENERAL- The schedule under subsection (a) shall reflect a fee rate based on the number of job opportunities indicated in the employer's application under section 218 of the Immigration and Nationality Act, as amended by section 652 of this Act, and sufficient to provide for the direct costs of providing services related to an employer's authorization to employ aliens pursuant to the amendment made by section 652(a) of this Act, to include the certification of eligible employers, the issuance of documentation, and the admission of eligible aliens.CommentsClose CommentsPermalink
(2) PROCEDURE-CommentsClose CommentsPermalink
(A) IN GENERAL- In establishing and adjusting such a schedule, the Secretary shall comply with Federal cost accounting and fee setting standards.CommentsClose CommentsPermalink
(B) PUBLICATION AND COMMENT- The Secretary shall publish in the Federal Register an initial fee schedule and associated collection process and the cost data or estimates upon which such fee schedule is based, and any subsequent amendments thereto, pursuant to which public comment shall be sought and a final rule issued.CommentsClose CommentsPermalink
(c) Use of Proceeds- Notwithstanding any other provision of law, all proceeds resulting from the payment of the fees pursuant to the amendment made by section 652(a) of this Act shall be available without further appropriation and shall remain available without fiscal year limitation to reimburse the Secretary, the Secretary of State, and the Secretary of Labor for the costs of carrying out sections 218 and 218B of the Immigration and Nationality Act, as amended and added, respectively, by section 652 of this Act, and the provisions of this Act.CommentsClose CommentsPermalink
SEC. 654. REGULATIONS.
(a) Requirement for the Secretary To Consult- The Secretary shall consult with the Secretary of Labor and the Secretary of Agriculture during the promulgation of all regulations to implement the duties of the Secretary under this Act and the amendments made by this Act.CommentsClose CommentsPermalink
(b) Requirement for the Secretary of State To Consult- The Secretary of State shall consult with the Secretary, the Secretary of Labor, and the Secretary of Agriculture on all regulations to implement the duties of the Secretary of State under this Act and the amendments made by this Act.CommentsClose CommentsPermalink
(c) Requirement for the Secretary of Labor To Consult- The Secretary of Labor shall consult with the Secretary of Agriculture and the Secretary on all regulations to implement the duties of the Secretary of Labor under this Act and the amendments made by this Act.CommentsClose CommentsPermalink
(d) Deadline for Issuance of Regulations- All regulations to implement the duties of the Secretary, the Secretary of State, and the Secretary of Labor created under sections 218, 218A, 218B, 218C, and 218D of the Immigration and Nationality Act, as amended or added by section 652 of this Act, shall take effect on the effective date of section 652 and shall be issued not later than 1 year after the date of enactment of this Act.CommentsClose CommentsPermalink
SEC. 655. REPORTS TO CONGRESS.
(a) Annual Report- Not later than September 30 of each year, the Secretary shall submit a report to Congress that identifies, for the previous year--CommentsClose CommentsPermalink
(1) the number of job opportunities approved for employment of aliens admitted under section 101(a)(15)(H)(ii)(a) of the Immigration and Nationality Act (
(2) the number of such aliens reported to have abandoned employment pursuant to subsection 218B(e)(2) of such Act;CommentsClose CommentsPermalink
(3) the number of such aliens who departed the United States within the period specified in subsection 218B(d) of such Act;CommentsClose CommentsPermalink
(4) the number of aliens who applied for adjustment of status pursuant to section 643(a);CommentsClose CommentsPermalink
(5) the number of such aliens whose status was adjusted under section 643(a);CommentsClose CommentsPermalink
(6) the number of aliens who applied for permanent residence pursuant to section 643(c); andCommentsClose CommentsPermalink
(7) the number of such aliens who were approved for permanent residence pursuant section 645(c).CommentsClose CommentsPermalink
(b) Implementation Report- Not later than 180 days after the date of the enactment of this Act, the Secretary shall prepare and submit to Congress a report that describes the measures being taken and the progress made in implementing this Act.CommentsClose CommentsPermalink
SEC. 656. EFFECTIVE DATE.
Except as otherwise provided, sections 652 and 653 shall take effect 1 year after the date of the enactment of this Act.CommentsClose CommentsPermalink
Subtitle D--Programs to Assist Nonimmigrant Workers
SEC. 661. GRANTS TO SUPPORT PUBLIC EDUCATION AND COMMUNITY TRAINING.
(a) Grants Authorized- The Assistant Attorney General, Office of Justice Programs, may award grants to qualified non-profit community organizations to educate, train, and support non-profit agencies, immigrant communities, and other interested entities regarding the provisions of this Act and the amendments made by this Act.CommentsClose CommentsPermalink
(b) Use of Funds-CommentsClose CommentsPermalink
(1) IN GENERAL- Grants awarded under this section shall be used--CommentsClose CommentsPermalink
(A) for public education, training, technical assistance, government liaison, and all related costs (including personnel and equipment) incurred by the grantee in providing services related to this Act; andCommentsClose CommentsPermalink
(B) to educate, train, and support nonprofit organizations, immigrant communities, and other interested parties regarding this Act and the amendments made by this Act and on matters related to its implementation.CommentsClose CommentsPermalink
(2) EDUCATION- In addition to the purposes described in paragraph (1), grants awarded under this section shall be used to--CommentsClose CommentsPermalink
(A) educate immigrant communities and other interested entities regarding--CommentsClose CommentsPermalink
(i) the individuals and organizations that can provide authorized legal representation in immigration matters under regulations prescribed by the Secretary; andCommentsClose CommentsPermalink
(ii) the dangers of securing legal advice and assistance from those who are not authorized to provide legal representation in immigration matters;CommentsClose CommentsPermalink
(B) educate interested entities regarding the requirements for obtaining nonprofit recognition and accreditation to represent immigrants under regulations prescribed by the Secretary;CommentsClose CommentsPermalink
(C) provide nonprofit agencies with training and technical assistance on the recognition and accreditation process; andCommentsClose CommentsPermalink
(D) educate nonprofit community organizations, immigrant communities, and other interested entities regarding--CommentsClose CommentsPermalink
(i) the process for obtaining benefits under this Act or under an amendment made by this Act; andCommentsClose CommentsPermalink
(ii) the availability of authorized legal representation for low-income persons who may qualify for benefits under this Act or under an amendment made by this Act.CommentsClose CommentsPermalink
(c) Diversity- The Assistant Attorney General shall ensure, to the extent possible, that the nonprofit community organizations receiving grants under this section serve geographically diverse locations and ethnically diverse populations who may qualify for benefits under the Act.CommentsClose CommentsPermalink
(d) Authorization of Appropriations- There are authorized to be appropriated to the Office of Justice Programs of the Department of Justice such sums as may be necessary for each of the fiscal years 2008 through 2010 to carry out this section.CommentsClose CommentsPermalink
SEC. 662. GRANT PROGRAM TO ASSIST APPLICANTS FOR NATURALIZATION.
