U.S. Congress - Text of S.1639 as Placed on Calendar Senate Unaccompanied Alien Child Protection Act of 2007
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Donate NowS.1639 - Unaccompanied Alien Child Protection Act of 2007
A bill to provide for comprehensive immigration reform and for other purposes.
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S 1639 PCSCommentsClose CommentsPermalink
To provide for comprehensive immigration reform and for other purposes.CommentsClose CommentsPermalink
June 18, 2007
Mr. KENNEDY (for himself and Mr. SPECTER) introduced the following bill; which was read the first timeCommentsClose CommentsPermalink
June 19, 2007
Read the second time and placed on the calendarCommentsClose CommentsPermalink
To provide for comprehensive immigration reform and for other purposes.CommentsClose CommentsPermalink
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,CommentsClose CommentsPermalink
SECTION 1. EFFECTIVE DATE TRIGGERS.
(a) IN GENERAL- With the exception of the probationary benefits conferred by section 601(h) of this Act, the provisions of subtitle C of title IV, and the admission of aliens under section 101(a)(15)(H)(ii) of the Immigration and Nationality Act (
(1) OPERATIONAL CONTROL OF THE INTERNATIONAL BORDER WITH MEXICO- The Secretary of Homeland Security has established and demonstrated operational control of 100 percent of the international land border between the United States and Mexico, including the ability to monitor such border through available methods and technology.CommentsClose CommentsPermalink
(2) STAFF ENHANCEMENTS FOR BORDER PATROL- The United States Customs and Border Protection Border Patrol has hired, trained, and reporting for duty 20,000 full-time agents as of the date of the certification under this subsection.CommentsClose CommentsPermalink
(3) STRONG BORDER BARRIERS- There has been--CommentsClose CommentsPermalink
(A) installed along the international land border between the United States and Mexico as of the date of the certification under this subsection, at least--CommentsClose CommentsPermalink
(i) 300 miles of vehicle barriers;CommentsClose CommentsPermalink
(ii) 370 miles of fencing; andCommentsClose CommentsPermalink
(iii) 105 ground-based radar and camera towers; andCommentsClose CommentsPermalink
(B) deployed for use along the international land border between the United States and Mexico, as of the date of the certification under this subsection, 4 unmanned aerial vehicles, and the supporting systems for such vehicles.CommentsClose CommentsPermalink
(4) CATCH AND RETURN- The Secretary of Homeland Security is detaining all removable aliens apprehended crossing the international land border between the United States and Mexico in violation of Federal or State law, except as specifically mandated by Federal or State law or humanitarian circumstances, and United States Immigration and Customs Enforcement has the resources to maintain this practice, including the resources necessary to detain up to 31,500 aliens per day on an annual basis.CommentsClose CommentsPermalink
(5) WORKPLACE ENFORCEMENT TOOLS- In compliance with the requirements of title III of this Act, the Secretary of Homeland Security has established, and is using, secure and effective identification tools to prevent unauthorized workers from obtaining employment in the United States. Such identification tools shall include establishing--CommentsClose CommentsPermalink
(A) strict standards for identification documents that are required to be presented by the alien to an employer in the hiring process, including the use of secure documentation that--CommentsClose CommentsPermalink
(i) contains--CommentsClose CommentsPermalink
(I) a photograph of the alien; andCommentsClose CommentsPermalink
(II) biometric data identifying the alien; orCommentsClose CommentsPermalink
(ii) complies with the requirements for such documentation under the REAL ID Act (
(B) an electronic employment eligibility verification system that is capable of querying Federal and State databases in order to restrict fraud, identity theft, and use of false social security numbers in the hiring of aliens by an employer by electronically providing a digitized version of the photograph on the alien's original Federal or State issued document or documents for verification of that alien's identity and work eligibility.CommentsClose CommentsPermalink
(6) PROCESSING APPLICATIONS OF ALIENS- The Secretary of Homeland Security has received, and is processing and adjudicating in a timely manner, applications for Z nonimmigrant status under title VI of this Act, including conducting all necessary background and security checks required under that title.CommentsClose CommentsPermalink
(b) SENSE OF CONGRESS- It is the sense of Congress that the border security and other measures described in subsection (a) shall be completed as soon as practicable, subject to the necessary appropriations.CommentsClose CommentsPermalink
(c) PRESIDENTIAL PROGRESS REPORT-CommentsClose CommentsPermalink
(1) IN GENERAL- Not later than 90 days after the date of enactment of this Act, and every 90 days thereafter until the requirements under subsection (a) are met, the President shall submit a report to Congress detailing the progress made in funding, meeting, or otherwise satisfying each of the requirements described under paragraphs (1) through (6) of subsection (a), including detailing any contractual agreements reached to carry out such measures.CommentsClose CommentsPermalink
(2) PROGRESS NOT SUFFICIENT- If the President determines that sufficient progress is not being made, the President shall include in the report required under paragraph (1) specific funding recommendations, authorization needed, or other actions that are or should be undertaken by the Secretary of Homeland Security.CommentsClose CommentsPermalink
(d) GAO REPORT- Not later than 30 days after the certification is submitted under subsection (a), the Comptroller General shall submit a report to Congress on the accuracy of such certification.CommentsClose CommentsPermalink
SEC. 2. IMMIGRATION SECURITY ACCOUNT.
Section 286 of the Immigration and Nationality Act, as amended by section 623, is further amended by adding at the end the following:CommentsClose CommentsPermalink
`(z) IMMIGRATION SECURITY ACCOUNT-CommentsClose CommentsPermalink
(1) IN GENERAL- There is established in the general fund of the Treasury a separate account, which shall be known as the `Immigration Security Account'.CommentsClose CommentsPermalink
(2) SOURCE OF FUNDS- Immediately upon enactment, $4,400,000,000 shall be transferred from the general fund of the Treasury to the Immigration Security Account.CommentsClose CommentsPermalink
(3) APPROPRIATIONS-CommentsClose CommentsPermalink
(A) There are hereby appropriated such sums that are provided under subsection 2 to remain available until five years after enactment.CommentsClose CommentsPermalink
(B) These sums shall be available for the Secretary of Homeland Security to meet the trigger requirements set forth in title I, section 1, of this Act.CommentsClose CommentsPermalink
(C) To the extent funds are not exhausted pursuant to (b), they shall be available to the Secretary of Homeland Security for one or more of the following activities:CommentsClose CommentsPermalink
(i) Fencing and Infrastructure;CommentsClose CommentsPermalink
(ii) Towers;CommentsClose CommentsPermalink
(iii) Detention beds;CommentsClose CommentsPermalink
(iv) Employment Eligibility Verification System, including funds for expenditures under section 306 of this Act, relating to the State Records Improvement Grant Program;CommentsClose CommentsPermalink
(v) Implementation of programs authorized in titles IV and VI; andCommentsClose CommentsPermalink
(vi) Other Federal border and interior enforcement requirements to ensure the integrity of programs authorized in titles IV and VI.CommentsClose CommentsPermalink
(4) TRANSFERS- The Secretary of Homeland Security shall have the authority to transfer amounts out of the Immigration Security Account as appropriate to carry out subsections (3)(b) and (3)( c) of this section.CommentsClose CommentsPermalink
(5) REPORTING- The Secretary of Homeland Security shall submit to the Committees on the Judiciary and Appropriations of the Senate a plan for expenditure of the funds under subsection 2 within 60 days of enactment of this Act, and update the plan annually, that--CommentsClose CommentsPermalink
(A) identifies one-time and on-going costs;CommentsClose CommentsPermalink
(B) identifies the level of funding for each program, project, and activity, and if that funding will supplement an appropriated program, project, or activity;CommentsClose CommentsPermalink
(C) identifies the amount of funding to be obligated in each fiscal year, by program, project, and activity;CommentsClose CommentsPermalink
(D) includes milestones for completion of each identified program, project, or activity; andCommentsClose CommentsPermalink
(E) demonstrates how activities will further the goals and objectives of this Act.CommentsClose CommentsPermalink
(6) NOTIFICATIONS- The Secretary of Homeland Security shall notify the Committees on Judiciary and Appropriations of the Senate 15 days prior to reprogramming funds from the original allocation or transferring funds out of the Immigration Security Account.CommentsClose CommentsPermalink
TITLE I--BORDER ENFORCEMENT
Subtitle A--Assets for Controlling United States Borders
SEC. 101. ENFORCEMENT PERSONNEL.
(a) ADDITIONAL PERSONNEL-CommentsClose CommentsPermalink
(1) U.S. CUSTOMS AND BORDER PROTECTION OFFICERS- In each of the fiscal years 2008 through 2012, the Secretary shall, subject to the availability of appropriations, increase by not less than 500 the number of positions for full-time active duty CBP officers and provide appropriate training, equipment, and support to such additional CBP officers.CommentsClose CommentsPermalink
(2) INVESTIGATIVE PERSONNEL-CommentsClose CommentsPermalink
(A) IMMIGRATION AND CUSTOMS ENFORCEMENT INVESTIGATORS- Section 5203 of the Intelligence Reform and Terrorism Prevention Act of 2004 (
(B) ADDITIONAL PERSONNEL- In addition to the positions authorized under section 5203 of the Intelligence Reform and Terrorism Prevention Act of 2004, as amended by subparagraph (A), during each of the fiscal years 2008 through 2012, the Secretary shall, subject to the availability of appropriations, increase by not less than 200 the number of positions for personnel within the Department assigned to investigate alien smuggling.CommentsClose CommentsPermalink
(3) DEPUTY UNITED STATES MARSHALS- In each of the fiscal years 2008 through 2012, the Attorney General shall, subject to the availability of appropriations, increase by not less than 50 the number of positions for full-time active duty Deputy United States Marshals that assist in matters related to immigration.CommentsClose CommentsPermalink
(4) RECRUITMENT OF FORMER MILITARY PERSONNEL-CommentsClose CommentsPermalink
(A) IN GENERAL- The Commissioner of United States Customs and Border Protection, in conjunction with the Secretary of Defense or a designee of the Secretary of Defense, shall establish a program to actively recruit members of the Army, Navy, Air Force, Marine Corps, and Coast Guard who have elected to separate from active duty.CommentsClose CommentsPermalink
(B) REPORT- Not later than 180 days after the date of the enactment of this Act, the Commissioner shall submit a report on the implementation of the recruitment program established pursuant to subparagraph (A) to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives.CommentsClose CommentsPermalink
(b) AUTHORIZATION OF APPROPRIATIONS-CommentsClose CommentsPermalink
(1) U.S. CUSTOMS AND BORDER PROTECTION OFFICERS- There are authorized to be appropriated to the Secretary such sums as may be necessary for each of the fiscal years 2008 through 2012 to carry out paragraph (1) of subsection (a).CommentsClose CommentsPermalink
(2) DEPUTY UNITED STATES MARSHALS- There are authorized to be appropriated to the Attorney General such sums as may be necessary for each of the fiscal years 2008 through 2012 to carry out subsection (a)(3).CommentsClose CommentsPermalink
(3) BORDER PATROL AGENTS- Section 5202 of the Intelligence Reform and Terrorism Prevention Act of 2004 (118 Stat. 3734) is amended to read as follows:CommentsClose CommentsPermalink
`SEC. 5202. INCREASE IN FULL-TIME BORDER PATROL AGENTS.
`(a) ANNUAL INCREASES- The Secretary of Homeland Security shall, subject to the availability of appropriations for such purpose, increase the number of positions for full-time active duty border patrol agents within the Department of Homeland Security (above the number of such positions for which funds were appropriated for the preceding fiscal year), by not less than--CommentsClose CommentsPermalink
`(1) 2,000 in fiscal year 2007;CommentsClose CommentsPermalink
`(2) 2,400 in fiscal year 2008;CommentsClose CommentsPermalink
`(3) 2,400 in fiscal year 2009;CommentsClose CommentsPermalink
`(4) 2,400 in fiscal year 2010;CommentsClose CommentsPermalink
`(5) 2,400 in fiscal year 2011; andCommentsClose CommentsPermalink
`(6) 2,400 in fiscal year 2012.CommentsClose CommentsPermalink
`(b) NORTHERN BORDER- In each of the fiscal years 2008 through 2012, in addition to the border patrol agents assigned along the northern border of the United States during the previous fiscal year, the Secretary shall assign a number of border patrol agents equal to not less than 20 percent of the net increase in border patrol agents during each such fiscal year.CommentsClose CommentsPermalink
`(c) AUTHORIZATION OF APPROPRIATIONS- There are authorized to be appropriated such sums as may be necessary for each of fiscal years 2008 through 2012 to carry out this section.'.CommentsClose CommentsPermalink
(c) SHADOW WOLVES APPREHENSION AND TRACKING-CommentsClose CommentsPermalink
(1) PURPOSE- The purpose of this subsection is to authorize the Secretary, acting through the Assistant Secretary of Immigration and Customs Enforcement (referred to in this subsection as the `Secretary'), to establish new units of Customs Patrol Officers (commonly known as `Shadow Wolves') during the 5-year period beginning on the date of enactment of this Act.CommentsClose CommentsPermalink
(2) ESTABLISHMENT OF NEW UNITS-CommentsClose CommentsPermalink
(A) IN GENERAL- During the 5-year period beginning on the date of enactment of this Act, the Secretary is authorized to establish within United States Immigration and Customs Enforcement up to 5 additional units of Customs Patrol Officers in accordance with this subsection, as appropriate.CommentsClose CommentsPermalink
(B) MEMBERSHIP- Each new unit established pursuant to subparagraph (A) shall consist of up to 15 Customs Patrol Officers.CommentsClose CommentsPermalink
(3) DUTIES- The additional Immigration and Customs Enforcement units established pursuant to paragraph (2)(A) shall operate on Indian reservations (as defined in section 3 of the Indian Financing Act of 1974 (
(A) investigating and preventing the entry of terrorists, other unlawful aliens, instruments of terrorism, narcotics, and other contraband into the United States; andCommentsClose CommentsPermalink
(B) carrying out such other duties as the Secretary determines to be necessary.CommentsClose CommentsPermalink
(4) AUTHORIZATION OF APPROPRIATIONS- There are authorized to be appropriated to carry out this subsection such sums as are necessary for each of fiscal years 2008 through 2013.CommentsClose CommentsPermalink
SEC. 102. TECHNOLOGICAL ASSETS.
(a) ACQUISITION- Subject to the availability of appropriations for such purpose, the Secretary shall procure additional unmanned aerial vehicles, cameras, poles, sensors, and other technologies necessary to achieve operational control of the borders of the United States.CommentsClose CommentsPermalink
(b) INCREASED AVAILABILITY OF EQUIPMENT- The Secretary and the Secretary of Defense shall develop and implement a plan to use authorities provided to the Secretary of Defense under chapter 18 of title 10, United States Code, to increase the availability and use of Department of Defense equipment, including unmanned aerial vehicles, tethered aerostat radars, and other surveillance equipment, to assist the Secretary in carrying out surveillance activities conducted at or near the international land borders of the United States to prevent illegal immigration.CommentsClose CommentsPermalink
(c) AUTHORIZATION OF APPROPRIATIONS- There are authorized to be appropriated to the Secretary such sums as may be necessary for each of the fiscal years 2008 through 2012 to carry out subsection (a).CommentsClose CommentsPermalink
SEC. 103. INFRASTRUCTURE.
Section 102 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (
(1) in subsection (a), by striking `Attorney General, in consultation with the Commissioner of Immigration and Naturalization,' and inserting `Secretary of Homeland Security'; andCommentsClose CommentsPermalink
(2) in subsection (b)--CommentsClose CommentsPermalink
(A) by redesignating paragraphs (1), (2), (3), and (4) as paragraphs (2), (3), (4), and (5), respectively;CommentsClose CommentsPermalink
(B) by inserting before paragraph (2), as redesignated, the following:CommentsClose CommentsPermalink
`(1) FENCING NEAR SAN DIEGO, CALIFORNIA- In carrying out subsection (a), the Secretary shall provide for the construction along the 14 miles of the international land border of the United States, starting at the Pacific Ocean and extending eastward, of second and third fences, in addition to the existing reinforced fence, and for roads between the fences.'.CommentsClose CommentsPermalink
(C) in paragraph (2), as redesignated--CommentsClose CommentsPermalink
(i) in the header, by striking `SECURITY FEATURES' and inserting--`ADDITIONAL FENCING ALONG SOUTHWEST BORDER'; andCommentsClose CommentsPermalink
(ii) by striking subparagraphs (A) through (C) and inserting the following:CommentsClose CommentsPermalink
`(A) REINFORCED FENCING- In carrying out subsection (a), the Secretary of Homeland Security shall construct reinforced fencing along not less than 700 miles of the southwest border where fencing would be most practical and effective and provide for the installation of additional physical barriers, roads, lighting, cameras, and sensors to gain operational control of the southwest border.CommentsClose CommentsPermalink
`(B) PRIORITY AREAS- In carrying out this section, the Secretary of Homeland Security shall--CommentsClose CommentsPermalink
`(i) identify the 370 miles along the southwest border where fencing would be most practical and effective in deterring smugglers and aliens attempting to gain illegal entry into the United States; andCommentsClose CommentsPermalink
`(ii) not later than December 31, 2008, complete construction of reinforced fencing along the 370 miles identified under clause (i).CommentsClose CommentsPermalink
`(C) CONSULTATION-CommentsClose CommentsPermalink
`(i) IN GENERAL- In carrying out this section, the Secretary of Homeland Security shall consult with the Secretary of Interior, the Secretary of Agriculture, States, local governments, Indian tribes, and property owners in the United States to minimize the impact on the environment, culture, commerce, and quality of life for the communities and residents located near the sites at which such fencing is to be constructed.CommentsClose CommentsPermalink
`(ii) SAVINGS PROVISION- Nothing in this subparagraph may be construed to--CommentsClose CommentsPermalink
`(I) create any right of action for a State, local government, or other person or entity affected by this subsection; orCommentsClose CommentsPermalink
`(II) affect the eminent domain laws of the United States or of any State.CommentsClose CommentsPermalink
`(D) LIMITATION ON REQUIREMENTS- Notwithstanding subparagraph (A), nothing in this paragraph shall require the Secretary of Homeland Security to install fencing, physical barriers, roads, lighting, cameras, and sensors in a particular location along an international border of the United States, if the Secretary determines that the use or placement of such resources is not the most appropriate means to achieve and maintain operational control over the international border at such location.'; andCommentsClose CommentsPermalink
(D) in paragraph (5), as redesignated, by striking `to carry out this subsection not to exceed $12,000,000' and inserting `such sums as may be necessary to carry out this subsection'.CommentsClose CommentsPermalink
SEC. 104. PORTS OF ENTRY.
Section 102 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Division C of
`(e) CONSTRUCTION AND IMPROVEMENTS- The Secretary is authorized to--CommentsClose CommentsPermalink
`(1) construct additional ports of entry along the international land borders of the United States, at locations to be determined by the Secretary; andCommentsClose CommentsPermalink
`(2) make necessary improvements to the ports of entry.'.CommentsClose CommentsPermalink
Subtitle B--Other Border Security Initiatives
SEC. 111. BIOMETRIC ENTRY-EXIT SYSTEM.
(a) COLLECTION OF BIOMETRIC DATA FROM ALIENS ENTERING AND DEPARTING THE UNITED STATES- Section 215 (
(1) by redesignating subsection (c) as subsection (g);CommentsClose CommentsPermalink
(2) by moving subsection (g), as redesignated by paragraph (1), to the end; andCommentsClose CommentsPermalink
(3) by inserting after subsection (b) the following:CommentsClose CommentsPermalink
`(c) The Secretary is authorized to require aliens entering and departing the United States to provide biometric data and other information relating to their immigration status.'.CommentsClose CommentsPermalink
(b) INSPECTION OF APPLICANTS FOR ADMISSION- Section 235(d) (
`(5) AUTHORITY TO COLLECT BIOMETRIC DATA- In conducting inspections under subsections (a) and (b), immigration officers are authorized to collect biometric data from--CommentsClose CommentsPermalink
`(A) any applicant for admission or any alien who is paroled under section 212(d)(5), seeking to or permitted to land temporarily as an alien crewman, or seeking to or permitted transit through the United States; orCommentsClose CommentsPermalink
`(B) any lawful permanent resident who is entering the United States and who is not regarded as seeking admission pursuant to section 101(a)(13)(C).'.CommentsClose CommentsPermalink
(c) COLLECTION OF BIOMETRIC DATA FROM ALIEN CREWMEN- Section 252 (
`(d) An immigration officer is authorized to collect biometric data from an alien crewman seeking permission to land temporarily in the United States.'.CommentsClose CommentsPermalink
(d) GROUNDS OF INADMISSIBILITY- Section 212 (
(1) in subsection (a)(7), by adding at the end the following:CommentsClose CommentsPermalink
`(C) WITHHOLDERS OF BIOMETRIC DATA- Any alien who fails or has failed to comply with a lawful request for biometric data under section 215(c), 235(d), or 252(d) is inadmissible.'; andCommentsClose CommentsPermalink
(2) in subsection (d), by inserting after paragraph (1) the following:CommentsClose CommentsPermalink
`(2) The Secretary may waive the application of subsection (a)(7)(C) for an individual alien or class of aliens.'.CommentsClose CommentsPermalink
(e) IMPLEMENTATION- Section 7208 of the 9/11 Commission Implementation Act of 2004 (
(1) in subsection (c), by adding at the end the following:CommentsClose CommentsPermalink
`(3) IMPLEMENTATION- In fully implementing the automated biometric entry and exit data system under this section, the Secretary is not required to comply with the requirements of chapter 5 of title 5, United States Code (commonly referred to as the Administrative Procedure Act) or any other law relating to rulemaking, information collection, or publication in the Federal Register.'; andCommentsClose CommentsPermalink
(2) in subsection (l)--CommentsClose CommentsPermalink
(A) by striking `There are authorized' and inserting the following:CommentsClose CommentsPermalink
`(1) IN GENERAL- There are authorized'; andCommentsClose CommentsPermalink
(B) by adding at the end the following:CommentsClose CommentsPermalink
`(2) IMPLEMENTATION AT ALL LAND BORDER PORTS OF ENTRY- There are authorized to be appropriated such sums as may be necessary for each of fiscal years 2008 and 2009 to implement the automated biometric entry and exit data system at all land border ports of entry.'.CommentsClose CommentsPermalink
SEC. 112. UNLAWFUL FLIGHT FROM IMMIGRATION OR CUSTOMS CONTROLS.
(a) IN GENERAL-
Sec. 758. Unlawful flight from immigration or customs controls
`(a) EVADING A CHECKPOINT- Any person who, while operating a motor vehicle or vessel, knowingly flees or evades a checkpoint operated by the Department of Homeland Security or any other Federal law enforcement agency, and then knowingly or recklessly disregards or disobeys the lawful command of any law enforcement agent, shall be fined under this title, imprisoned not more than five years, or both.CommentsClose CommentsPermalink
`(b) FAILURE TO STOP- Any person who, while operating a motor vehicle, aircraft, or vessel, knowingly or recklessly disregards or disobeys the lawful command of an officer of the Department of Homeland Security engaged in the enforcement of the immigration, customs, or maritime laws, or the lawful command of any law enforcement agent assisting such officer, shall be fined under this title, imprisoned not more than two years, or both.CommentsClose CommentsPermalink
`(c) ALTERNATIVE PENALTIES- Notwithstanding the penalties provided in subsection (a) or (b), any person who violates such subsection shall--CommentsClose CommentsPermalink
`(1) be fined under this title, imprisoned not more than 10 years, or both, if the violation involved the operation of a motor vehicle, aircraft, or vessel--CommentsClose CommentsPermalink
`(A) in excess of the applicable or posted speed limit,CommentsClose CommentsPermalink
`(B) in excess of the rated capacity of the motor vehicle, aircraft, or vessel, orCommentsClose CommentsPermalink
`(C) in an otherwise dangerous or reckless manner;CommentsClose CommentsPermalink
`(2) be fined under this title, imprisoned not more than 20 years, or both, if the violation created a substantial and foreseeable risk of serious bodily injury or death to any person;CommentsClose CommentsPermalink
`(3) be fined under this title, imprisoned not more than 30 years, or both, if the violation caused serious bodily injury to any person; orCommentsClose CommentsPermalink
`(4) be fined under this title, imprisoned for any term of years or life, or both, if the violation resulted in the death of any person.CommentsClose CommentsPermalink
`(d) ATTEMPT AND CONSPIRACY- Any person who attempts or conspires to commit any offense under this section shall be punished in the same manner as a person who completes the offense.CommentsClose CommentsPermalink
`(e) FORFEITURE- Any property, real or personal, constituting or traceable to the gross proceeds of the offense and any property, real or personal, used or intended to be used to commit or facilitate the commission of the offense shall be subject to forfeiture.CommentsClose CommentsPermalink
`(f) FORFEITURE PROCEDURES- Seizures and forfeitures under this section shall be governed by the provisions of chapter 46 of this title, relating to civil forfeitures, including section 981(d) of such title, except that such duties as are imposed upon the Secretary of the Treasury under the customs laws described in that section shall be performed by such officers, agents, and other persons as may be designated for that purpose by the Secretary of Homeland Security or the Attorney General. Nothing in this section shall limit the authority of the Secretary to seize and forfeit motor vehicles, aircraft, or vessels under the Customs laws or any other laws of the United States.CommentsClose CommentsPermalink
`(g) DEFINITIONS- For purposes of this section--CommentsClose CommentsPermalink
`(1) The term `checkpoint' includes, but is not limited to, any customs or immigration inspection at a port of entry.CommentsClose CommentsPermalink
`(2) The term `lawful command' includes, but is not limited to, a command to stop, decrease speed, alter course, or land, whether communicated orally, visually, by means of lights or sirens, or by radio, telephone, or other wire communication.CommentsClose CommentsPermalink
`(3) The term `law enforcement agent' means any Federal, State, local or tribal official authorized to enforce criminal law, and, when conveying a command covered under subsection (b) of this section, an air traffic controller.CommentsClose CommentsPermalink
`(4) The term `motor vehicle' means any motorized or self-propelled means of terrestrial transportation.CommentsClose CommentsPermalink
`(5) The term `serious bodily injury' has the meaning given in section 2119(2) of this title.'.CommentsClose CommentsPermalink
SEC. 113. RELEASE OF ALIENS FROM NONCONTIGUOUS COUNTRIES.
Section 236(a)(2) (
(1) by striking `on';CommentsClose CommentsPermalink
(2) in subparagraph (A)--CommentsClose CommentsPermalink
(A) by inserting `except as provided under subparagraph (B), upon the giving of a' before `bond'; andCommentsClose CommentsPermalink
(B) by striking `or' at the end;CommentsClose CommentsPermalink
(3) by redesignating subparagraph (B) as subparagraph (C); andCommentsClose CommentsPermalink
(4) by inserting after subparagraph (A) the following:CommentsClose CommentsPermalink
`(B) upon the giving of a bond of not less than $5,000 with security approved by, and containing conditions prescribed by, the Secretary or the Attorney General, if the alien--CommentsClose CommentsPermalink
`(i) is a national of a noncontiguous country;CommentsClose CommentsPermalink
`(ii) has not been admitted or paroled into the United States; andCommentsClose CommentsPermalink
`(iii) was apprehended within 100 miles of the international border of the United States or presents a flight risk, as determined by the Secretary of Homeland Security; or'.CommentsClose CommentsPermalink
SEC. 114. SEIZURE OF CONVEYANCE WITH CONCEALED COMPARTMENT: EXPANDING THE DEFINITION OF CONVEYANCES WITH HIDDEN COMPARTMENTS SUBJECT TO FORFEITURE.
(a) IN GENERAL-
(1) by amending the title of such section to read as follows:CommentsClose CommentsPermalink
`Sec. 1703. Seizure and forfeiture of vessels, vehicles, other conveyances and instruments of international traffic';
(2) by amending the title of subsection (a) to read as follows:CommentsClose CommentsPermalink
`(a) Vessels, vehicles, other conveyances and instruments of international traffic subject to seizure and forfeiture';CommentsClose CommentsPermalink
(3) by amending the title of subsection (b) to read as follows:CommentsClose CommentsPermalink
`(b) Vessels, vehicles, other conveyances and instruments of international traffic defined';CommentsClose CommentsPermalink
(4) by inserting `, vehicle, other conveyance or instrument of international traffic' after the word `vessel' everywhere it appears in the text of subsections (a) and (b); andCommentsClose CommentsPermalink
(5) by amending subsection (c) to read as follows:CommentsClose CommentsPermalink
`(c) Acts constituting prima facie evidence of vessel, vehicle, or other conveyance or instrument of international traffic engaged in smuggling `For the purposes of this section, prima facie evidence that a conveyance is being, or has been, or is attempted to be employed in smuggling or to defraud the revenue of the United States shall be--CommentsClose CommentsPermalink
`(1) in the case of a vessel, the fact that a vessel has become subject to pursuit as provided in section 1581 of this title, or is a hovering vessel, or that a vessel fails, at any place within the customs waters of the United States or within a customs-enforcement area, to display light as required by law.CommentsClose CommentsPermalink
`(2) in the case of a vehicle, other conveyance or instrument of international traffic, the fact that a vehicle, other conveyance or instrument of international traffic has any compartment or equipment that is built or fitted out for smuggling.'.'CommentsClose CommentsPermalink
(b) CLERICAL AMENDMENT- The table of sections for Chapter 5 in title 19, United States Code, is amended by striking the items relating to section 1703 and inserting in lieu thereof the following:CommentsClose CommentsPermalink
`1703. Seizure and forfeiture of vessels, vehicles, other conveyances or instruments of international traffic.CommentsClose CommentsPermalink
`(a) Vessels, vehicles, other conveyances or instruments of international traffic subject to seizure and forfeiture.CommentsClose CommentsPermalink
`(b) Vessels, vehicles, other conveyances or instruments of international traffic defined.CommentsClose CommentsPermalink
`(c) Acts constituting prima facie evidence of vessel, vehicle, other conveyance or instrument of international traffic engaged in smuggling.'.CommentsClose CommentsPermalink
Subtitle C--Other Measures
SEC. 121. DEATHS AT UNITED STATES-MEXICO BORDER.
(a) COLLECTION OF STATISTICS- The Commissioner of the Bureau of Customs and Border Protection shall collect statistics relating to deaths occurring at the border between the United States and Mexico, including--CommentsClose CommentsPermalink
(1) the causes of the deaths; andCommentsClose CommentsPermalink
(2) the total number of deaths.CommentsClose CommentsPermalink
(b) REPORT- Not later than 1 year after the date of enactment of this Act, and annually thereafter, the Commissioner of the Bureau of Customs and Border Protection shall submit to the Secretary a report that--CommentsClose CommentsPermalink
(1) analyzes trends with respect to the statistics collected under subsection (a) during the preceding year; andCommentsClose CommentsPermalink
(2) recommends actions to reduce the deaths described in subsection (a).CommentsClose CommentsPermalink
SEC. 122. BORDER SECURITY ON CERTAIN FEDERAL LAND.
(a) DEFINITIONS- In this section:CommentsClose CommentsPermalink
(1) PROTECTED LAND- The term `protected land' means land under the jurisdiction of the Secretary concerned.CommentsClose CommentsPermalink
(2) SECRETARY CONCERNED- The term `Secretary concerned' means--CommentsClose CommentsPermalink
(A) with respect to land under the jurisdiction of the Secretary of Agriculture, the Secretary of Agriculture; andCommentsClose CommentsPermalink
(B) with respect to land under the jurisdiction of the Secretary of the Interior, the Secretary of the Interior.CommentsClose CommentsPermalink
(b) SUPPORT FOR BORDER SECURITY NEEDS-CommentsClose CommentsPermalink
(1) IN GENERAL- To gain operational control over the international land borders of the United States and to prevent the entry of terrorists, unlawful aliens, narcotics, and other contraband into the United States, the Secretary, in cooperation with the Secretary concerned, shall provide--CommentsClose CommentsPermalink
(A) increased U.S. Customs and Border Protection personnel to secure protected land along the international land borders of the United States;CommentsClose CommentsPermalink
(B) Federal land resource training for U.S. Customs and Border Protection agents dedicated to protected land; andCommentsClose CommentsPermalink
(C) Unmanned Aerial Vehicles, aerial assets, Remote Video Surveillance camera systems, and sensors on protected land that is directly adjacent to the international land border of the United States.CommentsClose CommentsPermalink
(2) COORDINATION- In providing training for Customs and Border Protection agents under paragraph (l)(B), the Secretary shall coordinate with the Secretary concerned to ensure that the training is appropriate to the mission of the National Park Service, the United States Fish and Wildlife Service, the Forest Service, or the relevant agency of the Department of the Interior or the Department of Agriculture to minimize the adverse impact on natural and cultural resources from border protection activities.CommentsClose CommentsPermalink
(c) ANALYSIS OF DAMAGE TO PROTECTED LANDS- The Secretary and Secretaries concerned shall develop an analysis of damage to protected lands relating to illegal border activity, including the cost of equipment, training, recurring maintenance, construction of facilities, restoration of natural and cultural resources, recapitalization of facilities, and operations.CommentsClose CommentsPermalink
(d) RECOMMENDATIONS- The Secretary shall--CommentsClose CommentsPermalink
(1) develop joint recommendations with the National Park Service, the United States Fish and Wildlife Service, and the Forest Service for an appropriate cost recovery mechanism relating to items identified in subsection (c); andCommentsClose CommentsPermalink
(2) not later than one year from the date of enactment, submit to the appropriate congressional committees (as defined in section 2 of the Homeland Security Act of 2002 (
(e) BORDER PROTECTION STRATEGY- The Secretary, the Secretary of the Interior, and the Secretary of Agriculture shall jointly develop a border protection strategy that supports the border security needs of the United States in the manner that best protects the homeland, including--CommentsClose CommentsPermalink
(1) units of the National Park System;CommentsClose CommentsPermalink
(2) National Forest System land;CommentsClose CommentsPermalink
(3) land under the jurisdiction of the United States Fish and Wildlife Service; andCommentsClose CommentsPermalink
(4) other relevant land under the jurisdiction of the Department of the Interior or the Department of Agriculture.CommentsClose CommentsPermalink
SEC. 123. SECURE COMMUNICATION.
The Secretary shall, as expeditiously as practicable, develop and implement a plan to improve the use of satellite communications and other technologies to ensure clear and secure 2-way communication capabilities--CommentsClose CommentsPermalink
(1) among all Border Patrol agents conducting operations between ports of entry;CommentsClose CommentsPermalink
(2) between Border Patrol agents and their respective Border Patrol stations; andCommentsClose CommentsPermalink
(3) between all appropriate border security agencies of the Department and State, local, and tribal law enforcement agencies.CommentsClose CommentsPermalink
SEC. 124. UNMANNED AIRCRAFT SYSTEMS
(a) UNMANNED AIRCRAFT AND ASSOCIATED INFRASTRUCTURE- The Secretary shall acquire and maintain unmanned aircraft systems for use on the border, including related equipment such as--CommentsClose CommentsPermalink
(1) additional sensors;CommentsClose CommentsPermalink
(2) critical spares;CommentsClose CommentsPermalink
(3) satellite command and control; andCommentsClose CommentsPermalink
(4) other necessary equipment for operational support.CommentsClose CommentsPermalink
(b) AUTHORIZATION OF APPROPRIATIONS-CommentsClose CommentsPermalink
(1) IN GENERAL- There are authorized to be appropriated to the Secretary to carry out subsection (a)--CommentsClose CommentsPermalink
(A) $178,400,000 for fiscal year 2008; andCommentsClose CommentsPermalink
(B) $276,000,000 for fiscal year 2009.CommentsClose CommentsPermalink
(2) AVAILABILITY OF FUNDS- Amounts appropriated pursuant to paragraph (1) shall remain available until expended.CommentsClose CommentsPermalink
SEC. 125. SURVEILLANCE TECHNOLOGIES PROGRAMS.
(a) AERIAL SURVEILLANCE PROGRAM-CommentsClose CommentsPermalink
(1) IN GENERAL- In conjunction with the border surveillance plan developed under section 5201 of the Intelligence Reform and Terrorism Prevention Act of 2004 (
(2) ASSESSMENT AND CONSULTATION REQUIREMENTS- In developing the program under this subsection, the Secretary shall--CommentsClose CommentsPermalink
(A) consider current and proposed aerial surveillance technologies;CommentsClose CommentsPermalink
(B) assess the feasibility and advisability of utilizing such technologies to address border threats, including an assessment of the technologies considered best suited to address respective threats;CommentsClose CommentsPermalink
(C) consult with the Secretary of Defense regarding any technologies or equipment which the Secretary may deploy along an international border of the United States; andCommentsClose CommentsPermalink
(D) consult with the Administrator of the Federal Aviation Administration regarding safety, airspace coordination and regulation, and any other issues necessary for implementation of the program.CommentsClose CommentsPermalink
(3) ADDITIONAL REQUIREMENTS-CommentsClose CommentsPermalink
(A) IN GENERAL- The program developed under this subsection shall include the use of a variety of aerial surveillance technologies in a variety of topographies and areas, including populated and unpopulated areas located on or near an international border of the United States, in order to evaluate, for a range of circumstances--CommentsClose CommentsPermalink
(i) the significance of previous experiences with such technologies in border security or critical infrastructure protection;CommentsClose CommentsPermalink
(ii) the cost and effectiveness of various technologies for border security, including varying levels of technical complexity; andCommentsClose CommentsPermalink
(iii) liability, safety, and privacy concerns relating to the utilization of such technologies for border security.CommentsClose CommentsPermalink
(4) CONTINUED USE OF AERIAL SURVEILLANCE TECHNOLOGIES- The Secretary may continue the operation of aerial surveillance technologies while assessing the effectiveness of the utilization of such technologies.CommentsClose CommentsPermalink
(5) REPORT TO CONGRESS- Not later than 180 days after implementing the program under this subsection, the Secretary shall submit a report to Congress regarding the program developed under this subsection. The Secretary shall include in the report a description of the program together with such recommendations as the Secretary finds appropriate for enhancing the program.CommentsClose CommentsPermalink
(6) AUTHORIZATION OF APPROPRIATIONS- There are authorized to be appropriated such sums as may be necessary to carry out this subsection.CommentsClose CommentsPermalink
(b) INTEGRATED AND AUTOMATED SURVEILLANCE PROGRAM-CommentsClose CommentsPermalink
(1) REQUIREMENT FOR PROGRAM- Subject to the availability of appropriations, the Secretary shall establish a program to procure additional unmanned aerial vehicles, cameras, poles, sensors, satellites, radar coverage, and other technologies necessary to achieve operational control of the international borders of the United States and to establish a security perimeter known as a `virtual fence' along such international borders to provide a barrier to illegal immigration. Such program shall be known as the Integrated and Automated Surveillance Program.CommentsClose CommentsPermalink
(2) PROGRAM COMPONENTS- The Secretary shall ensure, to the maximum extent feasible, the Integrated and Automated Surveillance Program is carried out in a manner that--CommentsClose CommentsPermalink
(A) the technologies utilized in the Program are integrated and function cohesively in an automated fashion, including the integration of motion sensor alerts and cameras, whereby a sensor alert automatically activates a corresponding camera to pan and tilt in the direction of the triggered sensor;CommentsClose CommentsPermalink
(B) cameras utilized in the Program do not have to be manually operated;CommentsClose CommentsPermalink
(C) such camera views and positions are not fixed;CommentsClose CommentsPermalink
(D) surveillance video taken by such cameras can be viewed at multiple designated communications centers;CommentsClose CommentsPermalink
(E) a standard process is used to collect, catalog, and report intrusion and response data collected under the Program;CommentsClose CommentsPermalink
(F) future remote surveillance technology investments and upgrades for the Program can be integrated with existing systems;CommentsClose CommentsPermalink
(G) performance measures are developed and applied that can evaluate whether the Program is providing desired results and increasing response effectiveness in monitoring and detecting illegal intrusions along the international borders of the United States;CommentsClose CommentsPermalink
(H) plans are developed under the Program to streamline site selection, site validation, and environmental assessment processes to minimize delays of installing surveillance technology infrastructure;CommentsClose CommentsPermalink
(I) standards are developed under the Program to expand the shared use of existing private and governmental structures to install remote surveillance technology infrastructure where possible; andCommentsClose CommentsPermalink
(J) standards are developed under the Program to identify and deploy the use of nonpermanent or mobile surveillance platforms that will increase the Secretary's mobility and ability to identify illegal border intrusions.CommentsClose CommentsPermalink
(3) REPORT TO CONGRESS- Not later than 1 year after the initial implementation of the Integrated and Automated Surveillance Program, the Secretary shall submit to Congress a report regarding the Program. The Secretary shall include in the report a description of the Program together with any recommendation that the Secretary finds appropriate for enhancing the program.CommentsClose CommentsPermalink
(4) EVALUATION OF CONTRACTORS-CommentsClose CommentsPermalink
(A) REQUIREMENT FOR STANDARDS- The Secretary shall develop appropriate standards to evaluate the performance of any contractor providing goods or services to carry out the Integrated and Automated Surveillance Program.CommentsClose CommentsPermalink
(B) REVIEW BY THE INSPECTOR GENERAL- The Inspector General of the Department shall timely review each new contract related to the Program that has a value of more than $5,000,000, to determine whether such contract fully complies with applicable cost requirements, performance objectives, program milestones, and schedules. The Inspector General shall report the findings of such review to the Secretary in a timely manner. Not later than 30 days after the date the Secretary receives a report of findings from the Inspector General, the Secretary shall submit to the Committee on Homeland Security and Governmental Affairs of the Senate and the Committee on Homeland Security of the House of Representatives a report of such findings and a description of any the steps that the Secretary has taken or plans to take in response to such findings.CommentsClose CommentsPermalink
(5) AUTHORIZATION OF APPROPRIATIONS- There are authorized to be appropriated such sums as may be necessary to carry out this subsection.CommentsClose CommentsPermalink
SEC. 126. SURVEILLANCE PLAN.
(a) REQUIREMENT FOR PLAN- The Secretary shall develop a comprehensive plan for the systematic surveillance of the international land and maritime borders of the United States.CommentsClose CommentsPermalink
(b) CONTENT- The plan required by subsection (a) shall include the following:CommentsClose CommentsPermalink
(1) An assessment of existing technologies employed on the international land and maritime borders of the United States.CommentsClose CommentsPermalink
(2) A description of the compatibility of new surveillance technologies with surveillance technologies in use by the Secretary on the date of the enactment of this Act.CommentsClose CommentsPermalink
(3) A description of how the Commissioner of the United States Customs and Border Protection of the Department is working, or is expected to work, with the Under Secretary for Science and Technology of the Department to identify and test surveillance technology.CommentsClose CommentsPermalink
(4) A description of the specific surveillance technology to be deployed.CommentsClose CommentsPermalink
(5) Identification of any obstacles that may impede such deployment.CommentsClose CommentsPermalink
(6) A detailed estimate of all costs associated with such deployment and with continued maintenance of such technologies.CommentsClose CommentsPermalink
(7) A description of how the Secretary is working with the Administrator of the Federal Aviation Administration on safety and airspace control issues associated with the use of unmanned aerial vehicles.CommentsClose CommentsPermalink
(c) SUBMISSION TO CONGRESS- Not later than 6 months after the date of the enactment of this Act, the Secretary shall submit to Congress the plan required by this section.CommentsClose CommentsPermalink
SEC. 127. NATIONAL STRATEGY FOR BORDER SECURITY.
(a) REQUIREMENT FOR STRATEGY- The Secretary, in consultation with the heads of other appropriate Federal agencies, shall develop a National Strategy for Border Security that describes actions to be carried out to achieve operational control over all ports of entry into the United States and the international land and maritime borders of the United States.CommentsClose CommentsPermalink
(b) CONTENT- The National Strategy for Border Security shall include the following:CommentsClose CommentsPermalink
(1) The implementation schedule for the comprehensive plan for systematic surveillance described in section 136.CommentsClose CommentsPermalink
(2) An assessment of the threat posed by terrorists and terrorist groups that may try to infiltrate the United States at locations along the international land and maritime borders of the United States.CommentsClose CommentsPermalink
(3) A risk assessment for all United States ports of entry and all portions of the international land and maritime borders of the United States that includes a description of activities being undertaken--CommentsClose CommentsPermalink
(A) to prevent the entry of terrorists, other unlawful aliens, instruments of terrorism, narcotics, and other contraband into the United States; andCommentsClose CommentsPermalink
(B) to protect critical infrastructure at or near such ports of entry or borders.CommentsClose CommentsPermalink
(4) An assessment of the legal requirements that prevent achieving and maintaining operational control over the entire international land and maritime borders of the United States.CommentsClose CommentsPermalink
(5) An assessment of the most appropriate, practical, and cost-effective means of defending the international land and maritime borders of the United States against threats to security and illegal transit, including intelligence capacities, technology, equipment, personnel, and training needed to address security vulnerabilities.CommentsClose CommentsPermalink
(6) An assessment of staffing needs for all border security functions, taking into account threat and vulnerability information pertaining to the borders and the impact of new security programs, policies, and technologies.CommentsClose CommentsPermalink
(7) A description of the border security roles and missions of Federal, State, regional, local, and tribal authorities, and recommendations regarding actions the Secretary can carry out to improve coordination with such authorities to enable border security and enforcement activities to be carried out in a more efficient and effective manner.CommentsClose CommentsPermalink
(8) An assessment of existing efforts and technologies used for border security and the effect of the use of such efforts and technologies on civil rights, personal property rights, privacy rights, and civil liberties, including an assessment of efforts to take into account asylum seekers, trafficking victims, unaccompanied minor aliens, and other vulnerable populations.CommentsClose CommentsPermalink
(9) A prioritized list of research and development objectives to enhance the security of the international land and maritime borders of the United States.CommentsClose CommentsPermalink
(10) A description of ways to ensure that the free flow of travel and commerce is not diminished by efforts, activities, and programs aimed at securing the international land and maritime borders of the United States.CommentsClose CommentsPermalink
(11) An assessment of additional detention facilities and beds that are needed to detain unlawful aliens apprehended at United States ports of entry or along the international land borders of the United States.CommentsClose CommentsPermalink
(12) A description of the performance metrics to be used to ensure accountability by the bureaus of the Department in implementing such Strategy.CommentsClose CommentsPermalink
(13) A schedule for the implementation of the security measures described in such Strategy, including a prioritization of security measures, realistic deadlines for addressing the security and enforcement needs, an estimate of the resources needed to carry out such measures, and a description of how such resources should be allocated.CommentsClose CommentsPermalink
(c) CONSULTATION- In developing the National Strategy for Border Security, the Secretary shall consult with representatives of--CommentsClose CommentsPermalink
(1) State, local, and tribal authorities with responsibility for locations along the international land and maritime borders of the United States; andCommentsClose CommentsPermalink
(2) appropriate private sector entities, nongovernmental organizations, and affected communities that have expertise in areas related to border security.CommentsClose CommentsPermalink
(d) COORDINATION- The National Strategy for Border Security shall be consistent with the National Strategy for Maritime Security developed pursuant to Homeland Security Presidential Directive 13, dated December 21, 2004.CommentsClose CommentsPermalink
(e) SUBMISSION TO CONGRESS-CommentsClose CommentsPermalink
(1) STRATEGY- Not later than 1 year after the date of the enactment of this Act, the Secretary shall submit to Congress the National Strategy for Border Security.CommentsClose CommentsPermalink
(2) UPDATES- The Secretary shall submit to Congress any update of such Strategy that the Secretary determines is necessary, not later than 30 days after such update is developed.CommentsClose CommentsPermalink
(f) IMMEDIATE ACTION- Nothing in this section or section 111 may be construed to relieve the Secretary of the responsibility to take all actions necessary and appropriate to achieve and maintain operational control over the entire international land and maritime borders of the United States.CommentsClose CommentsPermalink
SEC. 128. BORDER PATROL TRAINING CAPACITY REVIEW.
(a) IN GENERAL- The Comptroller General of the United States shall conduct a review of the basic training provided to Border Patrol agents by the Secretary to ensure that such training is provided as efficiently and cost-effectively as possible.CommentsClose CommentsPermalink
(b) COMPONENTS OF REVIEW- The review under subsection (a) shall include the following components:CommentsClose CommentsPermalink
(1) An evaluation of the length and content of the basic training curriculum provided to new Border Patrol agents by the Federal Law Enforcement Training Center, including a description of how such curriculum has changed since September 11, 2001, and an evaluation of language and cultural diversity training programs provided within such curriculum.CommentsClose CommentsPermalink
(2) A review and a detailed breakdown of the costs incurred by the Bureau of Customs and Border Protection and the Federal Law Enforcement Training Center to train 1 new Border Patrol agent.CommentsClose CommentsPermalink
(3) A comparison, based on the review and breakdown under paragraph (2), of the costs, effectiveness, scope, and quality, including geographic characteristics, with other similar training programs provided by State and local agencies, nonprofit organizations, universities, and the private sector.CommentsClose CommentsPermalink
(4) An evaluation of whether utilizing comparable non-Federal training programs, proficiency testing, and long-distance learning programs may affect--CommentsClose CommentsPermalink
(A) the cost-effectiveness of increasing the number of Border Patrol agents trained per year;CommentsClose CommentsPermalink
(B) the per agent costs of basic training; andCommentsClose CommentsPermalink
(C) the scope and quality of basic training needed to fulfill the mission and duties of a Border Patrol agent.CommentsClose CommentsPermalink
SEC. 129. BIOMETRIC DATA ENHANCEMENTS.
Not later than October 1, 2008, the Secretary shall--CommentsClose CommentsPermalink
(1) in consultation with the Attorney General, enhance connectivity between the Automated Biometric Fingerprint Identification System (IDENT) of the Department and the Integrated Automated Fingerprint Identification System (IAFIS) of the Federal Bureau of Investigation to ensure more expeditious data searches; andCommentsClose CommentsPermalink
(2) in consultation with the Secretary of State, collect all fingerprints from each alien required to provide fingerprints during the alien's initial enrollment in the integrated entry and exit data system described in section 110 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (
SEC. 130. US-VISIT SYSTEM.
Not later than 6 months after the date of the enactment of this Act, the Secretary, in consultation with the heads of other appropriate Federal agencies, shall submit to Congress a schedule for--CommentsClose CommentsPermalink
(1) Equipping all land border ports of entry of the United States with the U.S.-Visitor and Immigrant Status Indicator Technology (US-VISIT) system implemented under section 110 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (
(2) developing and deploying at such ports of entry the exit component of the US-VISIT system; andCommentsClose CommentsPermalink
(3) making interoperable all immigration screening systems operated by the Secretary.CommentsClose CommentsPermalink
SEC. 131. DOCUMENT FRAUD DETECTION.
(a) TRAINING- Subject to the availability of appropriations, the Secretary shall provide all U.S. Customs and Border Protection officers with training in identifying and detecting fraudulent travel documents. Such training shall be developed in consultation with the head of the Forensic Document Laboratory of the U.S. Immigration and Customs Enforcement.CommentsClose CommentsPermalink
(b) FORENSIC DOCUMENT LABORATORY- The Secretary shall provide all U.S. Customs and Border Protection officers with access to the Forensic Document Laboratory.CommentsClose CommentsPermalink
(c) ASSESSMENT-CommentsClose CommentsPermalink
(1) REQUIREMENT FOR ASSESSMENT- The Inspector General of the Department shall conduct an independent assessment of the accuracy and reliability of the Forensic Document Laboratory.CommentsClose CommentsPermalink
(2) REPORT TO CONGRESS- Not later than 6 months after the date of the enactment of this Act, the Inspector General shall submit to Congress the findings of the assessment required by paragraph (1).CommentsClose CommentsPermalink
(d) AUTHORIZATION OF APPROPRIATIONS- There are authorized to be appropriated to the Secretary such sums as may be necessary for each of fiscal years 2008 through 2012 to carry out this section.CommentsClose CommentsPermalink
SEC. 132. BORDER RELIEF GRANT PROGRAM.
