HR 2954 IHCommentsClose CommentsPermalink

To strengthen enforcement of immigration laws, and gain operational control over the borders of the United States, and for other purposes.CommentsClose CommentsPermalink

July 10, 2007

Mr. KING of New York (for himself, Mr. SMITH of Texas, Mr. MCCAUL of Texas, Mr. DANIEL E. LUNGREN of California, Mr. DAVID DAVIS of Tennessee, Mr. BILBRAY, Mr. GALLEGLY, Mr. YOUNG of Florida, Mr. GINGREY, Mrs. MYRICK, Mr. POE, Mr. DEAL of Georgia, Mrs. CUBIN, Mrs. EMERSON, Mr. MARCHANT, Mr. NEUGEBAUER, Mr. BARTLETT of Maryland, Mr. MCCOTTER, Mr. CARTER, Mr. CANTOR, Mr. FORBES, Mr. MILLER of Florida, Mr. FRANKS of Arizona, Mr. KLINE of Minnesota, Mr. CAMPBELL of California, Mr. SHAYS, Mr. DREIER, Mr. WILSON of South Carolina, Mr. GARY G. MILLER of California, and Mr. BLUNT) introduced the following bill; which was referred to the Committee on the Judiciary, and in addition to the Committees on Homeland Security, Ways and Means, Education and Labor, and Oversight and Government Reform, 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 strengthen enforcement of immigration laws, and gain operational control over the borders of the United States, 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.

This Act may be cited as the `Secure Borders FIRST (For Integrity, Reform, Safety, and Anti-Terrorism) Act of 2007'.CommentsClose CommentsPermalink

TITLE I--BORDER SECURITY

SEC. 101. ACHIEVING OPERATIONAL CONTROL OF THE BORDERS.

(a) In General- Not later than December 31, 2013, the Secretary of Homeland Security shall achieve operational control of the international land and maritime borders of the United States by carrying out the following:CommentsClose CommentsPermalink





(1) Deploying along such borders physical infrastructure enhancements, including additional checkpoints, all weather access roads, fencing, and vehicle barriers to gain operational control over such borders and to facilitate access to such borders by United States Customs and Border Protection.CommentsClose CommentsPermalink





(2) Expediting the requirements of the Secure Fence Act of 2006 (Public Law 109-347), including the amendments made by such Act to section 102(b) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (Public Law 104-208; 8 U.S.C. 1103 note) (relating to the construction of reinforced fencing and other security improvements in the border area from the Pacific Ocean to the Gulf of Mexico).CommentsClose CommentsPermalink





(3) Conducting systematic surveillance of the international land and maritime borders of the United States through more effective use of personnel and technology, such as unmanned aerial vehicles, ground-based sensors, satellites, radar coverage, and cameras.CommentsClose CommentsPermalink





(b) Definition- In this section, the term `operational control' means the prevention of all unlawful entries into the United States, including entries by terrorists, other unlawful aliens, instruments of terrorism, narcotics, and other contraband.CommentsClose CommentsPermalink

SEC. 102. BORDER PATROL AGENTS.

(a) Deadline- Not later than December 31, 2008, the Secretary of Homeland Security shall ensure that the Border Patrol has not fewer than 18,000 Border Patrol agents and sufficient support staff for such agents, including mechanics, administrative support, and surveillance personnel.CommentsClose CommentsPermalink





(b) Fiscal Years 2009 and 2010- In fiscal years 2009 and 2010, the Secretary of Homeland Security shall increase by not less than 2,000 the number of positions for full-time active-duty Border Patrol agents within the Department of Homeland Security above the number of such positions existing in the preceding fiscal year.CommentsClose CommentsPermalink

SEC. 103. INCREASE IN PORT OF ENTRY STAFFING.

For each of fiscal years 2008, 2009, 2010, and 2011, the Secretary of Homeland Security shall increase by not fewer than 250 the number of Customs and Border Protection officers at United States ports of entry over the number of such officers at such ports for the preceding year.CommentsClose CommentsPermalink

SEC. 104. REVIEW OF BORDER SECURITY POLICIES AND PROCEDURES.

(a) Establishment of Task Force To Reform Border Patrol Policies- (1) Not later than 90 days after the date of the enactment of this Act, the Secretary of Homeland Security, acting through the Commissioner of United States Customs and Border Protection, shall establish a task force to examine the policies and procedures of the Border Patrol as they pertain to--CommentsClose CommentsPermalink





(A) the use of deadly force which is defined as any force that is likely to cause death, or serious bodily injury as that term is defined in section 924(c)(2) of title 18 of the United States Code; andCommentsClose CommentsPermalink





(B) the pursuit of fleeing vehicles.CommentsClose CommentsPermalink





(2) The task force shall consider the current policies and procedures for the use of deadly force and the pursuit of fleeing vehicles in every aspect of the mission of the United States Border Patrol, especially in deterring--CommentsClose CommentsPermalink





(A) human trafficking or smuggling;CommentsClose CommentsPermalink





(B) `drug trafficking crime' as that term is defined in section 924(c)(2) of title 18, United States Code; andCommentsClose CommentsPermalink





(C) any `crime of violence' as that term is defined in section 16 of title 18, United States Code.CommentsClose CommentsPermalink





(b) Composition of Task Force- The task force established under subsection (b) shall be composed of individuals from the following:CommentsClose CommentsPermalink





(1) Representatives from State and local law enforcement agencies from jurisdictions along the northern or southern international borders of the United States.CommentsClose CommentsPermalink





(2) The National Border Patrol Council.CommentsClose CommentsPermalink





(3) The National Association of Former Border Patrol Officers.CommentsClose CommentsPermalink





(4) Human rights groups with experience regarding aliens who cross the international land borders of the United States.CommentsClose CommentsPermalink





(5) Any group that the Commissioner determines would contribute to the examination of the policies described in subsection (b).CommentsClose CommentsPermalink





(c) Report- Not later than 180 days after the date of the enactment of this Act, the Commissioner shall submit to the Committee on Homeland Security of the House of Representatives and the Committee on Homeland Security and Governmental Affairs of the Senate a report summarizing the findings and recommendations of the task force. The Commissioner shall include in such report an appendix, containing statements from any individual, official, or group that objects to the findings or recommendations contained in the report.CommentsClose CommentsPermalink

SEC. 105. IMPLEMENTATION OF US-VISIT.

(a) Findings- The Congress finds the following:CommentsClose CommentsPermalink





(1) Recognizing that the United States needed a border management system, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (Public Law 104-208) which directed the Attorney General, later amended to the Secretary of Homeland Security, to develop an automated entry and exit control system to collect records of arrival and departure from every foreign visitor entering and leaving the United States.CommentsClose CommentsPermalink





(2) Concerned that little progress had been made, Congress passed the Data Management Improvement Act of 2000 (Public Law 106-215) which set specific deadlines for the implementation of the entry and exit control system for all air and seaports by December 31, 2003, for the 50 largest land border ports of entry by December 31, 2004, and for all remaining ports of entry by December 31, 2005.CommentsClose CommentsPermalink





(3) After the terrorist attacks of September 11, 2001, Congress again addressed the entry- and exit- system during consideration of the USA Patriot Act of 2001 (Public Law 107-56), which required that the system include the use of biometrics and be able to interface with law enforcement databases to identify and detain individuals who pose a threat to national security.CommentsClose CommentsPermalink





(4) The Department of Homeland Security has implemented a portion of requirements for the entry and exit system to include the collection of biometric information upon entry into the United States at all air, sea, and land ports of entry. However, the Department has not fulfilled the existing mandates for the exit portion to be deployed.CommentsClose CommentsPermalink





(5) Four of the al-Qaeda members that carried out the September 11, 2001, terrorist attacks remained in the country after their visa expired.CommentsClose CommentsPermalink





(6) Lacking a functioning biometric exit system leaves the United States at risk for individuals to enter the United States, remain in the country with impunity past their authorized stay, and conduct terrorist fundraising and attacks.CommentsClose CommentsPermalink





(b) Airport and Seaport Exit Implementation- Not later than December 31, 2008, the Secretary of Homeland Security shall complete the exit portion of the integrated entry and exit data system (commonly referred to as the `United States Visitor and Immigrant Status Indicator Technology system' or `US-VISIT') required under section 110 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1365a) for aliens arriving in or departing from the United States at an airport or seaport.CommentsClose CommentsPermalink





(c) Land Exit Implementation- The Secretary of Homeland Security shall develop a strategy for implementation of exit portion of the integrated entry and exit data system (commonly referred to as the `United States Visitor and Immigrant Status Indicator Technology System' or `US-VISIT') referred to under section 110 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1365a) for aliens departing from the United States at a land port of entry. The Secretary shall implement the system not later than December 31, 2008.CommentsClose CommentsPermalink

SEC. 106. MANDATORY DETENTION FOR ALIENS APPREHENDED AT OR BETWEEN PORTS OF ENTRY.

(a) In General- Not later than 90 days after the date of the enactment of this Act, an alien who attempts to unlawfully enter the United States and is apprehended at a United States port of entry or along the international land and maritime borders of the United States shall be detained until removed or a final decision granting admission has been made, unless the alien--CommentsClose CommentsPermalink





(1) is permitted to withdraw an application for admission under section 235(a)(4) of the Immigration and Nationality Act (8 U.S.C. 1225(a)(4)) and immediately departs from the United States pursuant to such section; orCommentsClose CommentsPermalink





(2) is paroled into the United States by the Secretary of Homeland Security for urgent humanitarian reasons or significant public benefit in accordance with section 212(d)(5)(A) of such Act (8 U.S.C. 1182(d)(5)(A)).CommentsClose CommentsPermalink





(b) Rules of Construction-CommentsClose CommentsPermalink





(1) ASYLUM AND REMOVAL- Nothing in this section shall be construed as limiting the right of an alien to apply for asylum or for relief or deferral of removal based on a fear of persecution.CommentsClose CommentsPermalink





(2) TREATMENT OF CERTAIN ALIENS- The mandatory detention requirement of subsection (a) shall not apply to any alien who is a native or citizen of a country in the Western Hemisphere with whose government the United States does not have full diplomatic relations.CommentsClose CommentsPermalink





(3) DISCRETION- Nothing in this section shall be construed as limiting the authority of the Secretary of Homeland Security, in the Secretary's sole unreviewable discretion, to determine whether an alien described in clause (ii) of section 235(b)(1)(B) of the Immigration and Nationality Act (8 U.S.C. 1225(b)(1)(B)) shall be detained or released after a finding of a credible fear of persecution (as defined in clause (v) of such section).CommentsClose CommentsPermalink

SEC. 107. EXPEDITED REMOVAL.

(a) In General- Section 235(b)(1)(A)(iii) of the Immigration and Nationality Act (8 U.S.C. 1225(b)(1)(A)(iii)) is amended--CommentsClose CommentsPermalink





(1) in subclause (I), by striking `Attorney General' and inserting `Secretary of Homeland Security' each place it appears; andCommentsClose CommentsPermalink





(2) by adding at the end the following new subclause:CommentsClose CommentsPermalink





`(III) EXCEPTION- Notwithstanding subclauses (I) and (II), the Secretary of Homeland Security shall apply clauses (i) and (ii) of this subparagraph to any alien (other than an alien described in subparagraph (F)) who is not a national of a country contiguous to the United States, who has not been admitted or paroled into the United States, and who is apprehended within 100 miles of an international land border of the United States and within 14 days of entry.'.CommentsClose CommentsPermalink





(b) Exceptions- Section 235(b)(1)(F) of the Immigration and Nationality Act (8 U.S.C. 1225(b)(1)(F)) is amended by striking `who arrives by aircraft at a port of entry' and inserting `, and who arrives by aircraft at a port of entry or who is present in the United States and arrived in any manner at or between a port of entry'.CommentsClose CommentsPermalink





(c) Effective Date- The amendments made by this section shall take effect on the date of the enactment of this Act and shall apply to all aliens apprehended on or after such date.CommentsClose CommentsPermalink

SEC. 108. DENIAL OF ADMISSION TO NATIONALS OF COUNTRY DENYING OR DELAYING ACCEPTING ALIEN.

Section 243(d) of the Immigration and Nationality Act (8 U.S.C. 1253(d)) is amended to read as follows:CommentsClose CommentsPermalink





`(d) Denial of Admission to Nationals of Country Denying or Delaying Accepting Alien- Whenever the Secretary of Homeland Security determines that the government of a foreign country has denied or unreasonably delayed accepting an alien who is a citizen, subject, national, or resident of that country after the alien has been ordered removed from the United States, the Secretary, after consultation with the Secretary of State, may deny admission to any citizen, subject, national, or resident of that country until the country accepts the alien who was ordered removed.'.CommentsClose CommentsPermalink

SEC. 109. ALIEN TRANSFER AND REIMBURSEMENT AUTHORITY.

(a) Transfer to Federal Custody- The Secretary of Homeland Security shall require appropriate personnel from the Department of Homeland Security to respond within 24 hours in person to all requests made by a State, or political subdivision of a State, participating in the program described in section 287(g) of the Immigration and Nationaltiy Act (8 U.S.C. 1357(g)) that the Secretary take into custody an alien, if the Secretary has confirmed that the alien is unlawfully present in the United States.CommentsClose CommentsPermalink





(b) Reimbursement of Costs- If the Secretary fails to carry out subsection (a), the Secreary shall be responsible for the detention costs incurred by the State or political subdivision as a result of such failure.CommentsClose CommentsPermalink

SEC. 110. MANDATORY MINIMUM SENTENCE FOR REENTRY OF CERTAIN ALIENS.

(a) Entry of Alien at Improper Time or Place- Section 275(a) of the Immigration and Nationality Act (8 U.S.C. 1325(a)) is amended by adding at the end the following: `In the case of a third or subsequent offense, the alien shall be imprisoned not less than 3 months.'.CommentsClose CommentsPermalink





(b) Reentry of Removed Alient- Section 276(a) of such Act (8 U.S.C. 1326(a)) is amended by adding at the end the following: `In the case of a second or subsequent offense, the alien shall be imprisoned not less than 3 months.'.CommentsClose CommentsPermalink

TITLE II--PUBLIC SAFETY

Subtitle A--Detention of Dangerous Aliens

SEC. 201. DETENTION OF DANGEROUS ALIENS.

Section 241(a) of the Immigration and Nationality Act (8 U.S.C. 1231(a)) is amended--CommentsClose CommentsPermalink





(1) by striking `Attorney General' each place it appears, except for the first reference in paragraph (4)(B)(i), and inserting `Secretary of Homeland Security';CommentsClose CommentsPermalink





(2) in paragraph (1), by adding at the end of subparagraph (B) the following:CommentsClose CommentsPermalink





`If, at that time, the alien is not in the custody of the Secretary of Homeland Security (under the authority of this Act), the Secretary shall take the alien into custody for removal, and the removal period shall not begin until the alien is taken into such custody. If the Secretary transfers custody of the alien during the removal period pursuant to law to another Federal agency or a State or local government agency in connection with the official duties of such agency, the removal period shall be tolled, and shall begin anew on the date of the alien's return to the custody of the Secretary, subject to clause (ii).';CommentsClose CommentsPermalink





(3) by amending clause (ii) of paragraph (1)(B) to read as follows:CommentsClose CommentsPermalink





`(ii) If a court, the Board of Immigration Appeals, or an immigration judge orders a stay of the removal of the alien, the date the stay of removal is no longer in effect.';CommentsClose CommentsPermalink





(4) by amending paragraph (1)(C) to read as follows:CommentsClose CommentsPermalink





`(C) SUSPENSION OF PERIOD- The removal period shall be extended beyond a period of 90 days and the alien may remain in detention during such extended period if the alien fails or refuses to make all reasonable efforts to comply with the removal order, or to fully cooperate with the Secretary of Homeland Security's efforts to establish the alien's identity and carry out the removal order, including making timely application in good faith for travel or other documents necessary to the alien's departure, or conspires or acts to prevent the alien's removal subject to an order of removal.';CommentsClose CommentsPermalink





(5) in paragraph (2), by adding at the end the following: `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 the Secretary's discretion, may detain the alien during the pendency of such stay of removal.';CommentsClose CommentsPermalink





(6) by amending paragraph (3)(D) to read as follows:CommentsClose CommentsPermalink





`(D) to obey reasonable restrictions on the alien's conduct or activities, or perform affirmative acts, that the Secretary of Homeland Security prescribes for the alien, in order to prevent the alien from absconding, or for the protection of the community, or for other purposes related to the enforcement of the immigration laws.';CommentsClose CommentsPermalink





(7) in paragraph (6), by striking `removal period and, if released,' and inserting `removal period, in the discretion of the Secretary of Homeland Security, without any limitations other than those specified in this section, until the alien is removed. If an alien is released, the alien'; andCommentsClose CommentsPermalink





(8) by redesignating paragraph (7) as paragraph (10) and inserting after paragraph (6) the following:CommentsClose CommentsPermalink