(a) Purpose- The purpose of this section is to establish a grant program within United States Citizenship and Immigration Services that provides funding to community-based organizations, including community-based legal service organizations, as appropriate, to develop and implement programs to assist eligible applicants for naturalization.CommentsClose CommentsPermalink
(b) Definitions- In this section:CommentsClose CommentsPermalink
(1) COMMUNITY-BASED ORGANIZATION- The term `community-based organization' means a nonprofit, tax-exempt organization, including a faith-based organization, whose staff has experience and expertise in meeting the legal, social, educational, cultural educational, or cultural needs of immigrants, refugees, persons granted asylum, or persons applying for such statuses.CommentsClose CommentsPermalink
(2) IEACA GRANT- The term `IEACA grant' means an Initial Entry, Adjustment, and Citizenship Assistance Grant authorized under subsection (c).CommentsClose CommentsPermalink
(c) Establishment of Initial Entry, Adjustment, and Citizenship Assistance Grant Program-CommentsClose CommentsPermalink
(1) GRANTS AUTHORIZED- The Secretary, working through the Director of United States Citizenship and Immigration Services, may award IEACA grants to community-based organizations.CommentsClose CommentsPermalink
(2) USE OF FUNDS- Grants awarded under this section may be used for the design and implementation of programs to provide the following services:CommentsClose CommentsPermalink
(A) INITIAL APPLICATION- Assistance and instruction, including legal assistance, to aliens making initial application for conditional nonimmigrant or conditional nonimmigrant depedent classification under section 601. Such assistance may include assisting applicants in--CommentsClose CommentsPermalink
(i) screening to assess prospective applicants' potential eligibility for participating in such program;CommentsClose CommentsPermalink
(ii) filling out applications for such program;CommentsClose CommentsPermalink
(iii) gathering proof of identification, employment, residence, and tax payment;CommentsClose CommentsPermalink
(iv) gathering proof of relationships of eligible family members;CommentsClose CommentsPermalink
(v) applying for any waivers for which applicants and qualifying family members may be eligible; andCommentsClose CommentsPermalink
(vi) any other assistance that the Secretary or grantee considers useful to aliens who are interested in filing applications for treatment under section 601.CommentsClose CommentsPermalink
(B) ADJUSTMENT OF STATUS- Assistance and instruction, including legal assistance, to aliens seeking to adjust their status in accordance with section 602 of this Act or section 245 of the Immigration and Nationality Act (
(C) CITIZENSHIP- Assistance and instruction to applicants on--CommentsClose CommentsPermalink
(i) the rights and responsibilities of United States citizenship;CommentsClose CommentsPermalink
(ii) English as a second language;CommentsClose CommentsPermalink
(iii) civics; orCommentsClose CommentsPermalink
(iv) applying for United States citizenship.CommentsClose CommentsPermalink
(3) DURATION AND RENEWAL-CommentsClose CommentsPermalink
(A) DURATION- Subject to subparagraph (B), each grant awarded under this section shall be awarded for a period of not more than 3 years.CommentsClose CommentsPermalink
(B) RENEWAL- The Secretary may renew any grant awarded under this section in 1-year increments.CommentsClose CommentsPermalink
(4) APPLICATION FOR GRANTS- Each entity desiring an IEACA grant under this section shall submit an application to the Secretary at such time, in such manner, and accompanied by such information as the Secretary may require.CommentsClose CommentsPermalink
(5) ELIGIBLE ORGANIZATIONS- A community-based organization applying for a grant under this section to provide services described in subparagraph (A), (B), or (C)(iv) of paragraph (2) may not receive such a grant unless the organization is--CommentsClose CommentsPermalink
(A) recognized by the Board of Immigration Appeals under section 292.2 of title 8, Code of Federal Regulations; orCommentsClose CommentsPermalink
(B) otherwise directed by an attorney.CommentsClose CommentsPermalink
(6) SELECTION OF GRANTEES- Grants awarded under this section shall be awarded on a competitive basis.CommentsClose CommentsPermalink
(7) GEOGRAPHIC DISTRIBUTION OF GRANTS- The Secretary shall approve applications under this section in a manner that ensures, to the greatest extent practicable, that--CommentsClose CommentsPermalink
(A) not less than 50 percent of the funding for grants under this section are awarded to programs located in the 10 States with the highest percentage of residents who were born in foreign countries; andCommentsClose CommentsPermalink
(B) not less than 20 percent of the funding for grants under this section are awarded to programs located in States that are not described in subparagraph (A).CommentsClose CommentsPermalink
(8) ETHNIC DIVERSITY- The Secretary shall ensure that community-based organizations receiving grants under this section provide services to an ethnically diverse population, to the greatest extent possible.CommentsClose CommentsPermalink
(d) Liaison Between USCIS and Grantees- The Secretary shall establish a liaison between United States Citizenship and Immigration Services and the community of providers of services under this section to assure quality control, efficiency, and greater client willingness to come forward.CommentsClose CommentsPermalink
(e) Reports to Congress- Not later than 180 days after the date of enactment of this Act, and July 1 of each subsequent year, the Secretary shall submit a report to Congress that includes information regarding--CommentsClose CommentsPermalink
(1) the status of the implementation of this section;CommentsClose CommentsPermalink
(2) the grants issued pursuant to this section; andCommentsClose CommentsPermalink
(3) the activities carried out with such grants.CommentsClose CommentsPermalink
(f) Source of Grant Funds-CommentsClose CommentsPermalink
(1) APPLICATION FEES- The Secretary may use funds made available under section 601(g)(2)(A) of this Act and section 218A(b)(3) of the Immigration and Nationality Act, as added by this Act, to carry out this section.CommentsClose CommentsPermalink
(2) AUTHORIZATION OF APPROPRIATIONS-CommentsClose CommentsPermalink
(A) AMOUNTS AUTHORIZED- In addition to the amounts made available under paragraph (1), there are authorized to be appropriated such additional sums as may be necessary for each of fiscal years 2008 through 2012 to carry out this section.CommentsClose CommentsPermalink
(B) AVAILABILITY- Any amounts appropriated pursuant to the authorization of appropriations in subparagraph (A) shall remain available until expended.CommentsClose CommentsPermalink
(g) Distribution of Fees and Fines-CommentsClose CommentsPermalink
(1) H-2C VISA FEES- Notwithstanding section 218A(j) of the Immigration and Nationality Act, as added by section 402, 2 percent of the fees collected under section 218A of such Act shall be made available for grants under the Initial Entry, Adjustment, and Citizenship Assistance Grant Program established under this section.CommentsClose CommentsPermalink
(2) CONDITIONAL NONIMMIGRANT VISA FEES AND FINES- Notwithstanding section 601(g)(2), 2 percent of the fees and fines collected under section 601 shall be made available for grants under the Initial Entry, Adjustment, and Citizenship Assistance Grant Program established under this section.CommentsClose CommentsPermalink
SEC. 663. STRENGTHENING AMERICAN CITIZENSHIP.