(a) GRANTS AUTHORIZED-CommentsClose CommentsPermalink
(1) IN GENERAL- The Secretary is authorized to award grants, subject to the availability of appropriations, to an eligible law enforcement agency to provide assistance to such agency to address--CommentsClose CommentsPermalink
(A) criminal activity that occurs in the jurisdiction of such agency by virtue of such agency's proximity to the United States border; andCommentsClose CommentsPermalink
(B) the impact of any lack of security along the United States border.CommentsClose CommentsPermalink
(2) DURATION- Grants may be awarded under this subsection during fiscal years 2008 through 2012.CommentsClose CommentsPermalink
(3) COMPETITIVE BASIS- The Secretary shall award grants under this subsection on a competitive basis, except that the Secretary shall give priority to applications from any eligible law enforcement agency serving a community--CommentsClose CommentsPermalink
(A) with a population of less than 50,000; andCommentsClose CommentsPermalink
(B) located no more than 100 miles from a United States border with--CommentsClose CommentsPermalink
(i) Canada; orCommentsClose CommentsPermalink
(ii) Mexico.CommentsClose CommentsPermalink
(b) USE OF FUNDS- Grants awarded pursuant to subsection (a) may only be used to provide additional resources for an eligible law enforcement agency to address criminal activity occurring along any such border, including--CommentsClose CommentsPermalink
(1) to obtain equipment;CommentsClose CommentsPermalink
(2) to hire additional personnel;CommentsClose CommentsPermalink
(3) to upgrade and maintain law enforcement technology;CommentsClose CommentsPermalink
(4) to cover operational costs, including overtime and transportation costs; andCommentsClose CommentsPermalink
(5) such other resources as are available to assist that agency.CommentsClose CommentsPermalink
(c) APPLICATION-CommentsClose CommentsPermalink
(1) IN GENERAL- Each eligible law enforcement agency seeking a grant under this section shall submit an application to the Secretary at such time, in such manner, and accompanied by such information as the Secretary may reasonably require.CommentsClose CommentsPermalink
(2) CONTENTS- Each application submitted pursuant to paragraph (1) shall--CommentsClose CommentsPermalink
(A) describe the activities for which assistance under this section is sought; andCommentsClose CommentsPermalink
(B) provide such additional assurances as the Secretary determines to be essential to ensure compliance with the requirements of this section.CommentsClose CommentsPermalink
(d) DEFINITIONS- For the purposes of this section:CommentsClose CommentsPermalink
(1) ELIGIBLE LAW ENFORCEMENT AGENCY- The term `eligible law enforcement agency' means a tribal, State, or local law enforcement agency--CommentsClose CommentsPermalink
(A) located in a county no more than 100 miles from a United States border with--CommentsClose CommentsPermalink
(i) Canada; orCommentsClose CommentsPermalink
(ii) Mexico; orCommentsClose CommentsPermalink
(B) located in a county more than 100 miles from any such border, but where such county has been certified by the Secretary as a High Impact Area.CommentsClose CommentsPermalink
(2) HIGH IMPACT AREA- The term `High Impact Area' means any county designated by the Secretary as such, taking into consideration--CommentsClose CommentsPermalink
(A) whether local law enforcement agencies in that county have the resources to protect the lives, property, safety, or welfare of the residents of that county;CommentsClose CommentsPermalink
(B) the relationship between any lack of security along the United States border and the rise, if any, of criminal activity in that county; andCommentsClose CommentsPermalink
(C) any other unique challenges that local law enforcement face due to a lack of security along the United States border.CommentsClose CommentsPermalink
(e) AUTHORIZATION OF APPROPRIATIONS-CommentsClose CommentsPermalink
(1) IN GENERAL- There are authorized to be appropriated $100,000,000 for each of fiscal years 2008 through 2012 to carry out the provisions of this section.CommentsClose CommentsPermalink
(2) DIVISION OF AUTHORIZED FUNDS- Of the amounts authorized under paragraph (1)--CommentsClose CommentsPermalink
(A) 2/3 shall be set aside for eligible law enforcement agencies located in the 6 States with the largest number of undocumented alien apprehensions; andCommentsClose CommentsPermalink
(B) 1/3 shall be set aside for areas designated as a High Impact Area under subsection (d).CommentsClose CommentsPermalink
(f) SUPPLEMENT NOT SUPPLANT- Amounts appropriated for grants under this section shall be used to supplement and not supplant other State and local public funds obligated for the purposes provided under this title.CommentsClose CommentsPermalink
SEC. 133. PORT OF ENTRY INFRASTRUCTURE ASSESSMENT STUDY.
(a) REQUIREMENT TO UPDATE- Not later than January 31 of each year, the Administrator of General Services, in consultation with U.S. Customs and Border Protection, shall update the Port of Entry Infrastructure Assessment Study prepared by U.S. Customs and Border Protection in accordance with the matter relating to the ports of entry infrastructure assessment that is set out in the joint explanatory statement in the conference report accompanying H.R. 2490 of the 106th Congress, 1st session (House of Representatives Rep. No. 106-319, on page 67) and submit such updated study to Congress.CommentsClose CommentsPermalink
(b) CONSULTATION- In preparing the updated studies required in subsection (a), the Administrator of General Services shall consult with the Director of the Office of Management and Budget, the Secretary, and the Commissioner.CommentsClose CommentsPermalink
(c) CONTENT- Each updated study required in subsection (a) shall--CommentsClose CommentsPermalink
(1) identify port of entry infrastructure and technology improvement projects that would enhance border security and facilitate the flow of legitimate commerce if implemented;CommentsClose CommentsPermalink
(2) include the projects identified in the National Land Border Security Plan required by section; andCommentsClose CommentsPermalink
(3) prioritize the projects described in paragraphs (1) and (2) based on the ability of a project to--CommentsClose CommentsPermalink
(A) fulfill immediate security requirements; andCommentsClose CommentsPermalink
(B) facilitate trade across the borders of the United States.CommentsClose CommentsPermalink
(d) PROJECT IMPLEMENTATION- The Commissioner shall implement the infrastructure and technology improvement projects described in subsection (c) in the order of priority assigned to each project under subsection (c)(3).CommentsClose CommentsPermalink
(e) DIVERGENCE FROM PRIORITIES- The Commissioner may diverge from the priority order if the Commissioner determines that significantly changed circumstances, such as immediate security needs or changes in infrastructure in Mexico or Canada, compellingly alter the need for a project in the United States.CommentsClose CommentsPermalink
SEC. 134. NATIONAL LAND BORDER SECURITY PLAN.
(a) IN GENERAL- Not later than 1 year after the date of the enactment of this Act, and annually thereafter, the Secretary, after consultation with representatives of Federal, State, and local law enforcement agencies and private entities that are involved in international trade across the northern border or the southern border, shall submit a National Land Border Security Plan to Congress.CommentsClose CommentsPermalink
(b) VULNERABILITY ASSESSMENT-CommentsClose CommentsPermalink
(1) IN GENERAL- The plan required in subsection (a) shall include a vulnerability assessment of each port of entry located on the northern border or the southern border.CommentsClose CommentsPermalink
(2) PORT SECURITY COORDINATORS- The Secretary may establish 1 or more port security coordinators at each port of entry located on the northern border or the southern border--CommentsClose CommentsPermalink
(A) to assist in conducting a vulnerability assessment at such port; andCommentsClose CommentsPermalink
(B) to provide other assistance with the preparation of the plan required in subsection (a).CommentsClose CommentsPermalink
SEC. 135. PORT OF ENTRY TECHNOLOGY DEMONSTRATION PROGRAM.
(a) ESTABLISHMENT- The Secretary shall carry out a technology demonstration program to--CommentsClose CommentsPermalink
(1) test and evaluate new port of entry technologies;CommentsClose CommentsPermalink
(2) refine port of entry technologies and operational concepts; andCommentsClose CommentsPermalink
(3) train personnel under realistic conditions.CommentsClose CommentsPermalink
(b) TECHNOLOGY AND FACILITIES-CommentsClose CommentsPermalink
(1) TECHNOLOGY TESTING- Under the technology demonstration program, the Secretary shall test technologies that enhance port of entry operations, including operations related to--CommentsClose CommentsPermalink
(A) inspections;CommentsClose CommentsPermalink
(B) communications;CommentsClose CommentsPermalink
(C) port tracking;CommentsClose CommentsPermalink
(D) identification of persons and cargo;CommentsClose CommentsPermalink
(E) sensory devices;CommentsClose CommentsPermalink
(F) personal detection;CommentsClose CommentsPermalink
(G) decision support; andCommentsClose CommentsPermalink
(H) the detection and identification of weapons of mass destruction.CommentsClose CommentsPermalink
(2) DEVELOPMENT OF FACILITIES- At a demonstration site selected pursuant to subsection (c)(2), the Secretary shall develop facilities to provide appropriate training to law enforcement personnel who have responsibility for border security, including--CommentsClose CommentsPermalink
(A) cross-training among agencies;CommentsClose CommentsPermalink
(B) advanced law enforcement training; andCommentsClose CommentsPermalink
(C) equipment orientation.CommentsClose CommentsPermalink
(c) DEMONSTRATION SITES-CommentsClose CommentsPermalink
(1) NUMBER- The Secretary shall carry out the demonstration program at not less than 3 sites and not more than 5 sites.CommentsClose CommentsPermalink
(2) SELECTION CRITERIA- To ensure that at least 1 of the facilities selected as a port of entry demonstration site for the demonstration program has the most up-to-date design, contains sufficient space to conduct the demonstration program, has a traffic volume low enough to easily incorporate new technologies without interrupting normal processing activity, and can efficiently carry out demonstration and port of entry operations, at least 1 port of entry selected as a demonstration site shall--CommentsClose CommentsPermalink
(A) have been established not more than 15 years before the date of the enactment of this Act;CommentsClose CommentsPermalink
(B) consist of not less than 65 acres, with the possibility of expansion to not less than 25 adjacent acres; andCommentsClose CommentsPermalink
(C) have serviced an average of not more than 50,000 vehicles per month during the 1-year period ending on the date of the enactment of this Act.CommentsClose CommentsPermalink
(d) RELATIONSHIP WITH OTHER AGENCIES- The Secretary shall permit personnel from an appropriate Federal or State agency to utilize a demonstration site described in subsection (c) to test technologies that enhance port of entry operations, including technologies described in subparagraphs (A) through (H) of subsection (b)(1).CommentsClose CommentsPermalink
(e) REPORT-CommentsClose CommentsPermalink
(1) REQUIREMENT- Not later than 1 year after the date of the enactment of this Act, and annually thereafter, the Secretary shall submit to Congress a report on the activities carried out at each demonstration site under the technology demonstration program established under this section.CommentsClose CommentsPermalink
(2) CONTENT- The report submitted under paragraph (1) shall include an assessment by the Secretary of the feasibility of incorporating any demonstrated technology for use throughout the U.S. Customs and Border Protection.CommentsClose CommentsPermalink
SEC. 136. COMBATING HUMAN SMUGGLING.
(a) REQUIREMENT FOR PLAN- The Secretary shall develop and implement a plan to improve coordination between the U.S. Immigration and Customs Enforcement and the U.S. Customs and Border Protection of the Department and any other Federal, State, local, or tribal authorities, as determined appropriate by the Secretary, to improve coordination efforts to combat human smuggling.CommentsClose CommentsPermalink
(b) CONTENT- In developing the plan required by subsection (a), the Secretary shall consider--CommentsClose CommentsPermalink
(1) the interoperability of databases utilized to prevent human smuggling;CommentsClose CommentsPermalink
(2) adequate and effective personnel training;CommentsClose CommentsPermalink
(3) methods and programs to effectively target networks that engage in such smuggling;CommentsClose CommentsPermalink
(4) effective utilization of--CommentsClose CommentsPermalink
(A) visas for victims of trafficking and other crimes; andCommentsClose CommentsPermalink
(B) investigatory techniques, equipment, and procedures that prevent, detect, and prosecute international money laundering and other operations that are utilized in smuggling;CommentsClose CommentsPermalink
(5) joint measures, with the Secretary of State, to enhance intelligence sharing and cooperation with foreign governments whose citizens are preyed on by human smugglers; andCommentsClose CommentsPermalink
(6) other measures that the Secretary considers appropriate to combating human smuggling.CommentsClose CommentsPermalink
(c) REPORT- Not later than 1 year after implementing the plan described in subsection (a), the Secretary shall submit to Congress a report on such plan, including any recommendations for legislative action to improve efforts to combating human smuggling.CommentsClose CommentsPermalink
(d) SAVINGS PROVISION- Nothing in this section may be construed to provide additional authority to any State or local entity to enforce Federal immigration laws.CommentsClose CommentsPermalink
SEC. 137. INCREASE OF FEDERAL DETENTION SPACE AND THE UTILIZATION OF FACILITIES IDENTIFIED FOR CLOSURES AS A RESULT OF THE DEFENSE BASE CLOSURE REALIGNMENT ACT OF 1990.
(a) CONSTRUCTION OR ACQUISITION OF DETENTION FACILITIES-CommentsClose CommentsPermalink
(1) IN GENERAL- The Secretary shall construct or acquire, in addition to existing facilities for the detention of aliens, at least 20 detention facilities in the United States that have the capacity to detain a combined total of not less than 20,000 individuals at any time for aliens detained pending removal or a decision on removal of such aliens from the United States subject to available appropriations.CommentsClose CommentsPermalink
(b) CONSTRUCTION OF OR ACQUISITION OF DETENTION FACILITIES-CommentsClose CommentsPermalink
(1) REQUIREMENT TO CONSTRUCT OR ACQUIRE- The Secretary shall construct or acquire additional detention facilities in the United States to accommodate the detention beds required by section 5204(a) of the Intelligence Reform and Terrorism Protection Act of 2004, as amended by subsection (a), subject to available appropriations.CommentsClose CommentsPermalink
(2) USE OF ALTERNATE DETENTION FACILITIES- Subject to the availability of appropriations, the Secretary shall fully utilize all possible options to cost effectively increase available detention capacities, and shall utilize detention facilities that are owned and operated by the Federal Government if the use of such facilities is cost effective.CommentsClose CommentsPermalink
(3) USE OF INSTALLATIONS UNDER BASE CLOSURE LAWS- In acquiring additional detention facilities under this subsection, the Secretary shall consider the transfer of appropriate portions of military installations approved for closure or realignment under the Defense Base Closure and Realignment Act of 1990 (part A of title XXIX of
(4) DETERMINATION OF LOCATION- The location of any detention facility constructed or acquired in accordance with this subsection shall be determined, with the concurrence of the Secretary, by the senior officer responsible for Detention and Removal Operations in the Department. The detention facilities shall be located so as to enable the officers and employees of the Department to increase to the maximum extent practicable the annual rate and level of removals of illegal aliens from the United States.CommentsClose CommentsPermalink
(c) ANNUAL REPORT TO CONGRESS- Not later than 1 year after the date of the enactment of this Act, and annually thereafter, in consultation with the heads of other appropriate Federal agencies, the Secretary shall submit to Congress an assessment of the additional detention facilities and bed space needed to detain unlawful aliens apprehended at the United States ports of entry or along the international land borders of the United States.CommentsClose CommentsPermalink
(d) TECHNICAL AND CONFORMING AMENDMENT- Section 241(g)(1) (
(e) AUTHORIZATION OF APPROPRIATIONS- There are authorized to be appropriated such sums as may be necessary to carry out this section.CommentsClose CommentsPermalink
SEC. 138. UNITED STATES-MEXICO BORDER ENFORCEMENT REVIEW COMMISSION.
(a) ESTABLISHMENT OF COMMISSION-CommentsClose CommentsPermalink
(1) IN GENERAL- There is established an independent commission to be known as the United States-Mexico Border Enforcement Review Commission (referred to in this section as the `Commission').CommentsClose CommentsPermalink
(2) PURPOSES- The purposes of the Commission are--CommentsClose CommentsPermalink
(A) to study the overall enforcement strategies, programs and policies of Federal agencies along the United States-Mexico border; andCommentsClose CommentsPermalink
(B) to make recommendations to the President and Congress with respect to such strategies, programs and policies.CommentsClose CommentsPermalink
(3) MEMBERSHIP- The Commission shall be composed of 17 voting members, who shall be appointed as follows:CommentsClose CommentsPermalink
(A) The Governors of the States of California, New Mexico, Arizona, and Texas shall each appoint 4 voting members of whom--CommentsClose CommentsPermalink
(i) 1 shall be a local elected official from the State's border region;CommentsClose CommentsPermalink
(ii) 1 shall be a local law enforcement official from the State's border region; andCommentsClose CommentsPermalink
(iii) 2 shall be from the State's communities of academia, religious leaders, civic leaders or community leaders.CommentsClose CommentsPermalink
(B) 2 nonvoting members, of whom--CommentsClose CommentsPermalink
(i) 1 shall be appointed by the Secretary;CommentsClose CommentsPermalink
(ii) 1 shall be appointed by the Attorney General; andCommentsClose CommentsPermalink
(iii) 1 shall be appointed by the Secretary of State.CommentsClose CommentsPermalink
(4) QUALIFICATIONS-CommentsClose CommentsPermalink
(A) IN GENERAL- Members of the Commission shall be--CommentsClose CommentsPermalink
(i) individuals with expertise in migration, border enforcement and protection, civil and human rights, community relations, crossborder trade and commerce or other pertinent qualifications or experience; andCommentsClose CommentsPermalink
(ii) representative of a broad cross section of perspectives from the region along the international border between the United States and Mexico;CommentsClose CommentsPermalink
(B) POLITICAL AFFILIATION- Not more than 2 members of the Commission appointed by each Governor under paragraph (3)(A) may be members of the same political party.CommentsClose CommentsPermalink
(C) NONGOVERNMENTAL APPOINTEES- An individual appointed as a voting member to the Commission may not be an officer or employee of the Federal Government.CommentsClose CommentsPermalink
(5) DEADLINE FOR APPOINTMENT- All members of the Commission shall be appointed not later than 6 months after the enactment of this Act. If any member of the Commission described in paragraph (3)(A) is not appointed by such date, the Commission shall carry out its duties under this section without the participation of such member.CommentsClose CommentsPermalink
(6) TERM OF SERVICE- The term of office for members shall be for life of the Commission.CommentsClose CommentsPermalink
(7) VACANCIES- Any vacancy in the Commission shall not affect its powers, but shall be filled in the same manner in which the original appointment was made.CommentsClose CommentsPermalink
(8) MEETINGS-CommentsClose CommentsPermalink
(A) INITIAL MEETING- The Commission shall meet and begin the operations of the Commission as soon as practicable.CommentsClose CommentsPermalink
(B) SUBSEQUENT MEETINGS- After its initial meeting, the Commission shall meet upon the call of the chairman or a majority of its members.CommentsClose CommentsPermalink
(9) QUORUM- Nine members of the Commission shall constitute a quorum.CommentsClose CommentsPermalink
(10) CHAIR AND VICE CHAIR- The voting members of the Commission shall elect a Chairman and Vice Chairman from among its members. The term of office shall be for the life of the Commission.CommentsClose CommentsPermalink
(b) DUTIES- The Commission shall review, examine, and make recommendations regarding border enforcement policies, strategies, and programs, including recommendations regarding--CommentsClose CommentsPermalink
(1) the protection of human and civil rights of community residents and migrants along the international border between the United States and Mexico;CommentsClose CommentsPermalink
(2) the adequacy and effectiveness of human and civil rights training of enforcement personnel on such border;CommentsClose CommentsPermalink
(3) the adequacy of the complaint process within the agencies and programs of the Department that are employed when an individual files a grievance;CommentsClose CommentsPermalink
(4) the effect of the operations, technology, and enforcement infrastructure along such border on the--CommentsClose CommentsPermalink
(A) environment;CommentsClose CommentsPermalink
(B) cross border traffic and commerce; andCommentsClose CommentsPermalink
(C) the quality of life of border communities;CommentsClose CommentsPermalink
(5) local law enforcement involvement in the enforcement of Federal immigration law; andCommentsClose CommentsPermalink
(6) any other matters regarding border enforcement policies, strategies, and programs the Commission determines appropriate.CommentsClose CommentsPermalink
(c) INFORMATION AND ASSISTANCE FROM FEDERAL AGENCIES-CommentsClose CommentsPermalink
(1) INFORMATION FROM FEDERAL AGENCIES- The Commission may seek directly from any department or agency of the United States such information, including suggestions, estimates, and statistics, as allowed by law and as the Commission considers necessary to carry out the provisions of this section. Upon request of the Commission, the head of such department or agency shall furnish such information to the Commission.CommentsClose CommentsPermalink
(2) ASSISTANCE FROM FEDERAL AGENCIES- The Administrator of General Services shall, on a reimbursable basis, provide the Commission with administrative support and other services for the performance of the Commission's functions. The departments and agencies of the United States may provide the Commission with such services, funds, facilities, staff, and other support services as they determine advisable and as authorized by law.CommentsClose CommentsPermalink
(d) COMPENSATION-CommentsClose CommentsPermalink
(1) IN GENERAL- Members of the Commission shall serve without pay.CommentsClose CommentsPermalink
(2) REIMBURSEMENT OF EXPENSES- All members of the Commission shall be reimbursed for reasonable travel expenses and subsistence, and other reasonable and necessary expenses incurred by them in the performance of their duties.CommentsClose CommentsPermalink
(e) REPORT- Not later than 2 years after the date of the first meeting called pursuant to (a)(8)(A), the Commission shall submit a report to the President and Congress that contains--CommentsClose CommentsPermalink
(1) findings with respect to the duties of the Commission;CommentsClose CommentsPermalink
(2) recommendations regarding border enforcement policies, strategies, and programs;CommentsClose CommentsPermalink
(3) suggestions for the implementation of the Commission's recommendations; andCommentsClose CommentsPermalink
(4) a recommendation as to whether the Commission should continue to exist after the date of termination described in subsection (g), and if so, a description of the purposes and duties recommended to be carried out by the Commission after such date.CommentsClose CommentsPermalink
(f) AUTHORIZATION OF APPROPRIATIONS- There are authorized to be appropriated such sums as may be necessary to carry out this section.CommentsClose CommentsPermalink
(g) SUNSET- Unless the Commission is reauthorized by Congress, the Commission shall terminate on the date that is 90 days after the date the Commission submits the report described in subsection (e).CommentsClose CommentsPermalink
SEC. 139. NORTHERN BORDER PROSECUTION REIMBURSEMENT.
(a) SHORT TITLE- This section may be cited as the `Northern Border Prosecution Initiative Reimbursement Act'.CommentsClose CommentsPermalink
(b) NORTHERN BORDER PROSECUTION INITIATIVE-CommentsClose CommentsPermalink
(1) INITIATIVE REQUIRED- From amounts made available to carry out this section, the Attorney General, acting through the Director of the Bureau of Justice Assistance of the Office of Justice Programs, shall carry out a program, to be known as the Northern Border Prosecution Initiative, to provide funds to reimburse eligible northern border entities for costs incurred by those entities for handling case dispositions of criminal cases that are federally initiated but federally declined-referred. This program shall be modeled after the Southwestern Border Prosecution Initiative and shall serve as a partner program to that initiative to reimburse local jurisdictions for processing Federal cases.CommentsClose CommentsPermalink
(2) PROVISION AND ALLOCATION OF FUNDS- Funds provided under the program shall be provided in the form of direct reimbursements and shall be allocated in a manner consistent with the manner under which funds are allocated under the Southwestern Border Prosecution Initiative.CommentsClose CommentsPermalink
(3) USE OF FUNDS- Funds provided to an eligible northern border entity may be used by the entity for any lawful purpose, including the following purposes:CommentsClose CommentsPermalink
(A) Prosecution and related costs.CommentsClose CommentsPermalink
(B) Court costs.CommentsClose CommentsPermalink
(C) Costs of courtroom technology.CommentsClose CommentsPermalink
(D) Costs of constructing holding spaces.CommentsClose CommentsPermalink
(E) Costs of administrative staff.CommentsClose CommentsPermalink
(F) Costs of defense counsel for indigent defendants.CommentsClose CommentsPermalink
(G) Detention costs, including pre-trial and post-trial detention.CommentsClose CommentsPermalink
(4) DEFINITIONS- In this section:CommentsClose CommentsPermalink
(A) The term `eligible northern border entity' means--CommentsClose CommentsPermalink
(i) any of the following States: Alaska, Idaho, Maine, Michigan, Minnesota, Montana, New Hampshire, New York, North Dakota, Ohio, Pennsylvania, Vermont, Washington, and Wisconsin; orCommentsClose CommentsPermalink
(ii) any unit of local government within a State referred to in clause (i).CommentsClose CommentsPermalink
(B) The term `federally initiated' means, with respect to a criminal case, that the case results from a criminal investigation or an arrest involving Federal law enforcement authorities for a potential violation of Federal criminal law, including investigations resulting from multi-jurisdictional task forces.CommentsClose CommentsPermalink
(C) The term `federally declined-referred' means, with respect to a criminal case, that a decision has been made in that case by a United States Attorney or a Federal law enforcement agency during a Federal investigation to no longer pursue Federal criminal charges against a defendant and to refer the investigation to a State or local jurisdiction for possible prosecution. The term includes a decision made on an individualized case-by-case basis as well as a decision made pursuant to a general policy or practice or pursuant to prosecutorial discretion.CommentsClose CommentsPermalink
(D) The term `case disposition', for purposes of the Northern Border Prosecution Initiative, refers to the time between a suspect's arrest and the resolution of the criminal charges through a county or State judicial or prosecutorial process. Disposition does not include incarceration time for sentenced offenders, or time spent by prosecutors on judicial appeals.CommentsClose CommentsPermalink
(c) AUTHORIZATION OF APPROPRIATIONS- There is authorized to be appropriated to carry out this section $28,000,000 for fiscal year 2008 and such sums as may be necessary for each succeeding fiscal year.CommentsClose CommentsPermalink
Subtitle D--Asylum and Detention Safeguards
SEC. 140. SHORT TITLE.
This subtitle may be cited as the `Secure and Safe Detention and Asylum Act'.CommentsClose CommentsPermalink
SEC. 141. DEFINITIONS.
In this subtitle:CommentsClose CommentsPermalink
(1) CREDIBLE FEAR OF PERSECUTION- The term `credible fear of persecution' has the meaning given that term in section 235(b)(1)(B)(v) of the Immigration and Nationality Act (
(2) DETAINEE- The term `detainee' means an alien in the custody of the Department of Homeland Security who is held in a detention facility.CommentsClose CommentsPermalink
(3) DETENTION FACILITY- The term `detention facility' means any Federal facility in which an alien detained pending the outcome of a removal proceeding, or an alien detained pending the execution of a final order of removal, is detained for more than 72 hours, or any other facility in which such detention services are provided to the Federal Government by contract, and does not include detention at any port of entry in the United States.CommentsClose CommentsPermalink
(4) REASONABLE FEAR OF PERSECUTION OR TORTURE- The term `reasonable fear of persecution or torture' has the meaning given that term in section 208.31 of title 8, Code of Federal Regulations.CommentsClose CommentsPermalink
(5) STANDARD- The term `standard' means any policy, procedure, or other requirement.CommentsClose CommentsPermalink
SEC. 142. RECORDING EXPEDITED REMOVAL INTERVIEWS.
(a) IN GENERAL- The Secretary shall establish quality assurance procedures and take steps to effectively ensure that questions by employees of the Department exercising expedited removal authority under section 235(b) of the Immigration and Nationality Act (
(b) FACTORS RELATING TO SWORN STATEMENTS- Where practicable, as determined by the Secretary in his discretion, any sworn or signed written statement taken of an alien as part of the record of a proceeding under section 235(b)(1)(A) of the Immigration and Nationality Act (
(c) EXEMPTION AUTHORITY-CommentsClose CommentsPermalink
(1) IN GENERAL- Subsection (b) sha1l not apply to interviews that occur at facilities, locations, or areas exempted by the Secretary pursuant to this subsection.CommentsClose CommentsPermalink
(2) EXEMPTION- The Secretary or the Secretary's designee may exempt any facility, location, or area from the requirements of this section based on a determination by the Secretary or the Secretary's designee that compliance with subsection (b) at that facility would impair operations or impose undue burdens or costs.CommentsClose CommentsPermalink
(3) REPORT- The Secretary or the Secretary's designee shall report annually to Congress on the facilities that have been exempted pursuant to this subsection.CommentsClose CommentsPermalink
(d) INTERPRETERS- The Secretary shall ensure that a competent interpreter, not affiliated with the government of the country from which the alien may claim asylum, is used when the interviewing officer does not speak a language understood by the alien and there is no other Federal, State, or local government employee available who is able to interpret effectively, accurately, and impartially.CommentsClose CommentsPermalink
(e) RECORDINGS IN IMMIGRATION PROCEEDINGS- Recordings of interviews of aliens subject to expedited removal shall be included in the record of proceeding and may be considered as evidence in any further proceedings involving the alien.CommentsClose CommentsPermalink
(f) NO PRIVATE RIGHT OF ACTION- Nothing in this section shall be construed to create any right, benefit, trust, or responsibility, whether substantive or procedural, enforceable in law or equity by a party against the United States, its departments, agencies, instrumentalities, entities, officers, employees, or agents, or any person, nor does this section create any right of review in any administrative, judicial, or other proceeding.CommentsClose CommentsPermalink
SEC. 143. OPTIONS REGARDING DETENTION DECISIONS.
Section 236 of the Immigration and Nationality Act (
(1) in subsection (a)--CommentsClose CommentsPermalink
(A) in the matter preceding paragraph (1)--CommentsClose CommentsPermalink
(i) in the first sentence by striking `Attorney General' and inserting `Secretary of Homeland Security'; andCommentsClose CommentsPermalink
(ii) in the second sentence by striking `Attorney General' and inserting `Secretary';CommentsClose CommentsPermalink
(B) in paragraph (2)--CommentsClose CommentsPermalink
(i) in subparagraph (A)--CommentsClose CommentsPermalink
(I) by striking `Attorney General' and inserting `Secretary'; andCommentsClose CommentsPermalink
(II) by striking `or' at the end;CommentsClose CommentsPermalink
(ii) in subparagraph (B), by striking `but' at the end; andCommentsClose CommentsPermalink
(iii) by inserting after subparagraph (B) the following:CommentsClose CommentsPermalink
`(C) the alien's own recognizance; orCommentsClose CommentsPermalink
`(D) a secure alternatives program as provided for in this section; but';CommentsClose CommentsPermalink
(2) in subsection (b), by striking `Attorney General' and inserting `Secretary';CommentsClose CommentsPermalink
(3) in subsection (c)--CommentsClose CommentsPermalink
(A) by striking `Attorney General' and inserting `Secretary' each place it appears; andCommentsClose CommentsPermalink
(B) in paragraph (2), by inserting `or for humanitarian reasons,' after `such an investigation,'; andCommentsClose CommentsPermalink
(4) in subsection (d)--CommentsClose CommentsPermalink
(A) in paragraph (1), by striking `Attorney General' and inserting `Secretary';CommentsClose CommentsPermalink
(B) in paragraph (1), in subparagraphs (A) and (B), by striking `Service' each place it appears and inserting `Department of Homeland Security'; andCommentsClose CommentsPermalink
(C) in paragraph (3), by striking `Service' and inserting `Secretary of Homeland Security'.CommentsClose CommentsPermalink
SEC. 144. REPORT TO CONGRESS ON PAROLE PROCEDURES AND STANDARDIZATION OF PAROLE PROCEDURES.
(a) IN GENERAL- The Attorney General and the Secretary of Homeland Security shall jointly conduct a review and report to the appropriate Committees of the Senate and the House of Representatives within 180 days of the date of enactment of this Act regarding the effectiveness of parole and custody determination procedures applicable to aliens who have established a credible fear of persecution and are awaiting a final determination regarding their asylum claim by the immigration courts. The report shall include the following:CommentsClose CommentsPermalink
(1) An analysis of the rate at which release from detention (including release on parole) is granted to aliens who have established a credible fear of persecution and are awaiting a final determination regarding their asylum claim by the immigration courts throughout the United States, and any disparity that exists between locations or geographical areas, including explanation of the reasons for this disparity and what actions are being taken to have consistent and uniform application of the standards for granting parole.CommentsClose CommentsPermalink
(2) An analysis of the effect of the procedures and policies applied with respect to parole and custody determinations both by the Attorney General and the Secretary on the alien's pursuit of their asylum claim before an immigration court.CommentsClose CommentsPermalink
(3) An analysis of the effect of the procedures and policies applied with respect to parole and custody determinations both by the Attorney General and the Secretary on the alien's physical and psychological well-being.CommentsClose CommentsPermalink
(4) An analysis of the effectiveness of the procedures and policies applied with respect to parole and custody determinations both by the Attorney General and the Secretary in securing the alien's presence at the immigration court proceedings.CommentsClose CommentsPermalink
(b) RECOMMENDATIONS- The report shall include recommendations with respect to whether the existing parole and custody determination procedures applicable to aliens who have established a credible fear of persecution and are awaiting a final determination regarding their asylum claim by the immigration courts should be modified in order to ensure a more consistent application of these procedures in a way that both respects the interests of aliens pursuing valid claims of asylum and ensures the presence of the aliens at the immigration court proceedings.CommentsClose CommentsPermalink
SEC. 145. LEGAL ORIENTATION PROGRAM.
(a) IN GENERAL- The Attorney General, in consultation with the Secretary of Homeland Security, shall ensure that all detained aliens in immigration and asylum proceedings receive legal orientation through a program administered and implemented by the Executive Office for Immigration Review of the Department of Justice.CommentsClose CommentsPermalink
(b) CONTENT OF PROGRAM- The legal orientation program developed pursuant to this section shall be based on the Legal Orientation Program carried out by the Executive Office for Immigration Review on the date of the enactment of this Act.CommentsClose CommentsPermalink
(c) EXPANSION OF LEGAL ASSISTANCE- The Secretary shall ensure the expansion through the United States Citizenship and Immigration Service of public-private partnerships that facilitate pro bono counseling and legal assistance for aliens awaiting a credible fear of persecution interview or an interview related to a reasonable fear of persecution or torture determination under section 241(b)(3).CommentsClose CommentsPermalink
SEC. 146. CONDITIONS OF DETENTION.
(a) IN GENERAL- The Secretary shall ensure that standards governing conditions and procedures at detention facilities are fully implemented and enforced, and that all detention facilities comply with the standards.CommentsClose CommentsPermalink
(b) PROCEDURES AND STANDARDS- The Secretary shall promulgate new standards, or modify existing detention standards, to comply with the following policies and procedures:CommentsClose CommentsPermalink
(1) FAIR AND HUMANE TREATMENT- Procedures to prevent detainees from being subject to degrading or inhumane treatment such as physical abuse, sexual abuse or harassment, or arbitrary punishment.CommentsClose CommentsPermalink
(2) LIMITATIONS ON SOLITARY CONFINEMENT- Procedures limiting the use of solitary confinement, shackling, and strip searches of detainees to situations where the use of such techniques is necessitated by security interests, the safety of officers and other detainees, or other extraordinary circumstances.CommentsClose CommentsPermalink
(3) INVESTIGATION OF GRIEVANCES- Procedures for the prompt and effective investigation of grievances raised by detainees.CommentsClose CommentsPermalink
(4) ACCESS TO TELEPHONES- Procedures permitting detainees sufficient access to telephones, and the ability to contact, free of charge, legal representatives, the immigration courts, the Board of Immigration Appeals, and the Federal courts through confidential toll-free numbers.CommentsClose CommentsPermalink
(5) LOCATION OF FACILITIES- Location of detention facilities, to the extent practicable, near sources of free or low-cost legal representation with expertise in asylum or immigration law.CommentsClose CommentsPermalink
(6) PROCEDURES GOVERNING TRANSFERS OF DETAINEES- Procedures governing the transfer of a detainee that take into account--CommentsClose CommentsPermalink
(A) the detainee's access to legal representatives; andCommentsClose CommentsPermalink
(B) the proximity of the facility to the venue of the asylum or removal proceeding.CommentsClose CommentsPermalink
(7) QUALITY OF MEDICAL CARE-CommentsClose CommentsPermalink
(A) IN GENERAL- Essential medical care provided promptly at no cost to the detainee, including dental care, eye care, mental health care, and where appropriate, individual and group counseling, medical dietary needs, and other medically necessary specialized care. Medical facilities in all detention facilities used by the Department maintain current accreditation by the National Commission on Correctional Health Care (NCCHC). Requirements that each medical facility that is not accredited by the Joint Commission on the Accreditation of Health Care Organizations (JCAHO) will seek to obtain such accreditation. Maintenance of complete medical records for every detainee which shall be made available upon request to a detainee, his legal representative, or other authorized individuals.CommentsClose CommentsPermalink
(B) EXCEPTION- A detention facility that is not operated by the Department of Homeland Security or by a private contractor on behalf of the Department of Homeland Security shall not be required to maintain current accreditation by the NCCHC or to seek accreditation by the JCAHO.CommentsClose CommentsPermalink
(8) TRANSLATION CAPABILITIES- The employment of detention facility staff that, to the extent practicable, are qualified in the languages represented in the population of detainees at a detention facility, and the provision of alternative translation services when necessary.CommentsClose CommentsPermalink
(9) RECREATIONAL PROGRAMS AND ACTIVITIES- Frequent access to indoor and outdoor recreational programs and activities.CommentsClose CommentsPermalink
(c) Special Standards for Noncriminal Detainees- The Secretary shall promulgate new standards, or modifications to existing standards, that--CommentsClose CommentsPermalink
(1) recognize the distinctions between persons with criminal convictions or a history of violent behavior and all other detainees; andCommentsClose CommentsPermalink
(2) ensure that procedures and conditions of detention are appropriate for a noncriminal, nonviolent population.CommentsClose CommentsPermalink
(d) SPECIAL STANDARDS FOR SPECIFIC POPULATIONS- The Secretary shall promulgate new standards, or modifications to existing standards, that--CommentsClose CommentsPermalink
(1) recognize the unique needs of--CommentsClose CommentsPermalink
(A) victims of persecution, torture, trafficking, and domestic violence;CommentsClose CommentsPermalink
(B) families with children;CommentsClose CommentsPermalink
(C) detainees who do not speak English; andCommentsClose CommentsPermalink
(D) detainees with special religious, cultural, or spiritual considerations; andCommentsClose CommentsPermalink
(2) ensure that procedures and conditions of detention are appropriate for the populations described in paragraph (1).CommentsClose CommentsPermalink
(e) TRAINING OF PERSONNEL-CommentsClose CommentsPermalink
(1) IN GENERAL- The Secretary shall ensure that personnel in detention facilities are given specialized training to better understand and work with the population of detainees held at the facilities where such personnel work. The training should address the unique needs of--CommentsClose CommentsPermalink
(A) aliens who have established credible fear of persecution;CommentsClose CommentsPermalink
(B) victims of torture or other trauma and victims of persecution, trafficking, and domestic violence; andCommentsClose CommentsPermalink
(C) families with children, detainees who do not speak English, and detainees with special religious, cultural, or spiritual considerations.CommentsClose CommentsPermalink
(2) SPECIALIZED TRAINING- The training required by this subsection shall be designed to better enable personnel to work with detainees from different countries, and detainees who cannot speak English. The training shall emphasize that many detainees have no criminal records and are being held for civil violations.CommentsClose CommentsPermalink
(f) NO PRIVATE RIGHT OF ACTION- Nothing in this section shall be construed to create any right, benefit, trust, or responsibility, whether substantive or procedural, enforceable in law or equity by a party against the United States, its departments, agencies, instrumentalities, entities, officers, employees, or agents, or any person, nor does this section create any right of review in any administrative, judicial, or other proceeding.CommentsClose CommentsPermalink
SEC. 147. OFFICE OF DETENTION OVERSIGHT.
(a) ESTABLISHMENT OF THE OFFICE-CommentsClose CommentsPermalink
(1) IN GENERAL- There shall be established within the Department an Office of Detention Oversight (in this section referred to as the `Office').CommentsClose CommentsPermalink
(2) HEAD OF THE OFFICE- There shall be at the head of the Office an Administrator. At the discretion of the Secretary, the Administrator of the Office shall be appointed by, and shall report to, either the Secretary or the Assistant Secretary of Homeland Security for United States Immigration and Customs Enforcement. The Office shall be independent of the Office of Detention and Removal Operations, but shall be subject to the supervision and direction of the Secretary or Assistant Secretary.CommentsClose CommentsPermalink
(3) SCHEDULE- The Office shall be established and the Administrator of the Office appointed not later than 6 months after the date of the enactment of this Act.CommentsClose CommentsPermalink
(b) RESPONSIBILITIES OF THE OFFICE-CommentsClose CommentsPermalink
(1) INSPECTIONS OF DETENTION CENTERS- The Administrator of the Office shall--CommentsClose CommentsPermalink
(A) undertake regular and, where appropriate, unannounced inspections of all detention facilities;CommentsClose CommentsPermalink
(B) develop a procedure for any detainee or the detainee's representative to file a confidential written complaint directly with the Office; andCommentsClose CommentsPermalink
(C) report to the Secretary and to the Assistant Secretary all findings of a detention facility's noncompliance with detention standards.CommentsClose CommentsPermalink
(2) INVESTIGATIONS- The Administrator of the Office shall--CommentsClose CommentsPermalink
(A) initiate investigations, as appropriate, into allegations of systemic problems at detention facilities or incidents that constitute serious violations of detention standards;CommentsClose CommentsPermalink
(B) conduct any review or audit relating to detention as directed by the Secretary or the Assistant Secretary;CommentsClose CommentsPermalink
(C) report to the Secretary and the Assistant Secretary the results of all investigations, reviews, or audits; andCommentsClose CommentsPermalink
(D) refer matters, where appropriate, for further action to--CommentsClose CommentsPermalink
(i) the Department of Justice;CommentsClose CommentsPermalink
(ii) the Office of the Inspector General of the Department;CommentsClose CommentsPermalink
(iii) the Office of Civil Rights and Civil Liberties of the Department; orCommentsClose CommentsPermalink
(iv) any other relevant office or agency.CommentsClose CommentsPermalink
(3) REPORT TO CONGRESS-CommentsClose CommentsPermalink
(A) IN GENERAL- The Administrator of the Office shall submit to the Secretary, the Assistant Secretary, the Committee on the Judiciary and the Committee on Homeland Security and Governmental Affairs of the Senate, and the Committee on the Judiciary and the Committee on Homeland Security of the House of Representatives an annual report on the Administrator's findings on detention conditions and the results of the completed investigations carried out by the Administrator.CommentsClose CommentsPermalink
(B) CONTENTS OF REPORT- Each report required by subparagraph (A) shall include--CommentsClose CommentsPermalink
(i) a description of--CommentsClose CommentsPermalink
(I) each detention facility found to be in noncompliance with the standards for detention required by this subtitle; andCommentsClose CommentsPermalink
(II) the actions taken by the Department to remedy any findings of noncompliance or other identified problems; andCommentsClose CommentsPermalink
(ii) information regarding whether such actions were successful and resulted in compliance with detention standards.CommentsClose CommentsPermalink
(c) COOPERATION WITH OTHER OFFICES AND AGENCIES- Whenever appropriate, the Administrator of the Office shall cooperate and coordinate its activities with--CommentsClose CommentsPermalink
(1) the Office of the Inspector General of the Department;CommentsClose CommentsPermalink
(2) the Office of Civil Rights and Civil Liberties of the Department;CommentsClose CommentsPermalink
(3) the Privacy Officer of the Department;CommentsClose CommentsPermalink
(4) the Department of Justice; orCommentsClose CommentsPermalink
(5) any other relevant office or agency.CommentsClose CommentsPermalink
SEC. 148. SECURE ALTERNATIVES PROGRAM.
(a) ESTABLISHMENT OF PROGRAM- The Secretary shall establish a secure alternatives program under which an alien who has been detained may be released under enhanced supervision to prevent the alien from absconding and to ensure that the alien makes appearances related to such detention.CommentsClose CommentsPermalink
(b) PROGRAM REQUIREMENTS-CommentsClose CommentsPermalink
(1) NATIONWIDE IMPLEMENTATION- The Secretary shall facilitate the development of the secure alternatives program on a nationwide basis, as a continuation of existing pilot programs such as the Intensive Supervision Appearance Program developed by the Department.CommentsClose CommentsPermalink
(2) UTILIZATION OF ALTERNATIVES- In facilitating the development of the secure alternatives program, the Secretary shall have discretion to utilize a continuum of alternatives to a supervision of the alien, including placement of the alien with an individual or organizational sponsor, or in a supervised group home.CommentsClose CommentsPermalink
(3) ALIENS ELIGIBLE FOR SECURE ALTERNATIVES PROGRAM-CommentsClose CommentsPermalink
(A) IN GENERAL- Aliens who would otherwise be subject to detention based on a consideration of the release criteria in section 236(b)(2), or who are released pursuant to section 236(c)(2), shall be considered for the secure alternatives program.CommentsClose CommentsPermalink
(B) DESIGN OF PROGRAMS- In developing the secure alternatives program, the Secretary shall take into account the extent to which the program includes only those alternatives to detention that reasonably and reliably ensure--CommentsClose CommentsPermalink
(i) the alien's continued presence at all future immigration proceedings;CommentsClose CommentsPermalink
(ii) the alien's compliance with any future order or removal; andCommentsClose CommentsPermalink
(iii) the public safety or national security.CommentsClose CommentsPermalink
(C) CONTINUED EVALUATION- The Secretary shall evaluate regularly the effectiveness of the program, including the effectiveness of the particular alternatives to detention used under the program, and make such modifications as the Secretary deems necessary to improve the program's effectiveness or to deter abuse.CommentsClose CommentsPermalink
(4) CONTRACTS AND OTHER CONSIDERATIONS- The Secretary may enter into contracts with qualified nongovernmental entities to implement the secure alternatives program and, in designing such program, shall consult with relevant experts and consider programs that have proven successful in the past.CommentsClose CommentsPermalink
SEC. 149. LESS RESTRICTIVE DETENTION FACILITIES.
(a) CONSTRUCTION- To the extent practicable, the Secretary shall facilitate the construction or use of secure but less restrictive detention facilities for the purpose of long-term detention where detainees are held longer than 72 hours.CommentsClose CommentsPermalink
(b) CRITERIA- In pursuing the development of detention facilities pursuant to this section, the Secretary shall--CommentsClose CommentsPermalink
(1) consider the design, operation, and conditions of existing secure but less restrictive detention facilities; andCommentsClose CommentsPermalink
(2) to the extent practicable, construct or use detention facilities where--CommentsClose CommentsPermalink
(A) movement within and between indoor and outdoor areas of the facility is subject to minimal restrictions;CommentsClose CommentsPermalink
(B) detainees have ready access to social, psychological, and medical services;CommentsClose CommentsPermalink
(C) detainees with special needs, including those who have experienced trauma or torture, have ready access to services and treatment addressing their needs;CommentsClose CommentsPermalink
(D) detainees have frequent access to programs and recreation;CommentsClose CommentsPermalink
(E) detainees are permitted contact visits with legal representatives and family members; andCommentsClose CommentsPermalink
(F) special facilities are provided to families with children.CommentsClose CommentsPermalink
(c) FACILITIES FOR FAMILIES WITH CHILDREN- In any case in which release or secure alternatives programs are not a practicable option, the Secretary shall, to the extent practicable, ensure that special detention facilities for the purposes of long-term detention where detainees are held longer than 72 hours are specifically designed to house parents with their minor children, including ensuring that--CommentsClose CommentsPermalink
(1) procedures and conditions of detention are appropriate for families with minor children; andCommentsClose CommentsPermalink
(2) living and sleeping quarters for children under 14 years of age are not physically separated from at least 1 of the child's parents.CommentsClose CommentsPermalink
(d) PLACEMENT IN NONPUNITIVE FACILITIES- Among the factors to be considered with respect to placing a detainee in a less restrictive facility is whether the detainee is--CommentsClose CommentsPermalink
(1) part of a family with minor children;CommentsClose CommentsPermalink
(2) a victim of persecution, torture, trafficking, or domestic violence; orCommentsClose CommentsPermalink
(3) a nonviolent, noncriminal detainee.CommentsClose CommentsPermalink
(e) PROCEDURES AND STANDARDS- Where necessary, the Secretary shall promulgate new standards, or modify existing detention standards, to promote the development of less restrictive detention facilities.CommentsClose CommentsPermalink
(f) NO PRIVATE RIGHT OF ACTION- Nothing in this section shall be construed to create any right, benefit, trust, or responsibility, whether substantive or procedural, enforceable in law or equity by a party against the United States, its departments, agencies, instrumentalities, entities, officers, employees, or agents, or any person, nor does this section create any right of review in any administrative, judicial, or other proceeding.CommentsClose CommentsPermalink
SEC. 150. AUTHORIZATION OF APPROPRIATIONS; EFFECTIVE DATE.
(a) AUTHORIZATION OF APPROPRIATIONS- There are authorized to be appropriated such sums as are necessary to carry out this subtitle.CommentsClose CommentsPermalink
(b) EFFECTIVE DATE- This subtitle and the amendments made by this subtitle shall take effect on the date that is 180 days after the date of the enactment of this Act.CommentsClose CommentsPermalink
TITLE II--INTERIOR ENFORCEMENT
SEC. 201. ADDITIONAL IMMIGRATION PERSONNEL.
(a) DEPARTMENT OF HOMELAND SECURITY-CommentsClose CommentsPermalink
(1) TRIAL ATTORNEYS- In each of the fiscal years 2008 through 2012, the Secretary, subject to the availability of appropriations for such purpose, shall increase the number of positions for attorneys in the Office of General Counsel of the Department who represent the Department in immigration matters by not less than 100 compared to the number of such positions for which funds were made available during the preceding fiscal year.CommentsClose CommentsPermalink
(2) USCIS ADJUDICATORS- In each of the fiscal years 2008 through 2012, the Secretary, subject to the availability of appropriations for such purpose, shall increase the number of positions for adjudicators in the United States Citizenship and Immigration Service by not less than 100 compared to the number of such positions for which funds were made available during the preceding fiscal year.CommentsClose CommentsPermalink
(3) 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 paragraphs (1) and (2).CommentsClose CommentsPermalink
(b) DEPARTMENT OF JUSTICE-CommentsClose CommentsPermalink
(1) JUDICIAL CLERKS- The Attorney General shall, subject to the availability of appropriations for such purpose, appoint necessary law clerks for immigration judges and Board of Immigration Appeals members of no less than one per judge and member. A law clerk appointed under this section shall be exempt from the provisions of subchapter I of chapter 63 of title 5 [5 USCS Sec. 6301 et seq.].CommentsClose CommentsPermalink
(2) LITIGATION ATTORNEYS- In each of the fiscal years 2008 through 2012, the Attorney General, subject to the availability of appropriations for such purpose, shall increase the number of positions for attorneys in the Office of Immigration Litigation by not less than 50 compared to the number of such positions for which funds were made available during the preceding fiscal year.CommentsClose CommentsPermalink
(3) UNITED STATES ATTORNEYS- In each of the fiscal years 2008 through 2012, the Attorney General, subject to the availability of appropriations for such purpose, shall increase the number of attorneys in the United States Attorneys' office to litigate immigration cases in the Federal courts by not less than 50 compared to the number of such positions for which funds were made available during the preceding fiscal year.CommentsClose CommentsPermalink
(4) IMMIGRATION JUDGES- In each of the fiscal years 2008 through 2012, the Attorney General, subject to the availability of appropriations for such purpose, shall--CommentsClose CommentsPermalink
(A) increase by not less than 20 the number of full-time immigration judges compared to the number of such positions for which funds were made available during the preceding fiscal year; andCommentsClose CommentsPermalink
(B) increase by not less than 80 the number of positions for personnel to support the immigration judges described in subparagraph (A) compared to the number of such positions for which funds were made available during the preceding fiscal year.CommentsClose CommentsPermalink
(5) BOARD OF IMMIGRATION APPEALS MEMBERS- The Attorney General shall, subject to the availability of appropriations, increase by 10 the number members of the Board of Immigration Appeals over the number of members serving on the date of enactment of this Act.CommentsClose CommentsPermalink
(6) STAFF ATTORNEYS- In each of the fiscal years 2008 through 2012, the Attorney General shall, subject to the availability of appropriations for such purpose--CommentsClose CommentsPermalink
(A) increase the number of positions for full-time staff attorneys in the Board of Immigration Appeals by not less than 20 compared to the number of such positions for which funds were made available during the preceding fiscal year; andCommentsClose CommentsPermalink
(B) increase the number of positions for personnel to support the staff attorneys described in subparagraph (A) by not less than 10 compared to the number of such positions for which funds were made available during the preceding fiscal year.CommentsClose CommentsPermalink
(7) AUTHORIZATION OF APPROPRIATIONS- There are authorized to be appropriated to the Attorney General for each of the fiscal years 2008 through 2012 such sums as may be necessary to carry out this subsection, including the hiring of necessary support staff.CommentsClose CommentsPermalink
(c) ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS- In each of the fiscal years 2008 through 2012, the Director of the Administrative Office of the United States Courts, subject to the availability of appropriations, shall increase the number of attorneys in the Federal Defenders Program who litigate criminal immigration cases in the Federal courts by not less than 50 compared to the number of such positions for which funds were made available during the preceding fiscal year.CommentsClose CommentsPermalink
(d) LEGAL ORIENTATION PROGRAM-CommentsClose CommentsPermalink
(1) CONTINUED OPERATION- The Director of the Executive Office for Immigration Review shall continue to operate a legal orientation program to provide basic information about immigration court procedures for immigration detainees and shall expand the legal orientation program to provide such information on a nationwide basis.CommentsClose CommentsPermalink
(2) AUTHORIZATION OF APPROPRIATIONS- There are authorized to be appropriated such sums as may be necessary to carry out such legal orientation program.CommentsClose CommentsPermalink
SEC. 202. DETENTION AND REMOVAL OF ALIENS ORDERED REMOVED.