`(7) PAROLE- If an alien detained pursuant to paragraph (6) is an applicant for admission, the Secretary of Homeland Security, in the Secretary's discretion, may parole the alien under section 212(d)(5) and may provide, notwithstanding such section, that the alien shall not be returned to custody unless either the alien violates the conditions of the alien's parole or the alien's removal becomes reasonably foreseeable, but in no circumstance shall such alien be considered admitted.CommentsClose CommentsPermalink





`(8) ADDITIONAL RULES FOR DETENTION OR RELEASE OF CERTAIN ALIENS WHO HAVE MADE AN ENTRY- The following procedures apply only with respect to an alien who has effected an entry into the United States. These procedures do not apply to any other alien detained pursuant to paragraph (6):CommentsClose CommentsPermalink





`(A) ESTABLISHMENT OF A DETENTION REVIEW PROCESS FOR ALIENS WHO FULLY COOPERATE WITH REMOVAL- For an alien who has made all reasonable efforts to comply with a removal order and to cooperate fully with the Secretary of Homeland Security's efforts to establish the alien's identity and carry out the removal order, including making timely application in good faith for travel or other documents necessary to the alien's departure, and has not conspired or acted to prevent removal, the Secretary shall establish an administrative review process to determine whether the alien should be detained or released on conditions. The Secretary shall make a determination whether to release an alien after the removal period in accordance with subparagraph (B). The determination shall include consideration of any evidence submitted by the alien, and may include consideration of any other evidence, including any information or assistance provided by the Secretary of State or other Federal official and any other information available to the Secretary of Homeland Security pertaining to the ability to remove the alien.CommentsClose CommentsPermalink





`(B) AUTHORITY TO DETAIN BEYOND THE REMOVAL PERIOD-CommentsClose CommentsPermalink





`(i) IN GENERAL- The Secretary of Homeland Security, in the exercise of the Secretary's discretion, without any limitations other than those specified in this section, may continue to detain an alien for 90 days beyond the removal period (including any extension of the removal period as provided in paragraph (1)(C)).CommentsClose CommentsPermalink





`(ii) SPECIFIC CIRCUMSTANCES- The Secretary of Homeland Security, in the exercise of the Secretary's discretion, without any limitations other than those specified in this section, may continue to detain an alien beyond the 90 days authorized in clause (i)--CommentsClose CommentsPermalink





`(I) until the alien is removed, if the Secretary determines that there is a significant likelihood that the alien--CommentsClose CommentsPermalink

`(aa) will be removed in the reasonably foreseeable future; orCommentsClose CommentsPermalink

`(bb) would be removed in the reasonably foreseeable future, or would have been removed, but for the alien's failure or refusal to make all reasonable efforts to comply with the removal order, or to cooperate fully with the Secretary's efforts to establish the aliens' identity and carry out the removal order, including making timely application in good faith for travel or other documents necessary to the alien's departure, or conspiracies or acts to prevent removal;CommentsClose CommentsPermalink

`(II) until the alien is removed, if the Secretary of Homeland Security certifies in writing--CommentsClose CommentsPermalink

`(aa) 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;CommentsClose CommentsPermalink

`(bb) after receipt of a written recommendation from the Secretary of State, that release of the alien is likely to have serious adverse foreign policy consequences for the United States;CommentsClose CommentsPermalink

`(cc) based on information available to the Secretary of Homeland Security (including classified, sensitive, or national security information, and without regard to the grounds upon which the alien was ordered removed), that there is reason to believe that the release of the alien would threaten the national security of the United States; orCommentsClose CommentsPermalink

`(dd) that the release of the alien will threaten the safety of the community or any person, conditions of release cannot reasonably be expected to ensure the safety of the community or any person, and either (AA) the alien has been convicted of one or more aggravated felonies (as defined in section 101(a)(43)(A)) or of one or more crimes identified by the Secretary of Homeland Security by regulation, or of one or more attempts or conspiracies to commit any such aggravated felonies or such identified crimes, if the aggregate term of imprisonment for such attempts or conspiracies is at least 5 years; or (BB) the alien has committed one or more crimes of violence (as defined in section 16 of title 18, United States Code, but not including a purely political offense) and, because of a mental condition or personality disorder and behavior associated with that condition or disorder, the alien is likely to engage in acts of violence in the future; orCommentsClose CommentsPermalink

`(ee) that the release of the alien will threaten the safety of the community or any person, conditions of release cannot reasonably be expected to ensure the safety of the community or any person, and the alien has been convicted of at least one aggravated felony (as defined in section 101(a)(43)); orCommentsClose CommentsPermalink

`(III) pending a determination under subclause (II), so long as the Secretary of Homeland Security has initiated the administrative review process not later than 30 days after the expiration of the removal period (including any extension of the removal period, as provided in subsection (a)(1)(C)).CommentsClose CommentsPermalink





`(C) RENEWAL AND DELEGATION OF CERTIFICATION-CommentsClose CommentsPermalink





`(i) RENEWAL- The Secretary of Homeland Security may renew a certification under subparagraph (B)(ii)(II) every 6 months without limitation, after providing an opportunity for the alien to request reconsideration of the certification and to submit documents or other evidence in support of that request. If the Secretary does not renew a certification, the Secretary may not continue to detain the alien under subparagraph (B)(ii)(II).CommentsClose CommentsPermalink





`(ii) DELEGATION- Notwithstanding section 103, the Secretary of Homeland Security may not delegate the authority to make or renew a certification described in item (bb), (cc), or (ee) of subparagraph (B)(ii)(II) below the level of the Assistant Secretary for Immigration and Customs Enforcement.CommentsClose CommentsPermalink





`(iii) HEARING- The Secretary of Homeland Security may request that the Attorney General or the Attorney General's designee provide for a hearing to make the determination described in item (dd)(BB) of subparagraph (B)(ii)(II).CommentsClose CommentsPermalink





`(D) RELEASE ON CONDITIONS- If it is determined that an alien should be released from detention, the Secretary of Homeland Security, in the exercise of the Secretary's discretion, may impose conditions on release as provided in paragraph (3).CommentsClose CommentsPermalink





`(E) REDETENTION- The Secretary of Homeland Security, in the exercise of the Secretary's discretion, without any limitations other than those specified in this section, may again detain any alien subject to a final removal order who is released from custody if the alien fails to comply with the conditions of release, or to continue to satisfy the conditions described in subparagraph (A), or if, upon reconsideration, the Secretary determines that the alien can be detained under subparagraph (B). Paragraphs (6) through (8) shall apply to any alien returned to custody pursuant to this subparagraph, as if the removal period terminated on the day of the redetention.CommentsClose CommentsPermalink





`(F) CERTAIN ALIENS WHO EFFECTED ENTRY- If an alien has effected an entry, but has neither been lawfully admitted nor has been physically present in the United States continuously for the 2-year period immediately prior to the commencement of removal proceedings under this Act or deportation proceedings against the alien, the Secretary of Homeland Security, in the exercise of the Secretary's discretion, may decide not to apply paragraph (8) and detain the alien without any limitations except those which the Secretary shall adopt by regulation.CommentsClose CommentsPermalink





`(9) JUDICIAL REVIEW- Without regard to the place of confinement, judicial review of any action or decision pursuant to paragraphs (6), (7), or (8) shall be available exclusively in habeas corpus proceedings instituted in the United States District Court for the District of Columbia, and only if the alien has exhausted all administrative remedies (statutory and regulatory) available to the alien as of right.'.CommentsClose CommentsPermalink

SEC. 202. DETENTION OF ALIENS DURING REMOVAL PROCEEDINGS.

(a) Detention Authority- Section 235 of the Immigration and Nationality Act (8 U.S.C. 1225) is amended by adding at the end the following:CommentsClose CommentsPermalink





`(e) Length of Detention-CommentsClose CommentsPermalink





`(1) IN GENERAL- With regard to length of detention, an alien may be detained under this section, without limitation, until the alien is subject to an administratively final order of removal.CommentsClose CommentsPermalink





`(2) CONSTRUCTION- The length of detention under this section shall not affect the validity of any detention under section 241.CommentsClose CommentsPermalink





`(f) Judicial Review- Without regard to the place of confinement, judicial review of any action or decision made pursuant to subsection (e) shall be available exclusively in a habeas corpus proceeding instituted in the United States District Court for the District of Columbia and only if the alien has exhausted all administrative remedies (statutory and nonstatutory) available to the alien as of right.'.CommentsClose CommentsPermalink





(b) Judicial Review- Section 236(e) of such Act (8 U.S.C. 1226(e)) is amended by adding at the end the following: `Without regard to the place of confinement, judicial review of any action or decision made pursuant to subsection (f) shall be available exclusively in a habeas corpus proceeding instituted in the United States District Court for the District of Columbia and only if the alien has exhausted all administrative remedies (statutory and nonstatutory) available to the alien as of right.'.CommentsClose CommentsPermalink





(c) Length of Detention- Section 236 of such Act (8 U.S.C. 1226) is amended by adding at the end the following:CommentsClose CommentsPermalink





`(f) Length of Detention-CommentsClose CommentsPermalink





`(1) IN GENERAL- With regard to length of detention, an alien may be detained under this section, without limitation, until the alien is subject to an administratively final order of removal.CommentsClose CommentsPermalink





`(2) CONSTRUCTION- The length of detention under this section shall not affect the validity of any detention under section 241 of this Act.'.CommentsClose CommentsPermalink

SEC. 203. SEVERABILITY.

If any provision of this subtitle, or any amendment made by this subtitle, or the application of any such provision to any person or circumstance, is held to be invalid for any reason, the remainder of this subtitle, and of the amendments made by this subtitle, and the application of the provisions and of the amendments made by this subtitle to any other person or circumstance, shall not be affected by such holding.CommentsClose CommentsPermalink

SEC. 204. EFFECTIVE DATES.

(a) Section 201- The amendments made by section 201 shall take effect on the date of the enactment of this Act, and section 241 of the Immigration and Nationality Act, as amended, shall apply to--CommentsClose CommentsPermalink





(1) all aliens 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





(2) acts and conditions occurring or existing before, on, or after the date of the enactment of this Act.CommentsClose CommentsPermalink





(b) Section 202- The amendments made by section 202 shall take effect upon the date of the enactment of this Act, and sections 235 and 236 of the Immigration and Nationality Act, as amended, shall apply to any alien in detention under provisions of such sections on or after the date of the enactment of this Act.CommentsClose CommentsPermalink

Subtitle B--Removal of Alien Gang Members

SEC. 211. RENDERING INADMISSIBLE AND DEPORTABLE ALIENS PARTICIPATING IN CRIMINAL STREET GANGS.

(a) Inadmissible- Section 212(a)(2) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(2)) is amended by adding at the end the following:CommentsClose CommentsPermalink





`(J) CRIMINAL STREET GANG PARTICIPATION-CommentsClose CommentsPermalink





`(i) IN GENERAL- Any alien is inadmissible if--CommentsClose CommentsPermalink





`(I) the alien has been removed under section 237(a)(2)(F); orCommentsClose CommentsPermalink





`(II) the consular officer or the Secretary of Homeland Security knows, or has reasonable ground to believe that the alien--CommentsClose CommentsPermalink

`(aa) is a member of a criminal street gang and has committed, conspired, or threatened to commit, or seeks to enter the United States to engage solely, principally, or incidentally in, a gang crime or any other unlawful activity; orCommentsClose CommentsPermalink

`(bb) is a member of a criminal street gang designated under section 219A.CommentsClose CommentsPermalink

`(ii) DEFINITIONS- For purposes of this subparagraph:CommentsClose CommentsPermalink





`(I) CRIMINAL STREET GANG- The term `criminal street gang' means a formal or informal group or association of 3 or more individuals, who commit 2 or more gang crimes (one of which is a crime of violence, as defined in section 16 of title 18, United States Code) in 2 or more separate criminal episodes in relation to the group or association.CommentsClose CommentsPermalink





`(II) GANG CRIME- The term `gang crime' means conduct constituting any Federal or State crime, punishable by imprisonment for one year or more, in any of the following categories:CommentsClose CommentsPermalink

`(aa) A crime of violence (as defined in section 16 of title 18, United States Code).CommentsClose CommentsPermalink

`(bb) A crime involving obstruction of justice, tampering with or retaliating against a witness, victim, or informant, or burglary.CommentsClose CommentsPermalink

`(cc) A crime involving the manufacturing, importing, distributing, possessing with intent to distribute, or otherwise dealing in a controlled substance or listed chemical (as those terms are defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)).CommentsClose CommentsPermalink

`(dd) Any conduct punishable under section 844 of title 18, United States Code (relating to explosive materials), subsection (d), (g)(1) (where the underlying conviction is a violent felony (as defined in section 924(e)(2)(B) of such title) or is a serious drug offense (as defined in section 924(e)(2)(A)), (i), (j), (k), (o), (p), (q), (u), or (x) of section 922 of such title (relating to unlawful acts), or subsection (b), (c), (g), (h), (k), (l), (m), or (n) of section 924 of such title (relating to penalties), section 930 of such title (relating to possession of firearms and dangerous weapons in Federal facilities), section 931 of such title (relating to purchase, ownership, or possession of body armor by violent felons), sections 1028 and 1029 of such title (relating to fraud and related activity in connection with identification documents or access devices), section 1952 of such title (relating to interstate and foreign travel or transportation in aid of racketeering enterprises), section 1956 of such title (relating to the laundering of monetary instruments), section 1957 of such title (relating to engaging in monetary transactions in property derived from specified unlawful activity), or sections 2312 through 2315 of such title (relating to interstate transportation of stolen motor vehicles or stolen property).CommentsClose CommentsPermalink

`(ee) Any conduct punishable under section 274 (relating to bringing in and harboring certain aliens), section 277 (relating to aiding or assisting certain aliens to enter the United States), or section 278 (relating to importation of alien for immoral purpose) of this Act.'.CommentsClose CommentsPermalink

(b) Deportable- Section 237(a)(2) of the Immigration and Nationality Act (8 U.S.C. 1227(a)(2)) is amended by adding at the end the following:CommentsClose CommentsPermalink





`(F) CRIMINAL STREET GANG PARTICIPATION-CommentsClose CommentsPermalink





`(i) IN GENERAL- Any alien is deportable who--CommentsClose CommentsPermalink





`(I) is a member of a criminal street gang and is convicted of committing, or conspiring, threatening, or attempting to commit, a gang crime; orCommentsClose CommentsPermalink





`(II) is determined by the Secretary of Homeland Security to be a member of a criminal street gang designated under section 219A.CommentsClose CommentsPermalink





`(ii) DEFINITIONS- For purposes of this subparagraph, the terms `criminal street gang' and `gang crime' have the meaning given such terms in section 212(a)(2)(J)(ii).'.CommentsClose CommentsPermalink





(c) Designation of Criminal Street Gangs-CommentsClose CommentsPermalink





(1) IN GENERAL- Chapter 2 of title II of the Immigration and Nationality Act (8 U.S.C. 1181 et seq.) is amended by adding at the end the following:CommentsClose CommentsPermalink

`DESIGNATION OF CRIMINAL STREET GANGS

`Sec. 219A. (a) Designation-CommentsClose CommentsPermalink





`(1) IN GENERAL- The Attorney General is authorized to designate a group or association as a criminal street gang in accordance with this subsection if the Attorney General finds that the group or association meets the criteria described in section 212(a)(2)(J)(ii)(I).CommentsClose CommentsPermalink





`(2) PROCEDURE-CommentsClose CommentsPermalink





`(A) NOTICE-CommentsClose CommentsPermalink





`(i) TO CONGRESSIONAL LEADERS- Seven days before making a designation under this subsection, the Attorney General shall, by classified communication, notify the Speaker and minority leader of the House of Representatives, the President pro tempore, majority leader, and minority leader of the Senate, and the members of the relevant committees of the House of Representatives and the Senate, in writing, of the intent to designate a group or association under this subsection, together with the findings made under paragraph (1) with respect to that group or association, and the factual basis therefor.CommentsClose CommentsPermalink





`(ii) PUBLICATION IN FEDERAL REGISTER- The Attorney shall publish the designation in the Federal Register seven days after providing the notification under clause (i).CommentsClose CommentsPermalink





`(B) EFFECT OF DESIGNATION-CommentsClose CommentsPermalink





`(i) A designation under this subsection shall take effect upon publication under subparagraph (A)(ii).CommentsClose CommentsPermalink





`(ii) Any designation under this subsection shall cease to have effect upon an Act of Congress disapproving such designation.CommentsClose CommentsPermalink





`(3) RECORD- In making a designation under this subsection, the Attorney General shall create an administrative record.CommentsClose CommentsPermalink





`(4) PERIOD OF DESIGNATION-CommentsClose CommentsPermalink





`(A) IN GENERAL- A designation under this subsection shall be effective for all purposes until revoked under paragraph (5) or (6) or set aside pursuant to subsection (b).CommentsClose CommentsPermalink





`(B) REVIEW OF DESIGNATION UPON PETITION-CommentsClose CommentsPermalink





`(i) IN GENERAL- The Attorney General shall review the designation of a criminal street gang under the procedures set forth in clauses (iii) and (iv) if the designated gang or association files a petition for revocation within the petition period described in clause (ii).CommentsClose CommentsPermalink