(a) Short Title- This section may be cited as the `Strengthening American Citizenship Act of 2007'.CommentsClose CommentsPermalink
(b) Definitions- In this section:CommentsClose CommentsPermalink
(1) LEGAL RESIDENT- The term `legal resident' means a lawful permanent resident or a lawfully admitted alien who, in order to adjust status to that of a lawful permanent resident, demonstrates a knowledge of the English language or satisfactory pursuit of a course of study to acquire such knowledge of the English language.CommentsClose CommentsPermalink
(2) OATH OF ALLEGIANCE- The term `Oath of Allegiance' means the binding oath (or affirmation) of allegiance required to be naturalized as a citizen of the United States.CommentsClose CommentsPermalink
(c) English Fluency-CommentsClose CommentsPermalink
(1) EDUCATION GRANTS-CommentsClose CommentsPermalink
(A) ESTABLISHMENT- The Chief of the Office of Citizenship of the Department (referred to in this paragraph as the `Chief') shall establish a grant program to provide grants, in an amount not to exceed $500, to assist legal residents of the United States who declare an intent to apply for citizenship in the United States to meet the requirements under section 312 of the Immigration and Nationality Act (
(B) USE OF FUNDS- Grant funds awarded under this paragraph shall be paid directly to an accredited institution of higher education or other qualified educational institution (as determined by the Chief) for tuition, fees, books, and other educational resources required by a course on the English language in which the legal resident is enrolled.CommentsClose CommentsPermalink
(C) APPLICATION- A legal resident desiring a grant under this paragraph shall submit an application to the Chief at such time, in such manner, and accompanied by such information as the Chief may reasonably require.CommentsClose CommentsPermalink
(D) PRIORITY- If insufficient funds are available to award grants to all qualified applicants, the Chief shall give priority based on the financial need of the applicants.CommentsClose CommentsPermalink
(E) NOTICE- The Secretary, upon relevant registration of a legal resident with the Department, shall notify such legal resident of the availability of grants under this paragraph for legal residents who declare an intent to apply for United States citizenship.CommentsClose CommentsPermalink
(2) FASTER CITIZENSHIP FOR ENGLISH FLUENCY- Section 316 (
`(g) A lawful permanent resident of the United States who demonstrates English fluency, in accordance with regulations prescribed by the Secretary of Homeland Security, in consultation with the Secretary of State, will satisfy the residency requirement under subsection (a) upon the completion of 4 years of continuous legal residency in the United States.'.CommentsClose CommentsPermalink
(3) SAVINGS PROVISION- Nothing in this subsection shall be construed to--CommentsClose CommentsPermalink
(A) modify the English language requirements for naturalization under section 312(a)(1) of the Immigration and Nationality Act (
(B) influence the naturalization test redesign process of the Office of Citizenship (except for the requirement under subsection (h)(2)).CommentsClose CommentsPermalink
(d) American Citizenship Grant Program-CommentsClose CommentsPermalink
(1) IN GENERAL- The Secretary shall establish a competitive grant program to provide financial assistance for--CommentsClose CommentsPermalink
(A) efforts by entities (including veterans and patriotic organizations) certified by the Office of Citizenship to promote the patriotic integration of prospective citizens into the American way of life by providing civics, history, and English as a second language courses, with a specific emphasis on attachment to principles of the Constitution of the United States, the heroes of American history (including military heroes), and the meaning of the Oath of Allegiance; andCommentsClose CommentsPermalink
(B) other activities approved by the Secretary to promote the patriotic integration of prospective citizens and the implementation of the Immigration and Nationality Act (
(i) to promote an understanding of the form of government and history of the United States; andCommentsClose CommentsPermalink
(ii) to promote an attachment to the principles of the Constitution of the United States and the well being and happiness of the people of the United States.CommentsClose CommentsPermalink
(2) ACCEPTANCE OF GIFTS- The Secretary may accept and use gifts from the United States Citizenship Foundation, if the foundation is established under subsection (e), for grants under this subsection.CommentsClose CommentsPermalink
(3) AUTHORIZATION OF APPROPRIATIONS- There are authorized to be appropriated such sums as may be necessary to carry out this subsection.CommentsClose CommentsPermalink
(e) Funding for the Office of Citizenship-CommentsClose CommentsPermalink
(1) AUTHORIZATION- The Secretary, acting through the Director of the Bureau of Citizenship and Immigration Services, may establish the United States Citizenship Foundation (referred to in this subsection as the `Foundation'), an organization duly incorporated in the District of Columbia, exclusively for charitable and educational purposes to support the functions of the Office of Citizenship.CommentsClose CommentsPermalink
(2) DEDICATED FUNDING-CommentsClose CommentsPermalink
(A) IN GENERAL- Not less than 1.5 percent of the funds made available to the Bureau of Citizenship and Immigration Services from fees shall be dedicated to the functions of the Office of Citizenship, which shall include the patriotic integration of prospective citizens into--CommentsClose CommentsPermalink
(i) American common values and traditions, including an understanding of American history and the principles of the Constitution of the United States; andCommentsClose CommentsPermalink
(ii) civic traditions of the United States, including the Pledge of Allegiance, respect for the flag of the United States, and voting in public elections.CommentsClose CommentsPermalink
(B) SENSE OF CONGRESS- It is the sense of the Congress that dedicating increased funds to the Office of Citizenship should not result in an increase in fees charged by the Bureau of Citizenship and Immigration Services.CommentsClose CommentsPermalink
(3) GIFTS-CommentsClose CommentsPermalink
(A) TO FOUNDATION- The Foundation may solicit, accept, and make gifts of money and other property in accordance with section 501(c)(3) of the Internal Revenue Code of 1986.CommentsClose CommentsPermalink
(B) FROM FOUNDATION- The Office of Citizenship may accept gifts from the Foundation to support the functions of the Office.CommentsClose CommentsPermalink
(4) AUTHORIZATION OF APPROPRIATIONS- There are authorized to be appropriated such sums as may be necessary to carry out the mission of the Office of Citizenship, including the functions described in paragraph (2)(A).CommentsClose CommentsPermalink
(f) Restriction on Use of Funds- No funds appropriated to carry out a program under subsection (d) or (e) may be used to organize individuals for the purpose of political activism or advocacy.CommentsClose CommentsPermalink
(g) Reporting Requirement-CommentsClose CommentsPermalink
(1) IN GENERAL- The Chief of the Office of Citizenship shall submit an annual report to the Committee on Health, Education, Labor, and Pensions of the Senate, the Committee on the Judiciary of the Senate, the Committee on Education and Labor of the House of Representatives, and the Committee on the Judiciary of the House of Representatives.CommentsClose CommentsPermalink
(2) CONTENTS- The report submitted under paragraph (1) shall include--CommentsClose CommentsPermalink
(A) a list of the entities that have received funds from the Office of Citizenship during the reporting period under this section and the amount of funding received by each such entity;CommentsClose CommentsPermalink
(B) an evaluation of the extent to which grants received under this section successfully promoted an understanding of--CommentsClose CommentsPermalink
(i) the English language; andCommentsClose CommentsPermalink
(ii) American history and government, including the heroes of American history, the meaning of the Oath of Allegiance, and an attachment to the principles of the Constitution of the United States; andCommentsClose CommentsPermalink
(C) information about the number of legal residents who were able to achieve the knowledge described under paragraph (2) as a result of the grants provided under this section.CommentsClose CommentsPermalink
(h) Establishment of New Citizens Award Program-CommentsClose CommentsPermalink
(1) ESTABLISHMENT- There is established a new citizens award program to recognize citizens who--CommentsClose CommentsPermalink
(A) have made an outstanding contribution to the United States; andCommentsClose CommentsPermalink
(B) were naturalized during the 10-year period ending on the date of such recognition.CommentsClose CommentsPermalink
(2) PRESENTATION AUTHORIZED-CommentsClose CommentsPermalink
(A) IN GENERAL- The President is authorized to present a medal, in recognition of outstanding contributions to the United States, to citizens described in paragraph (1).CommentsClose CommentsPermalink
(B) MAXIMUM NUMBER OF AWARDS- Not more than 10 citizens may receive a medal under this subsection in any calendar year.CommentsClose CommentsPermalink
(3) DESIGN AND STRIKING- The Secretary of the Treasury shall strike a medal with suitable emblems, devices, and inscriptions, to be determined by the President.CommentsClose CommentsPermalink
(4) NATIONAL MEDALS- The medals struck pursuant to this subsection are national medals for purposes of chapter 51 of title 31, United States Code.CommentsClose CommentsPermalink
(i) Naturalization Ceremonies-CommentsClose CommentsPermalink
(1) IN GENERAL- The Secretary, in consultation with the Director of the National Park Service, the Archivist of the United States, and other appropriate Federal officials, shall develop and implement a strategy to enhance the public awareness of naturalization ceremonies.CommentsClose CommentsPermalink
(2) VENUES- In developing the strategy under this subsection, the Secretary shall consider the use of outstanding and historic locations as venues for select naturalization ceremonies.CommentsClose CommentsPermalink
(3) REPORTING REQUIREMENT- The Secretary shall submit an annual report to Congress that includes--CommentsClose CommentsPermalink
(A) the content of the strategy developed under this subsection; andCommentsClose CommentsPermalink
(B) the progress made towards the implementation of such strategy.CommentsClose CommentsPermalink
SEC. 664. ADDRESSING POVERTY IN MEXICO.