(a) IN GENERAL-CommentsClose CommentsPermalink
(1) AMENDMENTS- Section 241(a) (
(A) by striking `Attorney General' the first place it appears, except for the first reference in clause (a)(4)(B)(i), and inserting `Secretary of Homeland Security';CommentsClose CommentsPermalink
(B) by striking `Attorney General' any other place it appears and inserting `Secretary';CommentsClose CommentsPermalink
(C) in paragraph (1)--CommentsClose CommentsPermalink
(i) in subparagraph (B), by amending clause (ii) 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 expiration date of the stay of removal.';CommentsClose CommentsPermalink
(ii) by amending subparagraph (C) to read as follows:CommentsClose CommentsPermalink
`(C) EXTENSION 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--CommentsClose CommentsPermalink
`(i) make all reasonable efforts to comply with the removal order; orCommentsClose CommentsPermalink
`(ii) fully cooperate with the Secretary's efforts to establish the alien's identity and carry out the removal order, including failing to make timely application in good faith for travel or other documents necessary to the alien's departure, or conspiring or acting to prevent the alien's removal.'; andCommentsClose CommentsPermalink
(iii) by adding at the end the following:CommentsClose CommentsPermalink
`(D) TOLLING OF PERIOD- If, at the time described in subparagraph (B), the alien is not in the custody of the Secretary under the authority of this Act, the removal period shall not begin until the alien is taken into such custody. If the Secretary lawfully transfers custody of the alien during the removal period to another Federal agency or to a State or local government agency in connection with the official duties of such agency, the removal period shall be tolled, and shall recommence on the date on which the alien is returned to the custody of the Secretary.';CommentsClose CommentsPermalink
(D) 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 administrative final order of removal, the Secretary, in the exercise of discretion, may detain the alien during the pendency of such stay of removal.';CommentsClose CommentsPermalink
(E) in paragraph (3), by amending subparagraph (D) to read as follows:CommentsClose CommentsPermalink
`(D) to obey reasonable restrictions on the alien's conduct or activities, or to perform affirmative acts, that the Secretary prescribes for the alien--CommentsClose CommentsPermalink
`(i) to prevent the alien from absconding;CommentsClose CommentsPermalink
`(ii) for the protection of the community; orCommentsClose CommentsPermalink
`(iii) for other purposes related to the enforcement of the immigration laws.';CommentsClose CommentsPermalink
(F) in paragraph (6), by striking `removal period and, if released,' and inserting `removal period, in the discretion of the Secretary, without any limitations other than those specified in this section, until the alien is removed. If an alien is released, the alien';CommentsClose CommentsPermalink
(G) by redesignating paragraph (7) as paragraph (10); andCommentsClose CommentsPermalink
(H) by 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 section 212(d)(5), 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, provided that in no circumstance shall such alien be considered admitted.CommentsClose CommentsPermalink
`(8) ADDITIONAL RULES FOR DETENTION OR RELEASE OF ALIENS- The following procedures shall apply to an alien detained under this section:CommentsClose CommentsPermalink
`(A) DETENTION REVIEW PROCESS FOR ALIENS WHO HAVE EFFECTED AN ENTRY AND FULLY COOPERATE WITH REMOVAL- The Secretary of Homeland Security shall establish an administrative review process to determine whether an alien described in subparagraph (B) should be detained or released after the removal period in accordance with this paragraph.CommentsClose CommentsPermalink
`(B) ALIEN DESCRIBED- An alien is described in this subparagraph if the alien--CommentsClose CommentsPermalink
`(i) has effected an entry into the United States;CommentsClose CommentsPermalink
`(ii) has made all reasonable efforts to comply with the alien's removal order;CommentsClose CommentsPermalink
`(iii) has cooperated fully with the Secretary's efforts to establish the alien's identity and to carry out the removal order, including making timely application in good faith for travel or other documents necessary for the alien's departure; andCommentsClose CommentsPermalink
`(iv) has not conspired or acted to prevent removal.CommentsClose CommentsPermalink
`(C) EVIDENCE- In making a determination under subparagraph (A), the Secretary--CommentsClose CommentsPermalink
`(i) shall consider any evidence submitted by the alien;CommentsClose CommentsPermalink
`(ii) may consider any other evidence, including--CommentsClose CommentsPermalink
`(I) any information or assistance provided by the Department of State or other Federal agency; andCommentsClose CommentsPermalink
`(II) any other information available to the Secretary pertaining to the ability to remove the alien.CommentsClose CommentsPermalink
`(D) AUTHORITY TO DETAIN FOR 90 DAYS BEYOND REMOVAL PERIOD- The Secretary, in the exercise of the Secretary's discretion and without any limitations other than those specified in this section, may detain an alien for 90 days beyond the removal period (including any extension of the removal period under paragraph (1)(C)).CommentsClose CommentsPermalink
`(E) AUTHORITY TO DETAIN FOR ADDITIONAL PERIOD- The Secretary, in the exercise of the Secretary's discretion and without any limitations other than those specified in this section, may detain an alien beyond the 90-day period authorized under subparagraph (D) until the alien is removed, if the Secretary--CommentsClose CommentsPermalink
`(i) determines that there is a significant likelihood that the alien will be removed in the reasonably foreseeable future; orCommentsClose CommentsPermalink
`(ii) certifies in writing--CommentsClose CommentsPermalink
`(I) 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
`(II) after receipt of a written recommendation from the Secretary of State, that the release of the alien would likely have serious adverse foreign policy consequences for the United States;CommentsClose CommentsPermalink
`(III) based on information available to the Secretary (including classified, sensitive, or national security information, and regardless of 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;CommentsClose CommentsPermalink
`(IV) that--CommentsClose CommentsPermalink
`(aa) the release of the alien would threaten the safety of the community or any person, and conditions of release cannot reasonably be expected to ensure the safety of the community or any person; andCommentsClose CommentsPermalink
`(bb) the alien--CommentsClose CommentsPermalink
`(AA) has been convicted of 1 or more aggravated felonies (as defined in section 101(a)(43)(A)), or of 1 or more attempts or conspiracies to commit any such aggravated felonies for an aggregate term of imprisonment of at least 5 years; orCommentsClose CommentsPermalink
(BB) has committed a crime of violence (as defined in
`(V) that--CommentsClose CommentsPermalink
`(aa) the release of the alien would threaten the safety of the community or any person, notwithstanding conditions of release designed to ensure the safety of the community or any person; andCommentsClose CommentsPermalink
`(bb) the alien has been convicted of 1 or more aggravated felonies (as defined in section 101(a)(43)) for which the alien was sentenced to an aggregate term of imprisonment of not less than 1 year.CommentsClose CommentsPermalink
`(F) ATTORNEY GENERAL REVIEW- If the Secretary authorizes an extension of detention under subparagraph (E), the alien may seek review of that determination before the Attorney General. If the Attorney General concludes that the alien should be released, then the Secretary shall release the alien pursuant to subparagraph (I). The Attorney General, in consultation with the Secretary, shall promulgate regulations governing review under this paragraph.CommentsClose CommentsPermalink
`(G) ADMINISTRATIVE REVIEW PROCESS- The Secretary, without any limitations other than those specified in this section, may detain an alien pending a determination under subparagraph (E)(ii), if the Secretary has initiated the administrative review process identified in subparagraph (A) not later than 30 days after the expiration of the removal period (including any extension of the removal period under paragraph (1)(C)).CommentsClose CommentsPermalink
`(H) RENEWAL AND DELEGATION OF CERTIFICATION-CommentsClose CommentsPermalink
`(i) RENEWAL- The Secretary may renew a certification under subparagraph (E)(ii) every 6 months, without limitation, after providing the alien with an opportunity to request reconsideration of the certification and to submit documents or other evidence in support of that request. If the Secretary does not renew such certification, the Secretary shall release the alien, pursuant to subparagraph (I). If the Secretary authorizes an extension of detention under paragraph (E), the alien may seek review of that determination before the Attorney General. If the Attorney General concludes that the alien should be released, then the Secretary shall release the alien pursuant to subparagraph (I).CommentsClose CommentsPermalink
`(ii) DELEGATION- Notwithstanding any other provision of law, the Secretary may not delegate the authority to make or renew a certification described in subclause (II), (III), or (V) of subparagraph (E)(ii) below the level of the Assistant Secretary for Immigration and Customs Enforcement.CommentsClose CommentsPermalink
`(iii) HEARING- The Secretary may request that the Attorney General, or a designee of the Attorney General, provide for a hearing to make the determination described in subparagraph (E)(ii)(IV)(bb)(BB).CommentsClose CommentsPermalink
`(I) RELEASE ON CONDITIONS- If it is determined that an alien should be released from detention, the Secretary may, in the Secretary's discretion, impose conditions on release in accordance with the regulations prescribed pursuant to paragraph (3).CommentsClose CommentsPermalink
`(J) REDETENTION- The Secretary, without any limitations other than those specified in this section, may detain any alien subject to a final removal order who has previously been released from custody if--CommentsClose CommentsPermalink
`(i) the alien fails to comply with the conditions of release;CommentsClose CommentsPermalink
`(ii) the alien fails to continue to satisfy the conditions described in subparagraph (B); orCommentsClose CommentsPermalink
`(iii) upon reconsideration, the Secretary determines that the alien can be detained under subparagraph (E).CommentsClose CommentsPermalink
`(K) APPLICABILITY- This paragraph and paragraphs (6) and (7) shall apply to any alien returned to custody under subparagraph (I) as if the removal period terminated on the day of the redetention.CommentsClose CommentsPermalink
`(L) DETENTION REVIEW PROCESS FOR ALIENS WHO HAVE EFFECTED AN ENTRY AND FAIL TO COOPERATE WITH REMOVAL- The Secretary shall detain an alien until the alien makes all reasonable efforts to comply with a removal order and to cooperate fully with the Secretary's efforts, if the alien--CommentsClose CommentsPermalink
`(i) has effected an entry into the United States; andCommentsClose CommentsPermalink
`(ii)(I) and the alien faces a significant likelihood that the alien will be removed in the reasonably foreseeable future, or would have been removed if the alien had not--CommentsClose CommentsPermalink
`(aa) failed or refused to make all reasonable efforts to comply with a removal order;CommentsClose CommentsPermalink
`(bb) failed or refused to fully cooperate with the Secretary's efforts to establish the alien's identity and carry out the removal order, including the failure to make timely application in good faith for travel or other documents necessary to the alien's departure; orCommentsClose CommentsPermalink
`(cc) conspired or acted to prevent removal; orCommentsClose CommentsPermalink
`(II) the Secretary makes a certification as specified in subparagraph (E), or the renewal of a certification specified in subparagraph (H).CommentsClose CommentsPermalink
`(M) DETENTION REVIEW PROCESS FOR ALIENS WHO HAVE NOT EFFECTED AN ENTRY- Except as otherwise provided in this subparagraph, the Secretary shall follow the guidelines established in section 241.4 of title 8, Code of Federal Regulations, when detaining aliens who have not effected an entry. The Secretary may decide to apply the review process outlined in this paragraph.CommentsClose CommentsPermalink
`(9) JUDICIAL REVIEW- Judicial review of any action or decision made pursuant to paragraph (6), (7), or (8) shall be available exclusively in a habeas corpus proceeding brought in a United States district court and only if the alien has exhausted all administrative remedies (statutory and nonstatutory) available to the alien as of right.'.CommentsClose CommentsPermalink
(2) EFFECTIVE DATE- The amendments made by paragraph (1)--CommentsClose CommentsPermalink
(A) shall take effect on the date of the enactment of this Act; andCommentsClose CommentsPermalink
(B) shall apply to--CommentsClose CommentsPermalink
(i) any alien subject to a final administrative removal, deportation, or exclusion order that was issued before, on, or after the date of the enactment of this Act, unless (a) that order was issued and the alien was subsequently released or paroled before the enactment of this Act and (b) the alien has complied with and remains in compliance with the terms and conditions of that release or parole; andCommentsClose CommentsPermalink
(ii) any act or condition occurring or existing before, on, or after the date of the enactment of this Act.CommentsClose CommentsPermalink
SEC. 203. AGGRAVATED FELONY.
(a) DEFINITION OF AGGRAVATED FELONY- Section 101(a)( 43) (
(1) by striking `The term `aggravated felony' means--' and inserting `Notwithstanding any other provision of law, the term `aggravated felony' applies to an offense described in this paragraph, whether in violation of Federal or State law, and to such an offense in violation of the law of a foreign country for which the term of imprisonment was completed within the previous 15 years, and regardless of whether the conviction was entered before, on, or after September 30, 1996, and means--';CommentsClose CommentsPermalink
(2) in subparagraph (A), by striking `murder, rape, or sexual abuse of a minor;' and inserting `murder, rape, or sexual abuse of a minor, whether or not the minority of the victim is established by evidence contained in the record of conviction or by evidence extrinsic to the record of conviction;';CommentsClose CommentsPermalink
(3) in subparagraph (N), by striking `paragraph (1)(A) or (2) of'; andCommentsClose CommentsPermalink
(4) by striking the undesignated matter following subparagraph (U).CommentsClose CommentsPermalink
(b) EFFECTIVE DATE AND APPLICATION-CommentsClose CommentsPermalink
(1) IN GENERAL- The amendments made by subsection (a) shall--CommentsClose CommentsPermalink
(A) take effect on the date of the enactment of this Act; andCommentsClose CommentsPermalink
(B) apply to any conviction that occurred on or after the date of the enactment of this Act.CommentsClose CommentsPermalink
(2) APPLICATION OF IIRAIRA AMENDMENTS- The amendments to section 101(a)(43) of the Immigration and Nationality Act made by section 321 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (division C of
SEC. 204. INADMISSIBILITY AND DEPORTABILITY OF GANG MEMBERS.
(a) DEFINITION OF CRIMINAL GANG- Section 101(a) (
`(52)(A) The term `criminal gang' means an ongoing group, club, organization, or association of 5 or more persons--CommentsClose CommentsPermalink
`(i) that has, as 1 of its primary purposes, the commission of 1 or more of the criminal offenses described in subparagraph (B); andCommentsClose CommentsPermalink
`(ii) the members of which engage, or have engaged within the past 5 years, in a continuing series of offenses described in subparagraph (B).CommentsClose CommentsPermalink
`(B) Offenses described in this subparagraph, whether in violation of Federal or State law or in violation of the law of a foreign country, regardless of whether charged, and regardless of whether the conduct occurred before, on, or after the date of the enactment of this paragraph, are--CommentsClose CommentsPermalink
`(i) a felony drug offense (as defined in section 102 of the Controlled Substances Act (
`(ii) a felony offense involving firearms or explosives, including a violation of section 924(c), 924(h), or 931 of title 18 (relating to purchase, ownership, or possession of body armor by violent felons);CommentsClose CommentsPermalink
`(iii) an offense 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 the importation of an alien for immoral purpose);CommentsClose CommentsPermalink
`(iv) a felony crime of violence as defined in
`(v) a crime involving obstruction of justice; tampering with or retaliating against a witness, victim, or informant; or burglary;CommentsClose CommentsPermalink
`(vi) any conduct punishable under sections 1028 and 1029 of title 18, United States Code (relating to fraud and related activity in connection with identification documents or access devices), sections 1581 through 1594 of such title (relating to peonage, slavery and trafficking in persons), 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); andCommentsClose CommentsPermalink
`(vii) a conspiracy to commit an offense described in clause (i) through (vi).'.CommentsClose CommentsPermalink
(b) INADMISSIBILITY- Section 212(a)(2) (
(1) by redesignating subparagraph (F) as subparagraph (L); andCommentsClose CommentsPermalink
(2) by inserting after subparagraph (E) the following:CommentsClose CommentsPermalink
`(F) ALIENS ASSOCIATED WITH CRIMINAL GANGS- Unless the Secretary of Homeland Security or the Attorney General waives the application of this subparagraph, any alien who a consular officer, the Attorney General, or the Secretary of Homeland Security knows or has reason to believe participated in a criminal gang, knowing or having reason to know that such participation promoted, furthered, aided, or supported the illegal activity of the gang, is inadmissible.'.CommentsClose CommentsPermalink
(c) DEPORTABILITY- Section 237(a)(2) (
`(F) ALIENS ASSOCIATED WITH CRIMINAL GANGS- Any alien, in or admitted to the United States, who at any time has participated in a criminal gang, knowing or having reason to know that such participation promoted, furthered, aided, or supported the illegal activity of the gang is deportable. The Secretary of Homeland Security or the Attorney General may waive the application of this subparagraph.'.CommentsClose CommentsPermalink
(d) TEMPORARY PROTECTED STATUS- Section 244 (
(1) by striking `, Attorney General' each place it appears and inserting `Secretary of Homeland Security';CommentsClose CommentsPermalink
(2) in subparagraph (c)(2)(B)--CommentsClose CommentsPermalink
(A) in clause (i), by striking `or' and inserting a semicolon;CommentsClose CommentsPermalink
(B) in clause (ii), by striking the period at the end and inserting `or'; andCommentsClose CommentsPermalink
(C) by adding at the end the following:CommentsClose CommentsPermalink
`(iii) the alien participates in, or at any time after admission has participated in, knowing or having reason to know that such participation promoted, furthered, aided, or supported the illegal activity of the gang, the activities of a criminal gang.'; andCommentsClose CommentsPermalink
(3) in subsection (d)--CommentsClose CommentsPermalink
(A) in paragraph (2)--CommentsClose CommentsPermalink
(i) by striking `Subject to paragraph (3), such' and inserting `Such'; andCommentsClose CommentsPermalink
(ii) by striking `(under paragraph (3))';CommentsClose CommentsPermalink
(B) by striking paragraph (3); andCommentsClose CommentsPermalink
(C) by redesignating paragraph (4) as paragraph (3); andCommentsClose CommentsPermalink
(D) in paragraph (3), as redesignated, by adding at the end the following: `The Secretary of Homeland Security may detain an alien provided temporary protected status under this section whenever appropriate under any other provision.'.CommentsClose CommentsPermalink
(e) INCREASED PENALTIES BARRING THE ADMISSION OF CONVICTED SEX OFFENDERS FAILING TO REGISTER AND REQUIRING DEPORTATION OF SEX OFFENDERS FAILING TO REGISTER-CommentsClose CommentsPermalink
(1) INADMISSIBILITY- Section 212(a)(2)(A)(i) (
(A) in subclause (II), by striking `or' at the end;CommentsClose CommentsPermalink
(B) in subclause (III), by striking the comma at the end and inserting a semicolon; andCommentsClose CommentsPermalink
(C) by inserting after subclause (III) the following:CommentsClose CommentsPermalink
`(IV) a violation of
(2) DEPORTABILITY- Section 237(a)(2)(A)(i) (
(A) in subclause (I), by striking `, and' and inserting a semicolon;CommentsClose CommentsPermalink
(B) in subclause (II), by striking the comma at the end and inserting `; or'; andCommentsClose CommentsPermalink
(C) by adding at the end the following:CommentsClose CommentsPermalink
`(III) a violation of
(f) PRECLUDING ADMISSIBILITY OF ALIENS CONVICTED OF SERIOUS CRIMINAL OFFENSES AND DOMESTIC VIOLENCE, STALKING, CHILD ABUSE AND VIOLATION OF PROTECTION ORDERS-CommentsClose CommentsPermalink
(1) INADMISSIBILITY ON CRIMINAL AND RELATED GROUNDS; WAIVERS- Section 212 (
(A) in subsection (a)(2), by adding at the end the following:CommentsClose CommentsPermalink
`(J) CRIMES OF DOMESTIC VIOLENCE, STALKING, OR VIOLATION OF PROTECTIVE ORDERS; CRIMES AGAINST CHILDREN-CommentsClose CommentsPermalink
`(i) DOMESTIC VIOLENCE, STALKING, AND CHILD ABUSE- Any alien who has been convicted of a crime of domestic violence, a crime of stalking, or a crime of child abuse, child neglect, or child abandonment, provided the alien served at least 1 year's imprisonment for the crime or provided the alien was convicted of or admitted to acts constituting more than 1 such crime, not arising out of a single scheme of criminal misconduct, is inadmissible. In this clause, the term `crime of domestic violence' means any crime of violence (as defined in
`(ii) VIOLATORS OF PROTECTION ORDERS- Any alien who at any time is enjoined under a protection order issued by a court and whom the court determines has engaged in conduct that constitutes criminal contempt of the portion of a protection order that involves protection against credible threats of violence, repeated harassment, or bodily injury to the person or persons for whom the protection order was issued, is inadmissible. In this clause, the term `protection order' means any injunction issued for the purpose of preventing violent or threatening acts of domestic violence, including temporary or final orders issued by civil or criminal courts (other than support or child custody orders or provisions) whether obtained by filing an independent action or as an independent order in another proceeding.CommentsClose CommentsPermalink
`(iii) APPLICABILITY- This subparagraph shall not apply to an alien who has been battered or subjected to extreme cruelty and who is not and was not the primary perpetrator of violence in the relationship, upon a determination by the Attorney General or the Secretary of Homeland Security that--CommentsClose CommentsPermalink
`(I) the alien was acting in self-defense;CommentsClose CommentsPermalink
`(II) the alien was found to have violated a protection order intended to protect the alien; orCommentsClose CommentsPermalink
`(III) the alien committed, was arrested for, was convicted of, or pled guilty to committing a crime that did not result in serious bodily injury.'; andCommentsClose CommentsPermalink
(B) in subsection (h)--CommentsClose CommentsPermalink
(i) by striking `The Attorney General may, in his discretion, waive the application of subparagraphs (A)(i)(I), (B), (D), and (E) of subsection (a)(2)' and inserting `The Attorney General or the Secretary of Homeland Security may waive the application of subparagraphs (A)(i)(I), (B), (D), (E), (F), (J), and (K) of subsection (a)(2)'; andCommentsClose CommentsPermalink
(ii) by inserting `or Secretary of Homeland Security' after `the Attorney General' each place it appears.CommentsClose CommentsPermalink
(2) EFFECTIVE DATE- The amendments made by this subsection shall apply to any acts that occurred on or after the date of the enactment of this Act.CommentsClose CommentsPermalink
SEC. 205. INCREASED CRIMINAL PENALTIES RELATED TO DRUNK DRIVING, ILLEGAL ENTRY, PERJURY, AND FIREARMS OFFENSES.
(a) DRUNK DRIVING-CommentsClose CommentsPermalink
(1) INADMISSIBILITY- Section 212(a)(2) (
`(K) DRUNK DRIVERS- Any alien who has been convicted of 1 felony for driving under the influence under Federal or State law, for which the alien was sentenced to more than 1 year imprisonment, is inadmissible.' .CommentsClose CommentsPermalink
(2) DEPORTABILITY- Section 237(a)(2) (
`(F) DRUNK DRIVERS- Unless the Secretary of Homeland Security or the Attorney General waives the application of this subparagraph, any alien who has been convicted of 1 felony for driving under the influence under Federal or State law, for which the alien was sentenced to more than 1 year imprisonment, is deportable.'.CommentsClose CommentsPermalink
(3) CONFORMING AMENDMENT- Section 212(h) (
(A) in the subsection heading, by striking `Subsection (a)(2)(A)(i)(I), (II), (B), (D), and (E)' and inserting `Certain Provisions in Subsection (a)(2)'; andCommentsClose CommentsPermalink
(B) in the matter preceding paragraph (1), by striking `and (E)' and inserting `(E), and (F)'.CommentsClose CommentsPermalink
(4) EFFECTIVE DATE- The amendments made by this subsection shall take effect on the date of the enactment of this Act and shall apply to convictions entered on or after such date.CommentsClose CommentsPermalink
(b) ILLEGAL ENTRY-CommentsClose CommentsPermalink
(1) IN GENERAL- Section 275 (
`SEC. 275. ILLEGAL ENTRY.
`(a) IN GENERAL-CommentsClose CommentsPermalink
`(1) CRIMINAL OFFENSES- An alien shall be subject to the penalties set forth in paragraph (2) if the alien--CommentsClose CommentsPermalink
`(A) knowingly enters or crosses the border into the United States at any time or place other than as designated by the Secretary of Homeland Security;CommentsClose CommentsPermalink
`(B) knowingly eludes examination or inspection by an immigration officer (including failing to stop at the command of such officer), or a customs or agriculture inspection at a port of entry; orCommentsClose CommentsPermalink
`(C) knowingly enters or crosses the border to the United States by means of a knowingly false or misleading representation or the knowing concealment of a material fact (including such representation or concealment in the context of arrival, reporting, entry, or clearance requirements of the customs laws, immigration laws, agriculture laws, or shipping laws).CommentsClose CommentsPermalink
`(2) CRIMINAL PENALTIES- Any alien who violates any provision under paragraph (1)--CommentsClose CommentsPermalink
`(A) shall, for the first violation, be fined under title 18, United States Code, imprisoned not more than 6 months, or both;CommentsClose CommentsPermalink
`(B) shall, for a second or subsequent violation, or following an order of voluntary departure, be fined under such title, imprisoned not more than 2 years, or both;CommentsClose CommentsPermalink
`(C) if the violation occurred after the alien had been convicted of 3 or more misdemeanors or for a felony, shall be fined under such title, imprisoned not more than 10 years, or both;CommentsClose CommentsPermalink
`(D) if the violation occurred after the alien had been convicted of a felony for which the alien received a term of imprisonment of not less than 30 months, shall be fined under such title, imprisoned not more than 15 years, or both; andCommentsClose CommentsPermalink
`(E) if the violation occurred after the alien had been convicted of a felony for which the alien received a term of imprisonment of not less than 60 months, such alien shall be fined under such title, imprisoned not more than 20 years, or both.CommentsClose CommentsPermalink
`(3) PRIOR CONVICTIONS- The prior convictions described in subparagraphs (C) through (E) of paragraph (2) are elements of the offenses described in that paragraph and the penalties in such subparagraphs shall apply only in cases in which the conviction or convictions that form the basis for the additional penalty are--CommentsClose CommentsPermalink
`(A) alleged in the indictment or information; andCommentsClose CommentsPermalink
`(B) proven beyond a reasonable doubt at trial or admitted by the defendant.CommentsClose CommentsPermalink
`(4) DURATION OF OFFENSE- An offense under this subsection continues until the alien is discovered within the United States by an immigration officer.CommentsClose CommentsPermalink
`(5) ATTEMPT- Whoever attempts to commit any offense under this section shall be punished in the same manner as for a completion of such offense.CommentsClose CommentsPermalink
`(b) IMPROPER TIME OR PLACE; CIVIL PENALTIES- Any alien who is apprehended while entering, attempting to enter, or knowingly crossing or attempting to cross, the border to the United States at a time or place other than as designated by immigration officers shall be subject to a civil penalty, in addition to any criminal or other civil penalties that may be imposed under any other provision of law, in an amount equal to--CommentsClose CommentsPermalink
`(1) not less than $50 and not more than $250 for each such entry, crossing, attempted entry, or attempted crossing; orCommentsClose CommentsPermalink
`(2) twice the amount specified in paragraph (1) if the alien had previously been subject to a civil penalty under this subsection.'.CommentsClose CommentsPermalink
(2) CLERICAL AMENDMENT- The table of contents is amended by striking the item relating to section 275 and inserting the following:CommentsClose CommentsPermalink
`Sec.275.Illegal entry.'.CommentsClose CommentsPermalink
(3) EFFECTIVE DATE- Section 275(a)(4) of the Immigration and Nationality Act, as added by this Act, shall apply only to violations of section 275(a)(1) committed on or after the date of the enactment of this Act.CommentsClose CommentsPermalink
(c) PERJURY AND FALSE STATEMENTS- Any person who willfully submits any materially false, fictitious, or fraudulent statement or representation (including any document, attestation, or sworn affidavit for that person or any person) relating to an application for any benefit under the immigration laws (including for Z non-immigrant status) will be subject to prosecution for perjury under
(d) INCREASED PENALTIES RELATING TO FIREARMS OFFENSES-CommentsClose CommentsPermalink
(1) PENALTIES RELATED TO REMOVAL- Section 243 (
(A) in subsection (a)(1)--CommentsClose CommentsPermalink
(i) in the matter preceding subparagraph (A), by inserting `212(a)' or after `section'; andCommentsClose CommentsPermalink
(ii) in the matter following subparagraph (D)--CommentsClose CommentsPermalink
(I) by striking `or imprisoned not more than four years' and inserting `and imprisoned for not more than 5 years'; andCommentsClose CommentsPermalink
(II) by striking `, or both';CommentsClose CommentsPermalink
(B) in subsection (b), by striking `not more than $1000 or imprisoned for not more than one year, or both' and inserting `under title 18, United States Code, and imprisoned for not more than 5 years (or for not more than 10 years if the alien is a member of any of the classes described in paragraphs (1)(E), (2), (3), and (4) of section 237(a)).'; andCommentsClose CommentsPermalink
(2) PROHIBITING CARRYING OR USING A FIREARM DURING AND IN RELATION TO AN ALIEN SMUGGLING CRIME-
(A) in paragraph (1)--CommentsClose CommentsPermalink
(i) in subparagraph (A), by inserting `, alien smuggling crime,' after `any crime of violence';CommentsClose CommentsPermalink
(ii) in subparagraph (A), by inserting `, alien smuggling crime,' after `such crime of violence'; andCommentsClose CommentsPermalink
(iii) in subparagraph (D)(ii), by inserting `, alien smuggling crime,' after `crime of violence'; andCommentsClose CommentsPermalink
(B) by adding at the end the following:CommentsClose CommentsPermalink
`(6) For purposes of this subsection, the term `alien smuggling crime' means any felony punishable under section 274(a), 277, or 278 of the Immigration and Nationality Act (
(3) INADMISSIBILITY FOR FIREARMS OFFENSES- Section 212(a)(2)(A) (
(A) in clause (i), by inserting after subclause (IV) the following:CommentsClose CommentsPermalink
`(V) a crime involving the purchasing, selling, offering for sale, exchanging, using, owning, possessing, or carrying, or of attempting or conspiring to purchase, sell, offer for sale, exchange, use, own, possess, or carry, any weapon, part, or accessory which is a firearm or destructive device (as defined in
(B) in clause (ii), by striking `Clause (i)(I)' and inserting `Subclauses (I), (IV), and (V) of clause (i)'.CommentsClose CommentsPermalink
SEC. 206. ILLEGAL ENTRY.
(a) IN GENERAL- Section 275 (
`SEC. 275. ILLEGAL ENTRY.
`(a) IN GENERAL-CommentsClose CommentsPermalink
`(1) CRIMINAL OFFENSES- An alien shall be subject to the penalties set forth in paragraph (2) if the alien--CommentsClose CommentsPermalink
`(A) knowingly enters or crosses the border into the United States at any time or place other than as designated by the Secretary of Homeland Security;CommentsClose CommentsPermalink
`(B) knowingly eludes examination or inspection by an immigration officer (including failing to stop at the command of such officer), or a customs or agriculture inspection at a port of entry; orCommentsClose CommentsPermalink
`(C) knowingly enters or crosses the border to the United States by means of a knowingly false or misleading representation or the knowing concealment of a material fact (including such representation or concealment in the context of arrival, reporting, entry, or clearance requirements of the customs laws, immigration laws, agriculture laws, or shipping laws).CommentsClose CommentsPermalink
`(2) CRIMINAL PENALTIES- Any alien who violates any provision under paragraph (1)--CommentsClose CommentsPermalink
`(A) shall, for the first violation, be fined under title 18, United States Code, imprisoned not more than 6 months, or both;CommentsClose CommentsPermalink
`(B) shall, for a second or subsequent violation, or following an order of voluntary departure, be fined under such title, imprisoned not more than 2 years, or both;CommentsClose CommentsPermalink
`(C) if the violation occurred after the alien had been convicted of 3 or more misdemeanors or for a felony, shall be fined under such title, imprisoned not more than 10 years, or both;CommentsClose CommentsPermalink
`(D) if the violation occurred after the alien had been convicted of a felony for which the alien received a term of imprisonment of not less than 30 months, shall be fined under such title, imprisoned not more than 15 years, or both; andCommentsClose CommentsPermalink
`(E) if the violation occurred after the alien had been convicted of a felony for which the alien received a term of imprisonment of not less than 60 months, such alien shall be fined under such title, imprisoned not more than 20 years, or both.CommentsClose CommentsPermalink
`(3) PRIOR CONVICTIONS- The prior convictions described in subparagraphs (C) through (E) of paragraph (2) are elements of the offenses described in that paragraph and the penalties in such subparagraphs shall apply only in cases in which the conviction or convictions that form the basis for the additional penalty are--CommentsClose CommentsPermalink
`(A) alleged in the indictment or information; andCommentsClose CommentsPermalink
`(B) proven beyond a reasonable doubt at trial or admitted by the defendant.CommentsClose CommentsPermalink
`(4) DURATION OF OFFENSE- An offense under this subsection continues until the alien is discovered within the United States by an immigration officer.CommentsClose CommentsPermalink
`(5) ATTEMPT- Whoever attempts to commit any offense under this section shall be punished in the same manner as for a completion of such offense.CommentsClose CommentsPermalink
`(b) IMPROPER TIME OR PLACE; CIVIL PENALTIES- Any alien who is apprehended while entering, attempting to enter, or knowingly crossing or attempting to cross the border to the United States at a time or place other than as designated by immigration officers shall be subject to a civil penalty, in addition to any criminal or other civil penalties that may be imposed under any other provision of law, in an amount equal to--CommentsClose CommentsPermalink
`(1) not less than $50 or more than $250 for each such entry, crossing, attempted entry, or attempted crossing; orCommentsClose CommentsPermalink
`(2) twice the amount specified in paragraph (1) if the alien had previously been subject to a civil penalty under this subsection.'.CommentsClose CommentsPermalink
(b) CLERICAL AMENDMENT- The table of contents is amended by striking the item relating to section 275 and inserting the following:CommentsClose CommentsPermalink
`Sec.275.Illegal Entry.'.CommentsClose CommentsPermalink
(c) EFFECTIVE DATE- Subsection (a)(4) of section 275 of the Immigration and Nationality Act, as created by this Act, shall apply only to violations of subsection (a)(1) of section 275 committed on or after the date of enactment of this Act.CommentsClose CommentsPermalink
SEC. 207. ILLEGAL REENTRY.
Section 276 (
`SEC. 276. REENTRY OF REMOVED ALIEN.
Strike subsections (a) through (c) of section 276 of the Immigration and Nationality Act, and insert the following:CommentsClose CommentsPermalink
`(a) REENTRY AFTER REMOVAL- Any alien who has been denied admission, excluded, deported, or removed, or who has departed the United States while an order of exclusion, deportation, or removal is outstanding, and subsequently enters, attempts to enter, crosses the border to, attempts to cross the border to, or is at any time found in the United States, shall be fined under title 18, United States Code, and imprisoned not less than 60 days and not more than 2 years.CommentsClose CommentsPermalink
`(b) REENTRY OF CRIMINAL OFFENDERS- Notwithstanding the penalty provided in subsection (a), if an alien described in that subsection--CommentsClose CommentsPermalink
`(1) was convicted for 3 or more misdemeanors or a felony before such removal or departure, the alien shall be fined under title 18, United States Code, and imprisoned not less than 1 year and not more than 10 years, or both;CommentsClose CommentsPermalink
`(2) was convicted for a felony before such removal or departure for which the alien was sentenced to a term of imprisonment of not less than 30 months, the alien shall be fined under such title, and imprisoned not less than 2 years and not more than 15 years, or both;CommentsClose CommentsPermalink
`(3) was convicted for a felony before such removal or departure for which the alien was sentenced to a term of imprisonment of not less than 60 months, the alien shall be fined under such title, and imprisoned not less than 4 years and not more than 20 years, or both;CommentsClose CommentsPermalink
`(4) was convicted for 3 felonies before such removal or departure, the alien shall be fined under such title, and imprisoned not less than 4 years and not more than 20 years, or both; orCommentsClose CommentsPermalink
`(5) was convicted, before such removal or departure, for murder, rape, kidnapping, or a felony offense described in chapter 77 (relating to peonage and slavery) or 113B (relating to terrorism) of such title, the alien shall be fined under such title, and imprisoned not less than 5 years and not more than 20 years, or both.CommentsClose CommentsPermalink
`(c) REENTRY AFTER REPEATED REMOVAL- Any alien who has been denied admission, excluded, deported, or removed 3 or more times and thereafter enters, attempts to enter, crosses the border to, attempts to cross the border to, or is at any time found in the United States, shall be fined under title 18, United States Code, and imprisoned not less than 2 years and not more than 10 years, or both.'.CommentsClose CommentsPermalink
`(d) PROOF OF PRIOR CONVICTIONS- The prior convictions described in subsection (b) are elements of the crimes described in that subsection, and the penalties in that subsection shall apply only in cases in which the conviction or convictions that form the basis for the additional penalty are--CommentsClose CommentsPermalink
`(1) alleged in the indictment or information; andCommentsClose CommentsPermalink
`(2) proven beyond a reasonable doubt at trial or admitted by the defendant.CommentsClose CommentsPermalink
`(e) AFFIRMATIVE DEFENSES- It shall be an affirmative defense to a violation of this section that--CommentsClose CommentsPermalink
`(1) prior to the alleged violation, the alien had sought and received the express consent of the Secretary of Homeland Security to reapply for admission into the United States;CommentsClose CommentsPermalink
`(2) with respect to an alien previously denied admission and removed, the alien--CommentsClose CommentsPermalink
`(A) was not required to obtain such advance consent under the Immigration and Nationality Act or any prior Act; andCommentsClose CommentsPermalink
`(B) had complied with all other laws and regulations governing the alien's admission into the United States; orCommentsClose CommentsPermalink
`(3) at the time of the prior exclusion, deportation, removal, or denial of admission alleged in the violation, the alien--CommentsClose CommentsPermalink
`(A) was under the age of eighteen, andCommentsClose CommentsPermalink
`(B) had not been convicted of a crime or adjudicated a delinquent minor by a court of the United States, or a court of a state or territory, for conduct that would constitute a felony if committed by an adult.CommentsClose CommentsPermalink
`(f) LIMITATION ON COLLATERAL ATTACK ON UNDERLYING REMOVAL ORDER- In a criminal proceeding under this section, an alien may not challenge the validity of any prior removal order concerning the alien unless the alien demonstrates by clear and convincing evidence that--CommentsClose CommentsPermalink
`(1) the alien exhausted all administrative remedies that may have been available to seek relief against the order;CommentsClose CommentsPermalink
`(2) the removal proceedings at which the order was issued improperly deprived the alien of the opportunity for judicial review; andCommentsClose CommentsPermalink
`(3) the entry of the order was fundamentally unfair.CommentsClose CommentsPermalink
`(g) REENTRY OF ALIEN REMOVED PRIOR TO COMPLETION OF TERM OF IMPRISONMENT- Any alien removed pursuant to section 241(a)(4) who enters, attempts to enter, crosses the border to, attempts to cross the border to, or is at any time found in, the United States shall be incarcerated for the remainder of the sentence of imprisonment which was pending at the time of deportation without any reduction for parole or supervised release unless the alien affirmatively demonstrates that the Secretary of Homeland Security has expressly consented to the alien's reentry. Such alien shall be subject to such other penalties relating to the reentry of removed aliens as may be available under this section or any other provision of law.CommentsClose CommentsPermalink
`(h) LIMITATION- It is not aiding and abetting a violation of this section for an individual to provide an alien with emergency humanitarian assistance, including emergency medical care and food, or to transport the alien to a location where such assistance can be rendered without compensation or the expectation of compensation.CommentsClose CommentsPermalink
`(i) DEFINITIONS- In this section:CommentsClose CommentsPermalink
`(1) FELONY- Term `felony' means any criminal offense punishable by a term of imprisonment of more than 1 year under the laws of the United States, any State, or a foreign government.CommentsClose CommentsPermalink
`(2) MISDEMEANOR- The term `misdemeanor' means any criminal offense punishable by a term of imprisonment of not more than 1 year under the applicable laws of the United States, any State, or a foreign government.CommentsClose CommentsPermalink
`(3) REMOVAL- The term `removal' includes any denial of admission, exclusion, deportation, or removal, or any agreement by which an alien stipulates or agrees to exclusion, deportation, or removal.CommentsClose CommentsPermalink
`(4) STATE- The term `State' means a State of the United States, the District of Columbia, and any commonwealth, territory, or possession of the United States.'.CommentsClose CommentsPermalink
SEC. 208. REFORM OF PASSPORT, VISA, AND IMMIGRATION FRAUD OFFENSES.
(a) PASSPORT, VISA, AND IMMIGRATION FRAUD-CommentsClose CommentsPermalink
(1) IN GENERAL- Chapter 75 of title 18, United States Code, is amended to read as follows:CommentsClose CommentsPermalink
`Chapter 75--Passport, Visa, and Immigration Fraud
`Sec.CommentsClose CommentsPermalink
`1541. Trafficking in passports.CommentsClose CommentsPermalink
`1542. False statement in an application for a passport.CommentsClose CommentsPermalink
`1543. Forgery and unlawful production of a passport.CommentsClose CommentsPermalink
`1544. Misuse of a passport.CommentsClose CommentsPermalink
`1545. Schemes to defraud aliens.CommentsClose CommentsPermalink
`1546. Immigration and visa fraud.CommentsClose CommentsPermalink
`1547. Marriage fraud.CommentsClose CommentsPermalink
`1548. Attempts and conspiracies.CommentsClose CommentsPermalink
`1549. Alternative penalties for certain offenses.CommentsClose CommentsPermalink
`1550. Seizure and forfeiture.CommentsClose CommentsPermalink
`1551. Additional jurisdiction.CommentsClose CommentsPermalink
`1552. Definitions.CommentsClose CommentsPermalink
`1553. Authorized law enforcement activities.'.CommentsClose CommentsPermalink
`SEC. 1541. TRAFFICKING IN PASSPORTS.
`(a) MULTIPLE PASSPORTS- Any person who, during any period of 3 years or less, knowingly--CommentsClose CommentsPermalink
`(1) and without lawful authority produces, issues, or transfers 10 or more passports;CommentsClose CommentsPermalink
`(2) forges, counterfeits, alters, or falsely makes 10 or more passports;CommentsClose CommentsPermalink
`(3) secures, possesses, uses, receives, buys, sells, or distributes 10 or more passports, knowing the passports to be forged, counterfeited, altered, falsely made, stolen, procured by fraud, or produced or issued without lawful authority; orCommentsClose CommentsPermalink
`(4) completes, mails, prepares, presents, signs, or submits 10 or more applications for a United States passport, knowing the applications to contain any false statement or representation,CommentsClose CommentsPermalink
shall be fined under this title, imprisoned not more than 20 years, or both.CommentsClose CommentsPermalink
`(b) PASSPORT MATERIALS- Any person who knowingly and without lawful authority produces, buys, sells, possesses, or uses any official material (or counterfeit of any official material) used to make a passport, including any distinctive paper, seal, hologram, image, text, symbol, stamp, engraving, or plate, shall be fined under this title, imprisoned not more than 20 years, or both.CommentsClose CommentsPermalink
`SEC. 1542. FALSE STATEMENT IN AN APPLICATION FOR A PASSPORT.
`(a) IN GENERAL- Any person who knowingly makes any false statement or representation in an application for a United States passport, or mails, prepares, presents, or signs an application for a United States passport knowing the application to contain any false statement or representation, shall be fined under this title, imprisoned not more than 15 years, or both.CommentsClose CommentsPermalink
`(b) VENUE-CommentsClose CommentsPermalink
`(1) An offense under subsection (a) may be prosecuted in any district,CommentsClose CommentsPermalink
`(A) in which the false statement or representation was made or the application for a United States passport was prepared or signed, orCommentsClose CommentsPermalink
`(B) in which or to which the application was mailed or presented.CommentsClose CommentsPermalink
`(2) An offense under subsection (a) involving an application prepared and adjudicated outside the United States may be prosecuted in the district in which the resultant passport was or would have been produced.CommentsClose CommentsPermalink
`(c) SAVINGS CLAUSE- Nothing in this section may be construed to limit the venue otherwise available under sections 3237 and 3238 of this title.CommentsClose CommentsPermalink
`SEC. 1543. FORGERY AND UNLAWFUL PRODUCTION OF A PASSPORT.
`(a) FORGERY- Any person who--CommentsClose CommentsPermalink
`(1) knowingly forges, counterfeits, alters, or falsely makes any passport; orCommentsClose CommentsPermalink
`(2) knowingly transfers any passport knowing it to be forged, counterfeited, altered, falsely made, stolen, or to have been produced or issued without lawful authority,CommentsClose CommentsPermalink
shall be fined under this title, imprisoned not more than 15 years, or both.CommentsClose CommentsPermalink
`(b) UNLAWFUL PRODUCTION- Any person who knowingly and without lawful authority--CommentsClose CommentsPermalink
`(1) produces, issues, authorizes, or verifies a passport in violation of the laws, regulations, or rules governing the issuance of the passport;CommentsClose CommentsPermalink
`(2) produces, issues, authorizes, or verifies a United States passport for or to any person, knowing or in reckless disregard of the fact that such person is not entitled to receive a passport; orCommentsClose CommentsPermalink
`(3) transfers or furnishes a passport to any person for use by any person other than the person for whom the passport was issued or designed,CommentsClose CommentsPermalink
shall be fined under this title, imprisoned not more than 15 years, or both.CommentsClose CommentsPermalink
`SEC. 1544. MISUSE OF A PASSPORT.
`Any person who knowingly--CommentsClose CommentsPermalink
`(1) uses any passport issued or designed for the use of another;CommentsClose CommentsPermalink
`(2) uses any passport in violation of the conditions or restrictions therein contained, or in violation of the laws, regulations, or rules governing the issuance and use of the passport;CommentsClose CommentsPermalink
`(3) secures, possesses, uses, receives, buys, sells, or distributes any passport knowing it to be forged, counterfeited, altered, falsely made, procured by fraud, or produced or issued without lawful authority; orCommentsClose CommentsPermalink
`(4) violates the terms and conditions of any safe conduct duly obtained and issued under the authority of the United States,CommentsClose CommentsPermalink
shall be fined under this title, imprisoned not more than 15 years, or both.CommentsClose CommentsPermalink
`SEC. 1545. SCHEMES TO DEFRAUD ALIENS.
`(a) IN GENERAL- Any person who knowingly executes a scheme or artifice, in connection with any matter that is authorized by or arises under Federal immigration laws or any matter the offender claims or represents is authorized by or arises under Federal immigration laws, to--CommentsClose CommentsPermalink
`(1) defraud any person, orCommentsClose CommentsPermalink
`(2) obtain or receive money or anything else of value from any person, by means of false or fraudulent pretenses, representations, or promises,CommentsClose CommentsPermalink
shall be fined under this title, imprisoned not more than 15 years, or both.CommentsClose CommentsPermalink
`(b) MISREPRESENTATION- Any person who knowingly and falsely represents that such person is an attorney or accredited representative (as that term is defined in section 1292.1 of title 8, Code of Federal Regulations (or any successor regulation to such section)) in any matter arising under Federal immigration laws shall be fined under this title, imprisoned not more than 15 years, or both.CommentsClose CommentsPermalink
`SEC. 1546. IMMIGRATION AND VISA FRAUD.
`(a) IN GENERAL- Any person who knowingly--CommentsClose CommentsPermalink
`(1) uses any immigration document issued or designed for the use of another;CommentsClose CommentsPermalink
`(2) forges, counterfeits, alters, or falsely makes any immigration document;CommentsClose CommentsPermalink
`(3) completes, mails, prepares, presents, signs, or submits any immigration document knowing it to contain any materially false statement or representation;CommentsClose CommentsPermalink
`(4) secures, possesses, uses, transfers, receives, buys, sells, or distributes any immigration document knowing it to be forged, counterfeited, altered, falsely made, stolen, procured by fraud, or produced or issued without lawful authority;CommentsClose CommentsPermalink
`(5) adopts or uses a false or fictitious name to evade or to attempt to evade the immigration laws; orCommentsClose CommentsPermalink
`(6) transfers or furnishes, without lawful authority, an immigration document to another person for use by a person other than the person for whom the immigration document was issued or designed,CommentsClose CommentsPermalink
shall be fined under this title, imprisoned not more than 15 years, or both.CommentsClose CommentsPermalink
`(b) Any person who, during any period of 3 years or less, knowingly--CommentsClose CommentsPermalink
`(1) and without lawful authority produces, issues, or transfers 10 or more immigration documents;CommentsClose CommentsPermalink
`(2) forges, counterfeits, alters, or falsely makes 10 or more immigration documents;CommentsClose CommentsPermalink
`(3) secures, possesses, uses, buys, sells, or distributes 10 or more immigration documents, knowing the immigration documents to be forged, counterfeited, altered, stolen, falsely made, procured by fraud, or produced or issued without lawful authority; orCommentsClose CommentsPermalink
`(4) completes, mails, prepares, presents, signs, or submits 10 or more immigration documents knowing the documents to contain any materially false statement or representation,CommentsClose CommentsPermalink
shall be fined under this title, imprisoned not more than 20 years, or both.CommentsClose CommentsPermalink
`(c) IMMIGRATION DOCUMENT MATERIALS- Any person who knowingly and without lawful authority produces, buys, sells, or possesses any official material (or counterfeit of any official material) used to make an immigration document, including any distinctive paper, seal, hologram, image, text, symbol, stamp, engraving, or plate, shall be fined under this title, imprisoned not more than 20 years, or both.CommentsClose CommentsPermalink
`(d) EMPLOYMENT DOCUMENTS- Whoever uses--CommentsClose CommentsPermalink
`(1) an identification document, knowing (or having reason to know) that the document was not issued lawfully for the use of the possessor;CommentsClose CommentsPermalink
`(2) an identification document knowing (or having reason to know) that the document is false; orCommentsClose CommentsPermalink
`(3) a false attestation,CommentsClose CommentsPermalink
for the purpose of satisfying a requirement of section 274A(b) of the Immigration and Nationality Act (
`SEC. 1547. MARRIAGE FRAUD.