`(ii) PETITION PERIOD- For purposes of clause (i)--CommentsClose CommentsPermalink





`(I) if the designated gang or association has not previously filed a petition for revocation under this subparagraph, the petition period begins 2 years after the date on which the designation was made; orCommentsClose CommentsPermalink





`(II) if the designated gang or association has previously filed a petition for revocation under this subparagraph, the petition period begins 2 years after the date of the determination made under clause (iv) on that petition.CommentsClose CommentsPermalink





`(iii) PROCEDURES- Any criminal street gang that submits a petition for revocation under this subparagraph must provide evidence in that petition that the relevant circumstances described in paragraph (1) are sufficiently different from the circumstances that were the basis for the designation such that a revocation with respect to the gang is warranted.CommentsClose CommentsPermalink





`(iv) DETERMINATION-CommentsClose CommentsPermalink





`(I) IN GENERAL- Not later than 180 days after receiving a petition for revocation submitted under this subparagraph, the Attorney General shall make a determination as to such revocation.CommentsClose CommentsPermalink





`(II) PUBLICATION OF DETERMINATION- A determination made by the Attorney General under this clause shall be published in the Federal Register.CommentsClose CommentsPermalink





`(III) PROCEDURES- Any revocation by the Attorney General shall be made in accordance with paragraph (6).CommentsClose CommentsPermalink





`(C) OTHER REVIEW OF DESIGNATION-CommentsClose CommentsPermalink





`(i) IN GENERAL- If in a 5-year period no review has taken place under subparagraph (B), the Attorney General shall review the designation of the criminal street gang in order to determine whether such designation should be revoked pursuant to paragraph (6).CommentsClose CommentsPermalink





`(ii) PROCEDURES- If a review does not take place pursuant to subparagraph (B) in response to a petition for revocation that is filed in accordance with that subparagraph, then the review shall be conducted pursuant to procedures established by the Attorney General. The results of such review and the applicable procedures shall not be reviewable in any court.CommentsClose CommentsPermalink





`(iii) PUBLICATION OF RESULTS OF REVIEW- The Attorney General shall publish any determination made pursuant to this subparagraph in the Federal Register.CommentsClose CommentsPermalink





`(5) REVOCATION BY ACT OF CONGRESS- The Congress, by an Act of Congress, may block or revoke a designation made under paragraph (1).CommentsClose CommentsPermalink





`(6) REVOCATION BASED ON CHANGE IN CIRCUMSTANCES-CommentsClose CommentsPermalink





`(A) IN GENERAL- The Attorney General may revoke a designation made under paragraph (1) at any time, and shall revoke a designation upon completion of a review conducted pursuant to subparagraphs (B) and (C) of paragraph (4) if the Attorney General finds that--CommentsClose CommentsPermalink





`(i) the circumstances that were the basis for the designation have changed in such a manner as to warrant revocation; orCommentsClose CommentsPermalink





`(ii) the national security of the United States warrants a revocation.CommentsClose CommentsPermalink





`(B) PROCEDURE- The procedural requirements of paragraphs (2) and (3) shall apply to a revocation under this paragraph. Any revocation shall take effect on the date specified in the revocation or upon publication in the Federal Register if no effective date is specified.CommentsClose CommentsPermalink





`(7) EFFECT OF REVOCATION- The revocation of a designation under paragraph (5) or (6) shall not affect any action or proceeding based on conduct committed prior to the effective date of such revocation.CommentsClose CommentsPermalink





`(8) USE OF DESIGNATION IN HEARING- If a designation under this subsection has become effective under paragraph (2)(B) an alien in a removal proceeding shall not be permitted to raise any question concerning the validity of the issuance of such designation as a defense or an objection at any hearing.CommentsClose CommentsPermalink





`(b) Judicial Review of Designation-CommentsClose CommentsPermalink





`(1) IN GENERAL- Not later than 30 days after publication of the designation in the Federal Register, a group or association designated as a criminal street gang may seek judicial review of the designation in the United States Court of Appeals for the District of Columbia Circuit.CommentsClose CommentsPermalink





`(2) BASIS OF REVIEW- Review under this subsection shall be based solely upon the administrative record.CommentsClose CommentsPermalink





`(3) SCOPE OF REVIEW- The Court shall hold unlawful and set aside a designation the court finds to be--CommentsClose CommentsPermalink





`(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;CommentsClose CommentsPermalink





`(B) contrary to constitutional right, power, privilege, or immunity;CommentsClose CommentsPermalink





`(C) in excess of statutory jurisdiction, authority, or limitation, or short of statutory right;CommentsClose CommentsPermalink





`(D) lacking substantial support in the administrative record taken as a whole; orCommentsClose CommentsPermalink





`(E) not in accord with the procedures required by law.CommentsClose CommentsPermalink





`(4) JUDICIAL REVIEW INVOKED- The pendency of an action for judicial review of a designation shall not affect the application of this section, unless the court issues a final order setting aside the designation.CommentsClose CommentsPermalink





`(c) Relevant Committee Defined- As used in this section, the term `relevant committees' means the Committees on the Judiciary of the House of Representatives and of the Senate.'.CommentsClose CommentsPermalink





(2) CLERICAL AMENDMENT- The table of contents for the Immigration and Nationality Act (8 U.S.C. 1101 et seq.) is amended by inserting after the item relating to section 219 the following:CommentsClose CommentsPermalink





`Sec. 219A. Designation of criminal street gangs.'.CommentsClose CommentsPermalink

SEC. 212. MANDATORY DETENTION OF SUSPECTED CRIMINAL STREET GANG MEMBERS.

(a) In General- Section 236(c)(1)(D) of the Immigration and Nationality Act (8 U.S.C. 1226(c)(1)(D)) is amended--CommentsClose CommentsPermalink





(1) by inserting `or 212(a)(2)(J)' after `212(a)(3)(B)'; andCommentsClose CommentsPermalink





(2) by inserting `or 237(a)(2)(F)' before `237(a)(4)(B)'.CommentsClose CommentsPermalink





(b) Annual Report- Not later than March 1 of each year (beginning 1 year after the date of the enactment of this Act), the Secretary of Homeland Security, after consultation with the appropriate Federal agencies, shall submit a report to the Committees on the Judiciary of the House of Representatives and of the Senate on the number of aliens detained under the amendments made by subsection (a).CommentsClose CommentsPermalink

SEC. 213. INELIGIBILITY FROM PROTECTION FROM REMOVAL AND ASYLUM.

(a) Inapplicability of Restriction on Removal to Certain Countries- Section 241(b)(3)(B) of the Immigration and Nationality Act (8 U.S.C. 1251(b)(3)(B)) is amended, in the matter preceding clause (i), by inserting `who is described in section 212(a)(2)(J)(i) or section 237(a)(2)(F)(i) or who is' after `to an alien'.CommentsClose CommentsPermalink





(b) Ineligibility for Asylum- Section 208(b)(2)(A) of such Act (8 U.S.C. 1158(b)(2)(A)) is amended--CommentsClose CommentsPermalink





(1) in clause (v), by striking `or' at the end;CommentsClose CommentsPermalink





(2) by redesignating clause (vi) as clause (vii); andCommentsClose CommentsPermalink





(3) by inserting after clause (v) the following:CommentsClose CommentsPermalink





`(vi) the alien is described in section 212(a)(2)(J)(i) or section 237(a)(2)(F)(i) (relating to participation in criminal street gangs); or'.CommentsClose CommentsPermalink





(c) Denial of Review of Determination of Ineligibility for Temporary Protected Status- Section 244(c)(2) of such Act (8 U.S.C. 1254(c)(2)) is amended by adding at the end the following:CommentsClose CommentsPermalink





`(C) LIMITATION ON JUDICIAL REVIEW- There shall be no judicial review of any finding under subparagraph (B) that an alien is in described in section 208(b)(2)(A)(vi).'.CommentsClose CommentsPermalink

Subtitle C--Miscellaneous

SEC. 221. FEDERAL AFFIRMATION OF ASSISTANCE IN IMMIGRATION LAW ENFORCEMENT BY STATES AND POLITICAL SUBDIVISIONS OF STATES.

(a) In General- Notwithstanding any other provision of law and reaffirming the existing inherent authority of States, law enforcement personnel of a State or a political subdivision of a State have the inherent authority of a sovereign entity to investigate, identify, apprehend, arrest, detain, or transfer to Federal custody aliens in the United States (including the transportation of such aliens across State lines to detention centers), for the purposes of assisting in the enforcement of the immigration laws of the United States in the course of carrying out routine duties. This State authority has never been displaced or preempted by Congress.CommentsClose CommentsPermalink





(b) Construction- Nothing in this section may be construed to require law enforcement personnel of a State or political subdivision of a State to--CommentsClose CommentsPermalink





(1) report the identity of a victim of, or a witness to, a criminal offense to the Secretary of Homeland Security for immigration enforcement purposes; orCommentsClose CommentsPermalink





(2) arrest such victim or witness for a violation of the immigration laws of the United States.CommentsClose CommentsPermalink

SEC. 222. FINANCIAL ASSISTANCE TO STATE AND LOCAL LAW ENFORCEMENT AGENCIES ASSISTING WITH BORDER SECURITY AND ENFORCEMENT OF IMMIGRATION LAWS.

(a) Grants for State and Local Law Enforcement Activities- From amounts made available to make grants under this section, the Secretary of Homeland Security shall make grants to States and political subdivisions of States for expenses described in subsection (c).CommentsClose CommentsPermalink





(b) Eligible Recipients- To be eligible to receive a grant under this section, a State or political subdivision of a State must have the authority to, and have in effect the policy and practice to, assist with border security missions and the enforcement of immigration laws of the United States in the course of carrying out such agency's routine law enforcement duties.CommentsClose CommentsPermalink





(c) Authorized Use of Funds- Funds received under this section may be used for the following:CommentsClose CommentsPermalink





(1) Costs of training associated with participation in programs described in section 287(g) of the immigration and nationality act (8 U.S.C. 1357(g)) under which certain officers or employees of the state or political subdivision are trained to perform certain functions of an immigration officer, including--CommentsClose CommentsPermalink





(A) costs of travel and transportation to locations where such training is provided, including mileage and related allowances for the use of a privately owned automobile;CommentsClose CommentsPermalink





(B) a daily per diem for lodging, meals, and other necessary expenses resulting from participation; andCommentsClose CommentsPermalink





(C) costs of securing temporary replacements for personnel traveling to, and participating in, such training.CommentsClose CommentsPermalink





(2) Procurement of equipment, technology, facilities, and other products that facilitate and are directly related to investigating, apprehending, arresting, detaining, or transporting immigration law violators, including additional administrative costs related to these functions.CommentsClose CommentsPermalink





(d) GAO Audit- Not later than 3 years after the date of the enactment of this Act, the Comptroller General of the United States shall conduct an audit of funds distributed to States and political subdivisions of States under this section.CommentsClose CommentsPermalink





(e) Authorization of Appropriations- There are authorized to be appropriated for grants under this section $250,000,000 for each fiscal year.CommentsClose CommentsPermalink

SEC. 223. EXPEDITED REMOVAL FOR ALIENS INADMISSIBLE ON CRIMINAL OR SECURITY GROUNDS.

(a) In General- Section 238(b) of the Immigration and Nationality Act (8 U.S.C. 1228(b)) is amended--CommentsClose CommentsPermalink





(1) in paragraph (1)--CommentsClose CommentsPermalink





(A) by striking `Attorney General' and inserting `Secretary of Homeland Security in the exercise of the Secretary's discretion'; andCommentsClose CommentsPermalink





(B) by striking `set forth in this subsection or' and inserting `set forth in this subsection, in lieu of removal proceedings under';CommentsClose CommentsPermalink





(2) in paragraph (3)--CommentsClose CommentsPermalink





(A) by striking `Attorney General' and inserting `Secretary of Homeland Security'; andCommentsClose CommentsPermalink





(B) by striking `paragraph (1) until 14 calendar days' and inserting `paragraph (1) or (3) until 7 calendar days';CommentsClose CommentsPermalink





(3) in paragraph (4), by striking `Attorney General' each place it appears and inserting `Secretary of Homeland Security';CommentsClose CommentsPermalink





(4) in paragraph (5)--CommentsClose CommentsPermalink





(A) by striking `described in this section' and inserting `described in paragraph (1) or (2)'; andCommentsClose CommentsPermalink





(B) by striking `the Attorney General may grant in the Attorney General's discretion' and inserting `the Secretary of Homeland Security or the Attorney General may grant, in the discretion of the Secretary or Attorney General, in any proceeding';CommentsClose CommentsPermalink





(5) by redesignating paragraphs (3), (4), and (5) as paragraphs (4), (5), and (6), respectively; andCommentsClose CommentsPermalink





(6) by inserting after paragraph (2) the following new paragraph:CommentsClose CommentsPermalink





`(3) The Secretary of Homeland Security, in the exercise of the Secretary's discretion, may determine inadmissibility under section 212(a)(2) (relating to criminal offenses) and issue an order of removal pursuant to the procedures set forth in this subsection, in lieu of removal proceedings under section 240, with respect to an alien who--CommentsClose CommentsPermalink





`(A) has not been admitted or paroled;CommentsClose CommentsPermalink





`(B) has not been found to have a credible fear of persecution pursuant to the procedures set forth in section 235(b)(1)(B); andCommentsClose CommentsPermalink





`(C) is not eligible for a waiver of inadmissibility or relief from removal.'.CommentsClose CommentsPermalink





(b) Effective Date- The amendments made by subsection (a) shall take effect on the date of the enactment of this Act but shall not apply to aliens who are in removal proceedings under section 240 of the Immigration and Nationality Act (8 U.S.C. 1229a) as of such date.CommentsClose CommentsPermalink

SEC. 224. REMOVING DRUNK DRIVERS.

(a) In General- 101(a)(43)(F) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(43)(F)) is amended by inserting `, including a third drunk driving conviction, regardless of the States in which the convictions occurred, and regardless of whether the offenses are deemed to be misdemeanors or felonies under State or Federal law,' after `offense)'.CommentsClose CommentsPermalink





(b) Effective Date- The amendment made by subsection (a) shall take effect on the date of the enactment of this Act and shall apply to convictions entered before, on, or after such date.CommentsClose CommentsPermalink

TITLE III--EMPLOYMENT ELIGIBILITY VERIFICATION

Subtitle A--Illegal Immigration Enforcement and Social Security Protection Act of 2007

SEC. 301. SHORT TITLE.

This subtitle may be cited as the `Illegal Immigration Enforcement and Social Security Protection Act of 2007'.CommentsClose CommentsPermalink

SEC. 302. AMENDMENTS TO THE SOCIAL SECURITY ACT RELATING TO IDENTIFICATION OF INDIVIDUALS.

(a) Antifraud Measures for Social Security Cards- Section 205(c)(2)(G) of the Social Security Act (42 U.S.C. 405(c)(2)(G)) is amended--CommentsClose CommentsPermalink





(1) by inserting `(i)' after `(G)';CommentsClose CommentsPermalink





(2) by striking `banknote paper' and inserting `durable plastic or similar material'; andCommentsClose CommentsPermalink





(3) 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 (8 U.S.C. 1324a(a)(1)(B)) to obtain access to the Employment Eligibility Database established by such Secretary pursuant to section 4 of such Act with respect to the individual to whom the card is issued.CommentsClose CommentsPermalink





`(iii) Each Social Security card issued under this subparagraph shall contain--CommentsClose CommentsPermalink





`(I) physical security features designed to prevent tampering, counterfeiting, or duplication of the card for fraudulent purposes; andCommentsClose CommentsPermalink





`(II) a disclaimer stating the following: `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,CommentsClose CommentsPermalink





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





(b) 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 Illegal Immigration Enforcement and Social Security Protection Act of 2007. Such information shall be used solely for inclusion in the Employment Eligibility Database established pursuant to section 4 of such Act.'.CommentsClose CommentsPermalink





(c) Effective Dates- The amendment made by subsection (a) shall apply with respect to Social Security cards issued after 2 years after the date of the enactment of this Act. The amendment made by subsection (b) 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

SEC. 303. EMPLOYMENT ELIGIBILITY DATABASE.