(a) Findings- Congress finds the following:CommentsClose CommentsPermalink
(1) There is a strong correlation between economic freedom and economic prosperity.CommentsClose CommentsPermalink
(2) Trade policy, fiscal burden of government, government intervention in the economy, monetary policy, capital flows and foreign investment, banking and finance, wages and prices, property rights, regulation, and informal market activity are key factors in economic freedom.CommentsClose CommentsPermalink
(3) Poverty in Mexico, including rural poverty, can be mitigated through strengthened economic freedom within Mexico.CommentsClose CommentsPermalink
(4) Strengthened economic freedom in Mexico can be a major influence in mitigating illegal immigration.CommentsClose CommentsPermalink
(5) Advancing economic freedom within Mexico is an important part of any comprehensive plan to understanding the sources of poverty and the path to economic prosperity.CommentsClose CommentsPermalink
(b) Grant Authorized- The Secretary of State may award a grant to a land grant university in the United States to establish a national program for a broad, university-based, Mexican rural poverty mitigation program.CommentsClose CommentsPermalink
(c) Functions of Mexican Rural Poverty Mitigation Program- The program established pursuant to subsection (b) shall--CommentsClose CommentsPermalink
(1) match a land grant university in the United States with the lead Mexican public university in each of Mexico's 31 states to provide state-level coordination of rural poverty programs in Mexico;CommentsClose CommentsPermalink
(2) establish relationships and coordinate programmatic ties between universities in the United States and universities in Mexico to address the issue of rural poverty in Mexico;CommentsClose CommentsPermalink
(3) establish and coordinate relationships with key leaders in the United States and Mexico to explore the effect of rural poverty on illegal immigration of Mexicans into the United States; andCommentsClose CommentsPermalink
(4) address immigration and border security concerns through a university-based, binational approach for long-term institutional change.CommentsClose CommentsPermalink
(d) Use of Funds-CommentsClose CommentsPermalink
(1) AUTHORIZED USES- Grant funds awarded under this section may be used--CommentsClose CommentsPermalink
(A) for education, training, technical assistance, and any related expenses (including personnel and equipment) incurred by the grantee in implementing a program described in subsection (a); andCommentsClose CommentsPermalink
(B) to establish an administrative structure for such program in the United States.CommentsClose CommentsPermalink
(2) LIMITATIONS- Grant funds awarded under this section may not be used for activities, responsibilities, or related costs incurred by entities in Mexico.CommentsClose CommentsPermalink
(e) Authorization of Appropriations- There are authorized to be appropriated such funds as may be necessary to carry out this section.CommentsClose CommentsPermalink
TITLE VII--MISCELLANEOUS
Subtitle A--Increasing Court Personnel
SEC. 701. ADDITIONAL IMMIGRATION PERSONNEL.
(a) Department of Homeland Security- In each of fiscal years 2008 through 2012, the Secretary shall, subject to the availability of appropriations for such purpose, increase by not less than 100 the number of positions for attorneys in the Office of General Counsel of the Department to represent the Department in immigration matters.CommentsClose CommentsPermalink
(b) Department of Justice-CommentsClose CommentsPermalink
(1) LITIGATION ATTORNEYS- In each of fiscal years 2008 through 2012, the Attorney General shall, subject to the availability of appropriations for such purpose, increase by not less than 50 the number of positions for attorneys in the Office of Immigration Litigation of the Department of Justice.CommentsClose CommentsPermalink
(2) UNITED STATES ATTORNEYS- In each of fiscal years 2008 through 2012, the Attorney General shall, subject to the availability of appropriations for such purpose, increase by not less than 50 the number of positions for attorneys in the United States Attorneys' office to litigate immigration cases in the Federal courts.CommentsClose CommentsPermalink
(3) IMMIGRATION JUDGES- In each of fiscal years 2008 through 2012, the Attorney General shall, subject to the availability of appropriations for such purpose--CommentsClose CommentsPermalink
(A) increase by not less than 20 the number of positions for full-time immigration judges; andCommentsClose CommentsPermalink
(B) increase by not less than 80 the number of positions for personnel to support the immigration judges described in subparagraph (A).CommentsClose CommentsPermalink
(4) STAFF ATTORNEYS- In each of fiscal years 2008 through 2012, the Attorney General shall, subject to the availability of appropriations for such purpose--CommentsClose CommentsPermalink
(A) increase by not less than 10 the number of positions for full-time staff attorneys in the Board of Immigration Appeals; andCommentsClose CommentsPermalink
(B) increase by not less than 10 the number of positions for personnel to support the staff attorneys described in subparagraph (A).CommentsClose CommentsPermalink
(c) Administrative Office of the United States Courts- In each of the fiscal years 2008 through 2012, the Director of the Administrative Office of the United States Courts shall, subject to the availability of appropriations, increase by not less than 50 the number of positions for attorneys in the Federal Defenders Program to litigate criminal immigration cases in the Federal courts.CommentsClose CommentsPermalink
(d) Authorization of Appropriations- There are authorized to be appropriated for each of fiscal years 2008 through 2012 such sums as may be necessary to carry out this section.CommentsClose CommentsPermalink
SEC. 702. SENIOR JUDGE PARTICIPATION IN THE SELECTION OF MAGISTRATES.
SEC. 703. STUDY ON THE APPELLATE PROCESS FOR IMMIGRATION APPEALS.
(a) In General- Not later than 180 days after the date of enactment of this Act, the Director of the Federal Judicial Center shall conduct a study on the appellate process for immigration appeals.CommentsClose CommentsPermalink
(b) Requirements- In conducting the study under subsection (a), the Director shall consider the possibility of consolidating all appeals from the Board of Immigration Appeals and habeas corpus petitions in immigration cases into 1 United States Court of Appeals.CommentsClose CommentsPermalink
(c) Factors To Consider- In conducting the study under subsection (a), the Director, in consultation with the Attorney General, the Secretary, and the Judicial Conference of the United States, shall consider--CommentsClose CommentsPermalink
(1) the resources needed for each alternative, including judges, attorneys, and other support staff, case management techniques, including technological requirements, physical infrastructure, and other procedural and logistical issues as appropriate;CommentsClose CommentsPermalink
(2) the impact of each alternative on various circuits, including the caseload of each circuit and the caseload per panel in each circuit;CommentsClose CommentsPermalink
(3) the possibility of utilizing case management techniques to reduce the impact of any consolidation option, such as requiring certificates of reviewability, similar to procedures employed in habeas corpus proceedings and existing summary dismissal procedures in local rules of the Courts of Appeals;CommentsClose CommentsPermalink
(4) the effect of the reforms made by this subtitle on the ability of the circuit courts to adjudicate such appeals;CommentsClose CommentsPermalink
(5) potential impact, if any, on litigants; andCommentsClose CommentsPermalink
(6) other reforms to improve adjudication of immigration matters, including appellate review of motions to reopen and reconsider, and attorney fee awards with respect to review of final orders of removal.CommentsClose CommentsPermalink
SEC. 704. SENSE OF CONGRESS REGARDING THE ESTABLISHMENT OF AN IMMIGRATION COURT SYSTEM.
(a) Finding- The Congress finds that the United States tradition as a nation of laws and a nation of immigrants is best served by an effective, fair, and well-staffed immigration court system that upholds the rule of law and ensures that individuals and families receive fair treatment.CommentsClose CommentsPermalink
(b) Sense of Congress- It is the sense of the Congress that an effective and fair immigration court system should be established.CommentsClose CommentsPermalink
Subtitle B--Citizenship Assistance for Members of the Armed Services
SEC. 711. WAIVER OF REQUIREMENT FOR FINGERPRINTS FOR MEMBERS OF THE ARMED FORCES.