`(a) EVASION OR MISREPRESENTATION- Any person who--CommentsClose CommentsPermalink
`(1) knowingly enters into a marriage for the purpose of evading any provision of the immigration laws; orCommentsClose CommentsPermalink
`(2) knowingly misrepresents the existence or circumstances of a marriage--CommentsClose CommentsPermalink
`(A) in an application or document authorized by the immigration laws; orCommentsClose CommentsPermalink
`(B) during any immigration proceeding conducted by an administrative adjudicator (including an immigration officer or examiner, a consular officer, an immigration judge, or a member of the Board of Immigration Appeals),CommentsClose CommentsPermalink
shall be fined under this title, imprisoned not more than 10 years, or both.CommentsClose CommentsPermalink
`(b) MULTIPLE MARRIAGES- Any person who--CommentsClose CommentsPermalink
`(1) knowingly enters into 2 or more marriages for the purpose of evading any immigration law; orCommentsClose CommentsPermalink
`(2) knowingly arranges, supports, or facilitates 2 or more marriages designed or intended to evade any immigration law,CommentsClose CommentsPermalink
shall be fined under this title, imprisoned not more than 20 years, or both.CommentsClose CommentsPermalink
`(c) COMMERCIAL ENTERPRISE- Any person who knowingly establishes a commercial enterprise for the purpose of evading any provision of the immigration laws shall be fined under this title, imprisoned for not more than 10 years, or both.CommentsClose CommentsPermalink
`(d) DURATION OF OFFENSE-CommentsClose CommentsPermalink
`(1) IN GENERAL- An offense under subsection (a) or (b) continues until the fraudulent nature of the marriage or marriages is discovered by an immigration officer.CommentsClose CommentsPermalink
`(2) COMMERCIAL ENTERPRISE- An offense under subsection (c) continues until the fraudulent nature of the commercial enterprise is discovered by an immigration officer or other law enforcement officer.CommentsClose CommentsPermalink
`SEC. 1548. ATTEMPTS AND CONSPIRACIES.
`Any person who attempts or conspires to violate any section of this chapter shall be punished in the same manner as a person who completed a violation of that section.CommentsClose CommentsPermalink
`SEC. 1549. ALTERNATIVE PENALTIES FOR CERTAIN OFFENSES.
Notwithstanding any other provision of this title, the maximum term of imprisonment that may be imposed for an offense under this chapter--CommentsClose CommentsPermalink
(1) if committed to facilitate a drug trafficking crime (as defined in 929(a)) is 20 years; andCommentsClose CommentsPermalink
(2) if committed to facilitate an act of international terrorism (as defined in section 2331) is 25 years.CommentsClose CommentsPermalink
`SEC. 1550. SEIZURE AND FORFEITURE.
`(a) FORFEITURE- Any property, real or personal, used to commit or facilitate the commission of a violation of any section of this chapter, the gross proceeds of such violation, and any property traceable to such property or proceeds, shall be subject to forfeiture.CommentsClose CommentsPermalink
`(b) APPLICABLE LAW- Seizures and forfeitures under this section shall be governed by the provisions of chapter 46 relating to civil forfeitures, except that such duties as are imposed upon the Secretary of the Treasury under the customs laws described in section 981(d) shall be performed by such officers, agents, and other persons as may be designated for that purpose by the Secretary of Homeland Security, the Secretary of State, or the Attorney General.CommentsClose CommentsPermalink
`SEC. 1551. ADDITIONAL JURISDICTION.
`(a) IN GENERAL- Any person who commits an offense under this chapter within the special maritime and territorial jurisdiction of the United States shall be punished as provided under this chapter.CommentsClose CommentsPermalink
`(b) EXTRATERRITORIAL JURISDICTION- Any person who commits an offense under this chapter outside the United States shall be punished as provided under this chapter if--CommentsClose CommentsPermalink
`(1) the offense involves a United States passport or immigration document (or any document purporting to be such a document) or any matter, right, or benefit arising under or authorized by Federal immigration laws;CommentsClose CommentsPermalink
`(2) the offense is in or affects foreign commerce;CommentsClose CommentsPermalink
`(3) the offense affects, jeopardizes, or poses a significant risk to the lawful administration of Federal immigration laws, or the national security of the United States;CommentsClose CommentsPermalink
`(4) the offense is committed to facilitate an act of international terrorism (as defined in section 2331) or a drug trafficking crime (as defined in section 929(a)(2)) that affects or would affect the national security of the United States;CommentsClose CommentsPermalink
`(5) the offender is a national of the United States or an alien lawfully admitted for permanent residence in the United States (as those terms are defined in section 101(a) of the Immigration and Nationality Act (
`(6) the offender is a stateless person whose habitual residence is in the United States.CommentsClose CommentsPermalink
`SEC. 1552. DEFINITIONS.
`As used in this chapter:CommentsClose CommentsPermalink
`(1) The term `falsely make' means to prepare or complete an immigration document with knowledge or in reckless disregard of the fact that the document--CommentsClose CommentsPermalink
`(A) contains a statement or representation that is false, fictitious, or fraudulent;CommentsClose CommentsPermalink
`(B) has no basis in fact or law; orCommentsClose CommentsPermalink
`(C) otherwise fails to state a fact which is material to the purpose for which the document was created, designed, or submitted.CommentsClose CommentsPermalink
`(2) The term `application for a United States passport' includes any document, photograph, or other piece of evidence attached to or submitted in support of the application.CommentsClose CommentsPermalink
`(3) The term `false statement or representation' includes a personation or an omission.CommentsClose CommentsPermalink
`(4) The term `immigration document'--CommentsClose CommentsPermalink
`(A) means any application, petition, affidavit, declaration, attestation, form, visa, identification card, alien registration document, employment authorization document, border crossing card, certificate, permit, order, license, stamp, authorization, grant of authority, or other official document, arising under or authorized by the immigration laws of the United States; andCommentsClose CommentsPermalink
`(B) includes any document, photograph, or other piece of evidence attached to or submitted in support of an immigration document.CommentsClose CommentsPermalink
`(5) The term `immigration laws' includes--CommentsClose CommentsPermalink
`(A) the laws described in section 101(a)(17) of the Immigration and Nationality Act (
`(B) the laws relating to the issuance and use of passports; andCommentsClose CommentsPermalink
`(C) the regulations prescribed under the authority of any law described in paragraphs (A) and (B).CommentsClose CommentsPermalink
`(6) The term `immigration proceeding' includes an adjudication, interview, hearing, or review.CommentsClose CommentsPermalink
`(7) A person does not exercise `lawful authority' if the person abuses or improperly exercises lawful authority the person otherwise holds.CommentsClose CommentsPermalink
`(8) The term `passport' means--CommentsClose CommentsPermalink
`(A) a travel document attesting to the identity and nationality of the bearer that is issued under the authority of the Secretary of State, a foreign government, or an international organization; orCommentsClose CommentsPermalink
`(B) any instrument purporting to be a document described in subparagraph (A).CommentsClose CommentsPermalink
`(9) The term `to present' means to offer or submit for official processing, examination, or adjudication. Any such presentation continues until the official processing, examination, or adjudication is complete.CommentsClose CommentsPermalink
`(10) The term `proceeds' includes any property or interest in property obtained or retained as a consequence of an act or omission in violation of this section.CommentsClose CommentsPermalink
`(11) The term `produce' means to make, prepare, assemble, issue, print, authenticate, or alter.CommentsClose CommentsPermalink
`(12) The term `State' means a State of the United States, the District of Columbia, or any commonwealth, territory, or possession of the United States.CommentsClose CommentsPermalink
`(13) The `use' of a passport or an immigration document referred to in section 1541(a), section 1543(b), section 1544, section 1546(a), and section 1546(b) of this chapter includes any officially authorized use; use to travel; use to demonstrate identity, residence, nationality, citizenship, or immigration status; use to seek or maintain employment; or use in any matter within the jurisdiction of the Federal government or of a State government.'CommentsClose CommentsPermalink
`SEC. 1553. AUTHORIZED LAW ENFORCEMENT ACTIVITIES.
`Nothing in this chapter shall prohibit any lawfully authorized investigative, protective, or intelligence activity of a law enforcement agency of the United States, a State, or a political subdivision of a State, or an intelligence agency of the United States, or any activity authorized under title V of the Organized Crime Control Act of 1970 (84 Stat. 933).CommentsClose CommentsPermalink
(b) Protection for Legitimate Refugees and Asylum Seekers--CommentsClose CommentsPermalink
(1) PROSECUTION GUIDELINES- The Attorney General, in consultation with the Secretary of Homeland Security, shall develop binding prosecution guidelines for federal prosecutors to ensure that any prosecution of an alien seeking entry into the United States by fraud is consistent with the obligations of the United States under Article 31(1) of the Convention Relating to the Status of Refugees, done at Geneva July 28, 1951 (as made applicable by the Protocol Relating to the Status of Refugees, done at New York January 31, 1967 (19 UST 6223)).CommentsClose CommentsPermalink
(2) NO PRIVATE RIGHT OF ACTION- The guidelines required by subparagraph (1), and any internal office procedures adopted pursuant thereto, are intended solely for the guidance of attorneys for the United States. This section, the guidelines required by subsection (a), and the process for determining such guidelines are not intended to, do not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable at law by any party in any administrative, civil, or criminal matter.CommentsClose CommentsPermalink
SEC. 209. INADMISSIBILITY AND REMOVAL FOR PASSPORT AND IMMIGRATION FRAUD OFFENSES.
(a) INADMISSIBILITY- Section 212(a)(2)(A)(i) (
(1) in subclause (I), by striking `, or' at the end and inserting a semicolon;CommentsClose CommentsPermalink
(2) in subclause (II), by striking the comma at the end and inserting `; or'; andCommentsClose CommentsPermalink
(3) by inserting after subclause (II) the following:CommentsClose CommentsPermalink
`(III) a violation of (or a conspiracy or attempt to violate) section 1541, 1545, subsection (b) of section 1546, or subsection (b) of
(b) REMOVAL- Section 237(a)(3)(B)(iii) (
`(iii) a violation of (or a conspiracy or attempt to violate) section 1541, 1545, 1546, or subsection (b) of
(c) EFFECTIVE DATE- The amendments made by subsections (a) and (b) shall apply to proceedings pending on or after the date of the enactment of this Act, with respect to conduct occurring on or after that date.CommentsClose CommentsPermalink
SEC. 210. INCARCERATION OF CRIMINAL ALIENS.
(a) INSTITUTIONAL REMOVAL PROGRAM-CommentsClose CommentsPermalink
(1) CONTINUATION- The Secretary shall continue to operate the Institutional Removal Program (referred to in this section as the `Program') or shall develop and implement another program to--CommentsClose CommentsPermalink
(A) identify removable criminal aliens in Federal and State correctional facilities;CommentsClose CommentsPermalink
(B) ensure that such aliens are not released into the community; andCommentsClose CommentsPermalink
(C) remove such aliens from the United States after the completion of their sentences.CommentsClose CommentsPermalink
(2) EXPANSION- The Secretary may extend the scope of the Program to all States.CommentsClose CommentsPermalink
(b) TECHNOLOGY USAGE- Technology, such as videoconferencing, shall be used to the maximum extent practicable to make the Program available in remote locations. Mobile access to Federal databases of aliens, such as IDENT, and live scan technology shall be used to the maximum extent practicable to make these resources available to State and local law enforcement agencies in remote locations.CommentsClose CommentsPermalink
(c) REPORT TO CONGRESS- Not later than 6 months after the date of the enactment of this Act, and annually thereafter, the Secretary shall submit a report to Congress on the participation of States in the Program and in any other program authorized under subsection (a).CommentsClose CommentsPermalink
(d) AUTHORIZATION OF APPROPRIATIONS- There are authorized to be appropriated such sums as may be necessary in each of the fiscal years 2008 through 2012 to carry out the Program.CommentsClose CommentsPermalink
SEC. 211. ENCOURAGING ALIENS TO DEPART VOLUNTARILY.
(a) IN GENERAL- Section 240B (
(1) in subsection (a)--CommentsClose CommentsPermalink
(A) by amending paragraph (1) to read as follows:CommentsClose CommentsPermalink
`(1) INSTEAD OF REMOVAL PROCEEDINGS- If an alien is not described in paragraph (2)(A)(iii) or (4) of section 237(a), the Secretary of Homeland Security may permit the alien to voluntarily depart the United States at the alien's own expense under this subsection instead of being subject to proceedings under section 240.';CommentsClose CommentsPermalink
(B) by striking paragraph (3);CommentsClose CommentsPermalink
(C) by redesignating paragraph (2) as paragraph (3);CommentsClose CommentsPermalink
(D) by adding after paragraph (1) the following:CommentsClose CommentsPermalink
`(2) BEFORE THE CONCLUSION OF REMOVAL PROCEEDINGS- If an alien is not described in paragraph (2)(A)(iii) or (4) of section 237(a), the Attorney General may permit the alien to voluntarily depart the United States at the alien's own expense under this subsection after the initiation of removal proceedings under section 240 and before the conclusion of such proceedings before an immigration judge.';CommentsClose CommentsPermalink
(E) in paragraph (3), as redesignated--CommentsClose CommentsPermalink
(i) by amending subparagraph (A) to read as follows:CommentsClose CommentsPermalink
`(A) INSTEAD OF REMOVAL- Subject to subparagraph (C), permission to voluntarily depart under paragraph (1) shall not be valid for any period in excess of 120 days. The Secretary may require an alien permitted to voluntarily depart under paragraph (1) to post a voluntary departure bond, to be surrendered upon proof that the alien has departed the United States within the time specified.';CommentsClose CommentsPermalink
(ii) by redesignating subparagraphs (B), (C), and (D) as paragraphs (C), (D), and (E), respectively;CommentsClose CommentsPermalink
(iii) by adding after subparagraph (A) the following:CommentsClose CommentsPermalink
`(B) BEFORE THE CONCLUSION OF REMOVAL PROCEEDINGS- Permission to voluntarily depart under paragraph (2) shall not be valid for any period in excess of 60 days, and may be granted only after a finding that the alien has the means to depart the United States and intends to do so. An alienCommentsClose CommentsPermalink
permitted to voluntarily depart under paragraph (2) shall post a voluntary departure bond, in an amount necessary to ensure that the alien will depart, to be surrendered upon proof that the alien has departed the United States within the time specified. An immigration judge may waive the requirement to post a voluntary departure bond in individual cases upon a finding that the alien has presented compelling evidence that the posting of a bond will pose a serious financial hardship and the alien has presented credible evidence that such a bond is unnecessary to guarantee timely departure.';CommentsClose CommentsPermalink
(iv) in subparagraph (C), as redesignated, by striking `subparagraphs (C) and(D)(ii)' and inserting `subparagraphs (D) and (E)(ii)';CommentsClose CommentsPermalink
(v) in subparagraph (D), as redesignated, by striking `subparagraph (B)' each place that term appears and inserting `subparagraph (C)'; andCommentsClose CommentsPermalink
(vi) in subparagraph (E), as redesignated, by striking `subparagraph (B)' each place that term appears and inserting `subparagraph (C)'; andCommentsClose CommentsPermalink
(F) in paragraph (4), by striking `paragraph (1)' and inserting `paragraphs (1) and (2)';CommentsClose CommentsPermalink
(2) in subsection (b)(2), by striking `a period exceeding 60 days' and inserting `any period in excess of 45 days';CommentsClose CommentsPermalink
(3) by amending subsection (c) to read as follows:CommentsClose CommentsPermalink
`(c) CONDITIONS ON VOLUNTARY DEPARTURE-CommentsClose CommentsPermalink
`(1) VOLUNTARY DEPARTURE AGREEMENT- Voluntary departure may only be granted as part of an affirmative agreement by the alien.CommentsClose CommentsPermalink
`(2) CONCESSIONS BY THE SECRETARY- In connection with the alien's agreement to depart voluntarily under paragraph (1), the Secretary of Homeland Security may agree to a reduction in the period of inadmissibility under subparagraph (A) or (B)(i) of section 212(a)(9).CommentsClose CommentsPermalink
`(3) ADVISALS- Agreements relating to voluntary departure granted during removal proceedings under section 240, or at the conclusion of such proceedings, shall be presented on the record before the immigration judge. The immigration judge shall advise the alien of the consequences of a voluntary departure agreement before accepting such agreement.CommentsClose CommentsPermalink
`(4) FAILURE TO COMPLY WITH AGREEMENT- If an alien agrees to voluntary departure under this section and fails to depart the United States within the time allowed for voluntary departure or fails to comply with any other terms of the agreement (including failure to timely post any required bond), the alien is--CommentsClose CommentsPermalink
`(A) ineligible for the benefits of the agreement;CommentsClose CommentsPermalink
`(B) subject to the penalties described in subsection (d); andCommentsClose CommentsPermalink
`(C) subject to an alternate order of removal if voluntary departure was granted under subsection (a)(2) or (b)';CommentsClose CommentsPermalink
(4) by amending subsection (d) to read as follows:CommentsClose CommentsPermalink
`(d) PENALTIES FOR FAILURE TO DEPART- If an alien is permitted to voluntarily depart under this section and fails to voluntarily depart from the United States within the time period specified or otherwise violates the terms of a voluntary departure agreement, the alien will be subject to the following penalties:CommentsClose CommentsPermalink
`(1) CIVIL PENALTY- The alien shall be liable for a civil penalty of $3,000. The order allowing voluntary departure shall specify the amount of the penalty, which shall be acknowledged by the alien on the record. If the Secretary thereafter establishes that the alien failed to depart voluntarily within the time allowed, no further procedure will be necessary to establish the amount of the penalty, and the Secretary may collect the civil penalty at any time thereafter and by whatever means provided by law. An alien will be ineligible for any benefits under this chapter until this civil penalty is paid.CommentsClose CommentsPermalink
`(2) INELIGIBILITY FOR RELIEF- The alien shall be ineligible during the time the alien remains in the United States and for a period of 10 years after the alien's departure for any further relief under this section and sections 240A, 245, 248, and 249. The order permitting the alien to depart voluntarily shall inform the alien of the penalties under this subsection.CommentsClose CommentsPermalink
`(3) REOPENING- The alien shall be ineligible to reopen the final order of removal that took effect upon the alien's failure to depart, or upon the alien's other violations of the conditions for voluntary departure, during the period described in paragraph (2). This paragraph does not preclude a motion to reopen to seek withholding of removal under section 241(b)(3) or protection against torture, if the motion--CommentsClose CommentsPermalink
`(A) presents material evidence of changed country conditions arising after the date of the order granting voluntary departure in the country to which the alien would be removed; andCommentsClose CommentsPermalink
`(B) makes a sufficient showing to the satisfaction of the Attorney General that the alien is otherwise eligible for such protection.'; andCommentsClose CommentsPermalink
(5) by amending subsection (e) to read as follows:CommentsClose CommentsPermalink
`(e) ELIGIBILITY-CommentsClose CommentsPermalink
`(1) PRIOR GRANT OF VOLUNTARY DEPARTURE- An alien shall not be permitted to voluntarily depart under this section if the Secretary of Homeland Security or the Attorney General previously permitted the alien to depart voluntarily.CommentsClose CommentsPermalink
`(2) RULEMAKING- The Secretary may promulgate regulations to limit eligibility or impose additional conditions for voluntary departure under subsection (a)(1) for any class of aliens. The Secretary or Attorney General may by regulation limit eligibility or impose additional conditions for voluntary departure under subsections (a)(2) or (b) of this section for any class or classes of aliens.'; andCommentsClose CommentsPermalink
(6) in subsection (f), by adding at the end the following: `Notwithstanding section 242(a)(2)(D) of this Act, sections 1361, 1651, and 2241 of title 28, United States Code, any other habeas corpus provision, and any other provision of law (statutory or nonstatutory), no court shall have jurisdiction to affect, reinstate, enjoin, delay, stay, or toll the period allowed for voluntary departure under this section.'.CommentsClose CommentsPermalink
(b) RULEMAKING- The Secretary shall promulgate regulations to provide for the imposition and collection of penalties for failure to depart under section 240B(d) of the Immigration and Nationality Act (
(c) EFFECTIVE DATES-CommentsClose CommentsPermalink
(1) IN GENERAL- Except as provided in paragraph (2), the amendments made by this section shall apply with respect to all orders granting voluntary departure under section 240B of the Immigration and Nationality Act (
(2) EXCEPTION- The amendment made by subsection (a)(6) shall take effect on the date of the enactment of this Act and shall apply with respect to any petition for review which is filed on or after such date.CommentsClose CommentsPermalink
SEC. 212. DETERRING ALIENS ORDERED REMOVED FROM REMAINING IN THE UNITED STATES UNLAWFULLY.
(a) INADMISSIBLE ALIENS- Section 212(a)(9)(A) (
(1) in clause (i), by striking `seeks admission within 5 years of the date of such removal (or within 20 years' and inserting `seeks admission not later than 5 years after the date of the alien's removal (or not later than 20 years after the alien's removal'; andCommentsClose CommentsPermalink
(2) in clause (ii), by striking `seeks admission within 10 years of the date of such alien's departure or removal (or within 20 years of' and inserting `seeks admission not later than 10 years after the date of the alien's departure or removal (or not later than 20 years after'.CommentsClose CommentsPermalink
(b) BAR ON DISCRETIONARY RELIEF- Section 274D (
(1) in subsection (a), by striking `Commissioner' and inserting `Secretary of Homeland Security'; andCommentsClose CommentsPermalink
(2) by adding at the end the following:CommentsClose CommentsPermalink
`(c) INELIGIBILITY FOR RELIEF-CommentsClose CommentsPermalink
`(1) IN GENERAL- Unless a timely motion to reconsider under section 240(c)(6) or a timely motion to reopen under section 240(c)(7) is granted, an alien described in subsection (a) shall be ineligible for any discretionary relief from removal (including cancellation of removal and adjustment of status) during the time the alien remains in the United States and for a period of 10 years after the alien's departure from the United States.CommentsClose CommentsPermalink
`(2) SAVINGS PROVISION- Nothing in paragraph (1) shall preclude a motion to reopen to seek withholding of removal under section 241(b)(3) or protection against torture, if the motion--CommentsClose CommentsPermalink
`(A) presents material evidence of changed country conditions arising after the date of the final order of removal in the country to which the alien would be removed; andCommentsClose CommentsPermalink
`(B) makes a sufficient showing to the satisfaction of the Attorney General that the alien is otherwise eligible for such protection.'.CommentsClose CommentsPermalink
(c) EFFECTIVE DATES- The amendments made by this section shall take effect on the date of the enactment of this Act with respect to aliens who are subject to a final order of removal entered on or after such date.CommentsClose CommentsPermalink
SEC. 213. PROHIBITION OF THE SALE OF FIREARMS TO, OR THE POSSESSION OF FIREARMS BY CERTAIN ALIENS.
(1) in subsection (d)(5)--in subparagraph (B), by striking `(y)(2)' and all that follows and inserting `(y), is in the United States not as an alien lawfully admitted for permanent residence';CommentsClose CommentsPermalink
(2) in subsection (g)(5)--in subparagraph (B), by striking `(y)(2)' and all that follows and inserting `(y), is in the United States not as an alien lawfully admitted for permanent residence'; andCommentsClose CommentsPermalink
(3) in subsection (y)--CommentsClose CommentsPermalink
(A) in the header, by striking `Admitted Under Nonimmigrant Visas' and inserting `not Lawfully Admitted for Permanent Residence';CommentsClose CommentsPermalink
(B) in paragraph (1), by amending subparagraph (B) to read as follows:CommentsClose CommentsPermalink
`(B) the term `lawfully admitted for permanent residence' has the same meaning as in section 101(a)(20) of the Immigration and Nationality Act (
(C) in paragraph (2), by striking `under a nonimmigrant visa' and inserting `but not lawfully admitted for permanent residence'; andCommentsClose CommentsPermalink
(D) in paragraph (3)(A), by striking `admitted to the United States under a nonimmigrant visa' and inserting `lawfully admitted to the United States but not as an alien lawfully admitted for permanent residence'.CommentsClose CommentsPermalink
SEC. 214. UNIFORM STATUTE OF LIMITATIONS FOR CERTAIN IMMIGRATION, PASSPORT, AND NATURALIZATION OFFENSES.
(a) IN GENERAL-
`SEC. 3291. IMMIGRATION, PASSPORT, AND NATURALIZATION OFFENSES.
`No person shall be prosecuted, tried, or punished for a violation of any section of chapters 69 (relating to nationality and citizenship offenses), 75 (relating to passport, visa, and immigration offenses), or for a violation of any criminal provision under section 243, 266, 274, 275, 276, 277, or 278 of the Immigration and Nationality Act (
(b) CLERICAL AMENDMENT- The table of sections for chapter 213 of title 18, United States Code, is amended by striking the item relating to section 3291 and inserting the following:CommentsClose CommentsPermalink
`3291. Immigration, passport, and naturalization offenses.'.CommentsClose CommentsPermalink
SEC. 215. DIPLOMATIC SECURITY SERVICE.
(a)
`(1) conduct investigations concerning--CommentsClose CommentsPermalink
`(A) illegal passport or visa issuance or use;CommentsClose CommentsPermalink
`(B) identity theft or document fraud affecting or relating to the programs, functions, and authorities of the Department of State;CommentsClose CommentsPermalink
`(C) violations of chapter 77 of title 18, United States Code; andCommentsClose CommentsPermalink
`(D) Federal offenses committed within the special maritime and territorial jurisdiction defined in paragraph (9) of
(b) CONSTRUCTION- Nothing in this section shall be construed to limit the investigative authority of any other Federal department or agency.CommentsClose CommentsPermalink
SEC. 216. STREAMLINED PROCESSING OF BACKGROUND CHECKS CONDUCTED FOR IMMIGRATION BENEFITS.
(a) INFORMATION SHARING; INTERAGENCY TASK FORCE- Section 105 (
`(e) Interagency Task Force-CommentsClose CommentsPermalink
`(1) IN GENERAL- The Secretary of Homeland Security and the Attorney General shall establish an interagency task force to resolve cases in which an application or petition for an immigration benefit conferred under this Act has been delayed due to an outstanding background check investigation for more than 2 years after the date on which such application or petition was initially filed.CommentsClose CommentsPermalink
`(2) MEMBERSHIP- The interagency task force established under paragraph (1) shall include representatives from Federal agencies with immigration, law enforcement, or national security responsibilities under this Act.'.CommentsClose CommentsPermalink
(b) AUTHORIZATION OF APPROPRIATIONS- There are authorized to be appropriated to the Director of the Federal Bureau of Investigation such sums as are necessary for each fiscal year, 2008 through 2012 for enhancements to existing systems for conducting background and security checks necessary to support immigration security and orderly processing of applications.CommentsClose CommentsPermalink
(c) REPORT ON BACKGROUND AND SECURITY CHECKS-CommentsClose CommentsPermalink
(1) IN GENERAL- Not later than 180 days after the date of the enactment of this Act, the Director of the Federal Bureau of Investigation shall submit to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives a report on the background and security checks conducted by the Federal Bureau of Investigation on behalf of United States Citizenship and Immigration Services.CommentsClose CommentsPermalink
(2) CONTENT- The report required under paragraph (1) shall include--CommentsClose CommentsPermalink
(A) a description of the background and security check program;CommentsClose CommentsPermalink
(B) a statistical breakdown of the background and security check delays associated with different types of immigration applications;CommentsClose CommentsPermalink
(C) a statistical breakdown of the background and security check delays by applicant country of origin; andCommentsClose CommentsPermalink
(D) the steps that the Director of the Federal Bureau of Investigation is taking to expedite background and security checks that have been pending for more than 180 days.CommentsClose CommentsPermalink
SEC. 217. STATE CRIMINAL ALIEN ASSISTANCE PROGRAM.
(a) REIMBURSEMENT FOR COSTS ASSOCIATED WITH PROCESSING CRIMINAL ILLEGAL ALIENS- The Secretary may reimburse States and units of local government for costs associated with processing undocumented criminal aliens through the criminal justice system, including--CommentsClose CommentsPermalink
(1) indigent defense;CommentsClose CommentsPermalink
(2) criminal prosecution;CommentsClose CommentsPermalink
(3) autopsies;CommentsClose CommentsPermalink
(4) translators and interpreters; andCommentsClose CommentsPermalink
(5) courts costs.CommentsClose CommentsPermalink
(b) Authorization of Appropriations-CommentsClose CommentsPermalink
(1) PROCESSING CRIMINAL ILLEGAL ALIENS- There are authorized to be appropriated $400,000,000 for each of the fiscal years 2008 through 2013 to carry out subsection (a).CommentsClose CommentsPermalink
(2) COMPENSATION UPON REQUEST- Section 241(i)(5) (
`(5) There are authorized to be appropriated to carry this subsection--CommentsClose CommentsPermalink
`(A) such sums as may be necessary for fiscal year 2008;CommentsClose CommentsPermalink
`(B) $750,000,000 for fiscal year 2009;CommentsClose CommentsPermalink
`(C) $850,000,000 for fiscal year 2010; andCommentsClose CommentsPermalink
`(D) $950,000,000 for each of the fiscal years 2011 through 2013.'.CommentsClose CommentsPermalink
(c) TECHNICAL AMENDMENT- Section 501 of the Immigration Reform and Control Act of 1986 (
SEC. 218. TRANSPORTATION AND PROCESSING OF ILLEGAL ALIENS APPREHENDED BY STATE AND LOCAL LAW ENFORCEMENT OFFICERS.
(a) IN GENERAL- The Secretary may provide sufficient transportation and officers to take illegal aliens apprehended by State and local law enforcement officers into custody for processing at a detention facility operated by the Department.CommentsClose CommentsPermalink
(b) AUTHORIZATION OF APPROPRIATIONS- There are authorized to be appropriated such sums as may be necessary for each of fiscal years 2008 through 2012 to carry out this section.CommentsClose CommentsPermalink
SEC. 219. REDUCING ILLEGAL IMMIGRATION AND ALIEN SMUGGLING ON TRIBAL LANDS.
(a) GRANTS AUTHORIZED- The Secretary may award grants to Indian tribes with lands adjacent to an international border of the United States that have been adversely affected by illegal immigration.CommentsClose CommentsPermalink
(b) USE OF FUNDS- Grants awarded under subsection (a) may be used for--CommentsClose CommentsPermalink
(1) law enforcement activities;CommentsClose CommentsPermalink
(2) health care services;CommentsClose CommentsPermalink
(3) environmental restoration; andCommentsClose CommentsPermalink
(4) the preservation of cultural resources.CommentsClose CommentsPermalink
(c) REPORT- Not later than 180 days after the date of the enactment of this Act, the Secretary shall submit a report to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives that--CommentsClose CommentsPermalink
(1) describes the level of access of Border Patrol agents on tribal lands;CommentsClose CommentsPermalink
(2) describes the extent to which enforcement of immigration laws may be improved by enhanced access to tribal lands;CommentsClose CommentsPermalink
(3) contains a strategy for improving such access through cooperation with tribal authorities; andCommentsClose CommentsPermalink
(4) identifies grants provided by the Department for Indian tribes, either directly or through State or local grants, relating to border security expenses.CommentsClose CommentsPermalink
(d) AUTHORIZATION OF APPROPRIATIONS- There are authorized to be appropriated such sums as may be necessary for each of the fiscal years 2008 through 2012 to carry out this section.CommentsClose CommentsPermalink
SEC. 220. ALTERNATIVES TO DETENTION.
The Secretary shall conduct a study of--CommentsClose CommentsPermalink
(1) the effectiveness of alternatives to detention, including electronic monitoring devices and intensive supervision programs, in ensuring alien appearance at court and compliance with removal orders;CommentsClose CommentsPermalink
(2) the effectiveness of the Intensive Supervision Appearance Program and the costs and benefits of expanding that program to all States; andCommentsClose CommentsPermalink
(3) other alternatives to detention, including--CommentsClose CommentsPermalink
(A) release on an order of recognizance;CommentsClose CommentsPermalink
(B) appearance bonds; andCommentsClose CommentsPermalink
(C) electronic monitoring devices.CommentsClose CommentsPermalink
SEC. 221. STATE AND LOCAL ENFORCEMENT OF FEDERAL IMMIGRATION LAWS.
(a) IN GENERAL- Section 287(g) (
(1) in paragraph (2), by adding at the end the following: `If such training is provided by a State or political subdivision of a State to an officer or employee of such State or political subdivision of a State, the cost of such training (including applicable overtime costs) shall be reimbursed by the Secretary of Homeland Security.'; andCommentsClose CommentsPermalink
(2) in paragraph (4), by adding at the end the following: `The cost of any equipment required to be purchased under such written agreement and necessary to perform the functions under this subsection shall be reimbursed by the Secretary of Homeland Security.'.CommentsClose CommentsPermalink
(b) AUTHORIZATION OF APPROPRIATIONS- There are authorized to be appropriated to the Secretary such sums as may be necessary to carry out this section and the amendments made by this section.CommentsClose CommentsPermalink
SEC. 222. PROTECTING IMMIGRANTS FROM CONVICTED SEX OFFENDERS.
(a) IMMIGRANTS- Section 204(a)(1) (
(1) in subparagraph (A), by amending clause (viii) to read as follows:CommentsClose CommentsPermalink
`(viii) Clause (i) shall not apply to a citizen of the United States who has been convicted of an offense described in subparagraph (A), (I), or (K) of section 101(a)(43), unless the Secretary of Homeland Security, in the Secretary's sole and unreviewable discretion, determines that the citizen poses no risk to the alien with respect to whom a petition described in clause (i) is filed.'; andCommentsClose CommentsPermalink
(2) in subparagraph (B)(i), by amending subclause (II) to read as follows:CommentsClose CommentsPermalink
`(II) Subclause (I) shall not apply in the case of an alien admitted for permanent residence who has been convicted of an offense described in subparagraph (A), (I), or (K) of section 101(a)(43), unless the Secretary of Homeland Security, in the Secretary's sole and unreviewable discretion, determines that the alien lawfully admitted for permanent residence poses no risk to the alien withCommentsClose CommentsPermalink
respect to whom a petition described in subclause (I) is filed.'.CommentsClose CommentsPermalink
(b) NONIMMIGRANTS- Section 101(a)(15)(K) (
SEC. 223. LAW ENFORCEMENT AUTHORITY OF STATES AND POLITICAL SUBDIVISIONS AND TRANSFER TO FEDERAL CUSTODY.
(a) IN GENERAL- Title II (
`SEC. 240D. LAW ENFORCEMENT AUTHORITY OF STATES AND POLITICAL SUBDIVISIONS AND TRANSFER OF ALIENS TO FEDERAL CUSTODY.
`(a) TRANSFER- If the head of a law enforcement entity of a State (or, if appropriate, a political subdivision of the State) exercising authority with respect to the apprehension or arrest of an alien submits a request to the Secretary of Homeland Security that the alien be taken into Federal custody, the Secretary of Homeland Security--CommentsClose CommentsPermalink
`(1) shall--CommentsClose CommentsPermalink
`(A) deem the request to include the inquiry to verify immigration status described in section 642(c) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (
`(B) if the individual is an alien who is not lawfully admitted to the United States or otherwise is not lawfully present in the United States--CommentsClose CommentsPermalink
`(i) take the illegal alien into the custody of the Federal Government not later than 72 hours after--CommentsClose CommentsPermalink
`(I) the conclusion of the State charging process or dismissal process; orCommentsClose CommentsPermalink
`(II) the illegal alien is apprehended, if no State charging or dismissal process is required; orCommentsClose CommentsPermalink
`(ii) request that the relevant State or local law enforcement agency temporarily detain or transport the alien to a location for transfer to Federal custody; andCommentsClose CommentsPermalink
`(2) shall designate at least 1 Federal, State, or local prison or jail or a private contracted prison or detention facility within each State as the central facility for that State to transfer custody of aliens to the Department of Homeland Security.CommentsClose CommentsPermalink
`(b) Reimbursement-CommentsClose CommentsPermalink
`(1) IN GENERAL- The Secretary of Homeland Security shall reimburse a State, or a political subdivision of a State, for expenses, as verified by the Secretary, incurred by the State or political subdivision in the detention and transportation of an alien as described in subparagraphs (A) and (B) of subsection (c)(1).CommentsClose CommentsPermalink
`(2) COST COMPUTATION- Compensation provided for costs incurred under subparagraphs (A) and (B) of subsection (c)(1) shall be--CommentsClose CommentsPermalink
`(A) the product of--CommentsClose CommentsPermalink
`(i) the average daily cost of incarceration of a prisoner in the relevant State, as determined by the chief executive officer of a State (or, as appropriate, a political subdivision of the State); multiplied byCommentsClose CommentsPermalink
`(ii) the number of days that the alien was in the custody of the State or political subdivision; plusCommentsClose CommentsPermalink
`(B) the cost of transporting the alien from the point of apprehension or arrest to the location of detention, and if the location of detention and of custody transfer are different, to the custody transfer point; plusCommentsClose CommentsPermalink
`(C) the cost of uncompensated emergency medical care provided to a detained alien during the period between the time of transmittal of the request described in subsection (c) and the time of transfer into Federal custody.CommentsClose CommentsPermalink
`(c) REQUIREMENT FOR APPROPRIATE SECURITY- The Secretary of Homeland Security shall ensure that--CommentsClose CommentsPermalink
`(1) aliens incarcerated in a Federal facility pursuant to this section are held in facilities which provide an appropriate level of security; andCommentsClose CommentsPermalink
`(2) if practicable, aliens detained solely for civil violations of Federal immigration law are separated within a facility or facilities.CommentsClose CommentsPermalink
`(d) REQUIREMENT FOR SCHEDULE- In carrying out this section, the Secretary of Homeland Security shall establish a regular circuit and schedule for the prompt transportation of apprehended aliens from the custody of those States, and political subdivisions of States, which routinely submit requests described in subsection (c), into Federal custody.CommentsClose CommentsPermalink
`(e) Authority for Contracts-CommentsClose CommentsPermalink
`(1) IN GENERAL- The Secretary of Homeland Security may enter into contracts or cooperative agreements with appropriate State and local law enforcement and detention agencies to implement this section.CommentsClose CommentsPermalink
`(2) DETERMINATION BY SECRETARY- Prior to entering into a contract or cooperative agreement with a State or political subdivision of a State under paragraph (1), the Secretary shall determine whether the State, or if appropriate, the political subdivision in which the agencies are located, has in place any formal or informal policy that violates section 642 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (
(b) AUTHORIZATION OF APPROPRIATIONS FOR THE DETENTION AND TRANSPORTATION TO FEDERAL CUSTODY OF ALIENS NOT LAWFULLY PRESENT- There are authorized to be appropriated $850,000,000 for fiscal year 2008 and each subsequent fiscal year for the detention and removal of aliens not lawfully present in the United States under the Immigration and Nationality Act (
SEC. 224. LAUNDERING OF MONETARY INSTRUMENTS.
(1) by inserting `section 1590 (relating to trafficking with respect to peonage, slavery, involuntary servitude, or forced labor),' after `section 1363 (relating to destruction of property within the special maritime and territorial jurisdiction),'; andCommentsClose CommentsPermalink
(2) by inserting `section 274(a) of the Immigration and Nationality Act (8 U.S.C.1324(a)) (relating to bringing in and harboring certain aliens),' after `section 590 of the Tariff Act of 1930 (
SEC. 225. COOPERATIVE ENFORCEMENT PROGRAMS.
Not later than 2 years after the date of the enactment of this Act, the Secretary shall negotiate and execute, where practicable, a cooperative enforcement agreement described in section 287(g) of the Immigration and Nationality Act (
SEC. 226. EXPANSION OF THE JUSTICE PRISONER AND ALIEN TRANSFER SYSTEM.
Not later than 60 days after the date of enactment of this Act, the Attorney General shall issue a directive to expand the Justice Prisoner and Alien Transfer System (JPATS) so that such System provides additional services with respect to aliens who are illegally present in the United States. Such expansion should include--CommentsClose CommentsPermalink
(1) increasing the daily operations of such System with buses and air hubs in 3 geographic regions;CommentsClose CommentsPermalink
(2) allocating a set number of seats for such aliens for each metropolitan area;CommentsClose CommentsPermalink
(3) allowing metropolitan areas to trade or give some of seats allocated to them under the System for such aliens to other areas in their region based on the transportation needs of each area; andCommentsClose CommentsPermalink
(4) requiring an annual report that analyzes of the number of seats that each metropolitan area is allocated under this System for such aliens and modifies such allocation if necessary.CommentsClose CommentsPermalink
SEC. 227. DIRECTIVE TO THE UNITED STATES SENTENCING COMMISSION.
(a) IN GENERAL- Pursuant to the authority under
(b) REPORT- Not later than one year after the date of the enactment of this Act, the United States Sentencing Commission shall submit to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives a report on the implementation of this section.CommentsClose CommentsPermalink
SEC. 228. CANCELLATION OF VISAS.
Section 222(g) (
(1) in paragraph (1)--CommentsClose CommentsPermalink
(A) by striking `Attorney General' and inserting `Secretary';CommentsClose CommentsPermalink
(B) by inserting `or otherwise violated any of the terms of the nonimmigrant classification in which the alien was admitted,' before `such visa'; andCommentsClose CommentsPermalink
(C) by inserting `and any other nonimmigrant visa issued by the United States that is in the possession of the alien' after `such visa'; andCommentsClose CommentsPermalink
(2) in paragraph (2)(A), by striking `(other than the visa described in paragraph (1)) issued in a consular office located in the country of the alien's nationality' and inserting `(other than a visa described in paragraph (1)) issued in a consular office located in the country of the alien's nationality or foreign residence'.CommentsClose CommentsPermalink
SEC. 229. JUDICIAL REVIEW OF VISA REVOCATION.
(a) IN GENERAL- Section 221(i) of the Immigration and Nationality Act (
such a revocation, provided that the revocation is executed by the Secretary.'.CommentsClose CommentsPermalink
(b) EFFECTIVE DATE- The amendment made by subsection (a) shall--CommentsClose CommentsPermalink
(1) take effect on the date of the enactment of this Act; andCommentsClose CommentsPermalink
(2) apply to all revocations made on or after such date.CommentsClose CommentsPermalink
TITLE III--WORKSITE ENFORCEMENT
Sec.301.Purposes.CommentsClose CommentsPermalink
Sec.302.Unlawful employment of aliens.CommentsClose CommentsPermalink
Sec.303.Effective date.CommentsClose CommentsPermalink
Sec.304.Disclosure of certain taxpayer information to assist in immigration enforcement.CommentsClose CommentsPermalink
Sec.305.Increasing security and integrity of Social Security cards.CommentsClose CommentsPermalink
Sec.306.Increasing security and integrity of identity documents.CommentsClose CommentsPermalink
Sec.307.Voluntary advanced verification program to combat identity theft.CommentsClose CommentsPermalink
Sec.308.Responsibilities of the Social Security Administration.CommentsClose CommentsPermalink
Sec.309.Immigration enforcement support by the Internal Revenue Service and the Social Security Administration.CommentsClose CommentsPermalink
Sec.310.Authorization of appropriations.CommentsClose CommentsPermalink
TITLE III--WORKSITE ENFORCEMENT
SEC. 301. PURPOSES.
(a) To continue to prohibit the hiring, recruitment, or referral of unauthorized aliens.CommentsClose CommentsPermalink
(b) To require that each employer take reasonable steps to verify the identity and work authorization status of all its employees, without regard to national origin and citizenship status.CommentsClose CommentsPermalink
(c) To authorize the Secretary of Homeland Security to access records of other federal agencies for the purposes of confirming identity, authenticating lawful presence and preventing identity theft and fraud related to unlawful employment.CommentsClose CommentsPermalink
(d) To ensure that the Commissioner of Social Security has the necessary authority to provide information to the Secretary of Homeland Security that would assist in the enforcement of the immigration laws.CommentsClose CommentsPermalink
(e) To authorize the Secretary of Homeland Security to confirm issuance of state identity documents, including driver's licenses, and to obtain and transmit individual photographic images held by states for identity authentication purposes.CommentsClose CommentsPermalink
(f) To collect information on employee hires.CommentsClose CommentsPermalink
(g) To electronically secure a social security number in the Employment Eligibility Verification System (EEVS) at the request of an individual who has been confirmed to be the holder of that number, and to prevent fraudulent use of the number by others.CommentsClose CommentsPermalink
(h) To provide for record retention of EEVS inquiries, to prevent identity fraud and employment authorization fraud.CommentsClose CommentsPermalink
(i) To employ fast track regulatory and procurement procedures to expedite implementation of this Title and pertinent sections of the INA for a period of two years from enactment.CommentsClose CommentsPermalink
(j) To establish the following:CommentsClose CommentsPermalink
(1) a document verification process requiring employers to inspect, copy, and retain identity and work authorization documents;CommentsClose CommentsPermalink
(2) an EEVS requiring employers to obtain confirmation of an individual's identity and work authorization;CommentsClose CommentsPermalink
(3) procedures for employers to register for the EEVS and to confirm work eligibility through the EEVS;CommentsClose CommentsPermalink
(4) a streamlined enforcement procedure to ensure efficient adjudication of violations of this Title;CommentsClose CommentsPermalink
(5) a system for the imposition of civil penalties and their enforcement, remission or mitigation;CommentsClose CommentsPermalink
(6) an enhancement of criminal and civil penalties;CommentsClose CommentsPermalink
(7) increased coordination of information and enforcement between the Internal Revenue Service and the Department of Homeland Security regarding employers who have violations related to the employment of unauthorized aliens;CommentsClose CommentsPermalink
(8) increased penalties under the Internal Revenue Code for employers who have violations relating to the employment of unauthorized aliens.CommentsClose CommentsPermalink
SEC. 302. UNLAWFUL EMPLOYMENT OF ALIENS.