(a) In General- The Secretary of Homeland Security shall establish and maintain an Employment Eligibility Database. The Database shall include data comprised of the citizenship status of individuals and the work and residency eligibility information (including expiration dates) with respect to individuals who are not citizens or nationals of the United States but are authorized to work in the United States. Such data shall include all such data maintained by the Department of Homeland Security as of the date of the establishment of such database and information obtained from the Commissioner of Social Security pursuant to section 205(c)(2)(I) of the Social Security Act. The Secretary shall maintain ongoing consultations with the Commissioner to ensure efficient and effective operation of the Database.CommentsClose CommentsPermalink





(b) Incorporation of Ongoing Pilot Programs- To the extent that the Secretary determines appropriate in furthering the purposes of subsection (a), the Secretary may incorporate the information, processes, and procedures employed in connection with the Citizen Attestation Verification Pilot Program and the Basic Pilot Program into the operation and maintenance of the Database under subsection (a).CommentsClose CommentsPermalink





(c) Confidentiality-CommentsClose CommentsPermalink





(1) IN GENERAL- No officer or employee of the Department of Homeland Security shall have access to any information contained in the Database for any purpose other than--CommentsClose CommentsPermalink





(A) the establishment of a system of records necessary for the effective administration of this Act; orCommentsClose CommentsPermalink





(B) any other purpose the Secretary of Homeland Security deems to be in the national security interests of the United States.CommentsClose CommentsPermalink





(2) RESTRICTION- The Secretary shall restrict access to such information to officers and employees of the United States whose duties or responsibilities require access for the purposes described in paragraph (1).CommentsClose CommentsPermalink





(3) OTHER SAFEGUARDS- The Secretary shall provide such other safeguards as the Secretary determines to be necessary or appropriate to protect the confidentiality of information contained in the Database.CommentsClose CommentsPermalink





(4) CRIMINAL PENALTIES- Whoever accesses or uses information in the Employment Eligibility Database without authority to do so, or for an unauthorized purpose, shall be fined under title 18, United States Code, imprisoned for a term of not less than 5, and not more than 7, years, or both.CommentsClose CommentsPermalink





(d) Deadline for Meeting Requirements- The Secretary shall complete the establishment of the Database and provide for the efficient and effective operation of the Database in accordance with this section not later than 2 years after the date of the enactment of this Act.CommentsClose CommentsPermalink

SEC. 304. REQUIREMENTS RELATING TO INDIVIDUALS COMMENCING WORK IN THE UNITED STATES.

(a) Requirements for Employers, Recruiters, and Referrers- Section 274A(a)(1)(B) of the Immigration and Nationality Act (8 U.S.C. 1324a(a)(1)(B)) is amended to read as follows:CommentsClose CommentsPermalink





`(B)(i)(I) to hire for employment in the United States an individual unless the person or entity requires the employee to display a Social Security card issued to such individual pursuant to section 205(c)(2)(G) of the Social Security Act which bears a photograph of such individual and that such individual is authorized to work in the United States. Such presentation and verification shall be made in accordance with procedures prescribed by the Secretary of Homeland Security for the purposes of ensuring against fraudulent use of the card and accurate and prompt verification of the authorization of such individual to work in the United States; or (II) if the person or entity is an agricultural association, agricultural employer, or farm labor contractor (as defined in section 3 of the Migrant and Seasonal Agricultural Worker Protection Act), to hire, or to recruit or refer for a fee, for employment in the United States an individual unless the person or entity requires the employee to display a Social Security card issued to such individual pursuant to section 205(c)(2)(G) of the Social Security Act which bears a photograph of such individual and that such individual is authorized to work in the United States. Such presentation and verification shall be made in accordance with procedures prescribed by the Secretary of Homeland Security for the purposes of ensuring against fraudulent use of the card and accurate and prompt verification of the authorization of such individual to work in the United States.CommentsClose CommentsPermalink





`(ii) The verification procedures described in clause (i) shall include use of--CommentsClose CommentsPermalink





`(I) a phone verification system which shall be established by the Secretary; orCommentsClose CommentsPermalink





`(II) a card-reader verification system employing a device approved by the Secretary as capable of reading the electronic identification strip borne by the card so as to verify the identity of the card holder and the card holder's authorization to work, and which is made available at minimal cost to the person or entity.CommentsClose CommentsPermalink





`(iii) The Secretary shall ensure that the phone verification system described in subclause (I) of clause (ii) is as secure and effective as the card-reader verification system described in subclause (II) of such clause.CommentsClose CommentsPermalink





`(iv) The Secretary shall ensure that, by means of such procedures, the person or entity will have such access to the Employment Eligibility Database established and operated by the Secretary pursuant to section 303 of the Secure Borders FIRST (For Integrity, Reform, Safety, and Anti-Terrorism) Act of 2007 as to enable the person or entity to obtain information, relating to the citizenship, residency, and work eligibility of the individual, which is necessary to inform the person or entity as to whether the individual is authorized to work in the United States.CommentsClose CommentsPermalink





`(v) A person or entity that establishes that the person or entity has complied in good faith with the requirements of this subparagraph with respect to the hiring, recruiting, or referral for employment of an alien in the United States shall not be liable for hiring an unauthorized alien, if--CommentsClose CommentsPermalink





`(I) such hiring, recruitment, or referral occurred due to an error in the phone verification system, the card-reader verification system, or the Employment Eligibility Database which was unknown to the employer at the time of such hiring; andCommentsClose CommentsPermalink





`(II) the employer terminates that employment of the alien upon being informed of the error.'.CommentsClose CommentsPermalink





(b) Conforming Amendments- Section 274A of the Immigration and Nationality Act (8 U.S.C. 1324a) is amended--CommentsClose CommentsPermalink





(1) in subsection (a), by striking paragraphs (3), (5), and (6) and redesignating paragraphs (4) and (7) as paragraphs (3) and (4), respectively;CommentsClose CommentsPermalink





(2) in subsection (b)--CommentsClose CommentsPermalink





(A) by striking `Attorney General' each place such term appears and inserting `Secretary of Homeland Security';CommentsClose CommentsPermalink





(B) by amending the matter preceding paragraph (2) to read as follows:CommentsClose CommentsPermalink





`(b) Verification Forms-CommentsClose CommentsPermalink





`(1) ATTESTATION OF COMPLIANCE- The verification procedures prescribed under subsection (a)(1)(B) shall include an attestation, made under penalty of perjury and on a form designated or established by the Secretary of Homeland Security by regulation, that the employer, recruiter, or referrer has complied with such procedures.'; andCommentsClose CommentsPermalink





(C) by striking paragraph (6);CommentsClose CommentsPermalink





(3) by striking subsection (d); andCommentsClose CommentsPermalink





(4) by amending subsection (h)(3) to read as follows:CommentsClose CommentsPermalink





`(3) DEFINITIONS- For purposed of this section:CommentsClose CommentsPermalink





`(A) The term `authorized to work in the United States', when applied to an individual, means that the individual is not an unauthorized alien.CommentsClose CommentsPermalink





`(B) The term `employee' shall have the meaning given such term in section 210(j) of the Social Security Act (42 U.S.C. 410(j)).CommentsClose CommentsPermalink





`(C) 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--CommentsClose CommentsPermalink





`(i) an alien lawfully admitted for permanent residence; orCommentsClose CommentsPermalink





`(ii) authorized to be so employed by this Act or by the Secretary of Homeland Security.'.CommentsClose CommentsPermalink





(c) Effective Date- The amendments made by this section shall take effect 2 years after the date of the enactment of this Act and shall apply to employment of any individual in any capacity commencing on or after such effective date.CommentsClose CommentsPermalink

SEC. 305. COMPLIANCE.

Section 274A of the Immigration and Nationality Act (8 U.S.C. 1324a) is amended--CommentsClose CommentsPermalink





(1) in subsection (e)(4)--CommentsClose CommentsPermalink





(A) in subparagraph (A), in the matter before clause (i), by inserting `, subject to paragraphs (10) through (12),' after `in an amount';CommentsClose CommentsPermalink





(B) in subparagraph (A)(i), by striking `not less than $250 and not more than $2,000' and inserting `not less than $5,000 and not more than $7,500';CommentsClose CommentsPermalink





(C) in subparagraph (A)(ii), by striking `not less than $2,000 and not more than $5,000' and inserting `not less than $10,000 and not more than $15,000';CommentsClose CommentsPermalink





(D) in subparagraph (A)(iii), by striking `not less than $3,000 and not more than $10,000' and inserting `not less than $25,000 and not more than $40,000'; andCommentsClose CommentsPermalink





(E) by amending subparagraph (B) to read as follows:CommentsClose CommentsPermalink





`(B) may require the person or entity to take such other remedial action as is appropriate.';CommentsClose CommentsPermalink





(2) in subsection (e)(5)--CommentsClose CommentsPermalink





(A) by inserting `, subject to paragraphs (10) through (12),' after `in an amount';CommentsClose CommentsPermalink





(B) by striking `$100' and inserting `$1,000';CommentsClose CommentsPermalink





(C) by striking `$1,000' and inserting `$25,000';CommentsClose CommentsPermalink





(D) by striking `the size of the business of the employer being charged, the good faith of the employer' and inserting `the good faith of the employer being charged'; andCommentsClose CommentsPermalink





(E) by adding at the end the following sentence: `Failure by a person or entity to utilize the employment eligibility verification system as required by law, or providing information to the system that the person or entity knows or reasonably believes to be false, shall be treated as a violation of subsection (a)(1)(A).';CommentsClose CommentsPermalink





(3) by adding at the end of subsection (e) the following new paragraphs:CommentsClose CommentsPermalink





`(10) MITIGATION OF CIVIL MONEY PENALTIES FOR SMALLER EMPLOYERS- In the case of imposition of a civil penalty under paragraph (4)(A) with respect to a violation of subsection (a)(1)(A) or (a)(2) for hiring or continuation of employment by an employer and in the case of imposition of a civil penalty under paragraph (5) for a violation of subsection (a)(1)(B) for hiring by an employer, the dollar amounts otherwise specified in the respective paragraph shall be reduced as follows:CommentsClose CommentsPermalink





`(A) In the case of an employer with an average of fewer than 26 full-time equivalent employees (as defined by the Secretary of Homeland Security), the amounts shall be reduced by 60 percent.CommentsClose CommentsPermalink





`(B) In the case of an employer with an average of at least 26, but fewer than 101, full-time equivalent employees (as so defined), the amounts shall be reduced by 40 percent.CommentsClose CommentsPermalink





`(C) In the case of an employer with an average of at least 101, but fewer than 251, full-time equivalent employees (as so defined), the amounts shall be reduced by 20 percent.CommentsClose CommentsPermalink





The last sentence of paragraph (4) shall apply under this paragraph in the same manner as it applies under such paragraph.CommentsClose CommentsPermalink





`(11) EXEMPTION FROM PENALTY FOR INITIAL GOOD FAITH VIOLATION- In the case of imposition of a civil penalty under paragraph (4)(A) with respect to a violation of subsection (a)(1)(A) or (a)(2) for hiring or continuation of employment or recruitment or referral by person or entity and in the case of imposition of a civil penalty under paragraph (5) for a violation of subsection (a)(1)(B) for hiring or recruitment or referral by a person or entity, the penalty otherwise imposed shall be waived if the violator establishes that it was the first such violation of such provision by the violator and the violator acted in good faith.CommentsClose CommentsPermalink





`(12) SAFE HARBOR FOR CONTRACTORS- A person or other entity shall not be liable for a penalty under paragraph (4)(A) with respect to the violation of subsection (a)(1)(A), (a)(1)(B), or (a)(2) with respect to the hiring or continuation of employment of an unauthorized alien by a subcontractor of that person or entity unless the person or entity knew that the subcontractor hired or continued to employ such alien in violation of such subsection.'.CommentsClose CommentsPermalink





(4) by amending paragraph (1) of subsection (f) to read as follows:CommentsClose CommentsPermalink





`(1) CRIMINAL PENALTY- Any person or entity which engages in a pattern or practice of violations of subsection (a)(1) or (2) shall be fined not more than $50,000 for each unauthorized alien with respect to which such a violation occurs, imprisoned for not less than one year, or both, notwithstanding the provisions of any other Federal law relating to fine levels.'; andCommentsClose CommentsPermalink





(5) in subsection (f)(2), by striking `Attorney General' each place it appears and inserting `Secretary of Homeland Security'.CommentsClose CommentsPermalink

SEC. 306. AUTHORIZATIONS OF APPROPRIATIONS.

(a) Department of Homeland Security- Except as otherwise provided in this subtitle, there are authorized to be appropriated to the Department of Homeland Security for each fiscal year beginning on or after October 1, 2007, such sums as may be necessary to carry out this subtitle and the amendments made by this subtitle, of which not less than $100,000,000 shall be for the purpose of carrying out section 274A(a)(1)(B) of the Immigration and Nationality Act (8 U.S.C. 1324a(a)(1)(B)), as amended by section 305 of this Act.CommentsClose CommentsPermalink





(b) Social Security Administration- There are authorized to be appropriated to the Social Security Administration for each fiscal year beginning on or after October 1, 2007, such sums as are necessary to carry out the amendments made by section 302.CommentsClose CommentsPermalink

SEC. 307. RULES OF CONSTRUCTION.

(a) In General- Nothing in this subtitle shall be construed--CommentsClose CommentsPermalink





(1) to require the presentation of a Social Security card for any purpose other than--CommentsClose CommentsPermalink





(A) for the administration and enforcement of the Social Security laws of the United States; orCommentsClose CommentsPermalink





(B) for the purpose of implementing and enforcing this subtitle and the amendments made by this subtitle; orCommentsClose CommentsPermalink





(2) to require the Social Security card to be carried by an individual.CommentsClose CommentsPermalink





(b) No National Identification Card- It is the policy of the United States that the Social Security card shall not be used as a national identification card.CommentsClose CommentsPermalink

Subtitle B--Employment Eligibility Verification and Anti-Identity Theft Act

SEC. 311. SHORT TITLE.

This subtitle may be cited as the `Employment Eligibility Verification and Anti-Identity Theft Act'.CommentsClose CommentsPermalink

SEC. 312. REQUIRING AGENCIES TO SEND `NO-MATCH' LETTERS.

(a) Social Security Administration- The Commissioner of the Social Security Administration shall send a written notice to a person or entity each time that the combination of name and Social Security account number submitted by the person or entity for an individual does not match Social Security Administration records.CommentsClose CommentsPermalink





(b) Department of Homeland Security- The Secretary of Homeland Security shall send a written notice to a person or entity each time that such Secretary determines that an immigration status document or employment authorization document presented or referenced by an individual during the process of completing the attestations required by the person or entity for employment eligibility verification was assigned to another person, or that there is no agency record that the document was assigned to any person.CommentsClose CommentsPermalink

SEC. 313. REQUIRING EMPLOYERS TO TAKE ACTION UPON RECEIPT OF A `NO-MATCH' LETTER.

Beginning on the date that is 6 months after the date of the enactment of this Act, a person or entity that has received a written notice under section 312 shall, within 3 business days of receiving such notice, verify the individual's employment authorization and identity through the verification system established under section 314.CommentsClose CommentsPermalink

SEC. 314. VERIFICATION SYSTEM.

Not later than 6 months after the date of enactment of this Act, the Secretary of Homeland Security, in consultation with the Commissioner of the Social Security Administration, as appropriate, shall establish and administer a verification system through which persons or entities that have received written notice under section 312 shall verify an individual's employment authorization and identity.CommentsClose CommentsPermalink

SEC. 315. DESIGN AND OPERATION OF SYSTEM.

The verification system established under section 314 shall be designed and operated--CommentsClose CommentsPermalink





(1) to maximize its reliability and ease of use, consistent with insulating and protecting the privacy and security of the underlying information;CommentsClose CommentsPermalink





(2) to respond to all required inquiries under this subtitle regarding whether individuals are authorized to be employed and to register all times when such inquiries are not received;CommentsClose CommentsPermalink





(3) with appropriate administrative, technical, and physical safeguards to prevent unauthorized disclosure of personal information; andCommentsClose CommentsPermalink





(4) to have reasonable safeguards against the system's resulting in unlawful discriminatory practices based on national origin or citizenship status, including--CommentsClose CommentsPermalink





(A) the selective or unauthorized use of the system to verify eligibility;CommentsClose CommentsPermalink





(B) the use of the system prior to an offer of employment; orCommentsClose CommentsPermalink





(C) the exclusion of 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

SEC. 316. EXTENSION OF TIME.

If a person or entity in good faith attempts to make an inquiry during the time period specified and the verification system established under section 314 has registered that not all inquiries were received during such time, the person or entity may make an inquiry on the first subsequent working day in which the verification system registers that it has received all inquiries. If the verification system cannot receive inquiries at all times during a day, the person or entity merely has to assert that the entity attempted to make the inquiry on that day for the previous sentence to apply to such an inquiry, and does not have to provide any additional proof concerning such inquiry.CommentsClose CommentsPermalink

SEC. 317. RETENTION OF PROOF OF VERIFICATION COMPLETION.

After completion of the verification process established under section 314, a person or entity shall retain a paper, microfiche, microfilm, or electronic version of the form received through the verification process (or, in the case of a telephonic verification, a paper, microfiche, microfilm, or electronic record of the telephonic verification code number) and make it available for inspection by officers of the Department of Homeland Security, the Special Counsel for Immigration-Related Unfair Employment Practices, or the Department of Labor for 3 years after the date on which the form or telephonic verification code number was received.CommentsClose CommentsPermalink

SEC. 318. TERMINATION OF EMPLOYMENT.