Notwithstanding any other provision of law or any regulation, the Secretary shall use the fingerprints provided by an individual at the time the individual enlists in the Armed Forces to satisfy any requirement for fingerprints as part of an application to become a naturalized citizen of the United States, if the individual--CommentsClose CommentsPermalink
(1) may be naturalized pursuant to section 328 or 329 of the Immigration and Nationality Act (
(2) was fingerprinted in accordance with the requirements of the Secretary of Defense at the time the individual enlisted in the Armed Forces; andCommentsClose CommentsPermalink
(3) submits the application to become a naturalized citizen of the United States not later than 12 months after the date the individual enlisted in the Armed Forces.CommentsClose CommentsPermalink
SEC. 712. NONCITIZEN MEMBERSHIP IN THE ARMED FORCES.
Section 329 (
(1) in subsection (b), by striking `subsection (a)' and inserting `subsection (a), (d), or (e)'; andCommentsClose CommentsPermalink
(2) by adding at the end the following:CommentsClose CommentsPermalink
`(d)(1) Notwithstanding any other provision of law, except for provisions relating to revocation of citizenship under subsection (c), an individual who is not a citizen of the United States shall not be denied the opportunity to apply for membership in the United States Armed Forces. Such an individual who becomes an active duty member of the United States Armed Forces shall, consistent with this section and with the approval of the individual's commanding officer, be granted United States citizenship after performing at least 2 years of honorable and satisfactory service on active duty. Not later than 90 days after such requirements are met with respect to an individual, such individual shall be granted United States citizenship.CommentsClose CommentsPermalink
`(2) An individual described in paragraph (1) shall be naturalized without regard to the requirements of this title, if the individual--CommentsClose CommentsPermalink
`(A) filed an application for naturalization in accordance with such procedures to carry out this subsection as may be established by regulation by the Secretary of Homeland Security or the Secretary of Defense;CommentsClose CommentsPermalink
`(B) demonstrates to the individual's commanding officer proficiency in the English language, good moral character, and knowledge of the Federal Government and United States history, consistent with the requirements of this Act; andCommentsClose CommentsPermalink
`(C) takes the oath required under section 337 and participates in an oath administration ceremony in accordance with this Act.CommentsClose CommentsPermalink
`(e) Notwithstanding any other provision of law, except for provisions relating to revocation of citizenship under subsection (c), an individual who is not a citizen of the United States who serves under orders on active duty as an enlisted member or warrant officer of the Armed Forces of the United States in a combat zone (as that term is defined in section 112(c) of the Internal Revenue Code of 1986) shall be granted United States citizenship effective as of the commencement of such service in the combat zone without regard to the requirements of this title if the individual files an application for naturalization in accordance with such procedures to carry out this subsection as may be established by regulation by the Secretary of Homeland Security and Secretary of Defense.'.CommentsClose CommentsPermalink
SEC. 713. PROVISION OF INFORMATION ON NATURALIZATION TO MEMBERS OF THE ARMED FORCES.
The Secretary shall--CommentsClose CommentsPermalink
(1) provide information to members of the Armed Forces and the families of such members through a dedicated toll-free telephone service related to naturalization pursuant to section 328 or 329 of the Immigration and Nationality Act (
(2) ensure that the telephone service required by paragraph (1) is operated by employees of the Department who--CommentsClose CommentsPermalink
(A) have received specialized training on the naturalization process for members of the Armed Forces and the families of such members; andCommentsClose CommentsPermalink
(B) are physically located in the same unit as the military processing unit that adjudicates applications for naturalization pursuant to such section 328 or 329; andCommentsClose CommentsPermalink
(3) implement a quality control program to monitor, on a regular basis, the accuracy and quality of information provided by the employees who operate the telephone service required by paragraph (1), including the breadth of the knowledge related to the naturalization process of such employees.CommentsClose CommentsPermalink
SEC. 714. PROVISION OF INFORMATION ON NATURALIZATION TO THE PUBLIC.
Not later than 30 days after the date that a modification to any law or regulation related to the naturalization process becomes effective, the Secretary shall update the appropriate application form for naturalization, the instructions and guidebook for obtaining naturalization, and the Internet website maintained by the Secretary to reflect such modification.CommentsClose CommentsPermalink
SEC. 715. REPORTS.
(a) Adjudication Process- Not later than 120 days after the date of enactment of this Act, the Comptroller General of the United States shall submit to the appropriate congressional committees a report on the entire process for the adjudication of an application for naturalization filed pursuant to section 328 or 329 of the Immigration and Nationality Act (
(1) the methods of the Secretary to process and adjudicate such applications;CommentsClose CommentsPermalink
(2) the effectiveness of the chain of authority, supervision, and training of employees of the Government or of other entities, including contract employees, who have any role in such process or adjudication; andCommentsClose CommentsPermalink
(3) the ability of the Secretary to use technology to facilitate or accomplish any aspect of such process or adjudication.CommentsClose CommentsPermalink
(b) Implementation-CommentsClose CommentsPermalink
(1) STUDY- The Comptroller General of the United States shall conduct a study on the implementation of this subtitle by the Secretary, including studying any technology that may be used to improve the efficiency of the naturalization process for members of the Armed Forces.CommentsClose CommentsPermalink
(2) REPORT- Not later than 180 days after the date that the Comptroller General submits the report required by subsection (a), the Comptroller General shall submit to the appropriate congressional committees a report on the study required by paragraph (1). The report shall include any recommendations of the Comptroller General for improving the implementation of this subtitle by the Secretary.CommentsClose CommentsPermalink
(c) Appropriate Congressional Committees Defined- In this section, the term `appropriate congressional committees' means--CommentsClose CommentsPermalink
(1) the Committee on Armed Services and the Committee on the Judiciary of the Senate; andCommentsClose CommentsPermalink
(2) the Committee on Armed Services and the Committee on the Judiciary of the House of Representatives.CommentsClose CommentsPermalink
Subtitle C--Family Humanitarian Relief
SEC. 721. ADJUSTMENT OF STATUS FOR CERTAIN NONIMMIGRANT VICTIMS OF TERRORISM.