(a) Section 274A of the Immigration and Nationality Act (
`(a) Making Employment of Unauthorized Aliens Unlawful-CommentsClose CommentsPermalink
`(1) IN GENERAL- It is unlawful for an employer--CommentsClose CommentsPermalink
`(A) to hire, or to recruit or refer for a fee, an alien for employment in the United States knowing or with reckless disregard that the alien is an unauthorized alien (as defined in subsection (b)(1)) with respect to such employment; orCommentsClose CommentsPermalink
`(B) to hire, or to recruit or refer for a fee, for employment in the United States an individual without complying with the requirements of subsections (c) and (d).CommentsClose CommentsPermalink
`(2) CONTINUING EMPLOYMENT- It is unlawful for an employer, after hiring an alien for employment, to continue to employ the alien in the United States knowing or with reckless disregard that the alien is (or has become) an unauthorized alien with respect to such employment.CommentsClose CommentsPermalink
`(3) USE OF LABOR THROUGH CONTRACT- For purposes of this section, an employer who uses a contract, subcontract, or exchange to obtain the labor of an alien in the United States knowing that the alien is an unauthorized alien (as defined in subsection (b)(1)) with respect to performing such labor, shall be considered to have hired the alien for employment in the United States in violation of paragraph (1)(A).CommentsClose CommentsPermalink
`(A) By regulation, the Secretary may require, for purposes of ensuring compliance with the immigration laws, that an employer include in a written contract, subcontract, or exchange an effective and enforceable requirement that the contractor or subcontractor adhere to the immigration laws of the United States, including use of EEVS.CommentsClose CommentsPermalink
`(B) The Secretary may establish procedures by which an employer may obtain confirmation from the Secretary that the contractor or subcontractor has registered with the EEVS and is utilizing the EEVS to verify its employees.CommentsClose CommentsPermalink
`(C) The Secretary may establish such other requirements for employers using contractors or subcontractors as the Secretary deems necessary to prevent knowing violations of this paragraph.CommentsClose CommentsPermalink
`(4) APPLICATION TO FEDERAL GOVERNMENT- For purposes of this section, the term `employer' includes entities in any branch of the Federal Government.CommentsClose CommentsPermalink
`(5) DEFENSE- An employer that establishes that it has complied in good faith with the requirements of subsectionsCommentsClose CommentsPermalink
(c)(1) through (c)(4), pertaining to document verification requirements, and subsection (d) has established an affirmative defense that the employer has not violated paragraph (1)(A) with respect to such hiring, recruiting, or referral, however:CommentsClose CommentsPermalink
`(A) until such time as the Secretary has required an employer to participate in the EEVS or such participation is permitted on a voluntary basis pursuant to subsection (d), a defense is established without a showing of compliance with subsection (d); andCommentsClose CommentsPermalink
`(B) to establish a defense, the employer must also be in compliance with any additional requirements that the Secretary may promulgate by regulation pursuant to subsections (c), (d), and (k).CommentsClose CommentsPermalink
`(6) An employer is presumed to have acted with knowledge or reckless disregard if the employer fails to comply with written standards, procedures or instructions issued by the Secretary. Such standards, procedures or instructions shall be objective and verifiable.CommentsClose CommentsPermalink
`(b) Definitions-CommentsClose CommentsPermalink
`(1) DEFINITION OF UNAUTHORIZED ALIEN- As used in this section, the term `unauthorized alien' means, with respect to the employment of an alien at a particular time, that the alien is not at that time either--CommentsClose CommentsPermalink
`(A) an alien lawfully admitted for permanent residence; orCommentsClose CommentsPermalink
`(B) authorized to be so employed by this Act or by the Secretary.CommentsClose CommentsPermalink
`(2) DEFINITION OF EMPLOYER- For purposes of this section, the term `employer' means any person or entity hiring, recruiting, or referring an individual for employment in the United States.CommentsClose CommentsPermalink
`(c) DOCUMENT VERIFICATION REQUIREMENTS- Any employer hiring, recruiting, or referring an individual for employment in the United States shall take all reasonable steps to verify that the individual is authorized to work in the United States, including the requirements of subsection (d) and the following paragraphs:CommentsClose CommentsPermalink
`(1) Attestation after examination of documentation.CommentsClose CommentsPermalink
`(A) IN GENERAL- The employer must attest, under penalty of perjury and on a form prescribed by the Secretary, that it has verified the identity and work authorization status of the individual by examining--CommentsClose CommentsPermalink
`(i) a document described in subparagraph (B); orCommentsClose CommentsPermalink
`(ii) a document described in subparagraph (C) and a document described in subparagraph (D).CommentsClose CommentsPermalink
Such attestation may be manifested by a handwritten or electronic signature. An employer has complied with the requirement of this paragraph with respect to examination of documentation if the employer has followed applicable regulations and any written procedures or instructions provided by the Secretary and if a reasonable person would conclude that the documentation is genuine and establishes the employee's identity and authorization to work, taking into account any information provided to the employer by the Secretary, including photographs.CommentsClose CommentsPermalink
`(B) DOCUMENTS ESTABLISHING BOTH EMPLOYMENT AUTHORIZATION AND IDENTITY- A document described in this subparagraph is an individual's--CommentsClose CommentsPermalink
`(i) United States passport, or passport card issued pursuant to the Secretary of State's authority under
`(ii) permanent resident card or other document issued by the Secretary or Secretary of State to aliens authorized to work in the United States, if the document--CommentsClose CommentsPermalink
`(I) contains a photograph of the individual, biometric data, such as fingerprints, or such other personal identifying information relating to the individual as the Secretary finds, by regulation, sufficient for the purposes of this subsection;CommentsClose CommentsPermalink
`(II) is evidence of authorization for employment in the United States; andCommentsClose CommentsPermalink
`(III) contains security features to make it resistant to tampering, counterfeiting, and fraudulent use; orCommentsClose CommentsPermalink
`(iii) a temporary interim benefits card valid under section 218C(c) of the Immigration and Nationality Act, as amended by section 602 of the Comprehensive Immigration Reform Act of 2007, bearing a photograph and an expiration date, and issued by the Secretary to aliens applying for temporary worker status under the Z-visa.CommentsClose CommentsPermalink
`(C) DOCUMENTS ESTABLISHING IDENTITY OF INDIVIDUAL- A document described in this subparagraph includes--CommentsClose CommentsPermalink
`(i) an individual's driver's license or identity card issued by a State, the Commonwealth of the Northern Mariana Islands, or an outlying possession of the United States, provided that the issuing State or entity has certified to the Secretary of Homeland Security that it is in compliance with the minimum standards required under section 202 of the REAL ID Act of 2005 (division B of
`(ii) an individual's driver's license or identity card issued by a State, the Commonwealth of the Northern Mariana Islands, or an outlying possession of the United States which is not compliant with section 202 of the REAL ID Act of 2005 if--CommentsClose CommentsPermalink
`(I) the driver's license or identity card contains the individual's photograph as well as the individual's name, date of birth, gender, height, eye color and address,CommentsClose CommentsPermalink
`(II) the card has been approved for this purpose in accordance with timetables and procedures established by the Secretary pursuant to subsection (c)(1)(F) of this section, andCommentsClose CommentsPermalink
`(III) the card is presented by the individual and examined by the employer in combination with a U.S. birth certificate, or a Certificate of Naturalization, or a Certificate of Citizenship, or such other documents as may be prescribed by the Secretary,CommentsClose CommentsPermalink
`(iii) for individuals under 16 years of age who are unable to present a document listed in clause (i) or (ii), documentation of personal identity of such other type as the Secretary finds provides a reliable means of identification, provided it contains security features to make it resistant to tampering, counterfeiting, and fraudulent use; orCommentsClose CommentsPermalink
`(iv) other documentation evidencing identity as identified by the Secretary in his discretion, with notice to the public provided in the Federal Register, to be acceptable for purposes of this section, provided that the document, including any electronic security measures linked to the document, contains security features that make the document as resistant to tampering, counterfeiting, and fraudulent use as the documents listed in (B)(i), B(ii), or (C)(i).CommentsClose CommentsPermalink
`(D) DOCUMENTS EVIDENCING EMPLOYMENT AUTHORIZATION- The following documents may be accepted as evidence of employment authorization--CommentsClose CommentsPermalink
`(i) a social security account number card issued by the Commissioner of Social Security (other than a card which specifies on its face that the card is not valid for employment in the United States). The Secretary, in consultation with the Commissioner of Social Security, may require by publication of a notice in the Federal Register that only a social security account number card described in Section 305 of this Title be accepted for this purpose; orCommentsClose CommentsPermalink
`(ii) any other documentation evidencing authorization of employment in the United States which the Secretary declares, by publication in the Federal Register, to be acceptable for purposes of this section, provided that the document, including any electronic security measures linked to the document contains security features to make it resistant to tampering, counterfeiting, and fraudulent use.CommentsClose CommentsPermalink
`(E) AUTHORITY TO PROHIBIT USE OF CERTAIN DOCUMENTS- If the Secretary finds that any document or class of documents described in subparagraph (B), (C), or (D) as establishing employment authorization or identity does not reliably establish such authorization or identity or is being used fraudulently to an unacceptable degree, the Secretary shall, with notice to the public provided in the Federal Register, prohibit or restrict the use of that document or class of documents for purposes of this subsection.CommentsClose CommentsPermalink
`(F) After June 1, 2013, no driver's license or state identity card may be accepted if it does not comply with the REAL ID Act of 2005. This paragraph (c)(1)(F) shall have no effect on paragraphs (c)(1)(B), (c)(1)(C)(iii), (c)(1)(C)(iv), or (c)(1)(D).CommentsClose CommentsPermalink
`(2) INDIVIDUAL ATTESTATION OF EMPLOYMENT AUTHORIZATION- The individual must attest, under penalty of perjury on the form prescribed by the Secretary, that the individual is a citizen or national of the United States, an alien lawfully admitted for permanent residence, or an alien who is authorized under this Act or by the Secretary to be hired, recruited, or referred for such employment. Such attestation may be manifested by either a hand-written or electronic signature.CommentsClose CommentsPermalink
`(3) RETENTION OF VERIFICATION FORM- After completion of such form in accordance with paragraphs (1) and (2), the employer must retain a paper, microfiche, microfilm, or electronic version of the form and make it available for inspection by officers of the Department of Homeland Security (or persons designated by the Secretary), the Special Counsel for Immigration-Related Unfair Employment Practices, or the Department of Labor during aCommentsClose CommentsPermalink
period beginning on the date of the hiring, recruiting, or referral of the individual and ending--CommentsClose CommentsPermalink
`(A) in the case of the recruiting or referral for a fee (without hiring) of an individual, seven years after the date of the recruiting or referral; andCommentsClose CommentsPermalink
`(B) in the case of the hiring of an individual--CommentsClose CommentsPermalink
`(i) seven years after the date of such hiring; orCommentsClose CommentsPermalink
`(ii) two years after the date the individual's employment is terminated, whichever is earlier.CommentsClose CommentsPermalink
`(4) Copying of documentation and recordkeeping required.CommentsClose CommentsPermalink
`(A) Notwithstanding any other provision of law, the employer shall copy all documents presented by an individual pursuant to this subsection and shall retain a paper, microfiche, microfilm, or electronic copy as prescribed in paragraph (3), but only (except as otherwise permitted under law) for the purposes of complying with the requirements of this subsection. Such copies shall reflect the signatures of the employer and the employee, as well as the date of receipt.CommentsClose CommentsPermalink
`(B) The employer shall also maintain records of Social Security Administration correspondence regarding name and number mismatches or no-matches and the steps taken to resolve such issues.CommentsClose CommentsPermalink
`(C) The employer shall maintain records of all actions and copies of any correspondence or action taken by the employer to clarify or resolve any issue that raises reasonable doubt as to the validity of the alien's identity or work authorization.CommentsClose CommentsPermalink
`(D) The employer shall maintain such records as prescribed in this subsection. The Secretary may prescribe the manner of recordkeeping and may require that additional records be kept or that additional documents be copied and maintained. The Secretary may require that these documents be transmitted electronically, and may develop automated capabilities to request such documents.CommentsClose CommentsPermalink
`(5) PENALTIES- An employer that fails to comply with any requirement of this subsection shall be penalized under subsection (e)(4)(B).CommentsClose CommentsPermalink
`(6) NO AUTHORIZATION OF NATIONAL IDENTIFICATION CARDS- Nothing in this section 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
`(7) The employer shall use the procedures for document verification set forth in this paragraph for all employees without regard to national origin or citizenship status.CommentsClose CommentsPermalink
`(d) Employment Eligibility Verification System-CommentsClose CommentsPermalink
`(1) IN GENERAL- The Secretary, in cooperation and consultation with the Secretary of State, the Commissioner of Social Security, and the states, shall implement and specify the procedures for EEVS. The participating employers shall timely register with EEVS and shall use EEVS as described in subsection (d)(5).CommentsClose CommentsPermalink
`(2) IMPLEMENTATION SCHEDULE-CommentsClose CommentsPermalink
`(A) As of the date of enactment of this section, the Secretary in his discretion, with notice to the public provided in the Federal Register, is authorized to require any employer or industry which the Secretary determines to be part of the critical infrastructure, a federal contractor, or directly related to the national security or homeland security of the United States to participate in the EEVS. This requirement may be applied to both newly hired and current employees. The Secretary shall notify employers subject to this subparagraph 30 days prior to EEVS.CommentsClose CommentsPermalink
`(B) No later than 6 months after the date of enactment of this section, the Secretary shall require additional employers or industries to participate in the EEVS. This requirement shall be applied to new employees hired, and current employees subject to reverification because of expiring work authorization documentation or expiration of immigration status, on or after the date on which the requirement takes effect. The Secretary, by notice in the Federal Register, shall designate these employers or industries, in his discretion, based upon risks to critical infrastructure, national security, immigration enforcement, or homeland security needs.CommentsClose CommentsPermalink
`(C) No later than 18 months after the date of enactment of this section, the Secretary shall require all employers to participate in the EEVS with respect to newly hired employees and current employees subject to reverification because of expiring work authorization documentation or expiration of immigration status.CommentsClose CommentsPermalink
`(D) No later than three years after the date of enactment of this section, all employers shall participate in the EEVS with respect to new employees, all employees whose identity and employment authorization have not been previously verified through EEVS, and all employees in Z status who have not previously presented a secure document evidencing their Z status. The Secretary may specify earlier dates for participation in the EEVS in his discretion for some or all classes of employer or employee.CommentsClose CommentsPermalink
`(E) The Secretary shall create the necessary systems and processes to monitor the functioning of the EEVS, including the volume of the workflow, the speed of processing of queries, and the speed and accuracy of responses. These systems and processes shall be audited by the Government Accountability Office 9 months after the date of enactment of this section and 24 months after the date of enactment of this section. The Government Accountability Office shall report the results of the audits to Congress.CommentsClose CommentsPermalink
`(3) PARTICIPATION IN EEVS- The Secretary has the following discretionary authority to require or to permit participation in the EEVS--CommentsClose CommentsPermalink
`(A) To permit any employer that is not required to participate in the EEVS to do so on a voluntary basis;CommentsClose CommentsPermalink
`(B) To require any employer that is required to participate in the EEVS with respect to its newly hired employees also to do so with respect to its current workforce if the Secretary has reasonable cause to believe that the employer has engaged in any violation of the immigration laws.CommentsClose CommentsPermalink
`(4) CONSEQUENCE OF FAILURE TO PARTICIPATE- If an employer is required under this subsection to participate in the EEVS and fails to comply with the requirements of such program with respect to an individual--CommentsClose CommentsPermalink
`(A) such failure shall be treated as a violation of subsection (a)(1)(B) of this section with respect to that individual, andCommentsClose CommentsPermalink
`(B) a rebuttable presumption is created that the employer has violated subsection (a)(1)(A) or (a)(2) of this section.CommentsClose CommentsPermalink
`Subparagraph (B) shall not apply in any prosecution under subsection 274A(f)(1).CommentsClose CommentsPermalink
`(5) PROCEDURES FOR PARTICIPANTS IN THE EEVS-CommentsClose CommentsPermalink
`(A) IN GENERAL- An employer participating in the EEVS must register in the EEVS and conform to the following procedures in the event of hiring, recruiting, or referring any individual for employment in the United States:CommentsClose CommentsPermalink
`(i) REGISTRATION OF EMPLOYERS- The Secretary, through notice in the Federal Register, shall prescribe procedures that employers must follow to register in the EEVS. In prescribing these procedures, the Secretary shall have authority to require employers to provide:CommentsClose CommentsPermalink
`(I) employer's name;CommentsClose CommentsPermalink
`(II) employer's Employment Identification Number (EIN);CommentsClose CommentsPermalink
`(III) company address;CommentsClose CommentsPermalink
`(IV) name, position and social security number of the employer's employees accessing the EEVS; andCommentsClose CommentsPermalink
`(V) such other information as the Secretary deems necessary to ensure proper use and security of the EEVS.CommentsClose CommentsPermalink
The Secretary shall require employers to undergo such training as the Secretary deems necessary to ensure proper use and security of the EEVS. To the extent practicable, such training shall be made available electronically.CommentsClose CommentsPermalink
`(ii) PROVISION OF ADDITIONAL INFORMATION- The employer shall obtain from the individual (and the individual shall provide) and shall record in such manner as the Secretary may specify--CommentsClose CommentsPermalink
`(I) an individual's social security account number,CommentsClose CommentsPermalink
`(II) if the individual does not attest to United States nationality under subsection (c)(2) of this section, such identification or authorization number established by the Department of Homeland Security as the Secretary of Homeland Security shall specify, andCommentsClose CommentsPermalink
`(III) such other information as the Secretary may require to determine the identity and work authorization of an employee.CommentsClose CommentsPermalink
`(iii) PRESENTATION OF DOCUMENTATION- The employer, and the individual whose identity and employment eligibility are being confirmed, shall fulfill the requirements of subsection (c) of this section.CommentsClose CommentsPermalink
`(iv) PRESENTATION OF BIOMETRICS- Employers who are enrolled in the Voluntary Advanced Verification Program to Combat Identity Theft under section 307 of this Title shall, in addition to documentary evidence of identity and work eligibility, electronically provide the fingerprints of the individual to the Department of Homeland Security.'CommentsClose CommentsPermalink
`(B) Seeking confirmation-CommentsClose CommentsPermalink
`(i) The employer shall use the EEVS to provide to the Secretary all required information in order to obtain confirmation of the identity and employment eligibility of any individual no earlier than the date of hire and no later than on the first day of employment (or recruitment or referral, as the case may be). An employer may not, however, make the starting date of an individual's employment contingent on the receipt of a confirmation of the identity and employment eligibility.CommentsClose CommentsPermalink
`(ii) For reverification of an employee with a limited period of work authorization (including Z card holder), all required verification procedures must be complete on the date the employee's work authorization expires.CommentsClose CommentsPermalink
`(iii) For initial verification of an employee hired before the employer is subject to the employment eligibility verification system, all required procedures must be complete on such date as the Secretary shall specify in accordance with subparagraph (d)(2)(D).CommentsClose CommentsPermalink
`(iv) The Secretary shall provide, and the employer shall utilize, as part of EEVS, a method of communicating notices and requests for information or action on the part of the employer with respect to expiring work authorization or status and other matters. Additionally, the Secretary shall provide a method of notifying employers of a confirmation, nonconfirmation or a notice that further action is required (`further action notice'). The employer shall communicate to the individual that is the subject of the verification all information provided to the employer by the EEVS for communication to the individual.CommentsClose CommentsPermalink
`(C) Confirmation or nonconfirmation-CommentsClose CommentsPermalink
`(i) INITIAL RESPONSE- The verification system shall provide a confirmation, a nonconfirmation, or a further action notice of an individual's identity and employment eligibility at the time of the inquiry, unless for technological reasons or due to unforeseen circumstances, the EEVS is unable to provide such confirmation or further action notice. In such situations, the system shall provide confirmation or further action notice within 3 business days of the initial inquiry. If providing confirmation or further action notice, the EEVS shall provide an appropriate code indicating such confirmation or such further action notice.CommentsClose CommentsPermalink
`(ii) CONFIRMATION UPON INITIAL INQUIRY- When the employer receives an appropriate confirmation of an individual's identity and work eligibility under the EEVS, the employer shall record the confirmation in such manner as the Secretary may specify.CommentsClose CommentsPermalink
`(iii) Further action notice upon initial inquiry and secondary verification-CommentsClose CommentsPermalink
`(I) FURTHER ACTION NOTICE- If the employer receives a further action notice of an individual's identity or work eligibility under the EEVS, the employer shall inform the individual without delay for whom the confirmation is sought of the further action notice and any procedures specified by the Secretary for addressing the further action notice. The employee must acknowledge in writing the receipt of the further action notice from the employer.CommentsClose CommentsPermalink
`(II) CONTEST- Within ten business days from the date of notification to the employee, the employee must contact the appropriate agency to contest the further action notice and, if the Secretary so requires, appear in person at the appropriate Federal or state agency for purposes of verifying the individual's identity and employment authorization. The Secretary, in consultation with the Commissioner of Social Security and other appropriate Federal and State agencies, shall specify an available secondary verification procedure to confirm the validity of information provided and to provide a final confirmation or nonconfirmation. An individual contesting a further action notice must attest under penalty of perjury to his identity and employment authorization.CommentsClose CommentsPermalink
`(III) NO CONTEST- If the individual does not contest the further action notice within the period specified in subparagraph (5)(C)(iii)(II), a final nonconfirmation shall issue. The employer shall then record the nonconfirmation in such manner as the Secretary may specify.CommentsClose CommentsPermalink
`(IV) FINALITY- The EEVS shall provide a final confirmation or nonconfirmation within 10 business days from the date of the employee's contesting of the further action notice. As long as the employee is taking the steps required by the Secretary and the agency that the employee has contacted to resolve a further action notice, the Secretary shall extend the period of investigation until the secondary verification procedure allows the Secretary to provide a final confirmation or nonconfirmation. If the employee fails to take the steps required by the Secretary and the appropriate agency, a final nonconfirmation may be issued to that employee.CommentsClose CommentsPermalink
`(V) RE-EXAMINATION- Nothing in this section shall prevent the Secretary from reexamining a case where a final confirmation has been provided if subsequently received information indicates that the individual may not be work authorized.CommentsClose CommentsPermalink
In no case shall an employer terminate employment of an individual solely because of a failure of the individual to have identity and work eligibility confirmed under this section until a nonconfirmation becomes final and the period to timely file an administrative appeal has passed, and in the case where an administrative appeal has been denied, the period to timely file a petition for judicial review has passed. When final confirmation or nonconfirmation is provided, the confirmation system shall provide an appropriate code indicating such confirmation or nonconfirmation. An individual's failure to contest a further action notice shall not be considered an admission of guilt with respect to any violation of this section or any provision of law.CommentsClose CommentsPermalink
`(D) Consequences of nonconfirmation-CommentsClose CommentsPermalink
`(i) TERMINATION OF CONTINUED EMPLOYMENT- If the employer has received a final nonconfirmation regarding an individual, the employer shall terminate employment (or recruitment or referral) of the individual, unless the individual files an administrative appeal of a final nonconfirmation notice under paragraph (7) within the time period prescribed in that paragraph and the Secretary or the Commissioner stays the final nonconfirmation notice pending the resolution of the administrative appeal.CommentsClose CommentsPermalink
`(ii) CONTINUED EMPLOYMENT AFTER FINAL NONCONFIRMATION- If the employer continues to employ (or to recruit or refer) an individual after receiving final nonconfirmation (unless the individual filed an administrative appeal of a final nonconfirmation notice under paragraph (7) within the time period prescribed in that paragraph and the Secretary of the Commissioner stayed the final nonconfirmation notice pending the resolution of the administrative appeal), a rebuttable presumption is created that the employer has violated subsections (a)(1)(A) and (a)(2) of this section. The previous sentence shall not apply in any prosecution under subsection (f)(1) of this section.CommentsClose CommentsPermalink
`(E) Obligation to respond to queries and additional information-CommentsClose CommentsPermalink
`(i) Employers are required to comply with requests from the Secretary through EEVS for information, including queries concerning current and former employees that relate to the functioning of the EEVS, the accuracy of the responses provided by the EEVS, and any suspected fraud or identity theft in the use of the EEVS. Failure to comply with such a request is a violation of section (a)(1)(B).CommentsClose CommentsPermalink
`(ii) Individuals being verified through EEVS may be required to take further action to address irregularities identified in the documents relied upon for purposes of employment verification. The employer shall communicate to the individual any such requirement for further actions and shall record the date and manner of such communication. The individual must acknowledge in writing the receipt of this communication from the employer. Failure to communicate such a requirement is a violation of section (a)(1)(B).CommentsClose CommentsPermalink
`(iii) The Secretary is authorized, with notice to the public provided in the Federal Register, to implement, clarify, and supplement the requirements of this paragraph in order to facilitate the functioning of the EEVS or to prevent fraud or identity theft in the use of the EEVS.CommentsClose CommentsPermalink
`(F) Impermissible use of the EEVS-CommentsClose CommentsPermalink
`(i) An employer may not use the EEVS to verify an individual prior to extending to the individual an offer of employment.CommentsClose CommentsPermalink
`(ii) An employer may not require an individual to verify the individual's own employment eligibility through the EEVS as a condition of extending to that individual an offer of employment. Nothing in this paragraph shall be construed to prevent an employer from encouraging an employee or a prospective employee from verifying the employee's or a prospective employee's own employment eligibility prior to obtaining employment pursuant to paragraph (5)(H).CommentsClose CommentsPermalink
`(iii) An employer may not terminate an individual's employment solely because that individual has been issued a further action notice.CommentsClose CommentsPermalink
`(iv) An employer may not take the following actions solely because an individual has been issued a further action notice:CommentsClose CommentsPermalink
`(I) reduce salary, bonuses or other compensation due to the employee;CommentsClose CommentsPermalink
`(II) suspend the employee without pay;CommentsClose CommentsPermalink
`(III) reduce the hours that the employee is required to work if such reduction is accompanied by a reduction in salary, bonuses or other compensation due to the employee, except that, with the agreement of the employee, an employer may provide an employee with reasonable time off without pay in order to contest and resolve the further action notice received by the employee;CommentsClose CommentsPermalink
`(IV) deny the employee the training necessary to perform the employment duties for which the employee has been hired.CommentsClose CommentsPermalink
`(v) An employer may not, in the course of utilizing the procedures for document verification set forth in subsection (c), require that a prospective employee present additional documents or different documents than those prescribed under that subsection.CommentsClose CommentsPermalink
`(vi) The Secretary of Homeland Security shall develop the necessary policies and procedures to monitor employers' use of the EEVS and their compliance with the requirements set forth in this section. Employers are required to comply with requests from the Secretary for information related to any monitoring, audit or investigation undertaken pursuant to this subparagraph.CommentsClose CommentsPermalink
`(vii) The Secretary of Homeland Security, in consultation with the Secretary of Labor, shall establish and maintain a process by which any employee (or any prospective employee who would otherwise have been hired) who has reason to believe that an employer has violated subparagraphs (i)-(v) may file a complaint against the employer.CommentsClose CommentsPermalink
`(viii) Any employer found to have violated subparagraphs (i)-(v) shall pay a civil penalty of up to $10,000 for each violation.CommentsClose CommentsPermalink
`(ix) This paragraph is not intended to, and does not, create any right, benefit, trust, or responsibility, whether substantive or procedural, enforceable at law or equity by a party against the United States, its departments, agencies, instrumentalities, entities, officers, employees, or agents, or any person, nor does it create any right of review in a judicial proceeding.CommentsClose CommentsPermalink
`(x) No later than 3 months after the date of enactment of this section, the Secretary of Homeland Security, in cooperation with the Secretary of Labor and the Administrator of the Small Business Administration, shall conduct a campaign to disseminate information respecting the rights and remedies prescribed under this section. Such campaign shall be aimed at increasing the knowledge of employers, employees, and the general public concerning employer and employee rights, responsibilities and remedies under this section.CommentsClose CommentsPermalink
`(I) In order to carry out the campaign under this paragraph, the Secretary of Homeland Security may, to the extent deemed appropriate and subject to the availability of appropriations, contract with public and private organizations for outreach activities under the campaign.CommentsClose CommentsPermalink
`(II) There are authorized to be appropriated to carry out this paragraph $40,000,000 for each fiscal year 2007 through 2009.CommentsClose CommentsPermalink
`(G) Based on a regular review of the EEVS and the document verification procedures to identify fraudulent use and to assess the security of the documents being used to establish identity or employment authorization, the Secretary in consultation with the Commissioner of Social Security may modify by Notice published in the Federal Register the documents that must be presented to the employer, the information that must be provided to EEVS by the employer, and the procedures that must be followed by employers with respect to any aspect of the EEVS if the Secretary in his discretion concludes that the modification is necessary to ensure that EEVS accurately and reliably determines the work authorization of employees while providing protection against fraud and identity theft.CommentsClose CommentsPermalink
`(H) Subject to appropriate safeguards to prevent misuse of the system, the Secretary in consultation with the Commissioner of Social Security, shall establish secure procedures to permit an individual who seeks to verify the individual's own employment eligibility prior to obtaining or changing employment, to contact the appropriate agency and, in a timely manner, correct or update the information used by the EEVS.CommentsClose CommentsPermalink
`(6) Protection from liability for actions taken on the basis of information provided by the confirmation system- No employer participating in the EEVS shall be liable under any law for any employment-related action taken with respect to the employee in good faith reliance on information provided through the confirmation system.CommentsClose CommentsPermalink
`(7) Administrative review-CommentsClose CommentsPermalink
`(A) IN GENERAL- An individual who receives a final nonconfirmation notice may, not later than 15 days after the date that such notice is received, file an administrative appeal of such final notice. An individual who did not timely contest a further action notice may not avail himself of this paragraph. Unless the Secretary of Homeland Security, in consultation with the Commissioner of Social Security, specifies otherwise, all administrative appeals shall be filed as follows:CommentsClose CommentsPermalink
`(i) NATIONALS OF THE UNITED STATES- An individual claiming to be a national of the United States shall file the administrative appeal with the Commissioner.CommentsClose CommentsPermalink
`(ii) ALIENS- An individual claiming to be an alien authorized to work in the United States shall file the administrative appeal with the Secretary.CommentsClose CommentsPermalink
`(B) REVIEW FOR ERROR- The Secretary and the Commissioner shall each develop procedures for resolving administrative appeals regarding final nonconfirmations based upon the information that the individual has provided, including any additional evidence that was not previously considered. Appeals shall be resolved within 30 days after the individual has submitted all evidence relevant to the appeal. The Secretary and the Commissioner may, on a case by case basis for good cause, extend this period in order to ensure accurate resolution of an appeal before him. Administrative review under this paragraph (7) shall be limited to whether the final nonconfirmation notice is supported by the weight of the evidence.CommentsClose CommentsPermalink
`(C) ADMINISTRATIVE RELIEF- The relief available under this paragraph (7) is limited to an administrative order upholding, reversing, modifying, amending, or setting aside the final nonconfirmation notice. The Secretary or the Commissioner shall stay the final nonconfirmation notice pending the resolution of the administrative appeal unless the Secretary or the Commissioner determines that the administrative appeal is frivolous, unlikely to succeed on the merits, or filed for purposes of delay and terminates the stay.CommentsClose CommentsPermalink
`(D) DAMAGES, FEES AND COSTS- No money damages, fees or costs may be awarded in the administrative review process, and no court shall have jurisdiction to award any damages, fees or costs relating to such administrative review under the Equal Access to Justice Act or any other law.CommentsClose CommentsPermalink
`(8) Judicial Review-CommentsClose CommentsPermalink
`(A) EXCLUSIVE PROCEDURE- Notwithstanding any other provision of law (statutory or nonstatutory) including sections 1361 and 1651 of title 28, no court shall have jurisdiction to consider any claim against the United States, or any of its agencies, officers, or employees, challenging or otherwise relating to a final nonconfirmation notice or to the EEVS, except as specifically provided by this paragraph. Judicial review of a final nonconfirmation notice is governed only by chapter 158 of title 28, except as provided below.CommentsClose CommentsPermalink
`(B) REQUIREMENTS FOR REVIEW OF A FINAL NONCONFIRMATION NOTICE- With respect to review of a final nonconfirmation notice under subsection (a), the following requirements apply:CommentsClose CommentsPermalink
`(i) DEADLINE- The petition for review must be filed no later than 30 days after the date of the completion of the administrative appeal.CommentsClose CommentsPermalink
`(ii) VENUE AND FORMS- The petition for review shall be filed with the United States Court of Appeals for the judicial circuit wherein the petitioner resided when the final nonconfirmation notice was issued. The record and briefs do not have to be printed. The court of appeals shall review the proceeding on a typewritten record and on typewritten briefs.CommentsClose CommentsPermalink
`(iii) SERVICE- The respondent is either the Secretary of Homeland Security or the Commissioner of Social Security, but not both, depending upon who issued (or affirmed) the final nonconfirmation notice. In addition to serving the respondent, the petitioner must also serve the Attorney General.CommentsClose CommentsPermalink
`(iv) PETITIONER'S BRIEF- The petitioner shall serve and file a brief in connection with a petition for judicial review not later than 40 days after the date on which the administrative record is available, and may serve and file a reply brief not later than 14 days after service of the brief of the respondent, and the court may not extend these deadlines, except for good cause shown. If a petitioner fails to file a brief within the time provided in this paragraph, the court shall dismiss the appeal unless a manifest injustice would result. The court of appeals may set an expedited briefing schedule.CommentsClose CommentsPermalink
`(v) SCOPE AND STANDARD FOR REVIEW- The court of appeals shall decide the petition only on the administrative record on which the final nonconfirmation order is based. The burden shall be on the petitioner to show that the final nonconfirmation decision was arbitrary, capricious, not supported by substantial evidence, or otherwise not in accordance with law. Administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.CommentsClose CommentsPermalink
`(vi) STAY- The court of appeals shall stay the final nonconfirmation notice pending its decision on the petition for review unless the court determines that the petition for review is frivolous, unlikely to succeed on the merits, or filed for purposes of delay.CommentsClose CommentsPermalink
`(C) EXHAUSTION OF ADMINISTRATIVE REMEDIES- A court may review a final nonconfirmation order only if--CommentsClose CommentsPermalink
`(1) the petitioner has exhausted all administrative remedies available to the alien as of right, andCommentsClose CommentsPermalink
`(2) another court has not decided the validity of the order, unless the reviewing court finds that the petition presents grounds that could not have been presented in the prior judicial proceeding or that the remedy provided by the prior proceeding was inadequate or ineffective to test the validity of the order.CommentsClose CommentsPermalink
`(D) LIMIT ON INJUNCTIVE RELIEF- Regardless of the nature of the action or claim or of the identity of the party or parties bringing the action, no court (other than the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the operation of the provisions in this section, other than with respect to the application of such provisions to an individual petitioner.CommentsClose CommentsPermalink
`(9) MANAGEMENT OF EMPLOYMENT ELIGIBILITY VERIFICATION SYSTEM-CommentsClose CommentsPermalink
`(A) IN GENERAL- The Secretary is authorized to establish, manage and modify an EEVS that shall--CommentsClose CommentsPermalink
`(i) respond to inquiries made by participating employers at any time through the internet concerning an individual's identity and whether the individual is authorized to be employed;CommentsClose CommentsPermalink
`(ii) maintain records of the inquiries that were made, of confirmations provided (or not provided), and of the codes provided to employers as evidence of their compliance with their obligations under the EEVS; andCommentsClose CommentsPermalink
`(iii) provide information to, and request action by, employers and individuals using the system, including notifying employers of the expiration or other relevant change in an employee's employment authorization, and directing an employer to convey to the employee a request to contact the appropriate Federal or State agency.CommentsClose CommentsPermalink
`(B) DESIGN AND OPERATION OF SYSTEM- The EEVS shall be designed and operated--CommentsClose CommentsPermalink
`(i) to maximize its reliability and ease of use by employers consistent with insulating and protecting the privacy and security of the underlying information;CommentsClose CommentsPermalink
`(ii) to respond accurately to all inquiries made by employers on whether individuals are authorized to be employed and to register any times when the system is unable to receive inquiries;CommentsClose CommentsPermalink
`(iii) to maintain appropriate administrative, technical, and physical safeguards to prevent unauthorized disclosure of personal information;CommentsClose CommentsPermalink
`(iv) to allow for auditing use of the system to detect fraud and identify theft, and to preserve the security of the information in all of the system, including but not limited to the following:CommentsClose CommentsPermalink
`(I) to develop and use algorithms to detect potential identity theft, such as multiple uses of the same identifying information or documents;CommentsClose CommentsPermalink
`(II) to develop and use algorithms to detect misuse of the system by employers and employees;CommentsClose CommentsPermalink
`(III) to develop capabilities to detect anomalies in the use of the system that may indicate potential fraud or misuse of the system;CommentsClose CommentsPermalink
`(IV) to audit documents and information submitted by potential employees to employers, including authority to conduct interviews with employers and employees;CommentsClose CommentsPermalink
`(v) to confirm identity and work authorization through verification of records maintained by the Secretary, other Federal departments, states, the Commonwealth of the Northern Mariana Islands, or an outlying possession of the United States, as determined necessary by the Secretary, including:CommentsClose CommentsPermalink
`(I) records maintained by the Social Security Administration as specified in (D);CommentsClose CommentsPermalink
`(II) Birth and death records maintained by vital statistics agencies of any state or other United States jurisdiction;CommentsClose CommentsPermalink
`(III) Passport and visa records (including photographs) maintained by the United States Department of State;CommentsClose CommentsPermalink
`(IV) State driver's license or identity card information (including photographs) maintained by State department of motor vehicles.CommentsClose CommentsPermalink
`(vi) to confirm electronically the issuance of the employment authorization or identity document and to display the digital photograph that the issuer placed on the document so that the employer can compare the photograph displayed to the photograph on the document presented by the employee. If in exceptional cases a photograph is not available from the issuer, the Secretary shall specify a temporary alternative procedure for confirming the authenticity of the document.CommentsClose CommentsPermalink
`(C) The Secretary is authorized, with notice to the public provided in the Federal Register, to issue regulations concerning operational and technical aspects of the EEVS and the efficiency, accuracy, and security of the EEVS.CommentsClose CommentsPermalink
`(D) Access to information-CommentsClose CommentsPermalink
`(i) Notwithstanding any other provision of law, the Secretary of Homeland Security shall have access to relevant records described at paragraph (9)(B)(v), for the purposes of preventing identity theft and fraud in the use of the EEVS and enforcing the provisions of this section governing employment verification. A State or other non-Federal jurisdiction that does not provide such access shall not be eligible for any grant or other program of financial assistance administered by the Secretary.CommentsClose CommentsPermalink
`(ii) The Secretary, in consultation with the Commissioner of Social Security and other appropriate Federal and State agencies, shall develop policies and procedures to ensure protection of the privacy and security of personally identifiable information and identifiers contained in the records accessed pursuant to this paragraph and subparagraph (d)(5)(E)(i). The Secretary, in consultation with the Commissioner and other appropriate Federal and State agencies, shall develop and deploy appropriate privacy and security training for the Federal and State employees accessing the records pursuant to this paragraph and subparagraph (d)(5)(E)(i).CommentsClose CommentsPermalink
`(iii) The Chief Privacy Officer of the Department of Homeland Security shall conduct regular privacy audits of the policies and procedures established under subparagraph (9)(D)(ii), including any collection, use, dissemination, and maintenance of personally identifiable information and any associated information technology systems, as well as scope of requests for this information. The Chief Privacy Officer shall review the results of the audits and recommend to the Secretary and the Privacy and Civil Liberties Oversight Board any changes necessary to improve the privacy protections of the program.CommentsClose CommentsPermalink
`(E) RESPONSIBILITIES OF THE SECRETARY OF HOMELAND SECURITY-CommentsClose CommentsPermalink
`(i) As part of the EEVS, the Secretary shall establish a reliable, secure method, which, operating through the EEVS and within the time periods specified, compares the name, alien identification or authorization number, or other relevant information provided in an inquiry against such information maintained or accessed by the Secretary in order to confirm (or not confirm) the validity of the information provided, the correspondence of the name and number, whether the alien is authorized to be employed in the United States (or, to the extent that the Secretary determines to be feasible and appropriate, whether the Secretary's records verify United States citizenship), and such other information as the Secretary may prescribe.CommentsClose CommentsPermalink
`(ii) As part of the EEVS, the Secretary shall establish a reliable, secure method, which, operating through the EEVS, displays the digital photograph described in paragraph (d)(9)(B)(vi).CommentsClose CommentsPermalink
`(iii) The Secretary shall have authority to prescribe when a confirmation, nonconfirmation or further action notice shall be issued.CommentsClose CommentsPermalink
`(iv) The Secretary shall perform regular audits under the EEVS, as described in paragraph (d)(9)(B)(iv) of this section and shall utilize the information obtained from such audits, as well as any information obtained from the Commissioner of Social Security pursuant to section 304 of the Comprehensive Immigration Act of 2007, for the purposes of this Title and of immigration enforcement in general.CommentsClose CommentsPermalink
`(v) The Secretary shall make appropriate arrangements to allow employers who are otherwise unable to access the EEVS to use Federal Government facilities or public facilities in order to utilize the EEVS.CommentsClose CommentsPermalink
`(F) RESPONSIBILITIES OF THE SECRETARY OF STATE- As part of the EEVS, the Secretary of State shall provide to the Secretary access to passport and visa information as needed to confirm that a passport or passport card presented under section (c)(1)(B) belongs to the subject of the EEVS check, or that a passport or visa photograph matches an individual;CommentsClose CommentsPermalink
`(G) UPDATING INFORMATION- The Commissioner of Social Security and the Secretaries of Homeland Security and State shall update their information in a manner that promotes maximum accuracy and shall provide a process for the prompt correction of erroneous information.CommentsClose CommentsPermalink
`(10) LIMITATION ON USE OF THE EMPLOYMENT ELIGIBILITY VERIFICATION SYSTEM- Notwithstanding any other provision of law, nothing in this subsection shall be construed to permit or allow any department, bureau, or other agency of the United States Government to utilize any information, database, or other records assembled under this subsection for any purpose other than for the enforcement and administration of the immigration laws, anti-terrorism laws, or for enforcement of Federal criminal law related to the functions of the EEVS, including prohibitions on forgery, fraud and identity theft.CommentsClose CommentsPermalink
`(11) UNAUTHORIZED USE OR DISCLOSURE OF INFORMATION- Any employee of the Department of Homeland Security or another Federal or State agency who knowingly uses or discloses the information assembled under this subsection for a purpose other than one authorized under this section shall pay a civil penalty of $5,000-$50,000 for each violation.CommentsClose CommentsPermalink
`(12) CONFORMING AMENDMENT-
`(13) FUNDS- In addition to any appropriated funds, the Secretary is authorized to use funds provided in sections 286(m) and (n), for the maintenance and operation of the EEVS. EEVS shall be considered an immigration adjudication service for purposes of sections 286(m) and (n).'CommentsClose CommentsPermalink
`(14) The employer shall use the procedures for EEVS specified in this section for all employees without regard to national origin or citizenship status.CommentsClose CommentsPermalink
`(e) Compliance-CommentsClose CommentsPermalink
`(1) COMPLAINTS AND INVESTIGATIONS- The Secretary of Homeland Security shall establish procedures--CommentsClose CommentsPermalink
`(A) for individuals and entities to file complaints respecting potential violations of subsection (a) or (g)(1);CommentsClose CommentsPermalink
`(B) for the investigation of those complaints which the Secretary deems it appropriate to investigate; andCommentsClose CommentsPermalink
`(C) for the investigation of such other violations of subsection (a) or (g)(1) as the Secretary determines to be appropriate.CommentsClose CommentsPermalink
`(2) AUTHORITY IN INVESTIGATIONS- In conducting investigations and hearings under this subsection--CommentsClose CommentsPermalink
`(A) immigration officers shall have reasonable access to examine evidence of any employer being investigated; andCommentsClose CommentsPermalink
`(B) immigration officers designated by the Secretary may compel by subpoena the attendance of witnesses and the production of evidence at any designated place in an investigation or case under this subsection. In case of contumacy or refusal to obey a subpoena lawfully issued under this paragraph, the Secretary may request that the Attorney General apply in an appropriate district court of the United States for an order requiring compliance with such subpoena, and any failure to obey such order may be punished by such court as a contempt thereof. Failure to cooperate with such subpoena shall be subject to further penalties, including but not limited to further fines and the voiding of any mitigation of penalties or termination of proceedings under subsection (e)(3)(B).CommentsClose CommentsPermalink
`(3) Compliance procedures-CommentsClose CommentsPermalink
`(A) PRE-PENALTY NOTICE- If the Secretary has reasonable cause to believe that there has been a civil violation of this section or the requirements of this section, including but not limited to subsections (b), (c), (d) and (k), and determines that further proceedings are warranted, the Secretary shall issue to the employer concerned a written notice of the Department's intention to issue a claim for a monetary or other penalty. Such pre-penalty notice shall:CommentsClose CommentsPermalink
`(i) describe the violation;CommentsClose CommentsPermalink
`(ii) specify the laws and regulations allegedly violated;CommentsClose CommentsPermalink
`(iii) disclose the material facts which establish the alleged violation; andCommentsClose CommentsPermalink
`(iv) inform such employer that he or she shall have a reasonable opportunity to make representations as to why a claim for a monetary or other penalty should not be imposed.CommentsClose CommentsPermalink
`(B) REMISSION OR MITIGATION OF PENALTIES- Whenever any employer receives written pre-penalty notice of a fine or other penalty in accordance with subparagraph (A), the employer may file, within 15 days from receipt of such notice, with the Secretary a petition for the remission or mitigation of such fine or penalty, or a petition for termination of the proceedings. The petition may include any relevant evidence or proffer of evidence the employer wishes to present, and shall be filed and considered in accordance with procedures to be established by the Secretary. If the Secretary finds that such fine, penalty, or forfeiture was incurred erroneously, or finds the existence of such mitigating circumstances as to justify the remission or mitigation of such fine or penalty, the Secretary may remit or mitigate the same upon such terms and conditions as the Secretary deems reasonable and just, or order termination of any proceedings relating thereto. Such mitigating circumstances may include, but need not be limited to, good faith compliance and participation in, or agreement to participate in, the EEVS, if not otherwise required.CommentsClose CommentsPermalink
`This subparagraph shall not apply to an employer that has or is engaged in a pattern or practice of violations of subsection (a)(1)(A), (a)(1)(B), or (a)(2) or of any other requirements of this section.CommentsClose CommentsPermalink
`(C) PENALTY CLAIM- After considering evidence and representations, if any, offered by the employer pursuant to subparagraph (B), the Secretary shall determine whether there was a violation and promptly issue a written final determination setting forth the findings of fact and conclusions of law on which the determination is based. If the Secretary determines that there was a violation, the Secretary shall issue the final determination with a written penalty claim. The penalty claim shall specify all charges in the information provided under clauses (i) through (iii) of subparagraph (A) and any mitigation or remission of the penalty that the Secretary deems appropriate.CommentsClose CommentsPermalink
`(4) CIVIL PENALTIES-CommentsClose CommentsPermalink
`(A) Hiring or continuing to employ unauthorized aliens. Any employer that violates any provision of subsection (a)(1)(A) or (a)(2) shall:CommentsClose CommentsPermalink
`(1) pay a civil penalty of $5,000 for each unauthorized alien with respect to which each violation of either subsection (a)(1)(A) or (a)(2) occurred;CommentsClose CommentsPermalink
`(2) if an employer has previously been fined under subsection (e)(4)(A), pay a civil penalty of $10,000 for each unauthorized alien with respect to which a violation of either subsection (a)(1)(A) or (a)(2) occurred; andCommentsClose CommentsPermalink
`(3) if an employer has previously been fined more than once under subsection (e)(4), pay a civil penalty of $25,000 for each unauthorized alien with respect to which a violation of either subsection has occurred. This penalty shall apply, in addition to any penalties previously assessed, to employers who fail to comply with a previously issued and final order under this section.CommentsClose CommentsPermalink
`(4) if an employer has previously been fined more than twice under subsection (e)(4)(A), pay a civil penalty of $75,000 for each alien with respect to which a violation of either subsection (a)(1) or (a)(2) occurred;CommentsClose CommentsPermalink
`(5) In addition to any penalties previously assessed, an employer who fails to comply with a previously issued and final order under this section shall be fined $75,000 for each violation.CommentsClose CommentsPermalink
`(B) RECORDKEEPING OR VERIFICATION PRACTICES- Any employer that violates or fails to comply with any requirement of subsection (b), (c), and (d), shall pay a civil penalty as follows:CommentsClose CommentsPermalink
`(1) pay a civil penalty of $1,000 for each violation;CommentsClose CommentsPermalink
`(2) if an employer has previously been fined under subsection (e)(4)(B), pay a civil penalty of $2,000 for each violation; andCommentsClose CommentsPermalink
`(3) if an employer has previously been fined more than once under subsection (e)(4), pay a civil penalty of $5,000 for each violation. This penalty shall apply, in addition to any penalties previously assessed, to employers who fail to comply with a previously issued and final order under this section.CommentsClose CommentsPermalink
`(4) if an employer has previously been fined more than twice under subsection (e)(4)(B), pay a civil penalty of $15,000 for each violation.CommentsClose CommentsPermalink
`(5) In addition to any penalties previously assessed, an employer who fails to comply with a previously issued and final order under this section shall be fined $15,000 for each violation.CommentsClose CommentsPermalink
`(C) OTHER PENALTIES- The Secretary may impose additional penalties for violations, including cease and desist orders, specially designed compliance plans to prevent further violations, suspended fines to take effect in the event of a further violation, and in appropriate cases, the remedy provided by paragraph (g)(2). All penalties in this section may be adjusted every four years to account for inflation as provided by law.CommentsClose CommentsPermalink
`(D) The Secretary is authorized to reduce or mitigate penalties imposed upon employers, based upon factors including, but not limited to, the employer's hiring volume, compliance history, good-faith implementation of a compliance program, participation in a temporary worker program, and voluntary disclosure of violations of this subsection to the Secretary.CommentsClose CommentsPermalink
`(5) ORDER OF INTERNAL REVIEW AND CERTIFICATION OF COMPLIANCE- If the Secretary has reasonable cause to believe that an employer has failed to comply with this section, the Secretary is authorized, at any time, to require that the employer certify that it is in compliance with this section, or has instituted a program to come into compliance. Within 60 days of receiving a notice from the Secretary requiring such a certification, the employer's chief executive officer or similar official with responsibility for, and authority to bind the company on, all hiring and immigration compliance notices shall certify under penalty of perjury that the employer is in conformance with the requirements of subsections (c)(1) through (c)(4), pertaining to document verification requirements, and with subsection (d), pertaining to the EEVS (once that system is implemented according to the requirements of (d)(1)), and with any additional requirements that the Secretary may promulgate by regulation pursuant to subsections (c), (d), and (k), or that the employer has instituted a program to come into compliance with these requirements. At the request of the employer, the Secretary may extend the 60-day deadline for good cause. The Secretary is authorized to publish in the Federal Register standards or methods for such certification, require specific recordkeeping practices with respect to such certifications, and audit the records thereof at any time. This authority shall not be construed to diminish or qualify any other penalty provided by this section.CommentsClose CommentsPermalink
`(6) JUDICIAL REVIEW-CommentsClose CommentsPermalink
`(A) Notwithstanding any other provision of law (statutory or nonstatutory) including sections 1361 and 1651 of title 28, no court shall have jurisdiction to consider a final determination or penalty claim issued under subparagraph (3)(C), except as specifically provided by this paragraph. Judicial review of a final determination under paragraph (e)(4) is governed only by chapter 158 of title 28, except as specifically provided below. The filing of a petition as provided in this paragraph shall stay the Secretary's determination until entry of judgment by the court. The Secretary is authorized to require that petitioner provide, prior to filing for review, security for payment of fines and penalties through bond or other guarantee of payment acceptable to the Secretary.CommentsClose CommentsPermalink
(B) REQUIREMENTS FOR REVIEW OF A FINAL DETERMINATION- With respect to judicial review of a final determination or penalty claim issued under subparagraph (3)(C), the following requirements apply:CommentsClose CommentsPermalink
(i) DEADLINE- The petition for review must be filed no later than 30 days after the date of the final determination or penalty claim issued under subparagraph (3)(C).CommentsClose CommentsPermalink
(ii) VENUE AND FORMS- The petition for review shall be filed with the court of appeals for the judicial circuit wherein the employer resided when the final determination or penalty claim was issued. The record and briefs do not have to be printed. The court of appeals shall review the proceeding on a typewritten record and on typewritten briefs.CommentsClose CommentsPermalink
(iii) SERVICE- The respondent is either the Secretary of Homeland Security or the Commissioner of Social Security, but not both, depending upon who issued (or affirmed) the final nonconfirmation notice. In addition to serving the respondent, the petitioner must also serve the Attorney General.CommentsClose CommentsPermalink
(iv) PETITIONER'S BRIEF- The petitioner shall serve and file a brief in connection with a petition for judicial review not later than 40 days after the date on which the administrative record is available, and may serve and file a reply brief not later than 14 days after service of the brief of the respondent, and the court may not extend these deadlines, except for good cause shown. If a petitioner fails to file a brief within the time provided in this paragraph, the court shall dismiss the appeal unless a manifest injustice would result.CommentsClose CommentsPermalink
(v) SCOPE AND STANDARD FOR REVIEW- The court of appeals shall decide the petition only on the administrative record on which the final determination is based. The burden shall be on the petitioner to show that the final determination was arbitrary, capricious, not supported by substantial evidence, or otherwise not in accordance with law. Administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.CommentsClose CommentsPermalink
`(C) EXHAUSTION OF ADMINISTRATIVE REMEDIES- A court may review a final determination under subparagraph (3)(C) only if--CommentsClose CommentsPermalink
(1) the petitioner has exhausted all administrative remedies available to the petitioner as of right, andCommentsClose CommentsPermalink
(2) another court has not decided the validity of the order, unless the reviewing court finds that the petition presents grounds that could not have been presented in the prior judicial proceeding or that the remedy provided by the prior proceeding was inadequate or ineffective to test the validity of the order.CommentsClose CommentsPermalink
`(D) LIMIT ON INJUNCTIVE RELIEF- Regardless of the nature of the action or claim or of the identity of the party or parties bringing the action, no court (other than the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the operation of the provisions in this section, other than with respect to the application of such provisions to an individual petitioner.CommentsClose CommentsPermalink
`(7) ENFORCEMENT OF ORDERS- If an employer fails to comply with a final determination issued against that employer under this subsection, and the final determination is not subject to review as provided in paragraph (6), the Attorney General may file suit to enforce compliance with the final determination in any appropriate district court of the United States. In any such suit, the validity and appropriateness of the final determination shall not be subject to review.CommentsClose CommentsPermalink
`(8) LIENS-CommentsClose CommentsPermalink
`(A) CREATION OF LIEN- If any employer liable for a fee or penalty under this section neglects or refuses to pay such liability and fails to file a petition for review (if applicable) as provided in paragraph 6 of this subsection, such liability is a lien in favor of the United States on all property and rights to property of such person as if the liability of such person were a liability for a tax assessed under the Internal Revenue Code of 1986. If a petition for review is filed as provided in paragraph 6 of this subsection, the lien (if any) shall arise upon the entry of a final judgment by the court. The lien continues for 20 years or until the liability is satisfied, remitted, set aside, or is terminated.CommentsClose CommentsPermalink
`(B) EFFECT OF FILING NOTICE OF LIEN- Upon filing of a notice of lien in the manner in which a notice of tax lien would be filed under section 6323(f)(1) and (2) of the Internal Revenue Code of 1986, the lien shall be valid against any purchaser, holder of a security interest, mechanic's lien or judgment lien creditor, except with respect to properties or transactions specified in subsection (b), (c), or (d) of section 6323 of the Internal Revenue Code of 1986 for which a notice of tax lien properly filed on the same date would not be valid. The notice of lien shall be considered a notice of lien for taxes payable to the United States for the purpose of any State or local law providing for the filing of a notice of a tax lien. A notice of lien that is registered, recorded, docketed, or indexed in accordance with the rules and requirements relating to judgments of the courts of the State where the notice of lien is registered, recorded, docketed, or indexed shall be considered for all purposes as the filing prescribed by this section. The provisions of section 3201(e) of chapter 176 of title 28 shall apply to liens filed as prescribed by this section.CommentsClose CommentsPermalink
`(C) ENFORCEMENT OF A LIEN- A lien obtained through this process shall be considered a debt as defined by 28 U.S.C. Sec. 3002 and enforceable pursuant to the Federal Debt Collection Procedures Act.CommentsClose CommentsPermalink
`(f) CRIMINAL PENALTIES AND INJUNCTIONS FOR PATTERN OR PRACTICE VIOLATIONS-CommentsClose CommentsPermalink
`(1) CRIMINAL PENALTY- Any employer which engages in a pattern or practice of knowing violations of subsection (a)(1)(A) or (a)(2) shall be fined not more than $75,000 for each unauthorized alien with respect to whom such a violation occurs, imprisoned for not more than six months for the entire pattern or practice, or both.CommentsClose CommentsPermalink
`(2) ENJOINING OF PATTERN OR PRACTICE VIOLATIONS- Whenever the Secretary or the Attorney General has reasonable cause to believe that an employer is engaged in a pattern or practice of employment, recruitment, or referral in violation of paragraph (1)(A) or (2) of subsection (a), the Attorney General may bring a civil action in the appropriate district court of the United States requesting such relief, including a permanent or temporary injunction, restraining order, or other order against the employer, as the Secretary deems necessary.CommentsClose CommentsPermalink
`(g) PROHIBITION OF INDEMNITY BONDS-CommentsClose CommentsPermalink
`(1) PROHIBITION- It is unlawful for an employer, in the hiring, recruiting, or referring for employment of any individual, to require the individual to post a bond or security, to pay or agree to pay an amount, or otherwise to provide a financial guarantee or indemnity, against any potential liability arising under this section relating to such hiring, recruiting, or referring of the individual.CommentsClose CommentsPermalink
`(2) CIVIL PENALTY- Any employer which is determined, after notice and opportunity for mitigation of the monetary penalty under subsection (e), to have violated paragraph (1) of this subsection shall be subject to a civil penalty of $10,000 for each violation and to an administrative order requiring the return of any amounts received in violation of such paragraph to the employee or, if the employee cannot be located, to the general fund of the Treasury.CommentsClose CommentsPermalink
`(h) GOVERNMENT CONTRACTS-CommentsClose CommentsPermalink
`(1) EMPLOYERS- Whenever an employer who does not hold Federal contracts, grants, or cooperative agreements is determined by the Secretary to be a repeat violator of this section or is convicted of a crime under this section, the employer shall be subject to debarment from the receipt of Federal contracts, grants, or cooperative agreements for a period of up to two years in accordance with the procedures and standards prescribed by the Federal Acquisition Regulations. The Secretary or the Attorney General shall advise the Administrator of General Services of any such debarment, and the Administrator of General Services shall list the employer on the List of Parties Excluded from Federal Procurement and Nonprocurement Programs for the period of the debarment. The Administrator of General Services, in consultation with the Secretary and Attorney General, may waive operation of this subsection or may limit the duration or scope of the debarment.CommentsClose CommentsPermalink
`(2) CONTRACTORS AND RECIPIENTS- Whenever an employer who holds Federal contracts, grants, or cooperative agreements is determined by the Secretary to be a repeat violator of this section or is convicted of a crime under this section, the employer shall be subject to debarment from the receipt of Federal contracts, grants, or cooperative agreements for a period of up to two years in accordance with the procedures and standards prescribed by the Federal Acquisition Regulations. Prior to debarring the employer, the Secretary, in cooperation with the Administrator of General Services, shall advise all agencies holding contracts, grants, or cooperative agreements with the employer of the proceedings to debar the employer from the receipt of new Federal contracts, grants, or cooperative agreements for a period of up to two years. After consideration of the views of agencies holding contracts, grants or cooperative agreements with the employer, the Secretary may, in lieu of proceedings to debar the employer from the receipt of new Federal contracts, grants, or cooperative agreements for a period of up to two years, waive operation of this subsection, limit the duration or scope of the proposed debarment, or may refer to an appropriate lead agency the decision of whether to seek debarment of the employer, for what duration, and under what scope in accordance with the procedures and standards prescribed by the Federal Acquisition Regulation. However, any proposed debarment predicated on an administrative determination of liability for civil penalty by the Secretary or the Attorney General shall not be reviewable in any debarment proceeding.CommentsClose CommentsPermalink
`(3) Indictments for violations of this section or adequate evidence of actions that could form the basis for debarment under this subsection shall be considered a cause for suspension under the procedures and standards for suspension prescribed by the Federal Acquisition Regulation.CommentsClose CommentsPermalink
`(4) Inadvertent violations of recordkeeping or verification requirements, in the absence of any other violations of this section, shall not be a basis for determining that an employer is a repeat violator for purposes of this subsection.CommentsClose CommentsPermalink
`(i) MISCELLANEOUS PROVISIONS-CommentsClose CommentsPermalink
`(1) DOCUMENTATION- In providing documentation or endorsement of authorization of aliens (other than aliens lawfully admitted for permanent residence) authorized to be employed in the United States, the Secretary shall provide that any limitations with respect to the period or type of employment or employer shall be conspicuously stated on the documentation or endorsement.CommentsClose CommentsPermalink
`(2) PREEMPTION- The provisions of this section preempt any State or local law that requires the use of the EEVS in a fashion that conflicts with Federal policies, procedures or timetables, or that imposes civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens.CommentsClose CommentsPermalink
`(j) DEPOSIT OF AMOUNTS RECEIVED- Except as otherwise specified, civil penalties collected under this section shall be deposited by the Secretary into the general fund of the Treasury.CommentsClose CommentsPermalink
`(k) NO MATCH NOTICE-CommentsClose CommentsPermalink
`(1) For the purpose of this subsection, a no match notice is written notice from the Social Security Administration (SSA) to an employer reporting earnings on a Form W-2 that employees' names or corresponding social security account numbers fail to match SSA records. The Secretary, in consultation with the Commissioner of the Social Security Administration, is authorized to establish by regulation requirements for verifying the identity and work authorization of employees who are the subject of no-match notices. The Secretary shall establish by regulation a reasonable period during which an employer must allow an employee who is subject to a no-match notice to resolve the no match notice with no adverse employment consequences to the employee. The Secretary may also establish penalties for noncompliance by regulation.CommentsClose CommentsPermalink
`(l) CHALLENGES TO VALIDITY-CommentsClose CommentsPermalink
`(1) IN GENERAL- Any right, benefit, or claim not otherwise waived or limited pursuant to this section is available in an action instituted in the United States District Court for the District of Columbia, but shall be limited to determinations of--CommentsClose CommentsPermalink
`(A) whether this section, or any regulation issued to implement this section, violates the Constitution of the United States; orCommentsClose CommentsPermalink
`(B) whether such a regulation issued by or under the authority of the Secretary to implement this section, is contrary to applicable provisions of this section or was issued in violation of title 5, chapter 5, United States Code.CommentsClose CommentsPermalink
`(2) DEADLINES FOR BRINGING ACTIONS- Any action instituted under this paragraph must be filed no later than 90 days after the date the challenged section or regulation described in clause (i) or (ii) of subparagraph (A) is first implemented.CommentsClose CommentsPermalink
`(3) CLASS ACTIONS- The court may not certify a class under Rule 23 of the Federal Rules of Civil Procedure in any action under this section.CommentsClose CommentsPermalink
`(4) RULE OF CONSTRUCTION- In determining whether the Secretary's interpretation regarding any provision of this section is contrary to law, a court shall accord to such interpretation the maximum deference permissible under the Constitution.CommentsClose CommentsPermalink
`(5) NO ATTORNEYS' FEES- Notwithstanding any other provision of law, the court shall not award fees or other expenses to any person or entity based upon any action relating to this Title brought pursuant to this section (l).'CommentsClose CommentsPermalink
SEC. 303. EFFECTIVE DATE.