(a) Burden on Individual To Resolve Errors- If a person or entity has received an initial nonverification regarding an individual from the verification system established under section 315, the person or entity shall notify the individual in writing within 1 business day of such receipt. In such notice, the person or entity shall advise the individual that the burden is on the individual to resolve any error in the verification mechanism not later than 30 days after the date on which the notice is issued. Such notice shall also state that the person or entity shall be required to verify once again the individual's employment authorization and identity through the verification system established under section 315, and to terminate any employment in the United States, and any recruitment, hiring, or referral for employment in the United States, of the individual, if a final nonverification is received.CommentsClose CommentsPermalink





(b) Additional Verification- A person or entity that has issued a notice under subsection (a) shall, within 33 business days of such issuance, verify once again the individual's employment authorization and identity through the verification system established under section 314. Sections 316 and 317 shall apply to such final verification in the same manner as such sections applied to the initial verification.CommentsClose CommentsPermalink

SEC. 319. FINAL VERIFICATION.

(a) Within 7 days of receiving final nonverification for an individual, the person or entity issued a notice under section 312(a) of this Act shall provide the Commissioner of Social Security with a copy of such individual's verification form as described in section 274A(b)(3) of the Immigration and Nationality Act (8 U.S.C. 1324a(b)(3)) in addition to any other information regarding the last known name, address, and location of such individual.CommentsClose CommentsPermalink





(b) Within 3 business days of receiving such notification, the Commissioner of Social Security shall provide such information to the Secretary of Homeland Security.CommentsClose CommentsPermalink

SEC. 320. EMPLOYER VIOLATIONS.

A person or entity shall be considered to have violated section 274A(a)(1)(A) of the Immigration and Nationality Act (8 U.S.C. 1324a(a)(1)(A)) if the person or entity--CommentsClose CommentsPermalink





(1) continues to employ in the United States, or recruits, hires, or refers for employment in the United States, an individual after receiving a final nonverification regarding an individual from the verification system established under section 314; orCommentsClose CommentsPermalink





(2) otherwise fails to take an action required under this subtitle.CommentsClose CommentsPermalink

SEC. 321. LIMITATION ON USE.

(a) In General- Notwithstanding any other provision of law, nothing in this subtitle shall be construed to permit or allow any department, bureau, or other agency of the United States Government to utilize any information, data base, or other records assembled under this subtitle for any other purpose other than as provided for under this subtitle.CommentsClose CommentsPermalink





(b) No National Identification Card- Nothing in this subtitle shall be construed to authorize, directly or indirectly, the issuance or use of national identification cards or the establishment of a national identification card.CommentsClose CommentsPermalink

SEC. 322. FEDERAL TORT CLAIMS ACT REMEDY.

If an individual alleges that the individual would not have been dismissed from a job but for an error of the verification mechanism, the individual may seek compensation only through the mechanism of chapter 171 of title 28, United States Code (popularly known as the Federal Tort Claims Act), and injunctive relief to correct such error. No class action may be brought under this subtitle.CommentsClose CommentsPermalink

SEC. 323. PROTECTION FROM LIABILITY FOR ACTIONS TAKEN ON THE BASIS OF INFORMATION.

No person or entity shall be civilly or criminally liable for any action taken in good faith reliance on information provided through the employment eligibility verification mechanism established under this subtitle.CommentsClose CommentsPermalink

Subtitle C--New IDEA (Illegal Deduction Elimination Act)

SEC. 331. SHORT TITLE.

This subtitle may be cited as the `New IDEA (Illegal Deduction Elimination Act)'.CommentsClose CommentsPermalink

SEC. 332. CLARIFICATION THAT WAGES PAID TO UNAUTHORIZED ALIENS MAY NOT BE DEDUCTED FROM GROSS INCOME.

(a) In General- Subsection (c) of section 162 of the Internal Revenue Code of 1986 (relating to illegal bribes, kickbacks, and other payments) is amended by adding at the end the following new paragraph:CommentsClose CommentsPermalink





`(4) WAGES PAID TO OR ON BEHALF OF UNAUTHORIZED ALIENS-CommentsClose CommentsPermalink





`(A) IN GENERAL- No deduction shall be allowed under subsection (a) for any wage paid to or on behalf of an unauthorized alien, as defined under section 274A(h)(3) of the Immigration and Nationality Act (8 U.S.C. 1324a(h)(3)).CommentsClose CommentsPermalink





`(B) WAGES- For the purposes of this paragraph, the term `wages' means all remuneration for employment, including the cash value of all remuneration (including benefits) paid in any medium other than cash.CommentsClose CommentsPermalink





`(C) SAFE HARBOR- If a person or other entity is participating in the basic pilot program described in section 403 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1324a note) and obtains confirmation of identity and employment eligibility in compliance with the terms and conditions of the program with respect to the hiring (or recruitment or referral) of an employee, subparagraph (A) shall not apply with respect to wages paid to such employee.'.CommentsClose CommentsPermalink





(b) 6-Year Limitation on Assessment and Collection- Subsection (c) of section 6501 of such Code (relating to exceptions) is amended by adding at the end the following new paragraph:CommentsClose CommentsPermalink





`(10) DEDUCTION CLAIMED FOR WAGES PAID TO UNAUTHORIZED ALIENS- In the case of a return of tax on which a deduction is shown in violation of section 162(c)(4), any tax under chapter 1 may be assessed, or a proceeding in court for the collection of such tax may be begun without assessment, at any time within 6 years after the return was filed.'.CommentsClose CommentsPermalink





(c) Use of Documentation for Enforcement Purposes- Section 274A of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 is amended--CommentsClose CommentsPermalink





(1) in subparagraph (b)(5), by inserting `, section 162(c)(4) of the Internal Revenue Code of 1986,' after `enforcement of this chapter';CommentsClose CommentsPermalink





(2) in subparagraph (d)(2)(F), by inserting `, section 162(c)(4) of the Internal Revenue Code of 1986,' after `enforcement of this chapter'; andCommentsClose CommentsPermalink





(3) in subparagraph (d)(2)(G), by inserting `section 162(c)(4) of the Internal Revenue Code of 1986 or' after `or enforcement of'.CommentsClose CommentsPermalink





(d) Availability of Information- The Commissioner of Social Security shall make available to the Commissioner of Internal Revenue any information related to the investigation and enforcement of section 162(c)(4) of the Internal Revenue Code of 1986, including any no-match letter and any information in the suspense earnings file.CommentsClose CommentsPermalink





(e) Effective Date-CommentsClose CommentsPermalink





(1) Except as provided in paragraph (2), this Act and the amendments made by this Act shall take effect on the date of the enactment of this Act.CommentsClose CommentsPermalink





(2) The amendments made by subsections (a) and (b) shall apply to taxable years beginning after December 31, 2007.CommentsClose CommentsPermalink

Subtitle D--Improved Security for Birth Certificates

SEC. 341. DEFINITIONS.

(a) Applicability of Definitions- Except as otherwise specifically provided, the definitions contained in section 201 of the REAL ID Act of 2005 (division B of Public Law 109-13) apply to this subtitle.CommentsClose CommentsPermalink





(b) Other Definitions- In this subtitle, the following definitions apply:CommentsClose CommentsPermalink





(1) BIRTH CERTIFICATE- The term `birth certificate' means a certificate of birth--CommentsClose CommentsPermalink





(A) for an individual (regardless of where born)--CommentsClose CommentsPermalink





(i) who is a citizen or national of the United States at birth; andCommentsClose CommentsPermalink





(ii) whose birth is registered in the United States; andCommentsClose CommentsPermalink





(B) that--CommentsClose CommentsPermalink





(i) is issued by a Federal, State, or local government agency or authorized custodian of record and produced from birth records maintained by such agency or custodian of record; orCommentsClose CommentsPermalink





(ii) is an authenticated copy, issued by a Federal, State, or local government agency or authorized custodian of record, of an original certificate of birth issued by such agency or custodian of record.CommentsClose CommentsPermalink





(2) FULL LEGAL NAME- The term `full legal name' means the complete name of the person, including the birth name as recorded in the state and or nation of birth, as applicable, and any suffixes or names appended through lawful action through marriage, adoption or lawful name change.CommentsClose CommentsPermalink





(3) REGISTRANT- The term `registrant' means, with respect to a birth certificate, the person whose birth is registered on the certificate.CommentsClose CommentsPermalink





(4) STATE- The term `State' has the the meaning given such term in section 201 of the REAL ID Act of 2005 (division B of Public Law 109-13), except that New York City shall be treated as a State separate from New York.CommentsClose CommentsPermalink

SEC. 342. APPLICABILITY OF MINIMUM STANDARDS TO LOCAL GOVERNMENTS.

The minimum standards in this subtitle applicable to birth certificates issued by a State shall also apply to birth certificates issued by a local government in the State. It shall be the responsibility of the State to ensure that local governments in the State comply with the minimum standards.CommentsClose CommentsPermalink

SEC. 343. MINIMUM STANDARDS FOR FEDERAL RECOGNITION.

(a) Minimum Standards for Federal Use-CommentsClose CommentsPermalink





(1) IN GENERAL- Beginning 3 years after the date of the enactment of this Act, a Federal agency may not accept, for any official purpose, a birth certificate issued by a State to any person unless the State is meeting the requirements of this section.CommentsClose CommentsPermalink





(2) STATE CERTIFICATIONS- The Secretary shall determine whether a State is meeting the requirements of this section based on certifications made by the State to the Secretary. Such certifications shall be made at such times and in such manner as the Secretary, in consultation with the Secretary of Health and Human Services, may prescribe by regulation.CommentsClose CommentsPermalink





(b) Minimum Document Standards- To meet the requirements of this section, a State shall include, on each birth certificate issued to a person by the State, the use of safety paper, the seal of the issuing custodian of record, and such other features as the Secretary may determine necessary to prevent tampering, counterfeiting, and otherwise duplicating the birth certificate for fraudulent purposes. The Secretary may not require a single design to which birth certificates issued by all States must conform. However, the Secretary shall require a minimum standard set of security features incorporated into birth certificates issued by all States, such as digital watermarks, so that validation of such security features can be affordably made be law enforcement officials, by motor vehicle administrators, and State and Federal officials.CommentsClose CommentsPermalink





(c) Minimum Issuance Standards-CommentsClose CommentsPermalink





(1) IN GENERAL- To meet the requirements of this section, a State shall require and verify the following information from the requestor before issuing an authenticated copy of a birth certificate:CommentsClose CommentsPermalink





(A) The name on the birth certificate.CommentsClose CommentsPermalink





(B) The date and location of the birth.CommentsClose CommentsPermalink





(C) The mother's maiden name.CommentsClose CommentsPermalink





(D) Substantial proof of the requestor's identity.CommentsClose CommentsPermalink





(E) Where available, authentication of identity through comparison with a biometric identifier.CommentsClose CommentsPermalink





(2) ISSUANCE TO PERSONS NOT NAMED ON BIRTH CERTIFICATE- To meet the requirements of this section, in the case of a request by a person who is not named on the birth certificate, a State must require the presentation of legal authorization to request the birth certificate before issuance.CommentsClose CommentsPermalink





(3) ISSUANCE TO FAMILY MEMBERS- Not later than one year after the date of the enactment of this Act, the Secretary, in consultation with the Secretary of Health and Human Services and the States, shall establish minimum standards for issuance of a birth certificate to specific family members, their authorized representatives, and others who demonstrate that the certificate is needed for the protection of the requestor's personal or property rights.CommentsClose CommentsPermalink





(4) WAIVERS- A State may waive the requirements set forth in subparagraphs (A) through (C) of subsection (c)(1) in exceptional circumstances, such as the incapacitation of the registrant.CommentsClose CommentsPermalink





(5) APPLICATIONS BY ELECTRONIC MEANS- To meet the requirements of this section, for applications by electronic means, through the mail or by phone or fax, a State shall employ third party verification, or equivalent verification, of the identity of the requestor.CommentsClose CommentsPermalink





(6) VERIFICATION OF DOCUMENTS- To meet the requirements of this section, a State shall verify the documents used to provide proof of identity of the requestor.CommentsClose CommentsPermalink





(d) Other Requirements- To meet the requirements of this section, a State shall adopt, at a minimum, the following practices in the issuance and administration of birth certificates:CommentsClose CommentsPermalink





(1) Establish and implement minimum building security standards for State and local vital record offices.CommentsClose CommentsPermalink





(2) Restrict public access to birth certificates and information gathered in the issuance process to ensure that access is restricted to entities with which the State has a binding privacy protection agreement.CommentsClose CommentsPermalink





(3) Subject all persons with access to vital records to appropriate security clearance requirements.CommentsClose CommentsPermalink





(4) Establish fraudulent document recognition training programs for appropriate employees engaged in the issuance process.CommentsClose CommentsPermalink





(5) Establish and implement internal operating system standards for paper and for electronic systems.CommentsClose CommentsPermalink





(6) Establish a central electronic database that--CommentsClose CommentsPermalink





(A) is maintained in a physically secure environment so that unauthorized access can be prevented;CommentsClose CommentsPermalink





(B) is linked through the Electronic Verification of Vital Event System (EVVES) established under section 345 or an equivalent system to provide interoperative data exchange with other States and with Federal agencies, subject to privacy restrictions and confirmation of the authority and identity of the requestor; andCommentsClose CommentsPermalink





(C) incorporates within its records, to ensure process integrity, the full legal name of any authorized requestor, the date of the request, and the relationship to the person whose birth is recorded on the birth certificate.CommentsClose CommentsPermalink





(7) Ensure that birth and death records are matched in a comprehensive and timely manner, and that all electronic birth records and paper birth certificates of decedents are marked `deceased'.CommentsClose CommentsPermalink





(8) Cooperate with the Secretary in the implementation of electronic verification of vital events under section 345.CommentsClose CommentsPermalink

SEC. 344. ESTABLISHMENT OF ELECTRONIC BIRTH AND DEATH REGISTRATION SYSTEMS.

In consultation with the Secretary of Health and Human Services and the Commissioner of Social Security, the Secretary shall take the following actions:CommentsClose CommentsPermalink





(1) Work with the States to establish a common data set and common data exchange protocol for electronic birth registration systems and death registration systems.CommentsClose CommentsPermalink





(2) Coordinate requirements for such systems to align with a national model.CommentsClose CommentsPermalink





(3) Ensure that fraud prevention is built into the design of electronic vital registration systems in the collection of vital event data, the issuance of birth certificates, and the exchange of data among government agencies.CommentsClose CommentsPermalink





(4) Ensure that electronic systems for issuing birth certificates, in the form of printed abstracts of birth records or digitized images, employ a common format of the certified copy, so that those requiring such documents can quickly confirm their validity.CommentsClose CommentsPermalink





(5) Establish uniform field requirements for State birth registries.CommentsClose CommentsPermalink





(6) Not later than 1 year after the date of the enactment of this Act, establish a process with the Department of Defense that will result in the sharing of data, with the States and the Social Security Administration, regarding deaths of United States military personnel and the birth and death of their dependents.CommentsClose CommentsPermalink





(7) Not later than 1 year after the date of the enactment of this Act, establish a process with the Department of State to improve registration, notification, and the sharing of data with the States and the Social Security Administration, regarding births and deaths of United States citizens abroad.CommentsClose CommentsPermalink





(8) Not later than 3 years after the date of establishment of databases provided for under this section, require States to record and retain electronic records of pertinent identification information collected from requestors who are not the registrants.CommentsClose CommentsPermalink





(9) Not later than 6 months after the date of the enactment of this Act, submit to Congress, a report on whether there is a need for Federal laws to address penalties for fraud and misuse of vital records and whether violations are sufficiently enforced.CommentsClose CommentsPermalink

SEC. 345. ELECTRONIC VERIFICATION OF VITAL EVENTS.

(a) Lead Agency- The Secretary shall lead the implementation of the Electronic Verification of Vital Events System for the purpose of verifying a person's birth and death.CommentsClose CommentsPermalink





(b) Regulations- In carrying out subsection (a), the Secretary shall issue regulations to establish a means by which authorized Federal and State agency users with a single interface will be able to generate an electronic query to any participating vital records jurisdiction throughout the Nation to verify the contents of a paper birth certificate. Pursuant to the regulations, an electronic response from the participating vital records jurisdiction as to whether there is a birth record in their database that matches the paper birth certificate will be returned to the user, along with an indication if the matching birth record has been flagged `deceased'. The regulations shall take effect not later than 5 years after the date of the enactment of this Act.CommentsClose CommentsPermalink

SEC. 346. GRANTS TO STATES.

(a) In General- The Secretary is authorized to award grants to States to modernize State birth and death certificate records and otherwise to satisfy the requirements of this subtitle. On an expedited basis, the Secretary shall award grants or contracts for the purpose of improving the accuracy and electronic availability of States' records of births, deaths, and of other records necessary for implementation of the Electronic Verification of Vital Events System established in section 345, and as otherwise necessary to advance the purposes of this subtitle.CommentsClose CommentsPermalink





(b) Regulation Compliance- A State that does fails to certify the State's intent to comply with the regulations issued to implement this subtitle not later than December 31, 2013, or that does not submit a compliance plan acceptable to the Secretary is not eligible for a grant under subsection (a).CommentsClose CommentsPermalink





(c) Duration- Grants may be awarded under this section during fiscal years 2008 through 2012.CommentsClose CommentsPermalink





(d) Eligible Recipients- If the Secretary of Homeland Security determines that compliance with this subtitle can best be achieved by awarding grants or contracts to a State, a group of States, a government agency, a chartered nonprofit organization, or a private entity, the Secretary may utilize funds under this section to award such grants or contracts.CommentsClose CommentsPermalink





(e) Authorization of Appropriations- There are authorized to be appropriated to the Secretary for each of the fiscal years 2008 through 2012 such sums as may be necessary to carry out this chapter.CommentsClose CommentsPermalink

SEC. 347. AUTHORITY.