(a) Adjustment of Status-CommentsClose CommentsPermalink
(1) IN GENERAL- The status of any alien described in subsection (b) shall be adjusted by the Secretary to that of an alien lawfully admitted for permanent residence, if the alien--CommentsClose CommentsPermalink
(A) applies for such adjustment not later than 2 years after the date on which the Secretary promulgates final regulations to implement this section; andCommentsClose CommentsPermalink
(B) is otherwise admissible to the United States for permanent residence, except in determining such admissibility the grounds for inadmissibility specified in paragraphs (4), (5), (6)(A), (7)(A), and (9)(B) of section 212(a) of the Immigration and Nationality Act (
(2) RULES IN APPLYING CERTAIN PROVISIONS- In the case of an alien described in subsection (b) who is applying for adjustment of status under this section--CommentsClose CommentsPermalink
(A) the provisions of section 241(a)(5) of the Immigration and Nationality Act (
(B) the Secretary may grant the alien a waiver on the grounds of inadmissibility under subparagraphs (A) and (C) of section 212(a)(9) of such Act (
(3) RELATIONSHIP OF APPLICATION TO CERTAIN ORDERS-CommentsClose CommentsPermalink
(A) APPLICATION PERMITTED- An alien present in the United States who has been ordered excluded, deported, removed, or ordered to depart voluntarily from the United States under any provision of the Immigration and Nationality Act (
(B) MOTION NOT REQUIRED- An alien described in subparagraph (A) may not be required, as a condition of submitting or granting such application, to file a separate motion to reopen, reconsider, or vacate such order.CommentsClose CommentsPermalink
(C) EFFECT OF DECISION- If the Secretary adjusts the status of an alien described in subparagraph (A) under paragraph (1), the Secretary shall cancel the order referred to in subparagraph (A) with respect to such alien. If the Secretary renders a final administrative decision to deny such alien's application for an adjustment of status under paragraph (1), the order referred to in subparagraph (A) with respect to such alien shall be effective and enforceable to the same extent as if the application had not been made.CommentsClose CommentsPermalink
(b) Aliens Eligible for Adjustment of Status- A alien described in this subsection is an alien who--CommentsClose CommentsPermalink
(1) was lawfully present in the United States as a nonimmigrant alien described in section 101(a)(15) of the Immigration and Nationality Act (
(2) was, on such date, the spouse, child, dependent son, or dependent daughter of an alien who--CommentsClose CommentsPermalink
(A) was lawfully present in the United States as a nonimmigrant alien described in such section 101(a)(15) on such date; andCommentsClose CommentsPermalink
(B) died as a direct result of a specified terrorist activity; andCommentsClose CommentsPermalink
(3) was deemed to be a beneficiary under the September 11th Victim Compensation Fund of 2001 (
(c) Stay of Removal and Work Authorization-CommentsClose CommentsPermalink
(1) IN GENERAL- The Secretary shall establish, by regulation, a process by which an alien subject to a final order of removal may seek a stay of such order based on the filing of an application under subsection (a).CommentsClose CommentsPermalink
(2) DURING CERTAIN PROCEEDINGS- Notwithstanding any provision of the Immigration and Nationality Act (
(3) WORK AUTHORIZATION- The Secretary shall authorize an alien who has applied for adjustment of status under subsection (a) to engage in employment in the United States during the pendency of such application.CommentsClose CommentsPermalink
(d) Availability of Administrative Review- The Secretary shall provide to applicants for adjustment of status under subsection (a) the same right to, and procedures for, administrative review as are provided to--CommentsClose CommentsPermalink
(1) applicants for adjustment of status under section 245 of the Immigration and Nationality Act (
(2) aliens subject to removal proceedings under section 240 of such Act (
SEC. 722. CANCELLATION OF REMOVAL FOR CERTAIN IMMIGRANT VICTIMS OF TERRORISM.
(a) In General- Subject to the provisions of the Immigration and Nationality Act (
(b) Aliens Eligible for Cancellation of Removal- An alien described in subsection (a) is an alien who--CommentsClose CommentsPermalink
(1) was, on September 10, 2001, the spouse, child, dependent son, or dependent daughter of an alien who died as a direct result of a specified terrorist activity; andCommentsClose CommentsPermalink
(2) was deemed to be a beneficiary under the September 11th Victim Compensation Fund of 2001 (
(c) Stay of Removal; Work Authorization-CommentsClose CommentsPermalink
(1) IN GENERAL- The Secretary shall provide by regulation for an alien subject to a final order of removal to seek a stay of such order based on the filing of an application under subsection (a).CommentsClose CommentsPermalink
(2) WORK AUTHORIZATION- The Secretary shall authorize an alien who has applied for cancellation of removal under subsection (a) to engage in employment in the United States during the pendency of such application.CommentsClose CommentsPermalink
(d) Motions To Reopen Removal Proceedings-CommentsClose CommentsPermalink
(1) IN GENERAL- Notwithstanding any limitation imposed by law on motions to reopen removal proceedings (except limitations premised on an alien's conviction of an aggravated felony (as defined in section 101(a)(43) of the Immigration and Nationality Act (
(2) FILING PERIOD- The Secretary shall designate a specific time period in which all such motions to reopen are required to be filed. The period shall begin not later than 60 days after the date of enactment of this Act and shall extend for a period not to exceed 240 days.CommentsClose CommentsPermalink
SEC. 723. EXCEPTIONS.
Notwithstanding any other provision of this subtitle, an alien may not be provided relief under this subtitle if the alien is--CommentsClose CommentsPermalink
(1) inadmissible under paragraph (2) or (3) of section 212(a) of the Immigration and Nationality Act (
(2) a family member of an alien described in paragraph (1).CommentsClose CommentsPermalink
SEC. 724. EVIDENCE OF DEATH.
For purposes of this subtitle, the Secretary shall use the standards established under section 426 of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001 (115 Stat. 362) to determine whether the death of an individual occurred as a direct result of a specified terrorist activity.CommentsClose CommentsPermalink
SEC. 725. DEFINITIONS.
(a) Application of Immigration and Nationality Act Definitions- Except as otherwise specifically provided in this subtitle, the definitions used in the Immigration and Nationality Act (
(b) Specified Terrorist Activity Defined- In this subtitle, the term `specified terrorist activity' means any terrorist activity conducted against the Government or the people of the United States on September 11, 2001.CommentsClose CommentsPermalink
Subtitle D--Other Matters
SEC. 731. OFFICE OF INTERNAL CORRUPTION INVESTIGATION.
(a) Internal Corruption and Benefits Fraud- Section 453 of the Homeland Security Act of 2002 (
(1) by striking `the Bureau of' each place it appears and inserting `United States';CommentsClose CommentsPermalink
(2) in subsection (a)--CommentsClose CommentsPermalink
(A) by striking paragraph (1) and inserting the following:CommentsClose CommentsPermalink
`(1) establishing the Office of Internal Corruption Investigation, which shall--CommentsClose CommentsPermalink
`(A) receive, process, administer, and investigate criminal and noncriminal allegations of misconduct, corruption, and fraud involving any employee or contract worker of United States Citizenship and Immigration Services that are not subject to investigation by the Inspector General for the Department;CommentsClose CommentsPermalink
`(B) ensure that all complaints alleging any violation described in subparagraph (A) are handled and stored in a manner appropriate to their sensitivity;CommentsClose CommentsPermalink
`(C) have access to all records, reports, audits, reviews, documents, papers, recommendations, or other material available to United States Citizenship and Immigration Services, which relate to programs and operations for which the Director is responsible under this Act;CommentsClose CommentsPermalink
`(D) request such information or assistance from any Federal, State, or local government agency as may be necessary for carrying out the duties and responsibilities under this section;CommentsClose CommentsPermalink
`(E) require the production of all information, documents, reports, answers, records, accounts, papers, and other data and documentary evidence necessary to carry out the functions under this section--CommentsClose CommentsPermalink
`(i) by subpoena, which shall be enforceable, in the case of contumacy or refusal to obey, by order of any appropriate United States district court; orCommentsClose CommentsPermalink
`(ii) through procedures other than subpoenas if obtaining documents or information from Federal agencies;CommentsClose CommentsPermalink
`(F) administer to, or take from, any person an oath, affirmation, or affidavit, as necessary to carry out the functions under this section, which oath, affirmation, or affidavit, if administered or taken by or before an agent of the Office of Internal Corruption Investigation shall have the same force and effect as if administered or taken by or before an officer having a seal;CommentsClose CommentsPermalink
`(G) investigate criminal allegations and noncriminal misconduct;CommentsClose CommentsPermalink
`(H) acquire adequate office space, equipment, and supplies as necessary to carry out the functions and responsibilities under this section; andCommentsClose CommentsPermalink
`(I) be under the direct supervision of the Director.';CommentsClose CommentsPermalink
(B) in paragraph (2), by striking `and' at the end;CommentsClose CommentsPermalink
(C) in paragraph (3), by striking the period at the end and inserting `; and'; andCommentsClose CommentsPermalink
(D) by adding at the end the following:CommentsClose CommentsPermalink
`(4) establishing the Office of Immigration Benefits Fraud Investigation, which shall--CommentsClose CommentsPermalink
`(A) conduct administrative investigations, including site visits, to address immigration benefit fraud;CommentsClose CommentsPermalink
`(B) assist United States Citizenship and Immigration Services provide the right benefit to the right person at the right time;CommentsClose CommentsPermalink
`(C) track, measure, assess, conduct pattern analysis, and report fraud-related data to the Director; andCommentsClose CommentsPermalink
`(D) work with counterparts in other Federal agencies on matters of mutual interest or information-sharing relating to immigration benefit fraud.'; andCommentsClose CommentsPermalink
(3) by adding at the end the following:CommentsClose CommentsPermalink
`(c) Annual Report- The Director, in consultation with the Office of Internal Corruption Investigations, shall submit an annual report to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives that describes--CommentsClose CommentsPermalink
`(1) the activities of the Office, including the number of investigations began, completed, pending, turned over to the Inspector General for criminal investigations, and turned over to a United States Attorney for prosecution; andCommentsClose CommentsPermalink
`(2) the types of allegations investigated by the Office during the 12-month period immediately preceding the submission of the report that relate to the misconduct, corruption, and fraud described in subsection (a)(1).'.CommentsClose CommentsPermalink
(b) Use of Immigration Fees To Combat Fraud- Section 286(v)(2)(B) (
SEC. 732. ADJUSTMENT OF STATUS FOR CERTAIN PERSECUTED RELIGIOUS MINORITIES.