This title shall become effective on the date of enactment.CommentsClose CommentsPermalink
SEC. 304. DISCLOSURE OF CERTAIN TAXPAYER INFORMATION TO ASSIST IN IMMIGRATION ENFORCEMENT.
(a) DISCLOSURE OF CERTAIN TAXPAYER IDENTITY INFORMATION-CommentsClose CommentsPermalink
(1) IN GENERAL- Section 6103(l) of the Internal Revenue Code of 1986 is amended by adding at the end the following new paragraph:CommentsClose CommentsPermalink
`(21) DISCLOSURE OF CERTAIN TAXPAYER IDENTITY INFORMATION BY SOCIAL SECURITY ADMINISTRATION TO DEPARTMENT OF HOMELAND SECURITY-CommentsClose CommentsPermalink
`(A) IN GENERAL- From taxpayer identity information or other information which has been disclosed or otherwise made available to the Social Security Administration and upon written request by the Secretary of Homeland Security (in this paragraph referred to as the `Secretary'), the Commissioner of Social Security shall disclose directly to officers, employees, and contractors of the Department of Homeland Security--CommentsClose CommentsPermalink
`(i) the taxpayer identity information of each person who has filed an information return required by reason of section 6051 after calendar year 2005 and before the date specified in subparagraph (D) which contains--CommentsClose CommentsPermalink
`(I) 1 (or any greater number the Secretary shall request) taxpayer identifying number, name, and address of any employee (within the meaning of such section) that did not match the records maintained by the Commissioner of Social Security, orCommentsClose CommentsPermalink
`(II) 2 (or any greater number the Secretary shall request) names, and addresses of employees (within the meaning of such section), with the same taxpayer identifying number,CommentsClose CommentsPermalink
`and the taxpayer identity of each such employee, andCommentsClose CommentsPermalink
`(ii) the taxpayer identity of each person who has filed an information return required by reason of section 6051 after calendar year 2005 and before the date specified in subparagraph (D) which contains the taxpayer identifying number (assigned under section 6109) of an employee (within the meaning of section 6051)--CommentsClose CommentsPermalink
`(I) who is under the age of 14 (or any lesser age the Secretary shall request), according to the records maintained by the Commissioner of Social Security,CommentsClose CommentsPermalink
`(II) whose date of death, according to the records so maintained, occurred in a calendar year preceding the calendar year for which the information return was filed,CommentsClose CommentsPermalink
`(III) whose taxpayer identifying number is contained in more than one (or any greater number the Secretary shall request) information return filed in such calendar year, orCommentsClose CommentsPermalink
`(IV) who is not authorized to work in the United States, according to the records maintained by the Commissioner of Social Security,CommentsClose CommentsPermalink
`and the taxpayer identity and date of birth of each such employee.CommentsClose CommentsPermalink
`(B) REIMBURSEMENT- The Secretary shall transfer to the Commissioner the funds necessary to cover the additional cost directly incurred by the Commissioner in carrying out the searches or manipulations requested by the Secretary.'CommentsClose CommentsPermalink
(2) COMPLIANCE BY DHS CONTRACTORS WITH CONFIDENTIALITY SAFEGUARDS-CommentsClose CommentsPermalink
(A) IN GENERAL- Section 6103(p) of such Code is amended by adding at the end the following new paragraph:CommentsClose CommentsPermalink
`(9) DISCLOSURE TO DHS CONTRACTORS- Notwithstanding any other provision of this section, no return or return information shall be disclosed to any contractor of the Department of Homeland Security unless such Department, to the satisfaction of the Secretary--CommentsClose CommentsPermalink
`(A) has requirements in effect which require each such contractor which would have access to returns or return information to provide safeguards (within the meaning of paragraph (4)) to protect the confidentiality of such returns or return information,CommentsClose CommentsPermalink
`(B) agrees to conduct an on-site review every 3 years (mid-point review in the case of contracts or agreements of less than 3 years in duration) of each contractor to determine compliance with such requirements,CommentsClose CommentsPermalink
`(C) submits the findings of the most recent review conducted under subparagraph (B) to the Secretary as part of the report required by paragraph (4)(E), andCommentsClose CommentsPermalink
`(D) certifies to the Secretary for the most recent annual period that such contractor is in compliance with all such requirements.CommentsClose CommentsPermalink
The certification required by subparagraph (D) shall include the name and address of each contractor, a description of the contract or agreement with such contractor, and the duration of such contract or agreement.'.CommentsClose CommentsPermalink
(3) CONFORMING AMENDMENTS-CommentsClose CommentsPermalink
(A) Section 6103(a)(3) of such Code is amended by striking `or (20)' and inserting `(20), or (21)'.CommentsClose CommentsPermalink
(B) Section 6103(p)(3)(A) of such Code is amended by adding at the end the following new sentence: `The Commissioner of Social Security shall provide to the Secretary such information as the Secretary may require in carrying out this paragraph with respect to return information inspected or disclosed under the authority of subsection (l)(21).'.CommentsClose CommentsPermalink
(C) Section 6103(p)(4) of such Code is amended--CommentsClose CommentsPermalink
(i) by striking `or (17)' both places it appears and inserting `(17), or (21)'; andCommentsClose CommentsPermalink
(ii) by striking `or (20)' each place it appears and inserting `(20), or (21)'.CommentsClose CommentsPermalink
(D) Section 6103(p)(8)(B) of such Code is amended by inserting `or paragraph (9)' after `subparagraph (A)'.CommentsClose CommentsPermalink
(E) Section 7213(a)(2) of such Code is amended by striking `or (20)' and insertingCommentsClose CommentsPermalink
`(20), or (21)'.CommentsClose CommentsPermalink
(b) AUTHORIZATION OF APPROPRIATIONS- There are authorized to be appropriated to the Secretary of Homeland Security such sums as are necessary to carry out the amendments made by this section.CommentsClose CommentsPermalink
(c) REPEAL OF REPORTING REQUIREMENTS-CommentsClose CommentsPermalink
(1) REPORT ON EARNINGS OF ALIENS NOT AUTHORIZED TO WORK- Subsection (c) of section 290 of the Immigration and Nationality Act (
(2) REPORT ON FRAUDULENT USE OF SOCIAL SECURITY ACCOUNT NUMBERS- Subsection (b) of section 414 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (division C of
(d) EFFECTIVE DATES-CommentsClose CommentsPermalink
(1) IN GENERAL- The amendments made by subsection (a) shall apply to disclosures made after the date of the enactment of this Act.CommentsClose CommentsPermalink
(2) CERTIFICATIONS- The first certification under section 6103(p)(9)(D) of the Internal Revenue Code of 1986, as added by subsection (a)(2), shall be made with respect to calendar year 2007.CommentsClose CommentsPermalink
(3) REPEALS- The repeals made by subsection (c) shall take effect on the date of the enactment of this Act.CommentsClose CommentsPermalink
SEC. 305. INCREASING SECURITY AND INTEGRITY OF SOCIAL SECURITY CARDS.
(a) FRAUD-RESISTANT, TAMPER-RESISTANT AND WEAR-RESISTANT SOCIAL SECURITY CARDS-CommentsClose CommentsPermalink
(1) ISSUANCE-CommentsClose CommentsPermalink
(A) PRELIMINARY WORK- Not later than 180 days after the date of enactment of this title, the Commissioner of Social Security shall begin work to administer and issue fraud-resistant, tamper-resistant Social Security cards.CommentsClose CommentsPermalink
(B) COMPLETION- Not later than two years after the date of enactment of this title, the Commissioner of Social Security shall only issue fraud-resistant, tamper-resistant and wear-resistant Social Security cards.CommentsClose CommentsPermalink
(2) AMENDMENT- Section 205(c)(2)(G) of the Social Security Act (
`(i) The Commissioner of Social Security shall issue a social security card to each individual at the time of the issuance of a social security account number to such individual. The social security card shall be fraud-resistant, tamper-resistant and wear-resistant.'CommentsClose CommentsPermalink
(3) AUTHORIZATION OF APPROPRIATIONS- There are authorized to be appropriated such sums as may be necessary to carry out this subsection and the amendments made by this subsection.CommentsClose CommentsPermalink
(4) REPORT ON FEASIBILITY OF INCLUDING BIOMETRICS- Within 180 days of enactment, the Commissioner of Social Security shall provide to Congress a report on the utility, costs and feasibility of including a photograph and other biometric information on the Social Security card.CommentsClose CommentsPermalink
(b) MULTIPLE CARDS- Section 205(c)(2)(G) of the Social Security Act (
`(ii) The Commissioner of Social Security shall not issue a replacement Social Security card to any individual unless the Commissioner determines that the purpose for requiring the issuance of the replacement document is legitimate.'CommentsClose CommentsPermalink
SEC. 306. INCREASING SECURITY AND INTEGRITY OF IDENTITY DOCUMENTS.
(a) PURPOSE- The Secretary of Homeland Security, shall establish the State Records Improvement Grant Program (referred to in this section as the `Program'), under which the Secretary may award grants to States for the purpose of advancing the purposes of this Act and of issuing or implementing plans to issue driver's license and identity cards that can be used for purposes of verifying identity under this Title and that comply with the state license requirements in section 202 of the REAL ID Act of 2005 (division B of
(b) States that do not certify their intent to comply with the REAL ID Act and implementing regulations or that do not submit a compliance plan acceptable to the Secretary are not eligible for grants under the Program. Driver's license or identification cards issued by States that do not comply with REAL ID may not be used to verify identity under this Title except under conditions approved by the Secretary.CommentsClose CommentsPermalink
(c) GRANTS AND CONTRACTS AUTHORIZED-CommentsClose CommentsPermalink
(1) IN GENERAL- The Secretary is authorized to award grants, subject to the availability of appropriations, to a State to provide assistance to such State agency to meet the deadlines for the issuance of a driver's license which meets the requirements of section 202 of the REAL ID Act of 2005 (division B of
(2) DURATION- Grants may be awarded under this subsection during fiscal years 2007 through 2011.CommentsClose CommentsPermalink
(3) COMPETITIVE BASIS- The Secretary shall give priority to States whose REAL ID implementation plan is compatible with the employment verification systems, processes, and implementation schedules set forth in Section 302, as determined by the Secretary. Minimum standards for compatibility will include the ability of the State to promptly verify the document and provide access to the digital photograph displayed on the document.CommentsClose CommentsPermalink
(4) Where the Secretary of Homeland Security determines that compliance with REAL ID and with the requirements of the employment verification system can best be met by awarding grants or contracts to a State, a group of States, a government agency, or a private entity, the Secretary may utilize Program funds to award such a grant, grants, contract or contracts.CommentsClose CommentsPermalink
(5) 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, driver's licenses, and of other records necessary for implementation of EEVS and as otherwise necessary to advance the purposes of this Act.CommentsClose CommentsPermalink
(d) USE OF FUNDS- Grants or contracts awarded pursuant to the Program may be used to assist State compliance with the REAL ID requirements, including, but not limited to--CommentsClose CommentsPermalink
(1) upgrade and maintain technology;CommentsClose CommentsPermalink
(2) obtain equipment;CommentsClose CommentsPermalink
(3) hire additional personnel;CommentsClose CommentsPermalink
(4) cover operational costs, including overtime; andCommentsClose CommentsPermalink
(5) such other resources as are available to assist that agency.CommentsClose CommentsPermalink
(e) APPLICATION-CommentsClose CommentsPermalink
(1) IN GENERAL- Each eligible state seeking a grant under this section shall submit an application to the Secretary at such time, in such manner, and accompanied by such information as the Secretary may reasonably require.CommentsClose CommentsPermalink
(2) CONTENTS- Each application submitted pursuant to paragraph (1) shall--CommentsClose CommentsPermalink
(A) describe the activities for which assistance under this section is sought; andCommentsClose CommentsPermalink
(B) provide such additional assurances as the Secretary determines to be essential to ensure compliance with the requirements of this section.CommentsClose CommentsPermalink
(f) CONDITIONS- All grants under the Program shall be conditioned on the recipient providing REAL ID compliance certification and implementation plans acceptable to the Secretary which include--CommentsClose CommentsPermalink
(1) adopting appropriate security measures to protect against improper issuance of driver's licenses and identity cards, tampering with electronic issuance systems, and identity theft as the Secretary may prescribe;CommentsClose CommentsPermalink
(2) ensuring introduction and maintenance of such security features and other measures necessary to make the documents issued by recipient resistant to tampering, counterfeiting, and fraudulent use as the Secretary may prescribe; andCommentsClose CommentsPermalink
(3) ensuring implementation and maintenance of such safeguards for the security of the information contained on these documents as the Secretary may prescribe.CommentsClose CommentsPermalink
All grants shall also be conditioned on the recipient agreeing to adhere to the timetables and procedures for issuing REAL ID driver's licenses and identification cards as specified in section 274A(c)(1)(F). All grants shall further be conditioned on the recipient agreeing to implement the requirements of this Act and any implementing regulations to the satisfaction of the Secretary of Homeland Security.CommentsClose CommentsPermalink
(g) AUTHORIZATION OF APPROPRIATIONS- IN GENERAL- There is authorized to be appropriated $300,000,000 for each of fiscal years 2007 through 2011 to carry out the provisions of this section.CommentsClose CommentsPermalink
(h) SUPPLEMENT NOT SUPPLANT- Amounts appropriated for grants under this section shall be used to supplement and not supplant other State and local public funds obligated for the purposes provided under this title.CommentsClose CommentsPermalink
(i) ADDITIONAL USES- Amounts authorized under this section may also be used to assist in sharing of law enforcement information between States and the Department of Homeland Security for purposes of implementing Section 602(c), at the discretion of the Secretary.CommentsClose CommentsPermalink
SEC. 307. VOLUNTARY ADVANCED VERIFICATION PROGRAM TO COMBAT IDENTITY THEFT.
(a) VOLUNTARY ADVANCED VERIFICATION PROGRAM- The Secretary shall establish and make available a voluntary program allowing employers to submit and verify an employee's fingerprints for purposes of determining the identity and work authorization of the employee.CommentsClose CommentsPermalink
(1) IMPLEMENTATION DATE- No later than 18 months after the date of enactment of this Act, the Secretary shall implement the voluntary advanced verification program and make it available to employers willing to volunteer in the program.CommentsClose CommentsPermalink
(2) VOLUNTARY PARTICIPATION- The fingerprint verification program is voluntary; employers are not required to participate in it.CommentsClose CommentsPermalink
(b) LIMITED RETENTION PERIOD FOR FINGERPRINTS-CommentsClose CommentsPermalink
(1) The Secretary shall only maintain fingerprint records of a U.S. Citizen that were submitted by an employer through the EEVS for 10 business days, upon which such records shall be purged from any EEVS-related system unless the fingerprints have been ordered to be retained for purposes of a fraud or similar investigation by a government agency with criminal or other investigative authority.CommentsClose CommentsPermalink
(2) Exception: For purposes of preventing identity theft or other harm, a U.S. Citizen employee may request in writing that his fingerprint records be retained for employee verification purposes by the Secretary. In such instances of written consent, the Secretary may retain such fingerprint records until notified in writing by the U.S. Citizen of his withdrawal of consent, at which time the Secretary must purge such fingerprint records within 10 business days unless the fingerprints have been ordered to be retained for purposes of a fraud or similar investigation by a government agency with an independent criminal or other investigative authority.CommentsClose CommentsPermalink
(d) LIMITED USE OF FINGERPRINTS SUBMITTED FOR PROGRAM- The Secretary and the employer may use any fingerprints taken from the employee and transmitted for querying the EEVS solely for the purposes of verifying identity and employment eligibility during the employee verification process. Such transmitted fingerprints may not be used for any other purpose. This provision does not alter any other provisions regarding the use of non-fingerprint information in the EEVS.CommentsClose CommentsPermalink
(e) SAFEGUARDING OF FINGERPRINT INFORMATION- The Secretary, subject to specifications and limitations set forth under this section and other relevant provisions of this Act, shall be responsible for safely and securely maintaining and storing all fingerprints submitted under this program.CommentsClose CommentsPermalink
SEC. 308. RESPONSIBILITIES OF THE SOCIAL SECURITY ADMINISTRATION.
Section 205(c)(12) of the Social Security Act,
`(I) RESPONSIBILITIES OF THE COMMISSIONER OF SOCIAL SECURITY-CommentsClose CommentsPermalink
`(i) As part of the verification system, the Commissioner of Social Security shall, subject to the provisions of section 274A(d) of the Immigration and Nationality Act, establish a reliable, secure method that, operating through the EEVS and within the time periods specified in section 274A(d) of the Immigration and Nationality Act:CommentsClose CommentsPermalink
`(I) compares the name, social security account number and available citizenship information provided in an inquiry against such information maintained by the Commissioner in order to confirm (or not confirm) the validity of the information provided regarding an individual whose identity and employment eligibility must be confirmed;CommentsClose CommentsPermalink
`(II) the correspondence of the name, number, and any other identifying information;CommentsClose CommentsPermalink
`(III) whether the name and number belong to an individual who is deceased;CommentsClose CommentsPermalink
`(IV) whether an individual is a national of the United States (when available); andCommentsClose CommentsPermalink
`(V) whether the individual has presented a social security account number that is not valid for employment.CommentsClose CommentsPermalink
The EEVS shall not disclose or release social security information to employers through the confirmation system (other than such confirmation or nonconfirmation).CommentsClose CommentsPermalink
`(ii) SOCIAL SECURITY ADMINISTRATION DATABASE IMPROVEMENTS- For purposes of preventing identity theft, protecting employees, and reducing burden on employers, and notwithstanding
`(iii) NOTIFICATION TO `FREEZE' USE OF SOCIAL SECURITY NUMBER- The Commissioner of Social Security, in consultation with the Secretary of Homeland Security, shall establish a secure process whereby an individual can request that the Commissioner preclude any confirmation under the EEVS based on that individual's Social Security number until it is reactivated by that individual.'.CommentsClose CommentsPermalink
SEC. 309. IMMIGRATION ENFORCEMENT SUPPORT BY THE INTERNAL REVENUE SERVICE AND THE SOCIAL SECURITY ADMINISTRATION.
(a) Tightening Requirements for the Provision of Social Security Numbers on Form W-2 Wage and Tax Statements- Section 6724 of the Internal Revenue Code of 1986 (relating to waiver; definitions and special rules) is amended by adding at the end the following new subsection:CommentsClose CommentsPermalink
`(f) Special rules with respect to social security numbers on withholding exemption certificates.CommentsClose CommentsPermalink
`(l) Reasonable cause waiver not to apply.CommentsClose CommentsPermalink
Subsection (a) shall not apply with respect to the social security account number of an employee furnished under section 6051(a)(2).CommentsClose CommentsPermalink
`(2) EXCEPTION-CommentsClose CommentsPermalink
`(A) IN GENERAL- Except as provided in subparagraph (B), [paragraph (1)] shall not apply in any case in which the employer--CommentsClose CommentsPermalink
`(i) receives confirmation that the discrepancy described in section 205(c)(2)(I) of the Social Security Act has been resolved, orCommentsClose CommentsPermalink
`(ii) corrects a clerical error made by the employer with respect to the social security account number of an employee within 60 days after notification under section 205(c)(2)(1) of the Social Security Act that the social security account number contained in wage records provided to the Social Security Administration by the employer with respect to the employee does not match the social security account number of the employee contained in relevant records otherwise maintained by the Social Security Administration.CommentsClose CommentsPermalink
`(B) Exception not applicable to frequent offenders. Subparagraph (A) shall not apply--CommentsClose CommentsPermalink
`(i) in any case in which not less than 50 of the statements required to be made by an employer pursuant to section 6051 either fail to include an employee's social security account number or include an incorrect social security account number, orCommentsClose CommentsPermalink
`(ii) with respect to any employer who has received written notification under section 205(c)(2)(1) of the Social Security Act during each of the 3 preceding taxable years that the social security account numbers in the wage records provided to the Social Security Administration by such employer with respect to 10 more employees do not match relevant records otherwise maintained by the Social Security Administration.'CommentsClose CommentsPermalink
(b) Enforcement-CommentsClose CommentsPermalink
(1) IN GENERAL- Not later than 90 days after the date of the enactment of this Act, the Secretary of the Treasury, in consultation with the Secretary of Homeland Security, shall establish a unit within the Criminal Investigation office of the Internal Revenue Service to investigate violations of the Internal Revenue Code of 1986 related to the employment of individuals who are not authorized to work in the United States.CommentsClose CommentsPermalink
(2) SPECIAL AGENTS; SUPPORT STAFF- The Secretary of the Treasury shall assign to the unit a minimum of 10 full-time special agents and necessary support staff and is authorized to employ up to 200 full time special agents for this unit based on investigative requirements and work load.CommentsClose CommentsPermalink
(3) REPORTS- During each of the first 5 calendar years beginning after the establishment of such unit and biennially thereafter, the unit shall transmit to Congress a report that describes its activities and includes the number of investigations and cases referred for prosecution.CommentsClose CommentsPermalink
(c) INCREASE IN PENALTY ON EMPLOYER FAILING TO FILE CORRECT INFORMATION RETURNS- Section 6721 of such Code (relating to failure to file correct information returns) is amended as follows--CommentsClose CommentsPermalink
(1) in subsection (a)(1)--CommentsClose CommentsPermalink
(A) by striking `$50' and inserting `$200', andCommentsClose CommentsPermalink
(B) by striking `$250,000' and inserting `$1,000,000',CommentsClose CommentsPermalink
(2) in subsection (b)(1)(A), by striking `$15 in lieu of $50' and inserting `$60 in lieu of $200',CommentsClose CommentsPermalink
(3) in subsection (b)(1)(B), by striking `$75,000' and inserting `$300,000',CommentsClose CommentsPermalink
(4) in subsection (b)(2)(A), by striking `$30 in lieu of $50' and inserting `$120 in lieu of $200',CommentsClose CommentsPermalink
(5) in subsection (b)(2)(B), by striking `$150,000' and inserting `$600,000',CommentsClose CommentsPermalink
(6) in subsection (d)(A) in paragraph (1)--CommentsClose CommentsPermalink
(A) by striking `$100,000' for `$250,000' and inserting `$400,000' for `$1,000,000' in subparagraph (A),CommentsClose CommentsPermalink
(B) by striking `$25,000' for `$75,000' and inserting `$100,000' for `$300,000' in subparagraph (B), andCommentsClose CommentsPermalink
(C) by striking `$50,000' for `$150,000' and inserting `$200,000' for `$600,000' in subparagraph (C),CommentsClose CommentsPermalink
(D) in paragraph (2)(A), by striking `$5,000,000' and inserting `$2,000,000', andCommentsClose CommentsPermalink
(E) in the heading, by striking `$5,000,000' and inserting `$2,000,000',CommentsClose CommentsPermalink
(7) in subsection (e)(2)--CommentsClose CommentsPermalink
(A) by striking `$100' and inserting `$400',CommentsClose CommentsPermalink
(B) by striking `$25,000' and inserting `$100,000' in subparagraph (C)(i), andCommentsClose CommentsPermalink
(C) by striking `$100,000' and inserting `$400,000' in subparagraph (C)(ii), andCommentsClose CommentsPermalink
(8) in subsection (e)(3)(A), by striking `$250,000' and inserting `$1,000,000'.CommentsClose CommentsPermalink
(d) EFFECTIVE DATE- The amendments made by subsections (b) and (c) shall apply to failures occurring after December 31, 2006.CommentsClose CommentsPermalink
SEC. 310. AUTHORIZATION OF APPROPRIATIONS.
(a) There are authorized to be appropriated to the Secretary of Homeland Security such sums as may be necessary to carry out the provisions of this Act, and the amendments made by this Act, including the following appropriations:CommentsClose CommentsPermalink
(1) In each of the five years beginning on the date of the enactment of this Act, the appropriations necessary to increase to a level not less than 4500 the number of personnel of the Department of Homeland Security assigned exclusively or principally to an office or offices dedicated to monitoring and enforcing compliance with sections 274A and 274C of the Immigration and Nationality Act (
(A) Verify Employment Identification Numbers of employers participating in the EEVS.CommentsClose CommentsPermalink
(B) Verify compliance of employers participating in the EEVS with the requirements for participation that are prescribed by the Secretary.CommentsClose CommentsPermalink
(C) Monitor the EEVS for multiple uses of Social Security Numbers and any immigration identification numbers for evidence that could indicate identity theft or fraud.CommentsClose CommentsPermalink
(D) Monitor the EEVS to identify discriminatory practices.CommentsClose CommentsPermalink
(E) Monitor the EEVS to identify employers who are not using the system properly, including employers who fail to make appropriate records with respect to their queries and any notices of confirmation, nonconfirmation, or further action.CommentsClose CommentsPermalink
(F) Identify instances where employees allege that an employer violated their privacy rights.CommentsClose CommentsPermalink
(G) Analyze and audit the use of the EEVS and the data obtained through the EEVS to identify fraud trends, including fraud trends across industries, geographical areas, or employer size.CommentsClose CommentsPermalink
(H) Analyze and audit the use of the EEVS and the data obtained through the EEVS to develop compliance tools as necessary to respond to changing patterns of fraud.CommentsClose CommentsPermalink
(I) Provide employers with additional training and other information on the proper use of the EEVS.CommentsClose CommentsPermalink
(J) Perform threshold evaluation of cases for referral to the U.S. Immigration and Customs Enforcement and to liaise with the U.S. Immigration and Customs Enforcement with respect to these referrals.CommentsClose CommentsPermalink
(K) Any other compliance and monitoring activities that, in the Secretary's judgment, are necessary to ensure the functioning of the EEVS.CommentsClose CommentsPermalink
(L) Investigate identity theft and fraud detected through the EEVS and undertake the necessary enforcement actions.CommentsClose CommentsPermalink
(M) Investigate use of fraudulent documents or access to fraudulent documents through local facilitation and undertake the necessary enforcement actions.CommentsClose CommentsPermalink
(N) Provide support to the U.S. Citizenship and Immigration Services with respect to the evaluation of cases for referral to the U.S. Immigration and Customs Enforcement.CommentsClose CommentsPermalink
(O) Perform any other investigations that, in the Secretary's judgment, are necessary to ensure the functioning of the EEVS, and undertake any enforcement actions necessary as a result of these investigations.CommentsClose CommentsPermalink
(2) The appropriations necessary to acquire, install and maintain technological equipment necessary to support the functioning of the EEVS and the connectivity between U.S. Citizenship and Immigration Services and the U.S. Immigration and Customs Enforcement with respect to the sharing of information to support the EEVS and related immigration enforcement actions.CommentsClose CommentsPermalink
(b) There are authorized to be appropriated to Commissioner of Social Security such sums as may be necessary to carry out the provisions of this Act, including Section 308 of this Act.CommentsClose CommentsPermalink
TITLE IV--NEW TEMPORARY WORKER PROGRAM
Subtitle A--Seasonal Non-Agricultural and Year-Round Nonimmigrant Temporary Workers
SEC. 401. NONIMMIGRANT TEMPORARY WORKER.
(a) IN GENERAL- Section 101(a)(15) of the Immigration and Nationality Act (
(1) in subparagraph (H)--CommentsClose CommentsPermalink
(A) by striking subclause (ii)(b);CommentsClose CommentsPermalink
(B) by striking `or (iii)' and inserting `(iii)'; andCommentsClose CommentsPermalink
(C) by striking `; and the alien spouse' and inserting `; or (iv) the alien spouse';CommentsClose CommentsPermalink
(2) by striking `or' at the end of subparagraph (U);CommentsClose CommentsPermalink
(3) by striking the period at the end of subparagraph (V) and inserting a semi-colon; andCommentsClose CommentsPermalink
(4) by inserting at the end the following new subparagraphs-CommentsClose CommentsPermalink
`(W) [Reserved];CommentsClose CommentsPermalink
`(X) [Reserved]; orCommentsClose CommentsPermalink
`(Y) subject to section 218A, an alien having a residence in a foreign country which the alien has no intention of abandoning and who is coming temporarily to the United States--CommentsClose CommentsPermalink
`(i) to perform temporary labor or services other than the labor or services described in clause (i)(b), (i)(b1), (i)(c), or (iii) of subparagraph (H), subparagraph (D), (E), (I), (L), (O), (P), or (R), or section 214(e) (if United States workers who are able, willing, and qualified to perform such labor or services cannot be found in the United States);CommentsClose CommentsPermalink
`(ii) to perform seasonal non-agricultural labor or services; orCommentsClose CommentsPermalink
`(iii) as the spouse or child of an alien described in clause (i) or (ii) of this subparagraph.'.CommentsClose CommentsPermalink
(b) REFERENCES- All references in the immigration laws as amended by this Title to section 101(a)(15)(H)(ii)(b) of the Immigration and Nationality Act shall be considered a reference to both that section of the Act and to section 101(a)(15)(Y)(ii) of the Act.CommentsClose CommentsPermalink
(c) EFFECTIVE DATE- The effective date of the amendment made by subparagraph (1)(A) of subsection (a) shall be the date on which the Secretary of Homeland Security makes the certification described in section 1(a) of this Act.CommentsClose CommentsPermalink
(d) Sunset of Y-1 Visa Program-CommentsClose CommentsPermalink
(1) Sunset- Notwithstanding any other provision of this Act, or any amendment made by this Act, no alien may be issued a new visa as a Y-1 nonimmigrant (as defined in section 218B of the Immigration and Nationality Act, as added by section 403) on the date that is 5 years after the date that the first such visa is issued.CommentsClose CommentsPermalink
(2) Construction- Nothing in paragraph (1) may be construed to affect issuance of visas to Y-2B nonimmigrants (as defined in such section 218B), under the AgJOBS Act of 2007, as added by subtitle C, under the H-2A visa program, or any visa program other than the Y-1 visa program.CommentsClose CommentsPermalink
SEC. 402. ADMISSION OF NONIMMIGRANT WORKERS.
(a) New Workers- Chapter 2 of title II of the Act (
`SEC. 218A. ADMISSION OF Y NONIMMIGRANTS.
`(a) APPLICATION PROCEDURES-CommentsClose CommentsPermalink
`(1) Labor certification- The Secretary of Labor shall prescribe by regulation the procedures for a United States employer to obtain a labor certification of a job opportunity under the terms set forth in section 218B.CommentsClose CommentsPermalink
`(2) Petition- The Secretary of Homeland Security shall prescribe by regulation the procedures for a United States employer to petition to the Secretary of Homeland Security for authorization to employ an alien as a Y nonimmigrant worker and the evidence required to demonstrate eligibility for such authorization under the terms set forth in subsection (c).CommentsClose CommentsPermalink
`(3) Y nonimmigrant visa- The Secretary of State and the Secretary of Homeland Security, as appropriate, shall prescribe by regulation the procedures for an alien to apply for a Y nonimmigrant visa and the evidence required to demonstrate eligibility for such visa under the terms set forth in subsection (e).CommentsClose CommentsPermalink
`(4) Regulations- The regulations referenced in paragraphs (1), (2), and (3) shall describe, at a minimum--CommentsClose CommentsPermalink
`(A) the procedures for collection and verification of biometric data from an alien seeking a Y nonimmigrant visa or admission in Y nonimmigrant status; andCommentsClose CommentsPermalink
`(B) the procedure and standards for validating an employment arrangement between a United States employer and an alien seeking a visa or admission described in (A).CommentsClose CommentsPermalink
`(b) Application for Certification of a Job Opportunity Offered to Y Nonimmigrant Workers- An employer desiring to employ a Y nonimmigrant worker shall, with respect to a specific opening that the employer seeks to fill with such a Y nonimmigrant, submit an application for labor certification of the job opportunity filed in accordance with the procedures established by section 218B.CommentsClose CommentsPermalink
`(c) Petition To Employ Y Nonimmigrant Workers-CommentsClose CommentsPermalink
`(1) In general- An employer that seeks authorization to employ a Y nonimmigrant worker must file a petition with the Secretary of Homeland Security. The petition must be accompanied by--CommentsClose CommentsPermalink
`(A) evidence that the employer has obtained a certification under section 218B from the Secretary of Labor for the position sought to be filled by a Y nonimmigrant worker and that such certification remains valid;CommentsClose CommentsPermalink
`(B) evidence that the job offer was and remains valid;CommentsClose CommentsPermalink
`(C) the name and other biographical information of the alien beneficiary and any accompanying spouse or child; andCommentsClose CommentsPermalink
`(D) any biometrics from the beneficiary that the Secretary of Homeland Security may require by regulation.CommentsClose CommentsPermalink
`(2) Timing of filing-CommentsClose CommentsPermalink
`(A) In general- A petition under this subsection must be filed with the Secretary of Homeland Security within 180 days of the date of certification under section 218B by the Secretary of Labor of the job opportunity.CommentsClose CommentsPermalink
`(B) Expiration of certification- If a labor certification is not filed in support of a petition under this subsection with the Secretary of Homeland Security within 180 days of the date of certification by the Secretary of Labor, then the certification expires and may not support a Y nonimmigrant petition or be the basis for Y nonimmigrant visa issuance.CommentsClose CommentsPermalink
`(3) Ability to request documentation- The Secretary of Homeland Security may request information to verify the attestations the employer made during the labor certification process, and any other fact relevant to the adjudication of the petition.CommentsClose CommentsPermalink
`(4) Adjudication of petition-CommentsClose CommentsPermalink
`(A) POST-ADJUDICATION ACTION- After review of the petition, if the Secretary--CommentsClose CommentsPermalink
`(i) is satisfied that the petition meets all of the requirements of paragraph (1), and any other requirements the Secretary has prescribed in regulations, he may approve the petition and by fax, cable, electronic, or any other means assuring expedited delivery--CommentsClose CommentsPermalink
`(I) transmit a copy of the notice of action on the petition to the petitioner; andCommentsClose CommentsPermalink
`(II) in the case of approved petitions, transmit notice of the approval to the Secretary of State;CommentsClose CommentsPermalink
`(ii) finds that the employer is not eligible or that the petition is otherwise not approvable, the Secretary may--CommentsClose CommentsPermalink
`(I) deny the petition without seeking additional evidence and inform the petitioner--CommentsClose CommentsPermalink
`(aa) that the petition was denied and the reason for the denial;CommentsClose CommentsPermalink
`(bb) of any available process for administrative appeal of the decision; andCommentsClose CommentsPermalink
`(cc) that the denial is without prejudice to the filing of any subsequent petitions, except as provided in section 218B(e)(4);CommentsClose CommentsPermalink
`(II) issue a request for documentation of the attestations or any other information or evidence that is material to the petition; orCommentsClose CommentsPermalink
`(III) audit, investigate or otherwise review the petition in such manner as he may determine and refer evidence of fraud to appropriate law enforcement agencies based on the audit information.CommentsClose CommentsPermalink
`(B) VALIDITY OF APPROVED PETITION- An approved petition shall have the same period of validity as the certification described in subsection (c)(1)(A) and expire on the same date that the certification expires, except that the Secretary of Homeland Security may terminate in his discretion an approved petition--CommentsClose CommentsPermalink
`(i) when he determines that any material fact, including, but not limited to the proffered wage rate, the geographic location of employment, or the duties of the position, has changed in a way that would invalidate the recruitment actions; orCommentsClose CommentsPermalink
`(ii) when he or the Secretary of Labor makes a finding of fraud or misrepresentation concerning the facts on the petition or any other representation made by the employer before the Secretary of Labor or Secretary of Homeland Security.CommentsClose CommentsPermalink
`(C) Administrative review- The Secretary of Homeland Security shall authorize a single level of administrative review with the United States Citizenship and Immigration Services Administrative Appeals Office of a petition denial or termination.CommentsClose CommentsPermalink
`(d) Authorization To Grant Y Nonimmigrant Visa-CommentsClose CommentsPermalink
`(1) IN GENERAL- A consular officer may grant a single-entry temporary visa to a Y nonimmigrant who demonstrates an intent to perform labor or services in the United States (other than the labor or services described in clause (i)(b), (i)(b1), (i)(c), or (iii) of section 101(a)(15)(H), subparagraph (D), (E), (I), (L), (O), (P), or (R) of section 101(a)(15), or section 214(e) (if United States workers who are able, willing, and qualified to perform such labor or services cannot be found in the United States).CommentsClose CommentsPermalink
`(2) APPLICANTS FROM CANADA- Notwithstanding any waivers of the visa requirement under section 212(a)(7)(B)(i)(II), a national of Canada seeking admission as a Y nonimmigrant will be inadmissible if not in possession of--CommentsClose CommentsPermalink
`(I) a valid Y nonimmigrant visa; orCommentsClose CommentsPermalink
`(II) documentation of Y nonimmigrant status, as described in subsection (m).CommentsClose CommentsPermalink
`(e) Requirements for Admission- An alien shall be eligible for Y nonimmigrant status if the alien meets the following requirements:CommentsClose CommentsPermalink
`(1) Eligibility to work- The alien shall establish that the alien is capable of performing the labor or services required for an occupation described in section 101(a)(15)(Y)(i) or (Y)(ii).CommentsClose CommentsPermalink
`(2) Evidence of employment offer- The alien's evidence of employment shall be provided in accordance with the requirements issued by the Secretary of State, in consultation with the Secretary of Labor. In carrying out this paragraph, the Secretary may consider evidence from employers, employer associations, and labor representatives.CommentsClose CommentsPermalink
`(3) FEES-CommentsClose CommentsPermalink
`(A) PROCESSING FEES- An alien making an application for a Y nonimmigrant visa shall be required to pay, in addition to any fees charged by the Department of State for processing and adjudicating such visa application, a processing fee in an amount sufficient to recover the full cost to the Secretary of Homeland Security of administrative and other expenses associated with processing the alien's participation in the Y nonimmigrant program, including the costs of production of documentation of evidence under subsection (m).CommentsClose CommentsPermalink
`(B) State impact fee- Aliens making an application for a Y-1 nonimmigrant visa shall pay a state impact fee of $500 and an additional $250 for each dependent accompanying or following to join the alien, not to exceed $1,500 per family.CommentsClose CommentsPermalink
`(C) Deposit and spending of fees- The processing fees under subparagraph (A) shall be deposited and remain available until expended as provided by sections 286 (m) and (n).CommentsClose CommentsPermalink
`(D) Deposit and disposition of state impact assistance funds- The funds described in subparagraph (B) shall be deposited and remain available as provided by section 286(x).CommentsClose CommentsPermalink
`(E) Construction- Nothing in this paragraph shall be construed to affect consular procedures for collection of machine-readable visa fees or reciprocal fees for the issuance of the visa.CommentsClose CommentsPermalink
`(4) Medical examination- The alien shall undergo a medical examination (including a determination of immunization status), at the alien's expense, that conforms to generally accepted standards of medical practice.CommentsClose CommentsPermalink
`(5) Application content and waiver-CommentsClose CommentsPermalink
`(A) Application form- The alien shall submit to the Secretary of State a completed application, which contains evidence that the requirements under paragraphs (1) and (2) have been met.CommentsClose CommentsPermalink
`(B) CONTENT- In addition to any other information that the Secretary requires to determine an alien's eligibility for Y nonimmigrant status, the Secretary of State shall require an alien to provide information concerning the alien's--CommentsClose CommentsPermalink
`(i) physical and mental health;CommentsClose CommentsPermalink
`(ii) criminal history, including all arrests and dispositions, and gang membership;CommentsClose CommentsPermalink
`(iii) immigration history; andCommentsClose CommentsPermalink
`(iv) involvement with groups or individuals that have engaged in terrorism, genocide, persecution, or who seek the overthrow of the United States Government.CommentsClose CommentsPermalink
`(C) KNOWLEDGE- The alien shall include with the application submitted under this paragraph a signed certification in which the alien certifies that--CommentsClose CommentsPermalink
`(i) the alien has read and understands all of the questions and statements on the application form;CommentsClose CommentsPermalink
`(ii) the alien certifies under penalty of perjury under the laws of the United States that the application, and any evidence submitted with it, are all true and correct; andCommentsClose CommentsPermalink
`(iii) the applicant authorizes the release of any information contained in the application and any attached evidence for law enforcement purposes.CommentsClose CommentsPermalink
`(6) MUST NOT BE INELIGIBLE- The alien must not fall within a class of aliens ineligible for Y nonimmigrant status listed under subsection (h).CommentsClose CommentsPermalink
`(7) MUST NOT BE INADMISSIBLE- The alien must not be inadmissible as a nonimmigrant to the United States under section 212, except as provided in subsection (f).CommentsClose CommentsPermalink
`(8) SPOUSE OR CHILD OF Y NONIMMIGRANT- An alien seeking admission as a derivative Y-3 nonimmigrant must demonstrate, in addition to satisfaction of the requirements of paragraphs (2) through (6)--CommentsClose CommentsPermalink
`(A) that the annual wage of the principal Y nonimmigrant paid by the principal nonimmigrant's U.S. employer, combined with the annual wage of the principal Y nonimmigrant's spouse where the Y-3 nonimmigrant is a child and the Y nonimmigrant's spouse is a member of the principal Y nonimmigrant's household, is equal to or greater than 150 percent of the U.S. poverty level for a household size equal in size to that of the principal alien (including all dependents, family members supported by the principal alien, and the spouse or child seeking to accompany or join the principal alien), as determined by the Secretary of Health and Human Services for the fiscal year in which the spouse or child's application for a nonimmigrant visa is filed; andCommentsClose CommentsPermalink
`(B) that the alien's cost of medical care is covered by medical insurance, valid in the United States, carried by the principal Y nonimmigrant alien, the principal Y nonimmigrant's spouse (where the Y-3 nonimmigrant is a child), or the principal Y nonimmigrant alien's employer.CommentsClose CommentsPermalink
`(f) GROUNDS OF INADMISSIBILITY-CommentsClose CommentsPermalink
`(1) WAIVED GROUNDS OF INADMISSIBILITY- In determining an alien's admissibility as a Y nonimmigrant, such alien shall be found to be inadmissible if the alien would be subject to the grounds of inadmissibility under section 601(d)(2).CommentsClose CommentsPermalink
`(2) WAIVER- The Secretary may in his discretion waive the application of any provision of section 212(a) of the Act not listed in paragraph (2) on behalf of an individual alien for humanitarian purposes, to ensure family unity, or if such waiver is otherwise in the public interest.CommentsClose CommentsPermalink
`(3) CONSTRUCTION- Nothing in this subsection shall be construed as affecting the authority of the Secretary other than under this paragraph to waive the provisions of section 212(a).CommentsClose CommentsPermalink
`(g) BACKGROUND CHECKS- The Secretary of Homeland Security shall not admit, and the Secretary of State shall not issue a visa to, an alien seeking Y nonimmigrant visa or status unless all appropriate background checks have been completed to the satisfaction of the Secretaries of State and Homeland Security.CommentsClose CommentsPermalink
`(h) GROUNDS OF INELIGIBILITY-CommentsClose CommentsPermalink
`(1) IN GENERAL- An alien is ineligible for a Y nonimmigrant visa or Y nonimmigrant status if the alien is described in section 601(d)(1)(A), (D), (E), (F), or (G) of the [insert title of Act].CommentsClose CommentsPermalink
`(2) INELIGIBILITY OF DERIVATIVE Y-3 NONIMMIGRANTS- An alien is ineligible for Y-3 nonimmigrant status if the principal Y nonimmigrant is ineligible under paragraph (1).CommentsClose CommentsPermalink
`(3) APPLICABILITY TO GROUNDS OF INADMISSIBILITY- Nothing in this subsection shall be construed to limit the applicability of any ground of inadmissibility under section 212.CommentsClose CommentsPermalink
`(i) PERIOD OF AUTHORIZED ADMISSION-CommentsClose CommentsPermalink
`(1) IN GENERAL- Aliens admitted to the United States as Y nonimmigrants shall be granted the following periods of admission:CommentsClose CommentsPermalink
`(A) Y-1 NONIMMIGRANTS- Except as provided in (2), aliens granted admission as Y-1 nonimmigrants shall be granted an authorized period of admission of two years. Subject to paragraph (4), such two-year period of admission may be extended for two additional two-year periods.CommentsClose CommentsPermalink
`(B) Y-2B NONIMMIGRANTS- Aliens granted admission as Y-2B nonimmigrants shall be granted an authorized period of admission of 10 months.CommentsClose CommentsPermalink
`(2) Y-1 NONIMMIGRANTS WITH Y-3 DEPENDENTS- A Y-1 nonimmigrant who has accompanying or following-to-join derivative family members in Y-3 nonimmigrant status shall be limited to two two-year periods of admission. If the family members accompany the Y-1 nonimmigrant during the alien's first period of admission the family members may not accompany or join the Y-1 nonimmigrant during the alien's second period of admission. If the Y-1 nonimmigrant's family members accompany or follow to join the Y-1 nonimmigrant during the alien's second period of admission, but not his first period of admission, then the Y-1 nonimmigrant shall not be granted any additional periods of admission in Y nonimmigrant status. The period of authorized admission of a Y-3 nonimmigrant shall expire on the same date as the period of authorized admission of the principal Y-1 nonimmigrant worker.CommentsClose CommentsPermalink
`(3) SUPPLEMENTARY PERIODS- Each period of authorized admission described in paragraph (1) shall be supplemented by a period of not more than 1 week before the beginning of the period of employment for the purpose of travel to the worksite and, except where such period of authorized admission has been terminated under subsection (j), a period of 14 days following the period of employment for the purpose of departure or extension based on a subsequent offer of employment, except that--CommentsClose CommentsPermalink
`(A) the alien is not authorized to be employed during such 14-day period except in the employment for which the alien was previously authorized; andCommentsClose CommentsPermalink
`(B) the total period of employment, including such 14-day period, may not exceed the maximum applicable period of admission under paragraph (1).CommentsClose CommentsPermalink
`(4) EXTENSIONS OF THE PERIOD OF ADMISSION-CommentsClose CommentsPermalink
`(A) IN GENERAL- The periods of authorized admission described in paragraph (1) may not, except as provided in subparagraph (C)(2) of paragraph (1), be extended beyond the maximum period of admission set forth in that paragraph.CommentsClose CommentsPermalink
`(B) EXTENSION OF Y-1 NONIMMIGRANT STATUS- A Y-1 nonimmigrant described in paragraph (1)(A) who has spent 24 months in the United States in Y-1 nonimmigrant status may not seek extension or be readmitted to the United States as a Y-1 nonimmigrant unless the alien has resided and been physically present outside the United States for the immediate prior 12 months.CommentsClose CommentsPermalink
`(5) LIMITATION ON ADMISSION-CommentsClose CommentsPermalink
`(A) Y-1 NONIMMIGRANTS- An alien who has been admitted to the United States in Y-1 nonimmigrant status for a period of two years under paragraph (1)(B), or as the Y-3 nonimmigrant spouse or child of such a Y-1 nonimmigrant, may not be readmitted to the United States as a Y-1 or Y-3 nonimmigrant after expiration of such period of authorized admission, regardless of whether the alien was employed or present in the United States for all or a part of such period.CommentsClose CommentsPermalink
`(B) Y-2B NONIMMIGRANTS- An alien who has been admitted to the United States in Y-2B nonimmigrant status may not, after expiration of the alien's period of authorized admission, be readmitted to the United States as a Y nonimmigrant after expiration of the alien's period of authorized admission, regardless of whether the alien was employed or present in the United States for all or only a part of such period, unless the alien has resided and been physically present outside the United States for the immediately preceding two months.CommentsClose CommentsPermalink
`(C) READMISSION WITH NEW EMPLOYMENT- Nothing in this paragraph shall be construed to prevent a Y nonimmigrant, whose period of authorized admission has not yet expired or been terminated under subsection (j), and who leaves the United States in a timely fashion after completion of the employment described in the petition of the Y nonimmigrant's most recent employer, from reentering the United States as a Y nonimmigrant to work for a new employer, if the alien and the new employer have complied with all applicable requirements of this section and section 218B.CommentsClose CommentsPermalink
`(6) INTERNATIONAL COMMUTERS- An alien who maintains actual residence and place of abode outside the United States and commutes, on days the alien is working, into the United States to work as a Y-1 nonimmigrant, shall be granted an authorized period of admission of three years. The limitations described in paragraphs (3) and (4) shall not apply to commuters described in this paragraph.CommentsClose CommentsPermalink
`(j) TERMINATION-CommentsClose CommentsPermalink
`(1) IN GENERAL- The period of authorized admission of a Y nonimmigrant shall terminate immediately if:CommentsClose CommentsPermalink
`(A) the Secretary of Homeland Security determines that the alien was not eligible for such Y nonimmigrant status at the time of visa application or admission;CommentsClose CommentsPermalink
`(B)(i) the alien commits an act that makes the alien removable from the United States under section 237;CommentsClose CommentsPermalink
`(ii) the alien becomes inadmissible under section 212 (except as provided in subsection (f)); orCommentsClose CommentsPermalink
`(iii) the alien becomes ineligible under subsection (h);CommentsClose CommentsPermalink
`(C) the alien uses the documentation of his or her Y nonimmigrant status issued under subsection (m) for unlawful or fraudulent purposes;CommentsClose CommentsPermalink
`(D) subject to paragraph (2), the alien is unemployed within the United States for--CommentsClose CommentsPermalink
`(i) 60 or more consecutive days;CommentsClose CommentsPermalink
`(ii) in the case of a Y-1 nonimmigrant, an aggregate period of 120 days, provided that the alien's 14-day period to lawfully depart the United States shall not be considered to begin until the date that the alien has been provided notice of the termination; orCommentsClose CommentsPermalink
`(iii) in the case of a Y-2B nonimmigrant, an aggregate period of 30 days, provided that the alien's 14-day period to lawfully depart the United States shall not be considered to begin until the date that the alien has been provided notice of the termination; or;CommentsClose CommentsPermalink
`(E) the alien is a Y-3 nonimmigrant whose spouse or parent in Y-1 nonimmigrant status is an alien described in subparagraphs (A), (B), (C), or (D).CommentsClose CommentsPermalink
`(2) EXCEPTION- The period of authorized admission of a Y nonimmigrant shall not terminate for unemployment under subparagraph (1)(D) if the alien submits documentation to the Secretary of Homeland Security that establishes that such unemployment was caused by--CommentsClose CommentsPermalink
`(A) a period of physical or mental disability of the alien or the spouse, son, daughter, or parent (as defined in section 101 of the Family and Medical Leave Act of 1993 (
`(B) a period of vacation, medical leave, maternity leave, or similar leave from employment authorized by employer policy, State law, or Federal law; orCommentsClose CommentsPermalink
`(C) any other period of temporary unemployment that is the direct result of a force majeure event.CommentsClose CommentsPermalink
`(3) RETURN TO FOREIGN RESIDENCE- Any alien whose period of authorized admission terminates under paragraph (1) shall be required to leave the United States immediately and register such departure at a designated port of departure in a manner to be prescribed by the Secretary.CommentsClose CommentsPermalink
`(4) INVALIDATION OF DOCUMENTATION- Any documentation that is issued by the Secretary of Homeland Security under subsection (m) to any alien, whose period of authorized admission terminates under paragraph (1), shall automatically be rendered invalid for any purpose except departure.CommentsClose CommentsPermalink
`(k) VISITS OUTSIDE THE UNITED STATES-CommentsClose CommentsPermalink
`(A) IN GENERAL- Under regulations established by the Secretary of Homeland Security, a Y nonimmigrant--CommentsClose CommentsPermalink
`(i) may travel outside of the United States; andCommentsClose CommentsPermalink
`(ii) may be readmitted for a period not more than the remaining time left until the alien accrues the maximum period of admission set forth in subsection (i), and without having to obtain a new visa if:CommentsClose CommentsPermalink
`(A) the period of authorized admission has not expired or been terminated;CommentsClose CommentsPermalink
`(B) the alien is the bearer of valid documentary evidence of Y nonimmigrant status that satisfies the conditions set forth in subsection (m); andCommentsClose CommentsPermalink
`(C) the alien is not subject to the bars on extension or admission described in subsection (l).CommentsClose CommentsPermalink
`(B) EFFECT ON PERIOD OF AUTHORIZED ADMISSION- Time spent outside the United States under subparagraph (A) shall not extend the most recent period of authorized admission in the United States.CommentsClose CommentsPermalink
`(l) BARS TO EXTENSION OR ADMISSION- An alien may not be granted Y nonimmigrant status if--CommentsClose CommentsPermalink
`(1) the alien has violated any material term or condition of such status granted previously, including failure to comply with the change of address reporting requirements under section 265;CommentsClose CommentsPermalink
`(2) the alien is inadmissible as a nonimmigrant, except for those grounds previously waived under subsection (f); orCommentsClose CommentsPermalink
`(3) the granting of such status would allow the alien to exceed limitations on stay in the United States in Y status described in subsection (i).CommentsClose CommentsPermalink
`(m) EVIDENCE OF NONIMMIGRANT STATUS- Each Y nonimmigrant shall be issued documentary evidence of nonimmigrant status, which--CommentsClose CommentsPermalink
`(1) shall be machine-readable, tamper-resistant, and shall contain a digitized photograph and other biometric identifiers that can be authenticated;CommentsClose CommentsPermalink
`(2) shall, during the alien's authorized period of admission under subsection (i), serve as a valid entry document for the purpose of applying for admission to the United States--CommentsClose CommentsPermalink