(a) Participation With Federal Agencies and States- All authority to issue regulations, certify standards, and issue grants under this chapter shall be carried out by the Secretary, with the concurrence of the Secretary of Health and Human Services and in consultation with State vital statistics offices and appropriate Federal agencies.CommentsClose CommentsPermalink





(b) Extensions of Deadlines- The Secretary may grant to a State an extension of time to meet the requirements of section 329(a)(1) if the State provides adequate justification for noncompliance.CommentsClose CommentsPermalink

SEC. 348. REPEAL.

Section 7211 of Public Law 108-458 is repealed.CommentsClose CommentsPermalink

Subtitle E--Stop the Misuse of ITINs Act of 2007

SEC. 351. SHORT TITLE.

This subtitle may be cited as the `Stop the Misuse of ITINs Act of 2007'.CommentsClose CommentsPermalink

SEC. 352. NOTIFICATION OF EMPLOYMENT STATUS OF INDIVIDUALS NOT AUTHORIZED TO WORK IN THE UNITED STATES.

(a) In General- Subsection (i) of section 6103 of the Internal Revenue Code of 1986 (relating to confidentiality and disclosure of returns and return information) is amended by adding at the end the following new paragraph:CommentsClose CommentsPermalink





`(9) DISCLOSURE TO SECRETARY OF HOMELAND SECURITY OF EMPLOYMENT INFORMATION OF EMPLOYEES NOT AUTHORIZED TO BE EMPLOYED IN UNITED STATES-CommentsClose CommentsPermalink





`(A) IN GENERAL- If--CommentsClose CommentsPermalink





`(i) the Secretary receives a return from any person or entity (hereafter in this paragraph referred to as the `employer') showing wages (as defined in section 3121(a)) paid to any employee, andCommentsClose CommentsPermalink





`(ii) the TIN of such employee, as shown on such return, indicates that such employee is not authorized to be employed in the United States,CommentsClose CommentsPermalink





the Secretary shall provide electronically to the Secretary of Homeland Security the following information as shown on such return: the name, address, and TIN of such employee and the name, address, and employer identification number of the employer.CommentsClose CommentsPermalink





`(B) NOTICE TO EMPLOYER AND EMPLOYEE- Whenever the Secretary sends a notice under subparagraph (A) with respect to any employer and employee, the Secretary also shall notify the employer and the employee in writing that such employee is not authorized to be employed in the United States and that the employee's employment with the employer should be terminated not later than the 30th day after the date of the notice. Such notice shall also describe--CommentsClose CommentsPermalink





`(i) the employer's obligations under this paragraph,CommentsClose CommentsPermalink





`(ii) the employee's right under this paragraph to contest the determination that the employee is not authorized to be employed in the United States, andCommentsClose CommentsPermalink





`(iii) the procedure under this paragraph for contesting such determination.CommentsClose CommentsPermalink





`(C) Employee's RIGHT TO CONTEST-CommentsClose CommentsPermalink





`(i) NOTICE TO EMPLOYEE- If any employer receives such a notice from the Secretary with respect to an employee, the employer shall, within 3 business days after the date the employer received such notice, provide a copy of such notice to the employee.CommentsClose CommentsPermalink





`(ii) RIGHT TO CONTEST- An employee may contest the accuracy of such notice during the 30-day period beginning on the date that the employer provided the notice under clause (i) to the employee.CommentsClose CommentsPermalink





`(iii) CONTEST PROCEDURE- If, during such 30-day period, the employee provides the employer with information substantiating such employee's claimed authorization to be employed in the United States, the employer shall, in such form and manner as the Secretary shall prescribe, provide to the Secretary--CommentsClose CommentsPermalink





`(I) the employee's name, address, and taxpayer identification number,CommentsClose CommentsPermalink





`(II) the employer's name, address, telephone number, and employer identification number, andCommentsClose CommentsPermalink





`(III) the information provided by the employee to the employer substantiating such employee's authorization to be employed in the United States.CommentsClose CommentsPermalink





`(D) VERIFICATION FROM DEPARTMENT OF HOMELAND SECURITY-CommentsClose CommentsPermalink





`(i) TRANSMITTAL OF INQUIRY- Within 3 business days after receiving the information described in subparagraph (C)(iii), the Secretary shall provide such information electronically to the Secretary of Homeland Security.CommentsClose CommentsPermalink





`(ii) RESPONSE- Within 7 business days after receiving such information, the Secretary of Homeland Security shall electronically notify the Secretary, and shall notify the employer and employee in writing, as to whether the employee is authorized to be employed in the United States.CommentsClose CommentsPermalink





`(E) SUSPENSION OF OBLIGATION TO TERMINATE EMPLOYMENT UNTIL RESPONSE RECEIVED-CommentsClose CommentsPermalink





`(i) IN GENERAL- Except as provided in clause (ii), if the employee meets the requirement of subparagraph (C)(iii), the employer's obligation to terminate the employment of such employee shall be suspended until the employer receives the notice described in subparagraph (D)(ii).CommentsClose CommentsPermalink





`(ii) TIMELY RESPONSE NOT RECEIVED- If the employer does not receive such notice before the 30th day after the close such 30-day period, the employer shall so notify the Secretary.CommentsClose CommentsPermalink





`(F) REBUTTABLE PRESUMPTION OF VIOLATION OF THE IMMIGRATION AND NATIONALITY ACT-CommentsClose CommentsPermalink





`(i) IN GENERAL- A rebuttable presumption is created that the employer has violated section 274A(a)(1)(A) of the Immigration and Nationality Act if--CommentsClose CommentsPermalink





`(I) the employer employs an individual with respect to whom a notice is received under subparagraph (B) after the 30 days described in such subparagraph,CommentsClose CommentsPermalink





`(II) the employer fails to notify the Secretary as required by subparagraph (E)(ii) and employs such individual, orCommentsClose CommentsPermalink





`(III) the employer refers the individual for employment after receiving a notice under subparagraph (B) with respect to such individual.CommentsClose CommentsPermalink





`(ii) EXCEPTIONS-CommentsClose CommentsPermalink





`(I) SUSPENSION PERIOD- Clause (i)(I) shall not apply during the suspension period described in subparagraph (E)(i).CommentsClose CommentsPermalink





`(II) NOTICE FROM SECRETARY OF HOMELAND SECURITY- Clause (i) shall cease to apply with respect to an individual after the date that the employer is notified by the Secretary of Homeland Security that such individual is authorized to be employed in the United States.CommentsClose CommentsPermalink





`(G) REFUNDS DENIED- No refund of any tax imposed by this shall be made to any individual for any taxable year during any portion of which such individual is employed in the United States without being authorized to be so employed.CommentsClose CommentsPermalink





`(H) SPECIAL RULES-CommentsClose CommentsPermalink





`(i) PROTECTION FROM LIABILITY- No employer shall be civilly or criminally liable under any law for any action taken in good faith reliance on information provided by the Secretary or the Secretary of Homeland Security with respect to any individual's eligibility to be employed in the United States.CommentsClose CommentsPermalink





`(ii) TIMELY MAILING TREATED AS TIMELY NOTICE- Rules similar to the rules of section 7502 shall apply for purposes of this section.CommentsClose CommentsPermalink





`(iii) LAST KNOWN ADDRESS OF EMPLOYEE- Any notice required to be provided to an employee under this section shall be sufficient if mailed to the employee at the last known address of the employee.'.CommentsClose CommentsPermalink





(b) Conforming Amendment- Paragraph (4) of section 6103(p) of such Code is amended by striking `(5) or (7)' each place it appears and inserting `(5), (7), or (9)'.CommentsClose CommentsPermalink





(c) Effective Date- The amendments made by this section shall apply to returns received more than 180 days after the date of the enactment of this Act.CommentsClose CommentsPermalink

Subtitle F--Miscellaneous

SEC. 361. SHARING OF SOCIAL SECURITY DATA FOR IMMIGRATION ENFORCEMENT PURPOSES.

(a) Social Security Account Numbers- Section 264(f) of the Immigration and Nationality Act (8 U.S.C. 1304(f)) is amended to read as follows:CommentsClose CommentsPermalink





`(f) Notwithstanding any other provision of law (including section 6103 of the Internal Revenue Code of 1986), the Secretary of Homeland Security, the Secretary of Labor, and the Attorney General are authorized to require an individual to provide the individual's social security account number for purposes of inclusion in any record of the individual maintained by either such Secretary or the Attorney General, or of inclusion in any application, document, or form provided under or required by the immigration laws.'.CommentsClose CommentsPermalink





(b) Exchange of Information- Section 290(c) of the Immigration and Nationality Act (8 U.S.C. 1360(c)) is amended by striking paragraph (2) and inserting the following new paragraphs:CommentsClose CommentsPermalink





`(2)(A) Notwithstanding any other provision of law (including section 6103 of the Internal Revenue Code of 1986), if earnings are reported on or after January 1, 1997, to the Social Security Administration on a social security account number issued to an alien not authorized to work in the United States, the Commissioner of Social Security shall provide the Secretary of Homeland Security with information regarding the name, date of birth, and address of the alien, the name and address of the person reporting the earnings, and the amount of the earnings.CommentsClose CommentsPermalink





`(B) The information described in subparagraph (A) shall be provided in an electronic form agreed upon by the Commissioner and the Secretary.CommentsClose CommentsPermalink





`(3)(A) Notwithstanding any other provision of law (including section 6103 of the Internal Revenue Code of 1986), if a social security account number was used with multiple names, the Commissioner of Social Security shall provide the Secretary of Homeland Security with information regarding the name, date of birth, and address of each individual who used that social security account number, and the name and address of the person reporting the earnings for each individual who used that social security account number.CommentsClose CommentsPermalink





`(B) The information described in subparagraph (A) shall be provided in an electronic form agreed upon by the Commissioner and the Secretary for the sole purpose of enforcing the immigration laws.CommentsClose CommentsPermalink





`(C) The Secretary, in consultation with the Commissioner, may limit or modify the requirements of this paragraph, as appropriate, to identify the cases posing the highest possibility of fraudulent use of social security account numbers related to violation of the immigration laws.CommentsClose CommentsPermalink





`(4)(A) Notwithstanding any other provision of law (including section 6103 of the Internal Revenue Code of 1986), if more than one person reports earnings for an individual during a single tax year, the Commissioner of Social Security shall provide the Secretary of Homeland Security information regarding the name, date of birth, and address of the individual, and the name and address of the each person reporting earnings for that individual.CommentsClose CommentsPermalink





`(B) The information described in subparagraph (A) shall be provided in an electronic form agreed upon by the Commissioner and the Secretary for the sole purpose of enforcing the immigration laws.CommentsClose CommentsPermalink





`(C) The Secretary, in consultation with the Commissioner, may limit or modify the requirements of this paragraph, as appropriate, to identify the cases posing the highest possibility of fraudulent use of social security account numbers related to violation of the immigration laws.CommentsClose CommentsPermalink





`(5)(A) The Commissioner of Social Security shall perform, at the request of the Secretary of Homeland Security, a search or manipulation of records held by the Commissioner if the Secretary certifies that the purpose of the search or manipulation is to obtain information that is likely to assist in identifying individuals (and their employers) who are using false names or social security account numbers, who are sharing a single valid name and social security account number among multiple individuals, who are using the social security account number of a person who is deceased, too young to work, or not authorized to work, or who are otherwise engaged in a violation of the immigration laws. The Commissioner shall provide the results of such search or manipulation to the Secretary, notwithstanding any other provision law (including section 6103 of the Internal Revenue Code of 1986).CommentsClose CommentsPermalink





`(B) The Secretary shall transfer to the Commissioner the funds necessary to cover the costs directly incurred by the Commissioner in carrying out each search or manipulation requested by the Secretary under subparagraph (A).'.CommentsClose CommentsPermalink





(c) False Claims of Citizenship by Nationals of the United States- Section 212(a)(6)(C)(ii)(I) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(6)(C)(ii)(I)) is amended by inserting `or national' after `citizen'.CommentsClose CommentsPermalink

SEC. 362. ADDITIONAL WORKSITE ENFORCEMENT AND FRAUD DETECTION AGENTS.

(a) Worksite Enforcement- The Secretary of Homeland Security shall, subject to the availability of appropriations for such purpose, annually increase, by not fewer than 2,000, the number of positions dedicated to enforcing compliance with sections 274 and 274A of the Immigration and Nationality Act (8 U.S.C. 1324 and 1324a) during the five year period beginning on October 1, 2008.CommentsClose CommentsPermalink





(b) Fraud Detection- The Secretary of Homeland Security shall, subject to the availability of appropriations for such purpose, increase by not fewer than 1,000 the number of positions for Immigration Enforcement Agents dedicated to immigration fraud detection during the five year period beginning on October 1, 2008.CommentsClose CommentsPermalink





(c) Authorization of Appropriations- There are authorized to be appropriated to the Secretary of Homeland Security for each of fiscal years 2008 through 2012 such sums as may be necessary to carry out this section.CommentsClose CommentsPermalink

TITLE IV--TEMPORARY AGRICULTURAL WORKER PROGRAM

SEC. 401. ADMISSION OF TEMPORARY H-2A WORKERS.

(a) Procedure for Admission- Section 218 of the Immigration and Nationality Act (8 U.S.C. 1188) is amended to read as follows:CommentsClose CommentsPermalink

`ADMISSION OF TEMPORARY H-2A WORKERS

`Sec. 218. (a) Definitions- In this section:CommentsClose CommentsPermalink





`(1) AREA OF EMPLOYMENT- The term `area of employment' means the area within normal commuting distance of the worksite or physical location where the work of the H-2A worker is or will be performed. If such work site or location is within a Metropolitan Statistical Area, any place within such area shall be considered to be within the area of employment.CommentsClose CommentsPermalink





`(2) DISPLACE- The term `displace' means to lay off a worker from a job that is essentially equivalent to the job for which an H-2A worker is sought. A job shall not be considered to be `essentially equivalent' to another job unless the job--CommentsClose CommentsPermalink





`(A) involves essentially the same responsibilities as such other job;CommentsClose CommentsPermalink





`(B) was held by a United States worker with substantially equivalent qualifications and experience; andCommentsClose CommentsPermalink





`(C) is located in the same area of employment as the other job.CommentsClose CommentsPermalink





`(3) ELIGIBLE INDIVIDUAL- The term `eligible individual' means an individual who is not an unauthorized alien (as defined in section 274A(h)(3)) with respect to the employment of the individual.CommentsClose CommentsPermalink





`(4) EMPLOYER- The term `employer' means an employer who hires workers to perform agricultural employment.CommentsClose CommentsPermalink





`(5) H-2A WORKER- The term `H-2A worker' means a nonimmigrant described in section 101(a)(15)(H)(ii)(a).CommentsClose CommentsPermalink





`(6) LAY OFF-CommentsClose CommentsPermalink





`(A) IN GENERAL- The term `lay off'--CommentsClose CommentsPermalink





`(i) means to cause a 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 (other than a temporary employment contract entered into in order to evade a condition described in paragraph (3) or (7) of subsection (b)); andCommentsClose 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 subsection (h)(2), with either employer described in such subsection) 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) CONSTRUCTION- Nothing in this paragraph is intended to limit an employee's rights under a collective bargaining agreement or other employment contract.CommentsClose CommentsPermalink





`(7) PREVAILING WAGE- The term `prevailing wage' means the wage rate that includes the 51st percentile of employees with similar experience and qualifications in the agricultural occupation in the area of intended employment, calculated using the same methodology used by the Department of Labor to determine prevailing wage for the purpose of the program described in section 101(a)(15)(H)(ii)(b) during 2007, and expressed in terms of the prevailing method of pay for the occupation in the area of intended employment.CommentsClose CommentsPermalink





`(8) UNITED STATES WORKER- The term `United States worker' means any worker who is--CommentsClose CommentsPermalink





`(A) a national of the United States; orCommentsClose CommentsPermalink





`(B) a person admitted for permanent resident status under section 245 of the Immigration and Nationality Act (8 U.S.C. 1255).CommentsClose CommentsPermalink





`(b) Petition- An alien may not be admitted as an H-2A worker unless an employer has filed with the Secretary of Homeland Security a petition attesting to the following:CommentsClose CommentsPermalink





`(1) TEMPORARY WORK OR SERVICES-CommentsClose CommentsPermalink





`(A) IN GENERAL- The employer is seeking to employ a specific number of agricultural workers on a temporary basis and will provide compensation to such workers at a specified wage rate and under specified conditions.CommentsClose CommentsPermalink





`(B) DEFINITION- For purposes of this paragraph, a worker is employed on a temporary basis if the employer intends to employ the worker for no longer than 10 months during any contract period.CommentsClose CommentsPermalink