(a) In General- The Secretary shall adjust the status of an alien to that of an alien lawfully admitted for permanent residence if the alien--CommentsClose CommentsPermalink
(1) is a persecuted religious minority;CommentsClose CommentsPermalink
(2) is admissible to the United States as an immigrant, except as provided in subsection (b);CommentsClose CommentsPermalink
(3) had an application for asylum pending on May 1, 2003;CommentsClose CommentsPermalink
(4) applies for such adjustment of status;CommentsClose CommentsPermalink
(5) was physically present in the United States on the date the application for such adjustment is filed; andCommentsClose CommentsPermalink
(6) pays a fee, in an amount determined by the Secretary, for the processing of such application.CommentsClose CommentsPermalink
(b) Waiver of Certain Grounds for Inadmissibility-CommentsClose CommentsPermalink
(1) INAPPLICABLE PROVISION- Section 212(a)(7) of the Immigration and Nationality Act (
(2) WAIVER- The Secretary may waive any other provision of section 212(a) of such Act (except for paragraphs (2) and (3)) if extraordinary and compelling circumstances warrant such an adjustment for humanitarian purposes, to ensure family unity, or if it is otherwise in the public interest.CommentsClose CommentsPermalink
SEC. 733. ELIGIBILITY OF AGRICULTURAL AND FORESTRY WORKERS FOR CERTAIN LEGAL ASSISTANCE.
Section 305 of the Immigration Reform and Control Act of 1986 (
(1) by striking `section 101(a)(15)(H)(ii)(a) of the Immigration and Nationality Act (
(2) by inserting `or forestry' after `agricultural'.CommentsClose CommentsPermalink
SEC. 734. STATE COURT INTERPRETER GRANTS.
(a) Grants Authorized-CommentsClose CommentsPermalink
(1) IN GENERAL- The Administrator of the Office of Justice Programs of the Department of Justice (referred to in this section as the `Administrator') shall make grants, in accordance with such regulations as the Attorney General may prescribe, to State courts to develop and implement programs to assist individuals with limited English proficiency to access and understand State court proceedings in which they are a party.CommentsClose CommentsPermalink
(2) TECHNICAL ASSISTANCE- The Administrator shall allocate, for each fiscal year, $500,000 of the amount appropriated pursuant to the authorization of appropriation in subsection (f) to be used to establish a court interpreter technical assistance program to assist State courts receiving grants under this section.CommentsClose CommentsPermalink
(b) Use of Grants- Grants awarded pursuant to subsection (a) may be used by State courts to--CommentsClose CommentsPermalink
(1) assess regional language demands;CommentsClose CommentsPermalink
(2) develop a court interpreter program for the State courts;CommentsClose CommentsPermalink
(3) develop, institute, and administer language certification examinations;CommentsClose CommentsPermalink
(4) recruit, train, and certify qualified court interpreters;CommentsClose CommentsPermalink
(5) pay for salaries, transportation, and technology necessary to implement the court interpreter program developed under paragraph (2); andCommentsClose CommentsPermalink
(6) engage in other related activities, as prescribed by the Attorney General.CommentsClose CommentsPermalink
(c) Application-CommentsClose CommentsPermalink
(1) IN GENERAL- The highest State court of each State desiring a grant under this section shall submit an application to the Administrator at such time, in such manner, and accompanied by such information as the Administrator may reasonably require.CommentsClose CommentsPermalink
(2) STATE COURTS- The highest State court of each State submitting an application under paragraph (1) shall include in the application--CommentsClose CommentsPermalink
(A) an identification of each State court in that State which would receive funds from the grant;CommentsClose CommentsPermalink
(B) the amount of funds each State court identified under subparagraph (A) would receive from the grant; andCommentsClose CommentsPermalink
(C) the procedures the highest State court would use to directly distribute grant funds to State courts identified under subparagraph (A).CommentsClose CommentsPermalink
(d) State Court Allotments-CommentsClose CommentsPermalink
(1) BASE ALLOTMENT- From amounts appropriated for each fiscal year pursuant to the authorization of appropriations in subsection (f), the Administrator shall allocate $100,000 to each of the highest State court of each State, which has an application approved under subsection (c).CommentsClose CommentsPermalink
(2) DISCRETIONARY ALLOTMENT- From amounts appropriated for each fiscal year pursuant to the authorization of appropriations in subsection (f), the Administrator shall allocate a total of $5,000,000 to the highest State court of States that have extraordinary needs that must be addressed in order to develop, implement, or expand a State court interpreter program.CommentsClose CommentsPermalink
(3) ADDITIONAL ALLOTMENT- In addition to the allocations made under paragraphs (1) and (2), the Administrator shall allocate to each of the highest State court of each State, which has an application approved under subsection (c), an amount equal to the product reached by multiplying--CommentsClose CommentsPermalink
(A) the unallocated balance of the amount appropriated for each fiscal year pursuant to the authorization of appropriations in subsection (f); andCommentsClose CommentsPermalink
(B) the ratio between the number of people over 5 years of age who speak a language other than English at home in the State and the number of people over 5 years of age who speak a language other than English at home in all the States that receive an allocation under paragraph (1), as those numbers are determined by the Bureau of the Census.CommentsClose CommentsPermalink
(e) Treatment of the District of Columbia- For purposes of this section--CommentsClose CommentsPermalink
(1) the District of Columbia shall be treated as a State; andCommentsClose CommentsPermalink
(2) the District of Columbia Court of Appeals shall be the highest State court of the District of Columbia.CommentsClose CommentsPermalink
(f) Authorization of Appropriations- There are authorized to be appropriated such sums as may be necessary for each of the fiscal years 2008 through 2012 to carry out this section.CommentsClose CommentsPermalink
SEC. 735. ADEQUATE NOTICE FOR ALTERNATE COUNTRY OF REMOVAL.
Section 241(b)(2) (
`(G) NOTICE OF COUNTRY OF REMOVAL- If the Secretary of Homeland Security determines that an alien will be removed to a country that was not designated by the alien under subparagraph (A)(i) of section 241 as amended at the time of the removal hearing, the Secretary shall provide notice of such determination to the alien and provide the alien an opportunity for a hearing before an immigration judge to request protection from removal to that country on the basis that the alien would face persecution or torture in that country.'.CommentsClose CommentsPermalink
SEC. 736. STANDARDS FOR BIOMETRIC DOCUMENTS.
Any visa issued by the Secretary of State and any immigration-related document issued by the Secretary of State or the Secretary shall--CommentsClose CommentsPermalink
(1) comply with authentication and biometric standards recognized by domestic and international standards organizations;CommentsClose CommentsPermalink
(2) be machine-readable and tamper-resistant;CommentsClose CommentsPermalink
(3) use biometric identifiers that are consistent with the requirements of section 303 of the Enhanced Border Security and Visa Entry Reform Act of 2002 (
(4) comply with the biometric and document identifying standards established by the International Civil Aviation Organization; andCommentsClose CommentsPermalink
(5) meet other requirements determined to be necessary by the Secretary of State and the Secretary.CommentsClose CommentsPermalink
SEC. 737. STATE IMPACT ASSISTANCE ACCOUNT.