`(A) instead of a passport and visa if the alien--CommentsClose CommentsPermalink
`(i) is a national of a foreign territory contiguous to the United States; andCommentsClose CommentsPermalink
`(ii) is applying for admission at a land border port of entry; andCommentsClose CommentsPermalink
`(B) in conjunction with a valid passport, if the alien is applying for admission at an air or sea port of entry;CommentsClose CommentsPermalink
`(3) may be accepted during the period of its validity by an employer as evidence of employment authorization and identity under section 274A(b)(1)(B); andCommentsClose CommentsPermalink
`(4) shall be issued to the Y nonimmigrant by the Secretary of Homeland Security promptly after such alien's admission to the United States as a Y nonimmigrant and reporting to the employer's worksite under subsection (q) or, at the discretion of the Secretary of Homeland Security, may be issued by the Secretary of State at a consulate instead of a visa.CommentsClose CommentsPermalink
`(n) PERMANENT BARS FOR OVERSTAYS-CommentsClose CommentsPermalink
`(1) IN GENERAL- Any Y nonimmigrant who remains beyond his or her initial authorized period of admission is permanently barred from any future benefits under the immigration laws, except--CommentsClose CommentsPermalink
`(A) asylum under section 208(a);CommentsClose CommentsPermalink
`(B) withholding of removal under section 241(b)(3); orCommentsClose CommentsPermalink
`(C) protection under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, done at New York December 10, 1984.CommentsClose CommentsPermalink
`(2) EXCEPTION- Overstay of the authorized period of admission may be excused in the discretion of the Secretary where it is demonstrated that:CommentsClose CommentsPermalink
`(A) the period of overstay was due to extraordinary circumstances beyond the control of the applicant, and the Secretary finds the period commensurate with the circumstances; andCommentsClose CommentsPermalink
`(B) the alien has not otherwise violated his Y nonimmigrant status.CommentsClose CommentsPermalink
`(o) PENALTY FOR ILLEGAL ENTRY OR OVERSTAY-CommentsClose CommentsPermalink
`(1) ILLEGAL ENTRY- Any alien who after the date of the enactment of this section, unlawfully enters, attempts to enter, or crosses the border, and is physically present in the United States after such date in violation of the immigration laws, is barred permanently from any future benefits under the immigration laws, except as provided in paragraph (3) or (4).CommentsClose CommentsPermalink
`(2) OVERSTAY- Any alien, other than a Y nonimmigrant, who, after the date of the enactment of this section remains unlawfully in the United States beyond the period of authorized admission, is barred for a period of ten years from any future benefits under the immigration laws, except as provided in paragraph (3) or (4).CommentsClose CommentsPermalink
`(3) RELIEF- Notwithstanding the bar in paragraph (1) or (2), an alien may apply for--CommentsClose CommentsPermalink
`(A) asylum under section 208(a);CommentsClose CommentsPermalink
`(B) withholding of removal under section 241(b)(3); orCommentsClose CommentsPermalink
`(C) protection under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, done at New York December 10, 1984.CommentsClose CommentsPermalink
`(4) EXCEPTION- Overstay of the authorized period of admission may be excused in the discretion of the Secretary where it is demonstrated that:CommentsClose CommentsPermalink
`(A) the period of overstay was due to extraordinary circumstances beyond the control of the applicant, and the Secretary finds the period commensurate with the circumstances; andCommentsClose CommentsPermalink
`(B) the alien has not otherwise violated his nonimmigrant status.CommentsClose CommentsPermalink
`(p) PORTABILITY- A Y nonimmigrant worker, who was previously issued a visa or otherwise provided Y nonimmigrant status, may accept a new offer of employment with a subsequent employer, if--CommentsClose CommentsPermalink
`(1) the position being offered the Y nonimmigrant has been certified by the Secretary of Labor under section 218B and the employer complies with all requirements of this section and section 218B;CommentsClose CommentsPermalink
`(2) the alien, after lawful admission to the United States, did not work without authorization; andCommentsClose CommentsPermalink
`(3) the subsequent employer has notified the Secretary of Homeland Security under subsection (q) of the Y nonimmigrant's change of employment.CommentsClose CommentsPermalink
`(q) REPORTING OF START AND TERMINATION OF EMPLOYMENT-CommentsClose CommentsPermalink
`(1) START OF Y WORKER EMPLOYMENT- A Y nonimmigrant shall report in the manner prescribed by the Secretary of Homeland Security to the employer whose job offer was the basis for issuance of the alien's Y nonimmigrant visa within 7 days of admission into the United States.CommentsClose CommentsPermalink
`(2) EMPLOYER NOTIFICATION REQUIREMENT- An employer shall within three days make notification in the manner prescribed by the Secretary of Homeland Security, of the following events:CommentsClose CommentsPermalink
`(A) a Y nonimmigrant worker has reported for work pursuant to paragraph (1) after admission in Y nonimmigrant status;CommentsClose CommentsPermalink
`(B) a Y nonimmigrant worker has changed jobs under subsection (r) and started employment with the employer;CommentsClose CommentsPermalink
`(C) the employment of a Y nonimmigrant worker has terminated; orCommentsClose CommentsPermalink
`(D) a Y nonimmigrant worker on whose behalf the employer has filed a petition under this subsection that has been approved by the Secretary of Homeland Security has failed to report for work within three days of the employment start date agreed upon between the employer and the Y nonimmigrant.CommentsClose CommentsPermalink
`(3) VERIFICATION- An employer shall provide upon request of the Secretary of Homeland Security verification that an alien who has been granted admission as a Y nonimmigrant worker was or continues to be employed by the employer.CommentsClose CommentsPermalink
`(4) FINE- Any employer that fails to comply with the notification requirements of this subsection shall pay to the Secretary of Homeland Security a fine, in an amount and under procedures established by the Secretary in regulation.CommentsClose CommentsPermalink
`(r) NO THREATENING OF EMPLOYEES- It shall be a violation of this section for an employer who has filed a petition under this section to threaten the alien beneficiary of such petition with the withdrawal of such a petition in retaliation for the beneficiary's exercise of a right protected by section 218B.CommentsClose CommentsPermalink
`(s) CHANGE OF STATUS-CommentsClose CommentsPermalink
`(1) IN GENERAL-CommentsClose CommentsPermalink
`(A) A Y nonimmigrant may apply to change status to another nonimmigrant status, subject to section 248 and if otherwise eligible.CommentsClose CommentsPermalink
`(B) No alien admitted to the United States under the immigration laws in a classification other than Y nonimmigrant status may change status to Y nonimmigrant status.CommentsClose CommentsPermalink
`(C) An alien in Y nonimmigrant status may not change status to any other Y nonimmigrant status.CommentsClose CommentsPermalink
`(2) CONSTRUCTION- Nothing in this subsection shall be construed to prevent an alien who is precluded from changing status to a particular Y nonimmigrant classification under subparagraphs (1)(B), (C), or (D) from leaving the United States and applying at a U.S. consulate for the desired nonimmigrant visa, subject to all applicable eligibility requirements, in the appropriate Y classification.CommentsClose CommentsPermalink
`(t) Visitation of Y Nonimmigrant by Spouse or Child Without a Y-3 Nonimmigrant Visa- Nothing in this section shall be construed to prohibit the spouse or child of a Y nonimmigrant worker to be admitted to the United States under any other existing legal basis for which the spouse or child may qualify.CommentsClose CommentsPermalink
`(u) CHANGE OF ADDRESS- A Y nonimmigrant shall comply with the change of address reporting requirements under section 265 through electronic or paper notification.'CommentsClose CommentsPermalink
(b) CONFORMING AMENDMENT REGARDING CREATION OF TREASURY ACCOUNTS- Section 286 of the Immigration and Nationality Act (
`(w) TEMPORARY WORKER PROGRAM ACCOUNT-CommentsClose CommentsPermalink
`(1) IN GENERAL- There is established in the general fund of the Treasury a separate account, which shall be known as the `Temporary Worker Program Account'. Notwithstanding any other section of this Act, there shall be deposited into the account all fines and civil penalties collected under sections 218A, 218B, or 218F and Title VI of [name of Act], except as specifically provided otherwise in such sections.CommentsClose CommentsPermalink
`(2) USE OF FUNDS- Amounts deposited into the Temporary Worker Program Account shall remain available until expended as follows:CommentsClose CommentsPermalink
`(A) for the administration of the Standing Commission on Immigration and Labor Markets, established under section 409 of the [Insert title of Act]; andCommentsClose CommentsPermalink
`(B) after amounts needed by the Standing Commission on Immigration and Labor Markets have been expended, for the Secretaries of Labor and Homeland Security, as follows:CommentsClose CommentsPermalink
`(i) one-third to the Secretary of Labor to carry out the Secretary of Labor's functions and responsibilities, including enforcement of labor standards under sections 218A, 218B, and 218F, and under applicable labor laws including the Fair Labor Standards Act of 1938 (
`(ii) two-thirds to the Secretary of Homeland Security to improve immigration services and enforcement.CommentsClose CommentsPermalink
`(x) STATE IMPACT ASSISTANCE ACCOUNT-CommentsClose CommentsPermalink
`(1) IN GENERAL- There is established in the general fund of the Treasury a separate account, which shall be known as the `State Impact Assistant Account'.CommentsClose CommentsPermalink
`(2) SOURCE OF FUNDS- Notwithstanding any other provision under this Act, there shall be deposited as offsetting receipts into the State Impact Assistance Account all State Impact Assistance fees collected under sections 218A(e)(3)(B) and section 601(e)(6)(C) of the [Insert title of Act].CommentsClose CommentsPermalink
`(3) USE OF FUNDS- Amounts deposited into the State Impact Assistance Account may only be used to carry out the State Impact Assistance Grant Program established under paragraph (4).CommentsClose CommentsPermalink
`(4) STATE IMPACT ASSISTANCE GRANT PROGRAM-CommentsClose CommentsPermalink
`(A) ESTABLISHMENT- The Secretary of Health and Human Services, in consultation with the Secretary of Education, shall establish the State Impact Assistance Grant Program (referred to in this subsection as the `Program'), under which the Secretary may award grants to States to provide health and education services to noncitizens in accordance with this paragraph.CommentsClose CommentsPermalink
`(B) STATE ALLOCATIONS- The Secretary of Health and Human Services shall annually allocate the amounts available in the State Impact Assistance Account among the States as follows:CommentsClose CommentsPermalink
`(i) NONCITIZEN POPULATION- Eighty percent of such amounts shall be allocated so that each State receives the greater of--CommentsClose CommentsPermalink
`(I) $5,000,000; orCommentsClose CommentsPermalink
`(II) after adjusting for allocations under subclause (I), the percentage of the amount to be distributed under this clause that is equal to the noncitizen resident population of the State divided by the noncitizen resident population of all States, based on the most recent data available from the Bureau of the Census.CommentsClose CommentsPermalink
`(ii) HIGH GROWTH RATES- Twenty percent of such amounts shall be allocated among the 20 States with the largest growth rates in noncitizen resident population, as determined by the Secretary of Health and Human Services, so that each such State receives the percentage of the amount distributed under this clause that is equal to--CommentsClose CommentsPermalink
`(I) the growth rate in the noncitizen resident population of the State during the most recent 3-year period for which data is available from the Bureau of the Census; divided byCommentsClose CommentsPermalink
`(II) the average growth rate in noncitizen resident population for the 20 States during such 3-year period.CommentsClose CommentsPermalink
`(iii) LEGISLATIVE APPROPRIATIONS- The use of grant funds allocated to States under this paragraph shall be subject to appropriation by the legislature of each State in accordance with the terms and conditions under this paragraph.CommentsClose CommentsPermalink
`(C) FUNDING FOR LOCAL GOVERNMENT-CommentsClose CommentsPermalink
`(i) DISTRIBUTION CRITERIA- Grant funds received by States under this paragraph shall be distributed to units of local government based on need and function.CommentsClose CommentsPermalink
`(ii) MINIMUM DISTRIBUTION- Except as provided in clause (iii), a State shall distribute not less than 30 percent of the grant funds received under this paragraph to units of local government not later than 180 days after receiving such funds.CommentsClose CommentsPermalink
`(iii) EXCEPTION- If an eligible unit of local government that is available to carry out the activities described in subparagraph (D) cannot be found in a State, the State does not need to comply with clause (ii).CommentsClose CommentsPermalink
`(iv) UNEXPENDED FUNDS- Any grant funds distributed by a State to a unit of local government that remain unexpended as of the end of the grant period shall revert to the State for redistribution to another unit of local government.CommentsClose CommentsPermalink
`(D) USE OF FUNDS- States and units of local government shall use grant funds received under this paragraph to provide health services, educational services, and related services to noncitizens within their jurisdiction directly, or through contracts with eligible services providers, including--CommentsClose CommentsPermalink
`(i) health care providers;CommentsClose CommentsPermalink
`(ii) local educational agencies; andCommentsClose CommentsPermalink
`(iii) charitable and religious organizations.CommentsClose CommentsPermalink
`(E) STATE DEFINED- In this paragraph, the term `State' means each of the several States of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa, and the Commonwealth of the Northern Mariana Islands.CommentsClose CommentsPermalink
`(F) CERTIFICATION- In order to receive a payment under this section, the State shall provide the Secretary of Health and Human Services with a certification that the State's proposed uses of the fund are consistent with (D).CommentsClose CommentsPermalink
`(G) ANNUAL REPORT- The Secretary of Health and Human Services shall inform the States annually of the amount of funds available to each State under the Program.'.CommentsClose CommentsPermalink
`(c) CLERICAL AMENDMENT- The table of contents Immigration and Nationality Act (
`Sec.218A.Admission of Y nonimmigrants.'.CommentsClose CommentsPermalink
SEC. 403. GENERAL Y NONIMMIGRANT EMPLOYER OBLIGATIONS.
(a) IN GENERAL- Title II (
`SEC. 218B. GENERAL Y NONIMMIGRANT EMPLOYER OBLIGATIONS.
`(a) GENERAL REQUIREMENTS- Each employer who seeks to employ a Y nonimmigrant shall--CommentsClose CommentsPermalink
`(1) file in accordance with subsection (b) an application for labor certification of the position that the employer seeks to fill with a Y nonimmigrant that contains--CommentsClose CommentsPermalink
`(A) the attestation described in subsection (c);CommentsClose CommentsPermalink
`(B) a description of the nature and location of the work to be performed;CommentsClose CommentsPermalink
`(C) the anticipated period (expected beginning and ending dates) for which the workers will be needed; andCommentsClose CommentsPermalink
`(D) the number of job opportunities in which the employer seeks to employ the workers;CommentsClose CommentsPermalink
`(2) include with the application filed under paragraph (1) a copy of the job offer describing the wages and other terms and conditions of employment and the bona fide occupational qualifications that shall be possessed by a worker to be employed in the job opportunity in question; andCommentsClose CommentsPermalink
`(3) be required to pay, with respect to an application to employ a Y-1 worker--CommentsClose CommentsPermalink
`(A) an application processing fee for each alien, in an amount sufficient to recover the full cost to the Secretary of Labor of administrative and other expenses associated with adjudicating the application; andCommentsClose CommentsPermalink
`(B) a secondary fee, to be deposited in the Treasury in accordance with section 286(x), of--CommentsClose CommentsPermalink
`(i) $500, in the case of an employer employing 25 employees or less;CommentsClose CommentsPermalink
`(ii) $750, in the case of an employer employing between 26 and 150 employees;CommentsClose CommentsPermalink
`(iii) $1,000, in the case of an employer employing between 151 and 500 employees; orCommentsClose CommentsPermalink
`(iv) $1,250, in the case of an employer employing more than 500 employees;CommentsClose CommentsPermalink
`provided that an employer who provides a Y nonimmigrant health insurance coverage shall not be required to pay the impact fee.CommentsClose CommentsPermalink
`(b) REQUIRED PROCEDURE- Each employer of Y nonimmigrants shall comply with the following requirements:CommentsClose CommentsPermalink
`(1) EFFORTS TO RECRUIT UNITED STATES WORKERS- The employer involved shall recruit United States workers for the position for which labor certification is sought under this section, by--CommentsClose CommentsPermalink
`(A) Not later than 90 days before the date on which an application is filed under subsection (a)(1) submitting a copy of the job opportunity, including a description of the wages and other terms and conditions of employment and the minimum education, training, experience and other requirements of the job, to the designated state agency and--CommentsClose CommentsPermalink
`(i) authorizing the designated state agency to post the job opportunity on the Internet website established under section 414 of [Title of bill], with local job banks, and with unemployment agencies and other labor referral and recruitment sources pertinent to the job involved; andCommentsClose CommentsPermalink
`(ii) authorizing the designated state agency to notify labor organizations in the State in which the job is located and, if applicable, the office of the local union which represents the employees in the same or substantially equivalent job classification of the job opportunity;CommentsClose CommentsPermalink
`(B) posting the availability of the job opportunity for which the employer is seeking a worker in conspicuous locations at the place of employment for all employees to see for a period of time beginning not later than 90 days before the date on which an application is filed under subsection (a)(1) and ending no earlier than 14 days before such filing date;CommentsClose CommentsPermalink
`(C) advertising the availability of the job opportunity for which the employer is seeking a worker in one of the three highest circulation publications in the labor market that is likely to be patronized by a potential worker for not fewer than 10 consecutive days during the period of time beginning not later than 90 days before the date on which an application is filed under subsection (a)(1) and ending no earlier than 14 days before such filing date; andCommentsClose CommentsPermalink
`(D) advertising the availability of the job opportunity in professional, trade, or ethnic publications that are likely to be patronized by a potential worker, as recommended by the designated state agency. The employer shall not be required to advertise in more than three such recommended publications.CommentsClose CommentsPermalink
`(2) EFFORTS TO EMPLOY UNITED STATES WORKERS- An employer that seeks to employ a Y nonimmigrant shall first offer the job with, at a minimum, the same wages, benefits, and working conditions, to any eligible United States worker who applies, is qualified for the job and is available at the time of need.CommentsClose CommentsPermalink
`(3) DEFINITION- For purposes of this subsection, `designated state agency' shall mean the state agency designated to perform the functions in this subsection in the area of employment in the State in which the employer is located.CommentsClose CommentsPermalink
`(c) APPLICATION- An application under this section for labor certification of a position that an employer seeks to fill with a Y nonimmigrant shall be filed with the Secretary of Labor and shall include an attestation by the employer of the following:CommentsClose CommentsPermalink
`(1) with respect to an application for labor certification of a position that an employer seeks to fill with a Y-1 or Y-2B nonimmigrant--CommentsClose CommentsPermalink
`(A) PROTECTION OF UNITED STATES WORKERS- The employment of a Y nonimmigrant--CommentsClose CommentsPermalink
`(i) will not adversely affect the wages and working conditions of workers in the United States similarly employed; andCommentsClose CommentsPermalink
`(ii) did not and will not cause the separation from employment of a United States worker employed by the employer within the 180-day period beginning 90 days before the date on which the petition is filed.CommentsClose CommentsPermalink
`(B) WAGES-CommentsClose CommentsPermalink
`(i) IN GENERAL- The Y nonimmigrant worker will be paid not less than the greater of--CommentsClose CommentsPermalink
`(I) the actual wage level paid by the employer to all other individuals with similar experience and qualifications for the specific employment in question; orCommentsClose CommentsPermalink
`(II) the prevailing competitive wage level for the occupational classification in the area of employment, taking into account experience and skill levels of employees.CommentsClose CommentsPermalink
`(ii) CALCULATION- The wage levels under subparagraph (A) shall be calculated based on the best information available at the time of the filing of the application.CommentsClose CommentsPermalink
`(iii) PREVAILING COMPETITIVE WAGE LEVEL- For purposes of subclause (i)(II), the prevailing competitive wage level shall be determined as follows:CommentsClose CommentsPermalink
`(I) If the job opportunity is covered by a collective bargaining agreement between a union and the employer, the prevailing competitive wage shall be the wage rate set forth in the collective bargaining agreement.CommentsClose CommentsPermalink
`(II) If the job opportunity is not covered by such an agreement and it is on a project that is covered by a wage determination under a provision of subchapter IV of chapter 31 of title 40, United States Code, or the Service Contract Act of 1965 (
`(III)(aa) If the job opportunity is not covered by such an agreement and it is not on a project covered by a wage determination under a provision of subchapter IV of chapter 31 of title 40, United States Code, or the Service Contract Act of 1965 (
`(bb) Such regulations shall require, among other things, that such surveys are statistically valid and recently conducted.CommentsClose CommentsPermalink
`(D) LABOR DISPUTE- There is not a strike, lockout, or work stoppage in the course of a labor dispute in the occupation at the place of employment at which the Y nonimmigrant will be employed. If such strike, lockout, or work stoppage occurs following submission of the application, the employer will provide notification in accordance with regulations promulgated by the Secretary of Labor.CommentsClose CommentsPermalink
`(E) PROVISION OF INSURANCE- If the position for which the Y nonimmigrant is sought is not covered by the State workers' compensation law, the employer will provide, at no cost to the Y nonimmigrant, insurance covering injury and disease arising out of, and in the course of, the worker's employment, which will provide benefits at least equal to those provided under the State workers' compensation law for comparable employment.CommentsClose CommentsPermalink
`(F) NOTICE TO EMPLOYEES-CommentsClose CommentsPermalink
`(i) IN GENERAL- The employer has provided notice of the filing of the application to the bargaining representative of the employer's employees in the occupational classification and area of employment for which the Y nonimmigrant is sought.CommentsClose CommentsPermalink
`(ii) No bargaining representative- If there is no such bargaining representative, the employer has--CommentsClose CommentsPermalink
`(I) posted a notice of the filing of the application in a conspicuous location at the place or places of employment for which the Y nonimmigrant is sought; orCommentsClose CommentsPermalink
`(II) electronically disseminated such a notice to the employer's employees in the occupational classification for which the Y nonimmigrant is sought.CommentsClose CommentsPermalink
`(G) RECRUITMENT- That--CommentsClose CommentsPermalink
`(i) there are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services described in the application; andCommentsClose CommentsPermalink
`(ii) good faith efforts have been taken to recruit United States workers, in accordance with regulations promulgated by the Secretary of Labor, which efforts included--CommentsClose CommentsPermalink
`(I) the completion of recruitment during the period beginning on the date that is 90 days before the date on which the application was filed with the Department of Labor and ending on the date that is 14 days before such filing date; andCommentsClose CommentsPermalink
`(II) the wages that the employer would be required by law to provide for the Y nonimmigrant were used in conducting recruitment.CommentsClose CommentsPermalink
`(H) INELIGIBILITY- The employer is not currently ineligible from using the Y nonimmigrant program described in this section.CommentsClose CommentsPermalink
`(I) BONA FIDE OFFER OF EMPLOYMENT- The job for which the Y nonimmigrant is sought is a bona fide job--CommentsClose CommentsPermalink
`(i) for which the employer needs labor or services;CommentsClose CommentsPermalink
`(ii) which has been and is clearly open to any United States worker; andCommentsClose CommentsPermalink
`(iii) for which the employer will be able to place the Y nonimmigrant on the payroll.CommentsClose CommentsPermalink
(J) PUBLIC AVAILABILITY AND RECORDS RETENTION- A copy of each application filed under this section and documentation supporting each attestation, in accordance with regulations promulgated by the Secretary of Labor, will--CommentsClose CommentsPermalink
`(i) be provided to every Y nonimmigrant employed under the petition;CommentsClose CommentsPermalink
`(ii) be made available for public examination at the employer's place of business or work site;CommentsClose CommentsPermalink
`(iii) be made available to the Secretary of Labor during any audit; andCommentsClose CommentsPermalink
`(iv) remain available for examination for 5 years after the date on which the application is filed.CommentsClose CommentsPermalink
`(K) NOTIFICATION UPON SEPARATION FROM OR TRANSFER OF EMPLOYMENT- The employer will notify the Secretary of Labor and the Secretary of Homeland Security of a Y nonimmigrant's separation from employment or transfer to another employer not more than 3 business days after the date of such separation or transfer, in accordance with section 218A(q)(2).CommentsClose CommentsPermalink
`(L) ACTUAL NEED FOR LABOR OR SERVICES- The application was filed not more than 60 days before the date on which the employer needed labor or services for which the Y nonimmigrant is sought.CommentsClose CommentsPermalink
`(d) AUDIT OF ATTESTATIONS-CommentsClose CommentsPermalink
`(1) REFERRALS BY SECRETARY OF HOMELAND SECURITY- The Secretary of Homeland Security shall refer all petitions approved under section 218A to the Secretary of Labor for potential audit.CommentsClose CommentsPermalink
(2) AUDITS AUTHORIZED- The Secretary of Labor may audit any approved petition referred pursuant to paragraph (1), in accordance with regulations promulgated by the Secretary of Labor.CommentsClose CommentsPermalink
`(e) INELIGIBLE EMPLOYERS-CommentsClose CommentsPermalink
`(1) IN GENERAL- In addition to any other applicable penalties under law, the Secretary of Labor and the Secretary of Homeland Security shall not, for the period described in paragraph (2), approve an employer's petition or application for a labor certification under any immigrant or nonimmigrant program if the Secretary of Labor determines, after notice and an opportunity for a hearing, that the employer submitting such documents--CommentsClose CommentsPermalink
`(A) has, with respect to the application required under subsection (a), including attestations required under subsection (b)--CommentsClose CommentsPermalink
`(i) misrepresented a material fact;CommentsClose CommentsPermalink
`(ii) made a fraudulent statement; orCommentsClose CommentsPermalink
`(iii) failed to comply with the terms of such attestations; orCommentsClose CommentsPermalink
`(B) failed to cooperate in the audit process in accordance with regulations promulgated by the Secretary of Labor;CommentsClose CommentsPermalink
`(C) has been convicted of any of the offenses codified in Chapter 77 of Title 18 of the United States Code (slave labor) or any conspiracy to commit such offenses, or any human trafficking offense under state or territorial law;CommentsClose CommentsPermalink
`(D) has, within three years prior to the date of application:CommentsClose CommentsPermalink
`(i) committed any hazardous occupation orders violation resulting in injury or death under the child labor provisions contained in section 12 of the Fair Labor Standards Act and any regulation thereunder;CommentsClose CommentsPermalink
`(ii) been assessed a civil money penalty for any repeated or willful violation of the minimum wage provisions of section 6 of the Fair Labor Standards Act; orCommentsClose CommentsPermalink
`(iii) been assessed a civil money penalty for any repeated or willful violation of the overtime provisions of section 7 of the Fair Labor Standards Act or any regulations thereunder, other than a repeated violation that is self-reported; orCommentsClose CommentsPermalink
`(E) has, within three years prior to the date of application, received a citation for:CommentsClose CommentsPermalink
`(i) a willful violation; orCommentsClose CommentsPermalink
`(ii) repeated serious violations involving injury or death of section 5 of the Occupational Safety and Health Act, or any standard, rule, or order promulgated pursuant to section 6 of the Occupational Safety and Health Act, or any regulations prescribed pursuant to that. This subsection shall also apply to equivalent violations of a plan approved under section 18 of the Occupational Safety and Health Act.CommentsClose CommentsPermalink
`(2) LENGTH OF INELIGIBILITY- An employer described in paragraph (1) shall be ineligible to participate in the labor certification programs of the Secretary of Labor for not less than the time period determined by the Secretary, not to exceed 3 years. However, an employer who has been convicted of any of the offenses codified in Chapter 77 of Title 18 of the United States Code (slave labor) or any conspiracy to commit such offenses, or any human trafficking offense under state or territorial law shall be permanently ineligible to participate in the labor certification programs.CommentsClose CommentsPermalink
`(3) EMPLOYERS IN HIGH UNEMPLOYMENT AREAS- The Secretary of Labor may not approve any employer's application under subsection (b) if the work to be performed by the Y nonimmigrant is not agriculture based and is located in a county where the unemployment rate during the most recently completed year is more than 7 percent. An employer in a high unemployment area may petition the Secretary for a waiver of this provision. The Secretary shall promulgate regulations for the expeditious review of such waivers, which shall specify that the employer must satisfy the requirements of section (b) above and in addition must provide documentation of its recruitment efforts, including proof that it has advertised the position in one of the three publications that have the highest circulation in the labor market that is likely to be patronized by a potential worker for not fewer than 20 consecutive days under the rules and conditions set forth in section (b). An employer who has provided proof of advertising in accordance with this section shall be deemed to be in compliance with the requirements of subsection (b)(1)(D) of this section. The Secretary shall provide for a process to promptly respond to all waiver requests, and shall maintain on the Department of Labor's website an annual list of counties to which this subsection applies.CommentsClose CommentsPermalink
`(4) INELIGIBILITY FOR PETITIONS- The Secretary of Labor shall inform the Secretary of Homeland Security of a determination under paragraph (1) with respect to a specific employer. The Secretary of Homeland Security shall not, for the period described in paragraph (2), approve the petitions or applications of any such employer for any immigrant or nonimmigrant program, regardless of whether such application or petition requires a labor certification.CommentsClose CommentsPermalink
`(f) PROHIBITION OF INDEPENDENT CONTRACTORS-CommentsClose CommentsPermalink
`(1) COVERAGE- Notwithstanding any other provision of law--CommentsClose CommentsPermalink
`(A) a Y nonimmigrant is prohibited from being treated as an independent contractor under any federal or state law;CommentsClose CommentsPermalink
`(B) no person, including an employer or labor contractor and any persons who are affiliated with or contract with an employer or labor contractor, may treat a Y nonimmigrant as an independent contractor; andCommentsClose CommentsPermalink
`(C) this provision shall not be construed to prevent employers who operate as independent contractors from employing Y nonimmigrants as employees.CommentsClose CommentsPermalink
`(2) APPLICABILITY OF LAWS- A Y nonimmigrant shall not be denied any right or any remedy under Federal, State, or local labor or employment law that would be applicable to a United States worker employed in a similar position with the employer because of the alien's status as a nonimmigrant worker.CommentsClose CommentsPermalink
`(3) TAX RESPONSIBILITIES- With respect to each employed Y nonimmigrant, an employer shall comply with all applicable Federal, State, and local tax and revenue laws.CommentsClose CommentsPermalink
`(g) WHISTLEBLOWER PROTECTION-CommentsClose CommentsPermalink
`(1) PROHIBITED ACTIVITIES- It shall be unlawful for an employer or a labor contractor of a Y nonimmigrant to intimidate, threaten, restrain, coerce, retaliate, discharge, or in any other manner, discriminate against an employee or former employee because the employee or former employee--CommentsClose CommentsPermalink
`(A) discloses information to the employer or any other person that the employee or former employee reasonably believes demonstrates a violation of this Act or [title of bill]; orCommentsClose CommentsPermalink
`(B) cooperates or seeks to cooperate in an investigation or other proceeding concerning compliance with the requirements of this Act or [title of bill].CommentsClose CommentsPermalink
`(2) RULEMAKING- The Secretary of Labor shall promulgate regulations that establish a process by which a nonimmigrant alien described in section 101(a)(15)(Y) or 101(a)(15)(H) who files a nonfrivolous complaint (as defined by the Federal Rules of Civil Procedure) regarding a violation of this Act, [title of bill] or any other Federal labor or employment law, or any other rule or regulation pertaining to such laws and is otherwise eligible to remain and work in the United States prior to the expiration of the maximum period of stay authorized for that nonimmigrant classification for a period of 120 consecutive days or such additional time period as the Secretary shall determine through rulemaking is necessary to collect information or take evidence from the nonimmigrant alien regarding a complaint or agency investigation. This period shall be allowed to exceed the maximum period of stay authorized for that nonimmigrant classification if the Secretary of Labor has designated the nonimmigrant alien as a necessary witness.CommentsClose CommentsPermalink
`(h) LABOR RECRUITERS- With respect to the employment of Y nonimmigrant workers--CommentsClose CommentsPermalink
`(1) IN GENERAL- Each employer that engages in foreign labor contracting activity and each foreign labor contractor shall ascertain and disclose, to each such worker who is recruited for employment at the time of the worker's recruitment--CommentsClose CommentsPermalink
`(A) the place of employment;CommentsClose CommentsPermalink
`(B) the compensation for the employment;CommentsClose CommentsPermalink
`(C) a description of employment activities;CommentsClose CommentsPermalink
`(D) the period of employment;CommentsClose CommentsPermalink
`(E) any other employee benefit to be provided and any costs to be charged for each benefit;CommentsClose CommentsPermalink
`(F) any travel or transportation expenses to be assessed;CommentsClose CommentsPermalink
`(G) the existence of any labor organizing effort, strike, lockout, or other labor dispute at the place of employment;CommentsClose CommentsPermalink
`(H) the existence of any arrangement with any owner, employer, foreign contractor, or its agent where such person receives a commission from the provision of items or services to workers;CommentsClose CommentsPermalink
`(I) the extent to which workers will be compensated through workers' compensation, private insurance, or otherwise for injuries or death, including--CommentsClose CommentsPermalink
`(i) work related injuries and death during the period of employment;CommentsClose CommentsPermalink
`(ii) the name of the State workers' compensation insurance carrier or the name of the policyholder of the private insurance;CommentsClose CommentsPermalink
`(iii) the name and the telephone number of each person who must be notified of an injury or death; andCommentsClose CommentsPermalink
`(iv) the time period within which such notice must be given;CommentsClose CommentsPermalink
`(J) any education or training to be provided or required, including--CommentsClose CommentsPermalink
`(i) the nature and cost of such training;CommentsClose CommentsPermalink
`(ii) the entity that will pay such costs; andCommentsClose CommentsPermalink
`(iii) whether the training is a condition of employment, continued employment, or future employment; andCommentsClose CommentsPermalink
`(K) a statement, in a form specified by the Secretary of Labor, describing the protections of this Act and of the Trafficking Victims Protection Act of 2000, P.L. 106-486, for workers recruited abroad.CommentsClose CommentsPermalink
`(2) FALSE OR MISLEADING INFORMATION- No foreign labor contractor or employer who engages in foreign labor contracting activity shall knowingly provide materially false or misleading information to any worker concerning any matter required to be disclosed in paragraph (1).CommentsClose CommentsPermalink
`(3) LANGUAGES- The information required to be disclosed under paragraph (1) shall be provided in writing in English or, as necessary and reasonable, in the language of the worker being recruited. The Secretary of Labor shall make forms available in English, Spanish, and other languages, as necessary and reasonable, which may be used in providing workers with information required under this section.CommentsClose CommentsPermalink
`(4) FEES- A person conducting a foreign labor contracting activity shall not assess any fee to a worker for such foreign labor contracting activity.CommentsClose CommentsPermalink
`(5) TERMS- No employer or foreign labor contractor shall, without justification, violate the terms of any agreement related to the requirements of this section made by that contractor or employer regarding employment under this program.CommentsClose CommentsPermalink
`(6) TRAVEL COSTS- If the foreign labor contractor or employer charges the employee for transportation, such transportation costs shall be reasonable.CommentsClose CommentsPermalink
`(7) OTHER WORKER PROTECTIONS-CommentsClose CommentsPermalink
`(A) NOTIFICATION- Not less frequently than once every year, each employer shall notify the Secretary of Labor of the identity of any foreign labor contractor engaged by the employer in any foreign labor contractor activity for, or on behalf of, the employer.CommentsClose CommentsPermalink
`(B) REGISTRATION OF FOREIGN LABOR CONTRACTORS-CommentsClose CommentsPermalink
`(i) IN GENERAL- No person shall engage in foreign labor recruiting activity unless such person has a certificate of registration from the Secretary of Labor specifying the activities that such person is authorized to perform. An employer who retains the services of a foreign labor contractor shall only use those foreign labor contractors who are registered under this subparagraph.CommentsClose CommentsPermalink
`(ii) ISSUANCE- The Secretary shall promulgate regulations to establish an efficient electronic process for the investigation and approval of an application for a certificate of registration of foreign labor contractors not later than 14 days after such application is filed, including--CommentsClose CommentsPermalink
`(I) requirements under paragraphs (1), (4), and (5) of section 102 of the Migrant and Seasonal Agricultural Worker Protection Act (
`(II) an expeditious means to update registrations and renew certificates; andCommentsClose CommentsPermalink
`(III) any other requirements that the Secretary may prescribe.CommentsClose CommentsPermalink
`(iii) TERM- Unless suspended or revoked, a certificate under this subparagraph shall be valid for 2 years.CommentsClose CommentsPermalink
`(iv) REFUSAL TO ISSUE; REVOCATION; SUSPENSION- In accordance with regulations promulgated by the Secretary of Labor, the Secretary may refuse to issue or renew, or may suspend or revoke, a certificate of registration under this subparagraph if--CommentsClose CommentsPermalink
`(I) the application or holder of the certification has knowingly made a material misrepresentation in the application for such certificate;CommentsClose CommentsPermalink
`(II) the applicant for, or holder of, the certification is not the real party in interest in the application or certificate of registration and the real party in interest--CommentsClose CommentsPermalink
`(aa) is a person who has been refused issuance or renewal of a certificate;CommentsClose CommentsPermalink
`(bb) has had a certificate suspended or revoked; orCommentsClose CommentsPermalink
`(cc) does not qualify for a certificate under this paragraph; orCommentsClose CommentsPermalink
`(III) the applicant for or holder of the certification has failed to comply with this Act.CommentsClose CommentsPermalink
`(C) REMEDY FOR VIOLATIONS- An employer engaging in foreign labor contracting activity and a foreign labor contractor that violates the provisions of this subsection shall be subject to remedies for foreign labor contractor violations under subsections (j) and (k). If a foreign labor contractor who is an agent of an employer violates any provision of this subsection when acting within the scope of its agency, the employer shall be subject to remedies under subsections (j) and (k). An employer shall not be subject to remedies for violations committed by a foreign labor contractor when such contractor is acting in direct contravention of an express, written contractual provision contained in the agreement between the employer and the foreign labor contractor. An employer that violates a provision of this subsection relating to employer obligations shall be subject to remedies under subsections (j) and (k).CommentsClose CommentsPermalink
`(D) EMPLOYER NOTIFICATION- An employer shall notify the Secretary of Labor if the employer becomes aware of a violation of this subsection by a foreign labor recruiter.CommentsClose CommentsPermalink
`(E) WRITTEN AGREEMENTS- A foreign labor contractor may not violate the terms of any written agreements made with an employer relating to any contracting activity or worker protection under this subsection.CommentsClose CommentsPermalink
`(F) BONDING REQUIREMENT- The Secretary of Labor may require a foreign labor contractor to post a bond in an amount sufficient to ensure the protection of individuals recruited by the foreign labor contractor. The Secretary may consider the extent to which the foreign labor contractor has sufficient ties to the United States to adequately enforce this subsection.CommentsClose CommentsPermalink
`(i) WAIVER OF RIGHTS PROHIBITED- A Y nonimmigrant may not be required to waive any rights or protections under this Act. Nothing under this subsection shall be construed to affect the interpretation of other laws.CommentsClose CommentsPermalink
`(j) ENFORCEMENT- With respect to violations of the provisions of this section relating to the employment of Y nonimmigrant workers--CommentsClose CommentsPermalink
`(1) IN GENERAL- The Secretary of Labor shall promulgate regulations for the receipt, investigation, and disposition of complaints by an aggrieved person respecting a violation of this section.CommentsClose CommentsPermalink
`(2) FILING DEADLINE- No investigation or hearing shall be conducted on a complaint concerning a violation under this section unless the complaint was filed not later than 12 months after the date of such violation.CommentsClose CommentsPermalink
`(3) REASONABLE BASIS- The Secretary of Labor shall conduct an investigation under this subsection if there is reasonable basis to believe that a violation of this section has occurred. The process established under this subsection shall provide that, not later than 30 days after a complaint is filed, the Secretary shall determine if there is reasonable cause to find such a violation.CommentsClose CommentsPermalink
`(4) NOTICE AND HEARING-CommentsClose CommentsPermalink
`(A) IN GENERAL- Not later than 60 days after the Secretary of Labor makes a determination of reasonable basis under paragraph (3), the Secretary shall issue a notice to the interested parties and offer an opportunity for a hearing on the complaint, in accordance with
`(B) COMPLAINT- If the Secretary of Labor, after receiving a complaint under this subsection, does not offer the aggrieved person or organization an opportunity for a hearing under subparagraph (A), the Secretary shall notify the aggrieved person or organization of such determination and the aggrieved person or organization may seek a hearing on the complaint under procedures established by the Secretary which comply with the requirements of section 556.CommentsClose CommentsPermalink
`(C) HEARING DEADLINE- Not later than 60 days after the date of a hearing under this paragraph, the Secretary of Labor shall make a finding on the matter in accordance with paragraph (5).CommentsClose CommentsPermalink
`(5) ATTORNEY'S FEES- A complainant who prevails in an action under this section with respect to a claim related to wages or compensation for employment, or a claim for a violation of subsection (j), shall be entitled to an award of reasonable attorney's fees and costs.CommentsClose CommentsPermalink
`(6) POWER OF THE SECRETARY- The Secretary may bring an action in any court of competent jurisdiction--CommentsClose CommentsPermalink
`(A) to seek remedial action, including injunctive relief;CommentsClose CommentsPermalink
`(B) to recover the damages described in subsection (k); orCommentsClose CommentsPermalink
`(C) to ensure compliance with terms and conditions described in subsection (g).CommentsClose CommentsPermalink
`(7) SOLICITOR OF LABOR- Except as provided in
`(8) PROCEDURES IN ADDITION TO OTHER RIGHTS OF EMPLOYEES- The rights and remedies provided to workers under this section are in addition to any other contractual or statutory rights and remedies of the workers, and are not intended to alter or affect such rights and remedies.CommentsClose CommentsPermalink
`(k) PENALTIES- With respect to violations of the provisions of this section relating to the employment of Y-1 or Y-2B nonimmigrants--CommentsClose CommentsPermalink
`(1) IN GENERAL- If, after notice and an opportunity for a hearing, the Secretary of Labor finds a violation of this section, the Secretary may impose administrative remedies and penalties, including--CommentsClose CommentsPermalink
`(A) back wages;CommentsClose CommentsPermalink
`(B) benefits; andCommentsClose CommentsPermalink
`(C) civil monetary penalties.CommentsClose CommentsPermalink
`(2) CIVIL PENALTIES- The Secretary of Labor may impose, as a civil penalty--CommentsClose CommentsPermalink
`(A) for a violation of subsections (b) through (g)--CommentsClose CommentsPermalink
`(i) a fine in an amount not more than $2,000 per violation per affected worker and $4,000 per violation per affected worker for each subsequent violation;CommentsClose CommentsPermalink
`(ii) if the violation was willful, a fine in an amount not more than $5,000 per violation per affected worker;CommentsClose CommentsPermalink
`(iii) if the violation was willful and if in the course of such violation a United States worker was harmed, a fine in an amount not more than $25,000 per violation per affected worker; andCommentsClose CommentsPermalink
`(B) for a violation of subsection (h)--CommentsClose CommentsPermalink
`(i) a fine in an amount not less than $500 and not more than $4,000 per violation per affected worker;CommentsClose CommentsPermalink
`(ii) if the violation was willful, a fine in an amount not less than $2,000 and not more than $5,000 per violation per affected worker; andCommentsClose CommentsPermalink
`(iii) if the violation was willful and if in the course of such violation a United States worker was harmed, a fine in an amount not less than $6,000 and not more than $35,000 per violation per affected worker.CommentsClose CommentsPermalink
`(C) for knowingly or recklessly failing to comply with the terms of representations made in petitions, applications, certifications, or attestations under any immigrant or nonimmigrant program, or with representations made in materials required by section (h) (concerning labor recruiters)--CommentsClose CommentsPermalink
`(1) a fine in an amount not more than $4,000 per affected worker; andCommentsClose CommentsPermalink
`(2) upon the occasion of a third offense of failure to comply with representations, a fine in an amount not to exceed $5,000 per affected worker and designation as an ineligible employer, recruiter, or broker for purposes of any immigrant or nonimmigrant program.CommentsClose CommentsPermalink
`(3) USE OF CIVIL PENALTIES- All penalties collected under this subsection shall be deposited in the Treasury in accordance with section 286(w).CommentsClose CommentsPermalink
`(4) CRIMINAL PENALTIES- If a willful and knowing violation of subsection (g) causes extreme physical or financial harm to an individual, the person in violation of such subsection may be imprisoned for not more than 6 months, fined in an amount not more than $35,000, or both.CommentsClose CommentsPermalink
`(l) DEFINITIONS- Unless otherwise provided, in this section and section 218A:CommentsClose CommentsPermalink
`(1) AGGRIEVED PERSON- The term `aggrieved person' means a person adversely affected by an alleged violation of this section, including--CommentsClose CommentsPermalink
`(A) a worker whose job, wages, or working conditions are adversely affected by the violation; andCommentsClose CommentsPermalink
`(B) a representative authorized by a worker whose jobs, wages, or working conditions are adversely affected by the violation who brings a complaint on behalf of such worker.CommentsClose CommentsPermalink
`(2) AREA OF EMPLOYMENT- The terms `area of employment' and `area of intended employment' mean the area within normal commuting distance of the worksite or physical location at which the work of the Y worker is or will be performed. If such worksite or location is within a Metropolitan Statistical Area, any place within such area is deemed to be within the area of employment.CommentsClose CommentsPermalink
`(3) CONVENTION AGAINST TORTURE- The term `Convention Against Torture' shall refer to the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, subject to any reservations, understandings, declarations, and provisos contained in the United States Senate resolution of ratification of the Convention, as implemented by section 2242 of the Foreign Affairs Reform and Restructuring Act of 1998 (
`(4) DERIVATIVE Y NONIMMIGRANT- The term `derivative' Y nonimmigrant means an alien described at paragraph (Y)(iii) of subsection 101(a)(15).CommentsClose CommentsPermalink
`(5) ELIGIBLE; ELIGIBLE INDIVIDUAL- The term `eligible', when used with respect to an individual, or `eligible individual', means, with respect to employment, an individual who is not an unauthorized alien (as defined in section 274A) with respect to that employment.CommentsClose CommentsPermalink
`(6) EMPLOY; EMPLOYEE; EMPLOYER- The terms `employ', `employee', and `employer' have the meanings given such terms in section 3 of the Fair Labor Standards Act of 1938 (
`(7) FELONY- The term `felony', with regard to a conviction in a foreign jurisdiction, means a crime for which a sentence of one year or longer in prison may be imposed.CommentsClose CommentsPermalink
`(8) FORCE MAJEURE EVENT- The term `force majeure event' shall mean an event that is beyond the control of either party, including, without limitation, hurricanes, earthquakes, act of terrorism, war, fire, civil disorder or other events of a similar or different kind.CommentsClose CommentsPermalink
`(9) FOREIGN LABOR CONTRACTOR- The term `foreign labor contractor' means any person who for any compensation or other valuable consideration paid or promised to be paid, performs any foreign labor contracting activity.CommentsClose CommentsPermalink
`(10) FOREIGN LABOR CONTRACTING ACTIVITY- The term `foreign labor contracting activity' means recruiting, soliciting, hiring, employing, or furnishing, an individual who resides outside of the United States for employment in the United States as a nonimmigrant alien described in section 101(a)(15)(H)(ii)(c).CommentsClose CommentsPermalink
`(11) FULL TIME- The term `full time', with respect to a job in agricultural labor or services, means any job in which the individual is employed 5.75 or more hours per day; and for any job, means in any period of authorized admission or portion of such period, employment or study for at least 90 percent of the total number of work-hours in such period, calculated at a rate of 1,575 work-hours per year (1,438 work-hours per year for agricultural employment). Each credit-hour of study shall be counted as the equivalent of 50 work-hours.CommentsClose CommentsPermalink
`(12) JOB OPPORTUNITY- The term `job opportunity' means a job opening for temporary or seasonal full-time employment at a place in the United States to which United States workers can be referred.CommentsClose CommentsPermalink
`(B) STATUTORY CONSTRUCTION- Nothing in this paragraph is intended to limit an employee's rights under a collective bargaining agreement or other employment contract.CommentsClose CommentsPermalink
`(14) MISDEMEANOR- The term `misdemeanor', with regard to a conviction in a foreign jurisdiction, means a crime for which a sentence of no more than 364 days in prison may be imposed.CommentsClose CommentsPermalink
`(15) REGULATORY DROUGHT- The term `regulatory drought' means a decision subsequent to the filing of the application under section 218B by an entity not under the control of the employer making such filing which restricts the employer's access to water for irrigation purposes and reduces or limits the employer's ability to produce an agricultural commodity, thereby reducing the need for labor.CommentsClose CommentsPermalink
`(16) SEASONAL- Labor is performed on a `seasonal' basis if--CommentsClose CommentsPermalink
`(A) ordinarily, it pertains to or is of the kind exclusively performed at certain seasons or periods of the year; andCommentsClose CommentsPermalink
`(B) from its nature, it may not be continuous or carried on throughout the year.CommentsClose CommentsPermalink
`(17) SECRETARY- Except as otherwise provided, the term `Secretary' means the Secretary of Homeland Security.CommentsClose CommentsPermalink
`(18) SEPARATION FROM EMPLOYMENT- The term `separation from employment' means the worker's loss of employment, other than through a discharge for inadequate performance, violation of workplace rules, cause, voluntary departure, voluntary retirement, or the expiration of a grant or contract. The term does not include any situation in which the worker is offered, as an alternative to such loss of employment, a similar employment opportunity with the same employer at equivalent or higher compensation and benefits than the position from which the employee was discharged, regardless of whether the employee accepts the offer. Nothing in this paragraph shall limit an employee's rights under a collective bargaining agreement or other employment contract.CommentsClose CommentsPermalink
`(19) UNITED STATES WORKER- The term `United States worker' means an employee who is--CommentsClose CommentsPermalink
`(A) a citizen or national of the United States; orCommentsClose CommentsPermalink
`(B) an alien who is--CommentsClose CommentsPermalink
`(i) lawfully admitted for permanent residence;CommentsClose CommentsPermalink
`(ii) admitted as a refugee under section 207;CommentsClose CommentsPermalink
`(iii) granted asylum under section 208; orCommentsClose CommentsPermalink
`(iv) otherwise authorized, under this Act or by the Secretary of Homeland Security, to be employed in the United States.'.CommentsClose CommentsPermalink
`(20) Y NONIMMIGRANT; Y NONIMMIGRANT WORKER-CommentsClose CommentsPermalink
`(A) The term `Y nonimmigrant' means an alien admitted to the United States under paragraph (Y)(i) or (Y)(ii) of subsection 101(a)(15), or the spouse or child of such nonimmigrant in derivative status under (Y)(iii); andCommentsClose CommentsPermalink
`(B) The term `Y nonimmigrant worker' means an alien admitted to the United States under paragraph (Y)(i) or (Y)(ii) of subsection 101(a)(15).CommentsClose CommentsPermalink
`(21) Y-1 NONIMMIGRANT; Y-1 WORKER- The term `Y-1 nonimmigrant' or `Y-1 worker' means an alien admitted to the United States under paragraph (i) of subsection 101(a)(15)(Y).CommentsClose CommentsPermalink
`(23) Y-2B NONIMMIGRANT; Y-2B WORKER- The term `Y-2B nonimmigrant' or `Y-2B worker' means an alien admitted to the United States under paragraph (ii) of subsection 101(a)(15)(Y).CommentsClose CommentsPermalink
`(24) Y-3 NONIMMIGRANT- The term `Y-3 nonimmigrant' means an alien admitted to the United States under paragraph (iii) of subsection 101(a)(15)(Y).'.CommentsClose CommentsPermalink
`(b) CLERICAL AMENDMENT- The table of contents is amended by inserting after the item relating to section 218A, as added by section 402, the following:CommentsClose CommentsPermalink
`Sec. 218B. Employer obligations.'.CommentsClose CommentsPermalink
Subtitle B--Seasonal Agricultural Nonimmigrant Temporary Workers
SEC. 404. AMENDMENT TO THE IMMIGRATION AND NATIONALITY ACT.