`(2) BENEFITS, WAGES, AND WORKING CONDITIONS- The employer will provide, at a minimum, the benefits, wages, and working conditions required by subsection (j) to all workers employed in the jobs for which the H-2A worker is sought and to all other temporary workers in the same occupation at the place of employment.CommentsClose CommentsPermalink





`(3) 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 of the H-2A worker and during the 30-day period immediately preceding such period of employment in the occupation at the place of employment for which the employer seeks approval to employ H-2A workers.CommentsClose CommentsPermalink





`(4) RECRUITMENT-CommentsClose CommentsPermalink





`(A) IN GENERAL- The employer--CommentsClose CommentsPermalink





`(i) conducted adequate recruitment in the area of intended employment before filing the attestation; andCommentsClose CommentsPermalink





`(ii) was unsuccessful in locating a qualified United States worker for the job opportunity for which the H-2A worker is sought.CommentsClose CommentsPermalink





`(B) OTHER REQUIREMENTS- The recruitment requirement under subparagraph (A) is satisfied if the employer places--CommentsClose CommentsPermalink





`(i) a local job order with the State workforce agency serving the local area where the work will be performed, except that nothing in this clause shall require the employer to file an interstate job order under section 653 of title 20, Code of Federal Regulations; andCommentsClose CommentsPermalink





`(ii) a Sunday advertisement in a newspaper of general circulation in the area of intended employment.CommentsClose CommentsPermalink





`(C) ADVERTISEMENT REQUIREMENT- The advertisement requirement under subparagraph (B)(ii) is satisfied if the advertisement--CommentsClose CommentsPermalink





`(i) names the employer;CommentsClose CommentsPermalink





`(ii) directs applicants to contact the employer;CommentsClose CommentsPermalink





`(iii) provides a description of the vacancy that is specific enough to apprise United States workers of the job opportunity for which certification is sought;CommentsClose CommentsPermalink





`(iv) describes the geographic area with enough specificity to apprise applicants of any travel requirements and where applicants will likely have to reside to perform the job; andCommentsClose CommentsPermalink





`(v) states the rate of pay, which shall not be less than the wage paid for the occupation in the area of intended employment.CommentsClose CommentsPermalink





`(D) END OF RECRUITMENT REQUIREMENT- The requirement to recruit United States workers shall terminate on the first day of the contract period that work begins.CommentsClose CommentsPermalink





`(5) OFFERS TO UNITED STATES WORKERS- The employer has offered or will offer the job for which the H-2A worker is sought to any eligible United States worker who--CommentsClose CommentsPermalink





`(A) applies;CommentsClose CommentsPermalink





`(B) is qualified for the job; andCommentsClose CommentsPermalink





`(C) will be available at the time and place of need.CommentsClose CommentsPermalink





`(6) PROVISION OF INSURANCE- If the job for which the H-2A worker is sought is not covered by 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 workers' compensation law for comparable employment.CommentsClose CommentsPermalink





`(7) REQUIREMENTS FOR PLACEMENT OF H-2A WORKERS WITH OTHER EMPLOYERS- A nonimmigrant who is admitted into the United States as an H-2A worker may be transferred to another employer that has certified to the Secretary of Homeland Security that it has filed a petition under this subsection and is in compliance with this section. The Secretary of Homeland Security shall establish a process for the approval and reissuance of visas for such transferred H-2A workers as necessary.CommentsClose CommentsPermalink





`(8) STRIKE OR LOCKOUT- There is not a strike or lockout in the course of a labor dispute which, under regulations promulgated by the Secretary of Labor, precludes the hiring of H-2A workers.CommentsClose CommentsPermalink





`(9) PREVIOUS VIOLATIONS- The employer has not, during the previous two-year period, employed H-2A workers and knowingly violated a material term or condition of approval with respect to the employment of domestic or nonimmigrant workers, as determined by the Secretary of Labor after notice and opportunity for a hearing.CommentsClose CommentsPermalink





`(c) Public Examination- Not later than 1 working day after the date on which a petition under this section is filed, the employer shall make a copy of each such petition available for public examination, at the employer's principal place of business or worksite.CommentsClose CommentsPermalink





`(d) List-CommentsClose CommentsPermalink





`(1) IN GENERAL- The Secretary of Homeland Security shall maintain a list of the petitions filed under subsection (b), which shall--CommentsClose CommentsPermalink





`(A) be sorted by employer; andCommentsClose CommentsPermalink





`(B) include the number of H-2A workers sought, the wage rate, the period of intended employment, and the date of need for each alien.CommentsClose CommentsPermalink





`(2) AVAILABILITY- The Secretary of Homeland Security shall, at least monthly, submit a copy of the list described in paragraph (1) to the Secretary of Labor, who shall make the list available for public examination.CommentsClose CommentsPermalink





`(e) Petitioning for Admission-CommentsClose CommentsPermalink





`(1) IN GENERAL- 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 shall file with the Secretary of Homeland Security a petition that includes the attestations described in subsection (b).CommentsClose CommentsPermalink





`(2) CONSIDERATION OF PETITIONS- For each petition filed and considered under this subsection--CommentsClose CommentsPermalink





`(A) the Secretary of Homeland Security may not require such petition to be filed more than 28 days before the first date the employer requires the labor or services of the H-2A worker; andCommentsClose CommentsPermalink





`(B) unless the Secretary of Homeland Security determines that the petition is incomplete or obviously inaccurate, the Secretary, not later than 7 days after the date on which such petition was filed, shall either approve or reject the petition.CommentsClose CommentsPermalink





`(3) EXPEDITED ADJUDICATION- The Secretary of Homeland Security shall--CommentsClose CommentsPermalink





`(A) establish a procedure for expedited adjudication of petitions filed under this subsection; andCommentsClose CommentsPermalink





`(B) not later than 7 working days after such filing, transmit, by fax, cable, or other means assuring expedited delivery, a copy of notice of action on the petition--CommentsClose CommentsPermalink





`(i) in the case of approved petitions, to the petitioner, the Secretary of Labor, and to the appropriate immigration officer at the port of entry or United States consulate where the petitioner has indicated that the alien beneficiary or beneficiaries will apply for a visa or admission to the United States; andCommentsClose CommentsPermalink





`(ii) in the case of denied petitions, to the petitioner, including reasons for the denial and instructions on how to appeal such denial.CommentsClose CommentsPermalink





`(4) PETITION AGREEMENTS- By filing an H-2A petition, a petitioner and each employer consents to allow access to the site where the labor is being performed to the Department of Labor, the Department of Homeland Security, or a State agency for the purpose of investigations to determine compliance with H-2A requirements.CommentsClose CommentsPermalink





`(f) Roles of Agricultural Associations-CommentsClose CommentsPermalink





`(1) PERMITTING FILING BY AGRICULTURAL ASSOCIATIONS- A petition to hire an alien as a temporary agricultural worker may be filed by an association of agricultural employers which use agricultural services.CommentsClose CommentsPermalink





`(2) TREATMENT OF ASSOCIATIONS ACTING AS EMPLOYERS- If an association is a joint or sole employer of temporary agricultural workers, such workers may be transferred among its members to perform agricultural services of a temporary nature for which the petition was approved.CommentsClose CommentsPermalink





`(3) TREATMENT OF VIOLATIONS-CommentsClose CommentsPermalink





`(A) INDIVIDUAL MEMBER- If an individual member of a joint employer association violates any condition for approval with respect to the member's petition, the Secretary of Homeland Security shall deny such petition only with respect to that member of the association unless the Secretary of Labor determines that the association or other member participated in, had knowledge of, or had reason to know of the violation.CommentsClose CommentsPermalink





`(B) ASSOCIATION OF AGRICULTURAL EMPLOYERS-CommentsClose CommentsPermalink





`(i) JOINT EMPLOYER- If an association representing agricultural employers as a joint employer violates any condition for approval with respect to the association's petition, the Secretary of Homeland Security shall deny such petition only with respect to the association and may not apply the denial to any individual member of the association, unless the Secretary of Labor determines that the member participated in, had knowledge of, or had reason to know of the violation.CommentsClose CommentsPermalink





`(ii) SOLE EMPLOYER- If an association of agricultural employers approved as a sole employer violates any condition for approval with respect to the association's petition, no individual member of such association may be the beneficiary of the services of temporary alien agricultural workers admitted under this section in the occupation in which such aliens were employed by the association which was denied approval during the period such denial is in force, unless such member employs such aliens in the occupation in question directly or through an association which is a joint employer of such workers with the member.CommentsClose CommentsPermalink





`(g) Expedited Administrative Appeals- The Secretary of Homeland Security shall promulgate regulations to provide for an expedited procedure--CommentsClose CommentsPermalink





`(1) for the review of a denial of a petition under this section by the Secretary; orCommentsClose CommentsPermalink





`(2) at the petitioner's request, for a de novo administrative hearing respecting the denial.CommentsClose CommentsPermalink





`(h) Miscellaneous Provisions-CommentsClose CommentsPermalink





`(1) ENDORSEMENT OF DOCUMENTS- The Secretary of Homeland Security shall provide for the endorsement of entry and exit documents of H-2A workers as may be necessary to carry out this section and to provide notice for purposes of section 274A.CommentsClose CommentsPermalink





`(2) PREEMPTION OF STATE LAWS- The provisions of subsections (a) and (c) of section 214 and the provisions of this section preempt any State or local law regulating admissibility of nonimmigrant workers.CommentsClose CommentsPermalink





`(3) FEES-CommentsClose CommentsPermalink





`(A) IN GENERAL- The Secretary of Homeland Security may require, as a condition of approving the petition, the payment of a fee, in accordance with subparagraph (B), to recover the reasonable cost of processing petitions.CommentsClose CommentsPermalink





`(B) FEE BY TYPE OF EMPLOYEE-CommentsClose CommentsPermalink





`(i) SINGLE EMPLOYER- An employer whose petition for temporary alien agricultural workers is approved shall, for each approved petition, pay a fee that--CommentsClose CommentsPermalink





`(I) subject to subclause (II), is equal to $100 plus $10 for each approved H-2A worker; andCommentsClose CommentsPermalink





`(II) does not exceed $1,000.CommentsClose CommentsPermalink





`(ii) ASSOCIATION- Each employer-member of a joint employer association whose petition for H-2A workers is approved shall, for each such approved petition, pay a fee that--CommentsClose CommentsPermalink





`(I) subject to subclause (II), is equal to $100 plus $10 for each approved H-2A worker; andCommentsClose CommentsPermalink





`(II) does not exceed $1,000.CommentsClose CommentsPermalink





`(iii) LIMITATION ON ASSOCIATION FEES- A joint employer association under clause (ii) shall not be charged a separate fee.CommentsClose CommentsPermalink





`(C) METHOD OF PAYMENT- The fees collected under this paragraph shall be paid by check or money order to the Department of Homeland Security. In the case of employers of H-2A workers that are members of a joint employer association petitioning applying on their behalf, the aggregate fees for all employers of H-2A workers under the petition may be paid by 1 check or money order.CommentsClose CommentsPermalink





`(4) EMPLOYMENT VERIFICATION PROGRAM-CommentsClose CommentsPermalink





`(A) IN GENERAL- Not later than 12 months after the date of enactment of this paragraph, the Secretary of Homeland Security shall establish a mandatory employment verification program for all employers of H-2A workers to verify the eligibility of all individuals hired by each such employer, including those who present an H-2A visa to work in the United States.CommentsClose CommentsPermalink





`(B) EMPLOYER COMPLIANCE- Each employer of an H-2A worker shall comply with the requirements promulgated by the Secretary of Homeland Security to verify the identity and employment eligibility of all individuals hired.CommentsClose CommentsPermalink





`(C) REGULATIONS- In carrying out the program under this paragraph, the Secretary of Homeland Security shall promulgate regulations to require each employer to verify the employment eligibility of each employee hired through--CommentsClose CommentsPermalink





`(i) a secure Internet site;CommentsClose CommentsPermalink





`(ii) a machine capable of reading the H-2A visa, which shall serve as the identification and employment eligibility document for each H-2A alien; orCommentsClose CommentsPermalink





`(iii) a toll-free telephone number to check the accuracy of any social security number presented to the employer.CommentsClose CommentsPermalink





`(i) Enforcement-CommentsClose CommentsPermalink





`(1) INVESTIGATIONS AND AUDITS- The Secretary of Labor shall be responsible for conducting investigations and random audits of employer work sites to ensure compliance with the requirements of the H-2A program and all other requirements under this Act. All monetary fines levied against violating employers shall be paid to the Department of Labor and used to enhance the Department of Labor's investigatory and auditing power.CommentsClose CommentsPermalink





`(2) FAILURE TO MEET CONDITIONS- If the Secretary of Labor finds, after notice and opportunity for a hearing, a failure to meet a condition of subsection (a), or a material misrepresentation of fact in a petition under subsection (a)--CommentsClose CommentsPermalink





`(A) the Secretary of Labor--CommentsClose CommentsPermalink





`(i) shall notify the Secretary of Homeland Security of such finding; andCommentsClose CommentsPermalink





`(ii) 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





`(B) the Secretary of Homeland Security may disqualify the employer from the employment of H-2A workers for a period of 1 year.CommentsClose CommentsPermalink





`(3) PENALTIES FOR WILLFUL FAILURE- If the Secretary of Labor finds, after notice and opportunity for a hearing, a willful failure to meet a material condition of subsection (a), or a willful misrepresentation of a material fact in a petition under subsection (a)--CommentsClose CommentsPermalink





`(A) the Secretary of Labor--CommentsClose CommentsPermalink





`(i) shall notify the Secretary of Homeland Security of such finding; andCommentsClose CommentsPermalink





`(ii) 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





`(B) the Secretary of Homeland Security may--CommentsClose CommentsPermalink





`(i) disqualify the employer from the employment of H-2A workers for a period of 2 years;CommentsClose CommentsPermalink





`(ii) for a second violation, the Secretary of Homeland Security may disqualify the employer from the employment of H-2A workers for a period of 5 years; andCommentsClose CommentsPermalink





`(iii) for a third violation, the Secretary of Homeland Security may permanently disqualify the employer from the employment of H-2A workers.CommentsClose CommentsPermalink





`(4) PENALTIES FOR DISPLACEMENT OF UNITED STATES WORKERS- If the Secretary of Labor finds, after notice and opportunity for a hearing, a willful failure to meet a material condition of subsection (a) or a willful misrepresentation of a material fact in a petition under subsection (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 petition under subsection (a) or during the period of 30 days preceding such period of employment--CommentsClose CommentsPermalink





`(A) the Secretary of Labor--CommentsClose CommentsPermalink





`(i) shall notify the Secretary of Homeland Security of such finding; andCommentsClose CommentsPermalink





`(ii) 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





`(B) the Secretary of Homeland Security may--CommentsClose CommentsPermalink





`(i) disqualify the employer from the employment of H-2A workers for a period of 5 years; andCommentsClose CommentsPermalink





`(ii) for a second violation, permanently disqualify the employer from the employment of H-2A workers.CommentsClose CommentsPermalink





`(5) LIMITATIONS ON CIVIL MONEY PENALTIES- The Secretary of Labor may not impose total civil money penalties with respect to a petition under subsection (b) in excess of $90,000.CommentsClose CommentsPermalink





`(j) Failure To Pay Wages or Required Benefits-CommentsClose CommentsPermalink





`(1) ASSESSMENT- If the Secretary of Labor finds, after notice and opportunity for a hearing, that the employer has failed to pay the wages, transportation, subsistence reimbursement, or guarantee of employment attested by the employer under subsection (b)(2), 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.CommentsClose CommentsPermalink





`(2) AMOUNT- The back wages or other required benefits described in paragraph (1)--CommentsClose CommentsPermalink





`(A) shall be equal to the difference between the amount that should have been paid and the amount that was paid to such worker; andCommentsClose CommentsPermalink





`(B) shall be distributed to the worker to whom such wages are due.CommentsClose CommentsPermalink





`(k) Minimum Wages, Benefits, and Working Conditions-CommentsClose CommentsPermalink





`(1) PREFERENTIAL TREATMENT OF ALIENS PROHIBITED-CommentsClose CommentsPermalink





`(A) IN GENERAL- Each employer seeking to hire United States workers shall offer such workers not less than the same benefits, wages, and working conditions that the employer is offering, intends to offer, or will provide to H-2A workers. 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) INTERPRETATION- Every interpretation and determination made under this section or under any other law, regulation, or interpretative provision regarding the nature, scope, and timing of the provision of these and any other benefits, wages, and other terms and conditions of employment shall be made so that--CommentsClose CommentsPermalink





`(i) the services of workers to their employers and the employment opportunities afforded to workers by the employers, including those employment opportunities that require United States workers or H-2A workers to travel or relocate in order to accept or perform employment--CommentsClose CommentsPermalink





`(I) mutually benefit such workers, as well as their families, and employers; andCommentsClose CommentsPermalink





`(II) principally benefit neither employer nor employee; andCommentsClose CommentsPermalink





`(ii) employment opportunities within the United States benefit the United States economy.CommentsClose CommentsPermalink