Section 286 (
`(x) State Impact Assistance Account-CommentsClose CommentsPermalink
`(1) ESTABLISHMENT- There is established in the general fund of the Treasury an account, which shall be known as the `State Impact Assistance Account'.CommentsClose CommentsPermalink
`(2) SOURCE OF FUNDS- Notwithstanding any other provision under this Act, there shall be deposited as offsetting receipts into the State Impact Assistance Account all State impact assistance fees collected under sections 407 and 602 of this Act.CommentsClose CommentsPermalink
`(3) USE OF FUNDS- Amounts deposited into the State Impact Assistance Account may only be used to carry out the State Impact Assistance Grant Program established under paragraph (4).CommentsClose CommentsPermalink
`(4) STATE IMPACT ASSISTANCE GRANT PROGRAM-CommentsClose CommentsPermalink
`(A) ESTABLISHMENT- The Secretary of Health and Human Services, in consultation with the Secretary of Education, shall establish the State Impact Assistance Grant Program (referred to in this section as the `Program'), under which the Secretary of Health and Human may award grants to States to provide health and education services to noncitizens in accordance with this paragraph.CommentsClose CommentsPermalink
`(B) STATE ALLOCATIONS- The Secretary of Health and Human Services shall annually allocate the amounts available in the State Impact Assistance Account among the States as follows:CommentsClose CommentsPermalink
`(i) NONCITIZEN POPULATIONS- Eighty percent of such amounts shall be allocated so that each State receives the greater of--CommentsClose CommentsPermalink
`(I) $5,000,000; orCommentsClose CommentsPermalink
`(II) after adjusting for allocations under subclause (I), the percentage of the amount to be distributed under this clause that is equal to the noncitizen resident population of the State divided by the noncitizen resident population of all States, based on the most recent data available from the Bureau of the Census.CommentsClose CommentsPermalink
`(ii) HIGH GROWTH RATES- Twenty percent of such amounts shall be allocated among the 20 States with the largest growth rates in noncitizen resident population, as determined by the Secretary of Health and Human Services, so that each such State receives the percentage of the amount distributed under this clause that is equal to--CommentsClose CommentsPermalink
`(I) the growth rate in the noncitizen resident population of the State during the most recent 3-year period for which data is available from the Bureau of the Census; divided byCommentsClose CommentsPermalink
`(II) the average growth rate in noncitizen resident population for the 20 States during such 3-year period.CommentsClose CommentsPermalink
`(iii) LEGISLATIVE APPROPRIATIONS- The use of grant funds allocated to States under this paragraph shall be subject to appropriation by the legislature of each State in accordance with the terms and conditions under this paragraph.CommentsClose CommentsPermalink
`(C) FUNDING FOR LOCAL GOVERNMENT-CommentsClose CommentsPermalink
`(i) DISTRIBUTION CRITERIA- Grant funds received by States under this paragraph shall be distributed to units of local government based on need and function.CommentsClose CommentsPermalink
`(ii) MINIMUM DISTRIBUTION- Except as provided in clause (iii), a State shall distribute not less than 30 percent of the grant funds received under this paragraph to units of local government not later than 180 days after receiving such funds.CommentsClose CommentsPermalink
`(iii) EXCEPTION- If an eligible unit of local government that is available to carry out the activities described in subparagraph (D) cannot be found in a State, the State does not need to comply with clause (ii).CommentsClose CommentsPermalink
`(iv) UNEXPENDED FUNDS- Any grant funds distributed by a State to a unit of local government that remain unexpended as of the end of the grant period shall revert to the State for redistribution to another unit of local government.CommentsClose CommentsPermalink
`(D) USE OF FUNDS- States and units of local government shall use grant funds received under this paragraph to provide health services, educational services, and related services to noncitizens within their jurisdiction directly, or through contracts with eligible services providers, including--CommentsClose CommentsPermalink
`(i) health care providers;CommentsClose CommentsPermalink
`(ii) local educational agencies; andCommentsClose CommentsPermalink
`(iii) charitable and religious organizations.CommentsClose CommentsPermalink
`(E) STATE DEFINED- In this paragraph, the term `State' means each of the several States of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa, and the Commonwealth of the Northern Mariana Islands.CommentsClose CommentsPermalink
`(F) CERTIFICATION- In order to receive a payment under this section, the State shall provide the Secretary of Health and Human Services with a certification that the State's proposed uses of the fund are consistent with (D).CommentsClose CommentsPermalink
`(G) ANNUAL NOTICE TO STATES- The Secretary of Health and Human Services shall inform the States annually of the amount of funds available to each State under the Program.'.CommentsClose CommentsPermalink
SEC. 738. NEW WORKER PROGRAM AND CONDITIONAL NONIMMIGRANT FEE ACCOUNT.
Section 286 (
`(y) New Worker Program and Conditional Nonimmigrant Fee Account-CommentsClose CommentsPermalink
`(1) ESTABLISHMENT- There is established in the general fund of the Treasury an account, which shall be known as the `New Worker Program and Conditional Nonimmigrant Fee Account'.CommentsClose CommentsPermalink
`(2) DEPOSITS- Notwithstanding any other provision of this Act, there shall be deposited as offsetting receipts into the New Worker Program and Conditional Nonimmigrant Fee Account--CommentsClose CommentsPermalink
`(A) all fees collected under section 218A; andCommentsClose CommentsPermalink
`(B) all fines collected under section 601(g)(2)(B).CommentsClose CommentsPermalink
`(3) USE OF FUNDS- Of the fees and fines deposited into the New Worker Program and Conditional Nonimmigrant Fee Account--CommentsClose CommentsPermalink
`(A) 53 percent shall remain available to the Secretary of Homeland Security for efforts related to the adjudication and implementation of the New Worker program and the program for conditional nonimmigrants and any other efforts necessary to carry out the provisions of the STRIVE Act of 2007 and the amendments made by such Act, of which the Secretary shall allocate--CommentsClose CommentsPermalink
`(i) 10 percent for the border security efforts described in title I of the STRIVE Act of 2007;CommentsClose CommentsPermalink
`(ii) not more than 1 percent for promotion of public awareness of the program for conditional nonimmigrants;CommentsClose CommentsPermalink
`(iii) not more than 1 percent for the Office of Citizenship to promote civics integration activities described in section 663 of the STRIVE Act of 2007; andCommentsClose CommentsPermalink
`(iv) 2 percent for the American Citizenship Grant Program under section 663 of the STRIVE Act of 2007;CommentsClose CommentsPermalink
`(B) 15 percent shall remain available to the Secretary of Labor for the enforcement of labor standards in the geographic and occupational areas in which H-2C visa holders are likely to be employed and for other enforcement efforts under the STRIVE Act of 2007, or any amendment made by that Act, including targeted audits of employers that participate in the H-2C program;CommentsClose CommentsPermalink
`(C) 15 percent shall remain available to the Commissioner of Social Security and the Secretary of Homeland Security for the creation and maintenance of the Employment Eligibility Verification System described in section 274A(c);CommentsClose CommentsPermalink
`(D) 15 percent shall remain available to the Secretary of State to carry out any necessary provisions of the STRIVE Act of 2007, or any amendments made by that Act; andCommentsClose CommentsPermalink
`(E) 2 percent shall remain available to the Secretary of Health and Human Services for the reimbursement of hospitals serving H-2C workers and conditional nonimmigrants established in the STRIVE Act of 2007 and the amendments made by such Act.'.CommentsClose CommentsPermalink
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