`(2) REQUIRED WAGES-CommentsClose CommentsPermalink





`(A) IN GENERAL- Each employer petitioning for workers under subsection (b) shall pay not less than the greater of--CommentsClose CommentsPermalink





`(i) the prevailing wage to all workers in the occupation for which the employer has petitioned for workers; orCommentsClose CommentsPermalink





`(ii) the applicable State minimum wage.CommentsClose CommentsPermalink





`(B) DETERMINATION OF WAGES- An employer seeking to comply with subparagraph (A) may--CommentsClose CommentsPermalink





`(i) request and obtain a prevailing wage determination from the State employment agency; orCommentsClose CommentsPermalink





`(ii) rely on other wage information, including a survey of the prevailing wages of workers in the occupation in the area of employment that has been conducted or funded by the employer or a group of employers, using the methodology used by the Secretary of Labor to establish Occupational Employment and Wage estimate, or another methodology approved by the Secretary of Labor for the purpose of determining H-2A wages.CommentsClose CommentsPermalink





`(C) COMPLIANCE- An employer shall be considered to have complied with the requirement under subparagraph (A) if the employer--CommentsClose CommentsPermalink





`(i)(I) obtains a prevailing wage determination under subparagraph (C)(i); orCommentsClose CommentsPermalink





`(II) relies on a qualifying survey of prevailing wages; andCommentsClose CommentsPermalink





`(ii) pays such prevailing wage.CommentsClose CommentsPermalink





`(3) REIMBURSEMENT OF TRANSPORTATION COSTS-CommentsClose CommentsPermalink





`(A) REQUIREMENT FOR REIMBURSEMENT- An H-2A worker who completes 50 percent of the period of employment of the job for which the worker was hired, beginning on the first day of such employment, shall be reimbursed by the employer for the cost of the worker's transportation and subsistence from--CommentsClose CommentsPermalink





`(i) the place from which the H-2A worker was approved to enter the United States to the location at which the work for the employer is performed; orCommentsClose CommentsPermalink





`(ii) if the H-2A worker traveled from a place in the United States at which the H-2A worker was last employed, from such place of last employment to the location at which the work for the employer is performed.CommentsClose CommentsPermalink





`(B) TIMING OF REIMBURSEMENT- Reimbursement to the worker of expenses for the cost of the worker's transportation and subsistence to the place of employment under subparagraph (A) shall be considered timely if such reimbursement is made not later than the worker's first regular payday after a worker completes 50 percent of the period of employment of the job opportunity as provided under this paragraph.CommentsClose CommentsPermalink





`(C) ADDITIONAL REIMBURSEMENT- 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 work site to the place where the worker was approved to enter the United States to work for the employer. If the worker has contracted with a subsequent employer, the previous and subsequent employer shall share the cost of the worker's transportation and subsistence from work site to work site.CommentsClose CommentsPermalink





`(D) LIMITATION-CommentsClose CommentsPermalink





`(i) AMOUNT OF REIMBURSEMENT- The amount of reimbursement provided to a worker or alien under this paragraph shall be equal to 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.CommentsClose CommentsPermalink





`(E) REIMBURSEMENT FOR LAID OFF WORKERS- If the worker is laid off or employment is terminated for contract impossibility (as described in paragraph (5)(D)) before the anticipated ending date of employment, the employer shall provide--CommentsClose CommentsPermalink





`(i) the transportation and subsistence required under subparagraph (C); andCommentsClose CommentsPermalink





`(ii) notwithstanding whether the worker has completed 50 percent of the period of employment, the transportation reimbursement required under subparagraph (A).CommentsClose CommentsPermalink





`(F) CONSTRUCTION- Nothing in this paragraph shall be construed to require an employer to reimburse visa, passport, consular, or international bordercrossing fees or any other fees associated with the H-2A worker's lawful admission into the United States to perform employment that may be incurred by the worker.CommentsClose CommentsPermalink





`(4) EMPLOYMENT GUARANTEE-CommentsClose CommentsPermalink





`(A) IN GENERAL-CommentsClose CommentsPermalink





`(i) REQUIREMENT- Each employer petitioning for workers under subsection (b) shall guarantee to offer the worker employment for the hourly equivalent of not less than 75 percent of the work hours during the total anticipated 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.CommentsClose CommentsPermalink





`(ii) FAILURE TO MEET GUARANTEE- If the employer affords the United States worker or the H-2A worker less employment than that required under this subparagraph, the employer shall pay such worker the amount which the worker would have earned if the worker had worked for the guaranteed number of hours.CommentsClose CommentsPermalink





`(iii) PERIOD OF EMPLOYMENT- For purposes of this subparagraph, the term `period of employment' means the total number of anticipated work hours and workdays described in the job offer and shall exclude the worker's Sabbath and Federal holidays.CommentsClose CommentsPermalink





`(B) CALCULATION OF HOURS- 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) LIMITATION- 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 75 percent guarantee described in subparagraph (A).CommentsClose CommentsPermalink





`(D) TERMINATION OF EMPLOYMENT-CommentsClose CommentsPermalink





`(i) IN GENERAL- If, before the expiration of the period of employment specified in the job offer, the services of the worker are no longer required due to any form of natural disaster, including flood, hurricane, freeze, earthquake, fire, drought, plant or animal disease, pest infestation, regulatory action, or any other reason beyond the control of the employer before the employment guarantee in subparagraph (A) is fulfilled, the employer may terminate the worker's employment.CommentsClose CommentsPermalink





`(ii) REQUIREMENTS- If a worker's employment is terminated under clause (i), the employer shall--CommentsClose CommentsPermalink





`(I) fulfill the employment guarantee in subparagraph (A) for the work days that have elapsed during the period beginning on the first work day after the arrival of the worker and ending on the date on which such employment is terminated; andCommentsClose CommentsPermalink





`(II) make efforts to transfer the United States worker to other comparable employment acceptable to the worker.CommentsClose CommentsPermalink





`(l) Expedited Adjudication by the Secretary- The Secretary of Homeland Security--CommentsClose CommentsPermalink





`(1) shall establish a procedure for expedited adjudication of petitions filed under subsection (e); andCommentsClose CommentsPermalink





`(2) not later than 7 working days after such filing shall, by fax, cable, or other means assuring expedited delivery transmit a copy of notice of action on the petition--CommentsClose CommentsPermalink





`(A) to the petitioner; andCommentsClose CommentsPermalink





`(B) 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





`(m) Period of Admission-CommentsClose CommentsPermalink





`(1) IN GENERAL- An H-2A worker shall be admitted for a period of employment, not to exceed 10 months, that includes--CommentsClose CommentsPermalink





`(A) a period of not more than 7 days prior to the beginning of the period of employment for the purpose of travel to the work site; andCommentsClose CommentsPermalink





`(B) a period of not more than 14 days following the period of employment for the purpose of departure or extension based on a subsequent offer of employment.CommentsClose CommentsPermalink





`(2) EMPLOYMENT LIMITATION- An alien may not be employed during the 14-day period described in paragraph (1)(B) except in the employment for which the alien was previously authorized.CommentsClose CommentsPermalink





`(3) CONSTRUCTION- Nothing in this subsection shall limit the authority of the Secretary of Homeland Security to extend the stay of an alien under any other provision of this Act.CommentsClose CommentsPermalink





`(n) 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--CommentsClose CommentsPermalink





`(A) shall have failed to maintain nonimmigrant status as an H-2A worker; andCommentsClose CommentsPermalink





`(B) shall depart the United States or be subject to removal under section 237(a)(1)(C)(i).CommentsClose CommentsPermalink





`(2) REPORT BY EMPLOYER- Not later than 24 hours after the abandonment of employment by an H-2A worker, the employer or association acting as an agent for the employer, shall notify the Secretary of Homeland Security of such abandonment.CommentsClose CommentsPermalink





`(3) REMOVAL- The Secretary of Homeland Security 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 the alien's employment if the alien promptly departs the United States upon termination of such employment.CommentsClose CommentsPermalink





`(o) Replacement of Alien-CommentsClose CommentsPermalink





`(1) IN GENERAL- Upon notification under subsection (p)(2)--CommentsClose CommentsPermalink





`(A) the Secretary of State shall promptly issue a visa to, and the Secretary of Homeland Security shall admit into the United States, an eligible alien designated by the employer to replace an H-2A worker who abandons or prematurely terminates employment; andCommentsClose CommentsPermalink





`(B) the Secretary of Homeland Security shall admit such alien into the United States.CommentsClose CommentsPermalink





`(2) CONSTRUCTION- Nothing in this subsection shall limit any preference for which United States workers are eligible under this Act.CommentsClose CommentsPermalink





`(p) Identification Document-CommentsClose CommentsPermalink





`(1) IN GENERAL- The Secretary of Homeland Security shall provide each authorized H-2A worker with a single machine-readable, tamper-resistant, and counterfeit-resistant document that--CommentsClose CommentsPermalink





`(A) authorizes the alien's entry into the United States;CommentsClose CommentsPermalink





`(B) serves, for the appropriate period, as an employment eligibility document; andCommentsClose CommentsPermalink





`(C) verifies the identity of the alien.CommentsClose CommentsPermalink





`(2) FORM-CommentsClose CommentsPermalink





`(A) The document shall be--CommentsClose CommentsPermalink





`(i) in a form that is resistant to counterfeiting and to tampering; andCommentsClose CommentsPermalink





`(ii) compatible with--CommentsClose CommentsPermalink





`(I) other databases of the Secretary of Homeland Security for the purpose of excluding an alien from benefits for which an alien is not eligible and determining whether the alien is unlawfully present in the United States; andCommentsClose CommentsPermalink





`(II) law enforcement databases for the purpose of determining if an alien has been convicted of criminal offenses.CommentsClose CommentsPermalink





`(B) As soon as practicable, the document shall include a biometric identifier. The determination of a biometric identifier to be used for such purposes shall take into account factors such as efficiency, accuracy, the technology available, economic considerations, and storage requirements.CommentsClose CommentsPermalink





`(q) Extension of Stay of H-2A Workers in the United States-CommentsClose CommentsPermalink





`(1) EXTENSION OF STAY- If an employer seeks approval to employ an H-2A worker who is lawfully present in the United States, the petition filed by the employer or an association pursuant to subsection (p) shall request an extension of the alien's stay and, if applicable, a change in the alien's employment.CommentsClose CommentsPermalink





`(2) LIMITATION ON FILING PETITION FOR EXTENSION OF STAY- A petition may not be filed for an extension of an alien's stay for a period of more than 10 months.CommentsClose CommentsPermalink





`(3) WORK AUTHORIZATION UPON FILING PETITION FOR EXTENSION OF STAY-CommentsClose CommentsPermalink





`(A) IN GENERAL- An alien who is lawfully present in the United States on the date of the filing of a petition to extend the stay of the alien may commence or continue the employment described in a petition under paragraph (1). The employer shall provide a copy of the employer's petition for extension of stay to the alien. The alien 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





`(B) EMPLOYMENT ELIGIBILITY DOCUMENT- Upon approval of a petition for an extension of stay or change in the alien's authorized employment, the Secretary of Homeland Security 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





`(C) FILE DEFINED- In this paragraph, the term `file' means sending the petition by certified mail via the United States Postal Service, return receipt requested, or delivering by guaranteed commercial delivery which will provide the employer with a documented acknowledgment of the date of receipt of the petition for an extension of stay.CommentsClose CommentsPermalink





`(4) 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 20 months.CommentsClose CommentsPermalink





`(B) REQUIREMENT TO REMAINS 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 Stats 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





`(r) Trust Fund To Assure Worker Return-CommentsClose CommentsPermalink





`(1) ESTABLISHMENT- There is established in the Treasury of the United States a trust fund (in this section referred to as the `Trust Fund') for the purpose of providing a monetary incentive for H-2A nonimmigrants to return to their country of origin upon expiration of their visas.CommentsClose CommentsPermalink





`(2) WITHHOLDING OF WAGES; PAYMENT INTO THE TRUST FUND- Employers of H-2A nonimmigrants shall withhold from the wages of workers an amount equivalent to 25 percent of the wages of each worker and pay such withheld amount into the Trust Fund in accordance with paragraph (3). Amounts withheld under the preceding sentence shall be maintained in such interest bearing account with such a financial institution as the Secretary of Homeland Security shall specify.CommentsClose CommentsPermalink





`(3) DISTRIBUTION OF FUNDS- Amounts paid into the Trust Fund on behalf of an H-2A nonimmigrant, and held pursuant to paragraph (2)(A)(i) and interest earned thereon, shall be paid by the Secretary of State to the worker if--CommentsClose CommentsPermalink





`(A) the worker applies to the Secretary of State (or the designee of such Secretary) for payment within 30 days of the expiration of the alien's last authorized stay in the United States as an H-2A nonimmigrant at a United States embassy or consulate in the worker's home country;CommentsClose CommentsPermalink





`(B) in such application the worker establishes that the worker has complied with the terms and conditions of the H-2A program; andCommentsClose CommentsPermalink





`(C) in connection with the application, the worker tenders the identification and employment authorization card issued to the worker pursuant to subsection (p) and establishes that the worker is identified as the person to whom the card was issued based on the biometric identification information contained on the card.CommentsClose CommentsPermalink





`(4) ADMINISTRATIVE EXPENSES- The amounts paid into the Trust Fund and held pursuant to paragraph (2)(A)(ii), and interest earned thereon, shall be paid to the Secretary of State, the Secretary of Labor, and the Secretary of Homeland Security in amounts equivalent to the expenses incurred by such officials in the administration of the H-2A program.CommentsClose CommentsPermalink





`(s) Investment of Trust Fund-CommentsClose CommentsPermalink





`(1) IN GENERAL- It shall be the duty of the Secretary of the Treasury to invest such portion of the Trust Fund as is not, in the Secretary's judgment, required to meet current withdrawals. Such investments may be made only in interest-bearing obligations of the United States or in obligations guaranteed as to both principal and interest by the United States. For such purpose, such obligations may be acquired--CommentsClose CommentsPermalink





`(A) on original issue at the price; orCommentsClose CommentsPermalink





`(B) by purchase of outstanding obligations at the market price.CommentsClose CommentsPermalink





The purposes for which obligations of the United States may be issued under chapter 31 of title 31, United States Code, are hereby extended to authorize the issuance at par of special obligations exclusively to the Trust Fund. Such special obligations shall bear interest at a rate equal to the average rate of interest, computed as to the end of the calendar month next preceding the date of such issue, borne by all marketable interest-bearing obligations of the United States then forming a part of the public debt, except that where such average rate is not a multiple of one-eighth of 1 percent next lower than such average rate. Such special obligations shall be issued only if the Secretary of the Treasury determines that the purchase of other interest-bearing obligations of the United States, or of obligations guaranteed as to both principal and interest by the United States on original issue or at the market price, is not in the public interest.CommentsClose CommentsPermalink





`(2) SALE OF OBLIGATION- Any obligation acquired by the Trust Fund (except special obligations issued exclusively to the Trust Fund) may be sold by the Secretary of the Treasury at the market price, and such special obligations may be redeemed at par plus accrued interest.CommentsClose CommentsPermalink





`(3) CREDITS TO TRUST FUND- The interest on, and the proceeds from the sale or redemption of, any obligations held in the Trust Fund shall be credited to and form a part of the Trust Fund.CommentsClose CommentsPermalink





`(4) REPORT TO CONGRESS- It shall be the duty of the Secretary of the Treasury to hold the Trust Fund, and (after consultation with the Secretary of Homeland Security) to report to the Congress each year on the financial condition and the results of the operations of the Trust Fund during the preceding fiscal year and on its expected condition and operations during the next fiscal year. Such report shall be printed as both a House and a Senate document of the session of the Congress to which the report is made.CommentsClose CommentsPermalink





`(t) Special Rule for Aliens Employed as Sheepherders, Goatherders, or Dairy Workers- Notwithstanding any other provision of this section, an alien admitted under section 101(a)(15)(H)(ii)(a) for employment as a sheepherder, goatherder, or dairy worker--CommentsClose CommentsPermalink





`(1) may be admitted for a period of 12 months; andCommentsClose CommentsPermalink





`(2) shall not be subject to the requirements of subsection (r)(4)(B).'.CommentsClose CommentsPermalink





(b) Prohibition on Family Members- Section 101(a)(15)(H) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(H)) is amended by striking `him;' at the end and inserting `him, except that no spouse or child may be admitted under clause (ii)(a);'.CommentsClose CommentsPermalink





(c) Regulations- Not later than 180 days after the date of the enactment of this Act, the Secretary of Homeland Security shall promulgate regulations, in accordance with the notice and comment provisions of section 553 of title 5, United States Code, to provide for the uniform procedures for the issuance of visas to nonimmigrants described in section 101(a)(15)(H)(ii)(a) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(H)(ii)(a)) by visa-issuing United States consulates and consular officers.CommentsClose CommentsPermalink





(d) Conforming Amendment- Section 101(a)(15)(H)(ii)(a) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(H)(ii)(a)) is amended by striking `of a temporary or seasonal nature' and inserting `and with respect to whom the intending employer or association has filed with the Secretary a petition under section 218(a)'.CommentsClose CommentsPermalink