(a) IN GENERAL- Title II of the Immigration and Nationality Act (
`SEC. 218C. H-2A EMPLOYER APPLICATIONS.
`(a) APPLICATIONS TO THE SECRETARY OF LABOR-CommentsClose CommentsPermalink
`(1) IN GENERAL- No alien may be admitted to the United States as an H-2A worker, or otherwise provided status as an H-2A worker, unless the employer has filed with the Secretary of Labor an application containing--CommentsClose CommentsPermalink
`(A) the assurances described in subsection (b);CommentsClose CommentsPermalink
`(B) a description of the nature and location of the work to be performed;CommentsClose CommentsPermalink
`(C) the anticipated period (expected beginning and ending dates) for which the workers will be needed; andCommentsClose CommentsPermalink
`(D) the number of job opportunities in which the employer seeks to employ the workers.CommentsClose CommentsPermalink
`(2) ACCOMPANIED BY JOB OFFER- Each application filed under paragraph (1) shall be accompanied by a copy of the job offer describing the wages and other terms and conditions of employment and the bona fide occupational qualifications that shall be possessed by a worker to be employed in the job opportunity in question.CommentsClose CommentsPermalink
`(b) ASSURANCES FOR INCLUSION IN APPLICATIONS- The assurances referred to in subsection (a)(1) are the following:CommentsClose CommentsPermalink
`(1) JOB OPPORTUNITIES COVERED BY COLLECTIVE BARGAINING AGREEMENTS- With respect to a job opportunity that is covered under a collective bargaining agreement:CommentsClose CommentsPermalink
`(A) UNION CONTRACT DESCRIBED- The job opportunity is covered by a union contract which was negotiated at arm's length between a bona fide union and the employer.CommentsClose CommentsPermalink
`(B) STRIKE OR LOCKOUT- The specific job opportunity for which the employer is requesting an H-2A worker is not vacant because the former occupant is on strike or being locked out in the course of a labor dispute.CommentsClose CommentsPermalink
`(C) NOTIFICATION OF BARGAINING REPRESENTATIVES- The employer, at the time of filing the application, has provided notice of the filing under this paragraph to the bargaining representative of the employer's employees in the occupational classification at the place or places of employment for which aliens are sought.CommentsClose CommentsPermalink
`(D) TEMPORARY OR SEASONAL JOB OPPORTUNITIES- The job opportunity is temporary or seasonal.CommentsClose CommentsPermalink
`(E) OFFERS TO UNITED STATES WORKERS- The employer has offered or will offer the job to any eligible United States worker who applies and is equally or better qualified for the job for which the nonimmigrant is, or the nonimmigrants are, sought and who will be available at the time and place of need.CommentsClose CommentsPermalink
`(F) PROVISION OF INSURANCE- If the job opportunity is not covered by the State workers' compensation law, the employer will provide, at no cost to the worker, insurance covering injury and disease arising out of, and in the course of, the worker's employment which will provide benefits at least equal to those provided under the State's workers' compensation law for comparable employment.CommentsClose CommentsPermalink
`(2) JOB OPPORTUNITIES NOT COVERED BY COLLECTIVE BARGAINING AGREEMENTS- With respect to a job opportunity that is not covered under a collective bargaining agreement:CommentsClose CommentsPermalink
`(A) STRIKE OR LOCKOUT- The specific job opportunity for which the employer has applied for an H-2A worker is not vacant because the former occupant is on strike or being locked out in the course of a labor dispute.CommentsClose CommentsPermalink
`(B) TEMPORARY OR SEASONAL JOB OPPORTUNITIES- The job opportunity is temporary or seasonal.CommentsClose CommentsPermalink
`(C) BENEFIT, WAGE, AND WORKING CONDITIONS- The employer will provide, at a minimum, the benefits, wages, and working conditions required by section 218E to all workers employed in the job opportunities for which the employer has applied for an H-2A worker under subsection (a) and to all other workers in the same occupation at the place of employment.CommentsClose CommentsPermalink
`(D) NONDISPLACEMENT OF UNITED STATES WORKERS- The employer did not displace and will not displace a United States worker employed by the employer during the period of employment and for a period of 30 days preceding the period of employment in the occupation at the place of employment for which the employer has applied for an H-2A worker.CommentsClose CommentsPermalink
`(E) REQUIREMENTS FOR PLACEMENT OF THE NONIMMIGRANT WITH OTHER EMPLOYERS- The employer will not place the nonimmigrant with another employer unless--CommentsClose CommentsPermalink
`(i) the nonimmigrant performs duties in whole or in part at 1 or more worksites owned, operated, or controlled by such other employer;CommentsClose CommentsPermalink
`(ii) there are indicia of an employment relationship between the nonimmigrant and such other employer; andCommentsClose CommentsPermalink
`(iii) the employer has inquired of the other employer as to whether, and has no actual knowledge or notice that, during the period of employment and for a period of 30 days preceding the period of employment, the other employer has displaced or intends to displace a United States worker employed by the other employer in the occupation at the place of employment for which the employer seeks approval to employ H-2A workers.CommentsClose CommentsPermalink
`(F) STATEMENT OF LIABILITY- The application form shall include a clear statement explaining the liability under subparagraph (E) of an employer if the other employer described in such subparagraph displaces a United States worker as described in such subparagraph.CommentsClose CommentsPermalink
`(G) PROVISION OF INSURANCE- If the job opportunity is not covered by the State workers' compensation law, the employer will provide, at no cost to the worker, insurance covering injury and disease arising out of and in the course of the worker's employment which will provide benefits at least equal to those provided under the State's workers' compensation law for comparable employment.CommentsClose CommentsPermalink
`(H) EMPLOYMENT OF UNITED STATES WORKERS-CommentsClose CommentsPermalink
`(i) RECRUITMENT- The employer has taken or will take the following steps to recruit United States workers for the job opportunities for which the H-2A nonimmigrant is, or H-2A nonimmigrants are, sought:CommentsClose CommentsPermalink
(I) CONTACTING FORMER WORKERS- The employer shall make reasonable efforts through the sending of a letter by United States Postal Service mail, or otherwise, to contact any United States worker the employer employed during the previous season in the occupation at the place of intended employment for which the employer is applying for workers and has made the availability of the employer's job opportunities in the occupation at the place of intended employment known to such previous workers, unless the worker was terminated from employment by the employer for a lawful job-related reason or abandoned the job before the worker completed the period of employment of the job opportunity for which the worker was hired.CommentsClose CommentsPermalink
(II) FILING A JOB OFFER WITH THE LOCAL OFFICE OF THE STATE EMPLOYMENT SECURITY AGENCY- Not later than 28 days before the date on which the employer desires to employ an H-2A worker in a temporary or seasonal agricultural job opportunity, the employer shall submit a copy of the job offer described in subsection (a)(2) to the local office of the State workforce agency which serves the area of intended employment and authorize the posting of the job opportunity on its electronic job registry, except that nothing in this subclause shall require the employer to file an interstate job order under section 653 of title 20, Code of Federal Regulations.CommentsClose CommentsPermalink
`(III) ADVERTISING OF JOB OPPORTUNITIES- Not later than 14 days before the date on which the employer desires to employ an H-2A worker in a temporary or seasonal agricultural job opportunity, the employer shall advertise the availability of the job opportunities for which the employer is seeking workers in a publication in the local labor market that is likely to be patronized by potential farm workers.CommentsClose CommentsPermalink
`(IV) EMERGENCY PROCEDURES- The Secretary of Labor shall, by regulation, provide a procedure for acceptance and approval of applications in which the employer has not complied with the provisions of this subparagraph because the employer's need for H-2A workers could not reasonably have been foreseen.CommentsClose CommentsPermalink
`(ii) JOB OFFERS- The employer has offered or will offer the job to any eligible United States worker who applies and is equally or better qualified for the job for which the nonimmigrant is, or nonimmigrants are, sought and who will be available at the time and place of need.CommentsClose CommentsPermalink
`(iii) PERIOD OF EMPLOYMENT- The employer will provide employment to any qualified United States worker who applies to the employer during the period beginning on the date on which the H-2A worker departs for the employer's place of employment and ending on the date on which 50 percent of the period of employment for which the H-2A worker who is in the job was hired has elapsed, subject to the following requirements:CommentsClose CommentsPermalink
`(I) PROHIBITION- No person or entity shall willfully and knowingly withhold United States workers before the arrival of H-2A workers in order to force the hiring of United States workers under this clause.CommentsClose CommentsPermalink
`(II) COMPLAINTS- Upon receipt of a complaint by an employer that a violation of subclause (I) has occurred, the Secretary of Labor shall immediately investigate. The Secretary of Labor shall, within 36 hours of the receipt of the complaint, issue findings concerning the alleged violation. If the Secretary of Labor finds that a violation has occurred, the Secretary of Labor shall immediately suspend the application of this clause with respect to that certification for that date of need.CommentsClose CommentsPermalink
`(III) PLACEMENT OF UNITED STATES WORKERS- Before referring a United States worker to an employer during the period described in the matter preceding subclause (I), the Secretary of Labor shall make all reasonable efforts to place the United States worker in an open job acceptable to the worker, if there are other job offers pending with the job service that offer similar job opportunities in the area of intended employment.CommentsClose CommentsPermalink
`(iv) STATUTORY CONSTRUCTION- Nothing in this subparagraph shall be construed to prohibit an employer from using such legitimate selection criteria relevant to the type of job that are normal or customary to the type of job involved so long as such criteria are not applied in a discriminatory manner.CommentsClose CommentsPermalink
`(v) UNITED STATES WORKER- For purpose of this subparagraph, the term `United States worker' means an alien described in section 218G(14) except an alien admitted or otherwise provided status under section 101(a)(15)(Z).CommentsClose CommentsPermalink
`(c) APPLICATIONS BY ASSOCIATIONS ON BEHALF OF EMPLOYER MEMBERS-CommentsClose CommentsPermalink
`(1) IN GENERAL- An agricultural association may file an application under subsection (a) on behalf of 1 or more of its employer members that the association certifies in its application has or have agreed in writing to comply with the requirements of this section and sections 218E, 218F, and 218G.CommentsClose CommentsPermalink
`(2) TREATMENT OF ASSOCIATIONS ACTING AS EMPLOYERS- If an association filing an application under paragraph (1) is a joint or sole employer of the temporary or seasonal agricultural workers requested on the application, the certifications granted under subsection (e)(2)(B) to the association may be used for the certified job opportunities of any of its producer members named on the application, and such workers may be transferred among such producer members to perform the agricultural services of a temporary or seasonal nature for which the certifications were granted.CommentsClose CommentsPermalink
`(d) WITHDRAWAL OF APPLICATIONS-CommentsClose CommentsPermalink
`(1) IN GENERAL- An employer may withdraw an application filed pursuant to subsection (a), except that if the employer is an agricultural association, the association may withdraw an application filed pursuant to subsection (a) with respect to 1 or more of its members. To withdraw an application, the employer or association shall notify the Secretary of Labor in writing, and the Secretary of Labor shall acknowledge in writing the receipt of such withdrawal notice. An employer who withdraws an application under subsection (a), or on whose behalf an application is withdrawn, is relieved of the obligations undertaken in the application.CommentsClose CommentsPermalink
`(2) LIMITATION- An application may not be withdrawn while any alien provided status under section 101(a)(15)(H)(ii)(a) pursuant to such application is employed by the employer.CommentsClose CommentsPermalink
`(3) OBLIGATIONS UNDER OTHER STATUTES- Any obligation incurred by an employer under any other law or regulation as a result of the recruitment of United States workers or H-2A workers under an offer of terms and conditions of employment required as a result of making an application under subsection (a) is unaffected by withdrawal of such application.CommentsClose CommentsPermalink
`(e) REVIEW AND APPROVAL OF APPLICATIONS-CommentsClose CommentsPermalink
`(1) RESPONSIBILITY OF EMPLOYERS- The employer shall make available for public examination, within 1 working day after the date on which an application under subsection (a) is filed, at the employer's principal place of business or worksite, a copy of each such application (and such accompanying documents as are necessary).CommentsClose CommentsPermalink
`(2) RESPONSIBILITY OF THE SECRETARY OF LABOR-CommentsClose CommentsPermalink
`(A) COMPILATION OF LIST- The Secretary of Labor shall compile, on a current basis, a list (by employer and by occupational classification) of the applications filed under subsection (a). Such list shall include the wage rate, number of workers sought, period of intended employment, and date of need. The Secretary of Labor shall make such list available for examination in the District of Columbia.CommentsClose CommentsPermalink
`(B) REVIEW OF APPLICATIONS- The Secretary of Labor shall review such an application only for completeness and obvious inaccuracies. Unless the Secretary of Labor finds that the application is incomplete or obviously inaccurate, the Secretary of Labor shall certify that the intending employer has filed with the Secretary of Labor an application as described in subsection (a). Such certification shall be provided within 7 days of the filing of the application.'CommentsClose CommentsPermalink
`SEC. 218D. H-2A EMPLOYMENT REQUIREMENTS.
`(a) PREFERENTIAL TREATMENT OF ALIENS PROHIBITED- Employers seeking to hire United States workers shall offer the United States workers no less than the same benefits, wages, and working conditions that the employer is offering, intends to offer, or will provide to H-2A workers. Conversely, no job offer may impose on United States workers any restrictions or obligations which will not be imposed on the employer's H-2A workers.CommentsClose CommentsPermalink
`(b) MINIMUM BENEFITS, WAGES, AND WORKING CONDITIONS- Except in cases where higher benefits, wages, or working conditions are required by the provisions of subsection (a), in order to protect similarly employed United States workers from adverse effects with respect to benefits, wages, and working conditions, every job offer which shall accompany an application under section 218C(b)(2) shall include each of the following benefit, wage, and working condition provisions:CommentsClose CommentsPermalink
`(1) REQUIREMENT TO PROVIDE HOUSING OR A HOUSING ALLOWANCE-CommentsClose CommentsPermalink
`(A) IN GENERAL- An employer applying under section 218C(a) for H-2A workers shall offer to provide housing at no cost to all workers in job opportunities for which the employer has applied under that section and to all other workers in the same occupation at the place of employment, whose place of residence is beyond normal commuting distance.CommentsClose CommentsPermalink
`(B) TYPE OF HOUSING- In complying with subparagraph (A), an employer may, at the employer's election, provide housing that meets applicable Federal standards for temporary labor camps or secure housing that meets applicable local standards for rental or public accommodation housing or other substantially similar class of habitation, or in the absence of applicable local standards, State standards for rental or public accommodation housing or other substantially similar class of habitation. In the absence of applicable local or State standards, Federal temporary labor camp standards shall apply.CommentsClose CommentsPermalink
`(C) FAMILY HOUSING- If it is the prevailing practice in the occupation and area of intended employment to provide family housing, family housing shall be provided to workers with families who request it.CommentsClose CommentsPermalink
`(D) WORKERS ENGAGED IN THE RANGE PRODUCTION OF LIVESTOCK- The Secretary of Labor shall issue regulations that address the specific requirements for the provision of housing to workers engaged in the range production of livestock.CommentsClose CommentsPermalink
`(E) LIMITATION- Nothing in this paragraph shall be construed to require an employer to provide or secure housing for persons who were not entitled to such housing under the temporary labor certification regulations in effect on June 1, 1986.CommentsClose CommentsPermalink
`(F) CHARGES FOR HOUSING-CommentsClose CommentsPermalink
`(i) CHARGES FOR PUBLIC HOUSING- If public housing provided for migrant agricultural workers under the auspices of a local, county, or State government is secured by an employer, and use of the public housing unit normally requires charges from migrant workers, such charges shall be paid by the employer directly to the appropriate individual or entity affiliated with the housing's management.CommentsClose CommentsPermalink
`(ii) DEPOSIT CHARGES- Charges in the form of deposits for bedding or other similar incidentals related to housing shall not be levied upon workers by employers who provide housing for their workers. An employer may require a worker found to have been responsible for damage to such housing which is not the result of normal wear and tear related to habitation to reimburse the employer for the reasonable cost of repair of such damage.CommentsClose CommentsPermalink
`(G) HOUSING ALLOWANCE AS ALTERNATIVE-CommentsClose CommentsPermalink
`(i) IN GENERAL- If the requirement set out in clause (ii) is satisfied, the employer may provide a reasonable housing allowance instead of offering housing under subparagraph (A). Upon the request of a worker seeking assistance in locating housing, the employer shall make a good faith effort to assist the worker in identifying and locating housing in the area of intended employment. An employer who offers a housing allowance to a worker, or assists a worker in locating housing which the worker occupies, pursuant to this clause shall not be deemed a housing provider under section 203 of the Migrant and Seasonal Agricultural Worker Protection Act (
`(ii) CERTIFICATION- The requirement of this clause is satisfied if the Governor of the State certifies to the Secretary of Labor that there is adequate housing available in the area of intended employment for migrant farm workers and H-2A workers who are seeking temporary housing while employed in agricultural work. Such certification shall expire after 3 years unless renewed by the Governor of the State.CommentsClose CommentsPermalink
`(iii) AMOUNT OF ALLOWANCE-CommentsClose CommentsPermalink
`(I) NONMETROPOLITAN COUNTIES- If the place of employment of the workers provided an allowance under this subparagraph is a nonmetropolitan county, the amount of the housing allowance under this subparagraph shall be equal to the statewide average fair market rental for existing housing for nonmetropolitan counties for the State, as established by the Secretary of Housing and Urban Development pursuant to section 8(c) of the United States Housing Act of 1937 (
`(II) METROPOLITAN COUNTIES- If the place of employment of the workers provided an allowance under this paragraph is in a metropolitan county, the amount of the housing allowance under this subparagraph shall be equal to the statewide average fair market rental for existing housing for metropolitan counties for the State, as established by the Secretary of Housing and Urban Development pursuant to section 8(c) of the United States Housing Act of 1937 (
`(2) REIMBURSEMENT OF TRANSPORTATION-CommentsClose CommentsPermalink
`(A) TO PLACE OF EMPLOYMENT- A worker who completes 50 percent of the period of employment of the job opportunity for which the worker was hired shall be reimbursed by the employer for the cost of the worker's transportation and subsistence from the place from which the worker came to work for the employer (or place of last employment, if the worker traveled from such place) to the place of employment.CommentsClose CommentsPermalink
`(B) FROM PLACE OF EMPLOYMENT- A worker who completes the period of employment for the job opportunity involved shall be reimbursed by the employer for the cost of the worker's transportation and subsistence from the place of employment to the place from which the worker, disregarding intervening employment, came to work for the employer, or to the place of next employment, if the worker has contracted with a subsequent employer who has not agreed to provide or pay for the worker's transportation and subsistence to such subsequent employer's place of employment.CommentsClose CommentsPermalink
`(C) LIMITATION-CommentsClose CommentsPermalink
`(i) Amount of reimbursement- Except as provided in clause (ii), the amount of reimbursement provided under subparagraph (A) or (B) to a worker or alien shall not exceed the lesser of--CommentsClose CommentsPermalink
`(I) the actual cost to the worker or alien of the transportation and subsistence involved; orCommentsClose CommentsPermalink
`(II) the most economical and reasonable common carrier transportation charges and subsistence costs for the distance involved.CommentsClose CommentsPermalink
`(ii) DISTANCE TRAVELED- No reimbursement under subparagraph (A) or (B) shall be required if the distance traveled is 100 miles or less, or the worker is not residing in employer-provided housing or housing secured through an allowance as provided in paragraph (1)(G).CommentsClose CommentsPermalink
`(D) EARLY TERMINATION- If the worker is laid off or employment is terminated for contract impossibility (as described in paragraph (4)(D)) before the anticipated ending date of employment, the employer shall provide the transportation and subsistence required by subparagraph (B) and, notwithstanding whether the worker has completed 50 percent of the period of employment, shall provide the transportation reimbursement required by subparagraph (A).CommentsClose CommentsPermalink
`(E) TRANSPORTATION BETWEEN LIVING QUARTERS AND WORKSITE- The employer shall provide transportation between the worker's living quarters and the employer's worksite without cost to the worker, and such transportation will be in accordance with applicable laws and regulations.CommentsClose CommentsPermalink
`(3) REQUIRED WAGES-CommentsClose CommentsPermalink
`(A) IN GENERAL- An employer applying for workers under section 218C(a) shall offer to pay, and shall pay, all workers in the occupation for which the employer has applied for workers, not less (and is not required to pay more) than the greater of the prevailing wage in the occupation in the area of intended employment or the adverse effect wage rate. No worker shall be paid less than the greater of the hourly wage prescribed under section 6(a)(1) of the Fair Labor Standards Act of 1938 (
`(B) LIMITATION- Effective on the date of the enactment of the Agricultural Job Opportunities, Benefits, and Security Act of 2007 and continuing for 3 years thereafter, no adverse effect wage rate for a State may be more than the adverse effect wage rate for that State in effect on January 1, 2003, as established by section 655.107 of title 20, Code of Federal Regulations.CommentsClose CommentsPermalink
`(C) REQUIRED WAGES AFTER 3-YEAR FREEZE-CommentsClose CommentsPermalink
`(i) FIRST ADJUSTMENT- If Congress does not set a new wage standard applicable to this section before the first March 1 that is not less than 3 years after the date of enactment of this section, the adverse effect wage rate for each State beginning on such March 1 shall be the wage rate that would have resulted if the adverse effect wage rate in effect on January 1, 2003, had been annually adjusted, beginning on March 1, 2006, by the lesser of--CommentsClose CommentsPermalink
`(I) the 12-month percentage change in the Consumer Price Index for All Urban Consumers between December of the second preceding year and December of the preceding year; andCommentsClose CommentsPermalink
`(II) 4 percent.CommentsClose CommentsPermalink
`(ii) SUBSEQUENT ANNUAL ADJUSTMENTS- Beginning on the first March 1 that is not less than 4 years after the date of enactment of this section, and each March 1 thereafter, the adverse effect wage rate then in effect for each State shall be adjusted by the lesser of--CommentsClose CommentsPermalink
`(I) the 12-month percentage change in the Consumer Price Index for All Urban Consumers between December of the second preceding year and December of the preceding year; andCommentsClose CommentsPermalink
`(II) 4 percent.CommentsClose CommentsPermalink
`(D) DEDUCTIONS- The employer shall make only those deductions from the worker's wages that are authorized by law or are reasonable and customary in the occupation and area of employment. The job offer shall specify all deductions not required by law which the employer will make from the worker's wages.CommentsClose CommentsPermalink
`(E) FREQUENCY OF PAY- The employer shall pay the worker not less frequently than twice monthly, or in accordance with the prevailing practice in the area of employment, whichever is more frequent.CommentsClose CommentsPermalink
(F) HOURS AND EARNINGS STATEMENTS- The employer shall furnish to the worker, on or before each payday, in 1 or more written statements--CommentsClose CommentsPermalink
`(i) the worker's total earnings for the pay period;CommentsClose CommentsPermalink
`(ii) the worker's hourly rate of pay, piece rate of pay, or both;CommentsClose CommentsPermalink
`(iii) the hours of employment which have been offered to the worker (broken out by hours offered in accordance with and over and above the 3/4 guarantee described in paragraph (4);CommentsClose CommentsPermalink
`(iv) the hours actually worked by the worker;CommentsClose CommentsPermalink
`(v) an itemization of the deductions made from the worker's wages; andCommentsClose CommentsPermalink
`(vi) if piece rates of pay are used, the units produced daily.CommentsClose CommentsPermalink
(G) REPORT ON WAGE PROTECTIONS- Not later than December 31, 2009, the Comptroller General of the United States shall prepare and transmit to the Secretary of Labor, the Committee on the Judiciary of the Senate, and Committee on the Judiciary of the House of Representatives, a report that addresses--CommentsClose CommentsPermalink
`(i) whether the employment of H-2A or unauthorized aliens in the United States agricultural workforce has depressed United States farm worker wages below the levels that would otherwise have prevailed if alien farm workers had not been employed in the United States;CommentsClose CommentsPermalink
`(ii) whether an adverse effect wage rate is necessary to prevent wages of United States farm workers in occupations in which H-2A workers are employed from falling below the wage levels that would have prevailed in the absence of the employment of H-2A workers in those occupations;CommentsClose CommentsPermalink
`(iii) whether alternative wage standards, such as a prevailing wage standard, would be sufficient to prevent wages in occupations in which H-2A workers are employed from falling below the wage level that would have prevailed in the absence of H-2A employment;CommentsClose CommentsPermalink
`(iv) whether any changes are warranted in the current methodologies for calculating the adverse effect wage rate and the prevailing wage; andCommentsClose CommentsPermalink
`(v) recommendations for future wage protection under this section.CommentsClose CommentsPermalink
`(H) COMMISSION ON WAGE STANDARDS-CommentsClose CommentsPermalink
`(i) ESTABLISHMENT- There is established the Commission on Agricultural Wage Standards under the H-2A program (in this subparagraph referred to as the `Commission').CommentsClose CommentsPermalink
`(ii) COMPOSITION- The Commission shall consist of 10 members as follows:CommentsClose CommentsPermalink
`(I) Four representatives of agricultural employers and 1 representative of the Department of Agriculture, each appointed by the Secretary of Agriculture.CommentsClose CommentsPermalink
`(II) Four representatives of agricultural workers and 1 representative of the Department of Labor, each appointed by the Secretary of Labor.CommentsClose CommentsPermalink
`(iii) FUNCTIONS- The Commission shall conduct a study that shall address--CommentsClose CommentsPermalink
`(I) whether the employment of H-2A or unauthorized aliens in the United States agricultural workforce has depressed United States farm worker wages below the levels that would otherwise have prevailed if alien farm workers had not been employed in the United States;CommentsClose CommentsPermalink
`(II) whether an adverse effect wage rate is necessary to prevent wages of United States farm workers in occupations in which H-2A workers are employed from falling below the wage levels that would have prevailed in the absence of the employment of H-2A workers in those occupations;CommentsClose CommentsPermalink
`(III) whether alternative wage standards, such as a prevailing wage standard, would be sufficient to prevent wages in occupations in which H-2A workers are employed from falling below the wage level that would have prevailed in the absence of H-2A employment;CommentsClose CommentsPermalink
`(IV) whether any changes are warranted in the current methodologies for calculating the adverse effect wage rate and the prevailing wage rate; andCommentsClose CommentsPermalink
`(V) recommendations for future wage protection under this section.CommentsClose CommentsPermalink
`(iv) The Commission may for the purpose of carrying out this section, hold such hearings, sit and act at such times and places, take such testimony, and receive such evidence as the Commission considers appropriate.CommentsClose CommentsPermalink
`(v) INTERIM REPORT- The Commission shall issue an interim report, published in the Federal Register, with opportunity and comment, for a period of at least 90 days.CommentsClose CommentsPermalink
`(vi) FINAL REPORT- After considering recommendations from interested persons (including an opportunity for comment from the public and affected States), the Commission shall submit a report to the Congress setting forth the findings of the study conducted under clause (iii) not later than December 31, 2009.CommentsClose CommentsPermalink
`(vii) TERMINATION DATE- The Commission shall terminate upon submitting its final report.CommentsClose CommentsPermalink
`(4) GUARANTEE OF EMPLOYMENT-CommentsClose CommentsPermalink
`(A) OFFER TO WORKER- The employer shall guarantee to offer the worker employment for the hourly equivalent of at least 3/4 of the work days of the total period of employment, beginning with the first work day after the arrival of the worker at the place of employment and ending on the expiration date specified in the job offer. For purposes of this subparagraph, the hourly equivalent means the number of hours in the work days as stated in the job offer and shall exclude the worker's Sabbath and Federal holidays. If the employer affords the United States or H-2A worker less employment than that required under this paragraph, the employer shall pay such worker the amount which the worker would have earned had the worker, in fact, worked for the guaranteed number of hours.CommentsClose CommentsPermalink
`(B) FAILURE TO WORK- Any hours which the worker fails to work, up to a maximum of the number of hours specified in the job offer for a work day, when the worker has been offered an opportunity to do so, and all hours of work actually performed (including voluntary work in excess of the number of hours specified in the job offer in a work day, on the worker's Sabbath, or on Federal holidays) may be counted by the employer in calculating whether the period of guaranteed employment has been met.CommentsClose CommentsPermalink
`(C) ABANDONMENT OF EMPLOYMENT, TERMINATION FOR CAUSE- If the worker voluntarily abandons employment before the end of the contract period, or is terminated for cause, the worker is not entitled to the ` 3/4 guarantee' described in subparagraph (A).CommentsClose CommentsPermalink
`(D) CONTRACT IMPOSSIBILITY- If, before the expiration of the period of employment specified in the job offer, the services of the worker are no longer required for reasons beyond the control of the employer due to any form of natural disaster, including a flood, hurricane, freeze, earthquake, fire, drought, plant or animal disease or pest infestation, or regulatory drought, before the guarantee in subparagraph (A) is fulfilled, the employer may terminate the worker's employment. In the event of such termination, the employer shall fulfill the employment guarantee in subparagraph (A) for the work days that have elapsed from the first work day after the arrival of the worker to the termination of employment. In such cases, the employer will make efforts to transfer the United States worker to other comparable employment acceptable to the worker. If such transfer is not effected, the employer shall provide the return transportation required in paragraph (2)(D).CommentsClose CommentsPermalink
`(5) MOTOR VEHICLE SAFETY-CommentsClose CommentsPermalink
`(A) MODE OF TRANSPORTATION SUBJECT TO COVERAGE-CommentsClose CommentsPermalink
`(i) IN GENERAL- Except as provided in clauses (iii) and (iv), this subsection applies to any H-2A employer that uses or causes to be used any vehicle to transport an H-2A worker within the United States.CommentsClose CommentsPermalink
`(ii) DEFINED TERM- In this paragraph, the term `uses or causes to be used'--CommentsClose CommentsPermalink
`(I) applies only to transportation provided by an H-2A employer to an H-2A worker, or by a farm labor contractor to an H-2A worker at the request or direction of an H-2A employer; andCommentsClose CommentsPermalink
`(II) does not apply to--CommentsClose CommentsPermalink
`(aa) transportation provided, or transportation arrangements made, by an H-2A worker, unless the employer specifically requested or arranged such transportation; orCommentsClose CommentsPermalink
`(bb) car pooling arrangements made by H-2A workers themselves, using 1 of the workers' own vehicles, unless specifically requested by the employer directly or through a farm labor contractor.CommentsClose CommentsPermalink
`(iii) CLARIFICATION- Providing a job offer to an H-2A worker that causes the worker to travel to or from the place of employment, or the payment or reimbursement of the transportation costs of an H-2A worker by an H-2A employer, shall not constitute an arrangement of, or participation in, such transportation.CommentsClose CommentsPermalink
`(iv) AGRICULTURAL MACHINERY AND EQUIPMENT EXCLUDED- This subsection does not apply to the transportation of an H-2A worker on a tractor, combine, harvester, picker, or other similar machinery or equipment while such worker is actually engaged in the planting, cultivating, or harvesting of agricultural commodities or the care of livestock or poultry or engaged in transportation incidental thereto.CommentsClose CommentsPermalink
`(v) COMMON CARRIERS EXCLUDED- This subsection does not apply to common carrier motor vehicle transportation in which the provider holds itself out to the general public as engaging in the transportation of passengers for hire and holds a valid certification of authorization for such purposes from an appropriate Federal, State, or local agency.CommentsClose CommentsPermalink
`(B) APPLICABILITY OF STANDARDS, LICENSING, AND INSURANCE REQUIREMENTS-CommentsClose CommentsPermalink
`(i) In general- When using, or causing to be used, any vehicle for the purpose of providing transportation to which this subparagraph applies, each employer shall--CommentsClose CommentsPermalink
`(I) ensure that each such vehicle conforms to the standards prescribed by the Secretary of Labor under section 401(b) of the Migrant and Seasonal Agricultural Worker Protection Act (
`(II) ensure that each driver has a valid and appropriate license, as provided by State law, to operate the vehicle; andCommentsClose CommentsPermalink
`(III) have an insurance policy or a liability bond that is in effect which insures the employer against liability for damage to persons or property arising from the ownership, operation, or causing to be operated, of any vehicle used to transport any H-2A worker.CommentsClose CommentsPermalink
`(ii) AMOUNT OF INSURANCE REQUIRED- The level of insurance required shall be determined by the Secretary of Labor pursuant to regulations to be issued under this subsection.CommentsClose CommentsPermalink
`(iii) EFFECT OF WORKERS' COMPENSATION COVERAGE- If the employer of any H-2A worker provides workers' compensation coverage for such worker in the case of bodily injury or death as provided by State law, the following adjustments in the requirements of subparagraph (B)(i)(III) relating to having an insurance policy or liability bond apply:CommentsClose CommentsPermalink
`(I) No insurance policy or liability bond shall be required of the employer, if such workers are transported only under circumstances for which there is coverage under such State law.CommentsClose CommentsPermalink
`(II) An insurance policy or liability bond shall be required of the employer for circumstances under which coverage for the transportation of such workers is not provided under such State law.CommentsClose CommentsPermalink
`(c) COMPLIANCE WITH LABOR LAWS- An employer shall assure that, except as otherwise provided in this section, the employer will comply with all applicable Federal, State, and local labor laws, including laws affecting migrant and seasonal agricultural workers, with respect to all United States workers and alien workers employed by the employer, except that a violation of this assurance shall not constitute a violation of the Migrant and Seasonal Agricultural Worker Protection Act (
`(d) COPY OF JOB OFFER- The employer shall provide to the worker, not later than the day the work commences, a copy of the employer's application and job offer described in section 218C(a), or, if the employer will require the worker to enter into a separate employment contract covering the employment in question, such separate employment contract.CommentsClose CommentsPermalink
`(e) RANGE PRODUCTION OF LIVESTOCK- Nothing in this section, section 218C, or section 218E shall preclude the Secretary of Labor and the Secretary from continuing to apply special procedures and requirements to the admission and employment of aliens in occupations involving the range production of livestock.CommentsClose CommentsPermalink
`(f) EVIDENCE OF NONIMMIGRANT STATUS- Each H-2A nonimmigrant shall be issued documentary evidence of nonimmigrant status, which--CommentsClose CommentsPermalink
`(1) shall be machine-readable, tamper-resistant, and shall contain a digitized photograph and other biometric identifiers that can be authenticated;CommentsClose CommentsPermalink
`(2) shall, during the alien's authorized period of admission as an H-2A nonimmigrant, serve as a valid entry document for the purpose of applying for admission to the United States--CommentsClose CommentsPermalink
`(A) instead of a passport and visa if the alien--CommentsClose CommentsPermalink
`(i) is a national of a foreign territory contiguous to the United States; andCommentsClose CommentsPermalink
`(ii) is applying for admission at a land border port of entry; orCommentsClose CommentsPermalink
`(B) in conjunction with a valid passport, if the alien is applying for admission at an air or sea port of entry;CommentsClose CommentsPermalink
`(3) may be accepted during the period of its validity by an employer as evidence of employment authorization and identity under section 274A(b)(1)(B); andCommentsClose CommentsPermalink
`(4) shall be issued to the H-2A nonimmigrant by the Secretary promptly after such alien's admission to the United States as an H-2A nonimmigrant and reporting to the employer's worksite under or, at the discretion of the Secretary, may be issued by the Secretary of State at a consulate instead of a visa.CommentsClose CommentsPermalink
`SEC. 218E. PROCEDURE FOR ADMISSION AND EXTENSION OF STAY OF H-2A WORKERS.
`(a) PETITIONING FOR ADMISSION- An employer, or an association acting as an agent or joint employer for its members, that seeks the admission into the United States of an H-2A worker may file a petition with the Secretary. The petition shall be accompanied by an accepted and currently valid certification provided by the Secretary of Labor under section 218C(e)(2)(B) covering the petitioner.CommentsClose CommentsPermalink
`(b) EXPEDITED ADJUDICATION BY THE SECRETARY- The Secretary shall establish a procedure for expedited adjudication of petitions filed under subsection (a) and within 7 working days shall, by fax, cable, or other means assuring expedited delivery, transmit a copy of notice of action on the petition to the petitioner and, in the case of approved petitions, to the appropriate immigration officer at the port of entry or United States consulate (as the case may be) where the petitioner has indicated that the alien beneficiary (or beneficiaries) will apply for a visa or admission to the United States.CommentsClose CommentsPermalink
`(c) CRITERIA FOR ADMISSIBILITY-CommentsClose CommentsPermalink
`(1) IN GENERAL- An H-2A worker shall be considered admissible to the United States if the alien is otherwise admissible under this section, section 218C, and section 218D, and the alien is not ineligible under paragraph (2).CommentsClose CommentsPermalink
`(2) DISQUALIFICATION- An alien shall be considered inadmissible to the United States and ineligible for nonimmigrant status under section 101(a)(15)(H)(ii)(a) if the alien has, at any time during the past 5 years--CommentsClose CommentsPermalink
`(A) violated a material provision of this section, including the requirement to promptly depart the United States when the alien's authorized period of admission under this section has expired; orCommentsClose CommentsPermalink
`(B) otherwise violated a term or condition of admission into the United States as a nonimmigrant, including overstaying the period of authorized admission as such a nonimmigrant.CommentsClose CommentsPermalink
`(3) WAIVER OF INELIGIBILITY FOR UNLAWFUL PRESENCE-CommentsClose CommentsPermalink
`(A) IN GENERAL- An alien who has not previously been admitted into the United States pursuant to this section, and who is otherwise eligible for admission in accordance with paragraphs (1) and (2), shall not be deemed inadmissible by virtue of section 212(a)(9)(B). If an alien described in the preceding sentence is present in the United States, the alien may apply from abroad for H-2A status, but may not be granted that status in the United States.CommentsClose CommentsPermalink
`(B) MAINTENANCE OF WAIVER- An alien provided an initial waiver of ineligibility pursuant to subparagraph (A) shall remain eligible for such waiver unless the alien violates the terms of this section or again becomes ineligible under section 212(a)(9)(B) by virtue of unlawful presence in the United States after the date of the initial waiver of ineligibility pursuant to subparagraph (A).CommentsClose CommentsPermalink
`(d) PERIOD OF ADMISSION-CommentsClose CommentsPermalink
`(1) IN GENERAL- The alien shall be admitted for the period of employment in the application certified by the Secretary of Labor pursuant to section 218C(e)(2)(B), not to exceed 10 months except as specified in paragraph (2), supplemented by a period of not more than 1 week before the beginning of the period of employment for the purpose of travel to the worksite and a period of 14 days following the period of employment for the purpose of departure or extension based on a subsequent offer of employment, except that--CommentsClose CommentsPermalink
`(A) the alien is not authorized to be employed during such 14-day period except in the employment for which the alien was previously authorized; andCommentsClose CommentsPermalink
`(B) the total period of employment, including such 14-day period, may not exceed 10 months.CommentsClose CommentsPermalink
`(2) CONSTRUCTION- Nothing in this subsection shall limit the authority of the Secretary to extend the stay of the alien under any other provision of this Act.CommentsClose CommentsPermalink
`(e) ABANDONMENT OF EMPLOYMENT-CommentsClose CommentsPermalink
`(1) IN GENERAL- An alien admitted or provided status under section 101(a)(15)(H)(ii)(a) who abandons the employment which was the basis for such admission or status shall be considered to have failed to maintain nonimmigrant status as an H-2A worker and shall depart the United States or be subject to removal under section 237(a)(1)(C)(i).CommentsClose CommentsPermalink
`(2) REPORT BY EMPLOYER- The employer, or association acting as agent for the employer, shall notify the Secretary not later than 7 days after an H-2A worker prematurely abandons employment.CommentsClose CommentsPermalink
`(3) REMOVAL BY THE SECRETARY- The Secretary shall promptly remove from the United States any H-2A worker who violates any term or condition of the worker's nonimmigrant status.CommentsClose CommentsPermalink
`(4) VOLUNTARY TERMINATION- Notwithstanding paragraph (1), an alien may voluntarily terminate his or her employment if the alien promptly departs the United States upon termination of such employment.CommentsClose CommentsPermalink
`(f) REPLACEMENT OF ALIEN-CommentsClose CommentsPermalink
`(1) IN GENERAL- Upon presentation of the notice to the Secretary required by subsection (e)(2), the Secretary of State shall promptly issue a visa to, and the Secretary shall admit into the United States, an eligible alien designated by the employer to replace an H-2A worker--CommentsClose CommentsPermalink
`(A) who abandons or prematurely terminates employment; orCommentsClose CommentsPermalink
`(B) whose employment is terminated after a United States worker is employed pursuant to section 218C(b)(2)(H)(iii), if the United States worker voluntarily departs before the end of the period of intended employment or if the employment termination is for a lawful job-related reason.CommentsClose CommentsPermalink
`(2) CONSTRUCTION- Nothing in this subsection is intended to limit any preference required to be accorded United States workers under any other provision of this Act.CommentsClose CommentsPermalink
`(g) IDENTIFICATION DOCUMENT-CommentsClose CommentsPermalink
`(1) IN GENERAL- Each alien authorized to be admitted under section 101(a)(15)(H)(ii)(a) shall be provided an identification and employment eligibility document to verify eligibility for employment in the United States and verify the alien's identity.CommentsClose CommentsPermalink
`(2) REQUIREMENTS- No identification and employment eligibility document may be issued which does not meet the following requirements:CommentsClose CommentsPermalink
`(A) The document shall be capable of reliably determining whether--CommentsClose CommentsPermalink
`(i) the individual with the identification and employment eligibility document whose eligibility is being verified is in fact eligible for employment;CommentsClose CommentsPermalink
`(ii) the individual whose eligibility is being verified is claiming the identity of another person; andCommentsClose CommentsPermalink
`(iii) the individual whose eligibility is being verified is authorized to be admitted into, and employed in, the United States as an H-2A worker.CommentsClose CommentsPermalink
`(B) The document shall be in a form that is resistant to counterfeiting and to tampering.CommentsClose CommentsPermalink
`(C) The document shall--CommentsClose CommentsPermalink
`(i) be compatible with other databases of the Secretary for the purpose of excluding aliens from benefits for which they are not eligible and determining whether the alien is unlawfully present in the United States; andCommentsClose CommentsPermalink
`(ii) be compatible with law enforcement databases to determine if the alien has been convicted of criminal offenses.CommentsClose CommentsPermalink
`(h) Extension of Stay of H-2A Aliens in the United States-CommentsClose CommentsPermalink
`(1) EXTENSION OF STAY- If an employer seeks approval to employ an H-2A alien who is lawfully present in the United States, the petition filed by the employer or an association pursuant to subsection (a), shall request an extension of the alien's stay and a change in the alien's employment.CommentsClose CommentsPermalink
`(2) LIMITATION ON FILING A PETITION FOR EXTENSION OF STAY- A petition may not be filed for an extension of an alien's stay to a date that is more than 10 months after the date of the alien's last admission to the United States under this section.CommentsClose CommentsPermalink
`(3) WORK AUTHORIZATION UPON FILING A PETITION FOR EXTENSION OF STAY-CommentsClose CommentsPermalink
`(A) IN GENERAL- An alien who is lawfully present in the United States may commence the employment described in a petition under paragraph (1) on the date on which the petition is filed.CommentsClose CommentsPermalink
`(B) DEFINITION- For purposes of subparagraph (A), the term `file' means sending the petition by certified mail via the United States Postal Service, return receipt requested, or delivered by guaranteed commercial delivery which will provide the employer with a documented acknowledgment of the date of receipt of the petition.CommentsClose CommentsPermalink
`(C) HANDLING OF PETITION- The employer shall provide a copy of the employer's petition to the alien, who shall keep the petition with the alien's identification and employment eligibility document as evidence that the petition has been filed and that the alien is authorized to work in the United States.CommentsClose CommentsPermalink
`(D) APPROVAL OF PETITION- Upon approval of a petition for an extension of stay or change in the alien's authorized employment, the Secretary shall provide a new or updated employment eligibility document to the alien indicating the new validity date, after which the alien is not required to retain a copy of the petition.CommentsClose CommentsPermalink
`(4) LIMITATION ON 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), other than a worker admitted pursuant to subsection (d)(2), is 10 months.CommentsClose CommentsPermalink
`(B) REQUIREMENT TO REMAIN OUTSIDE THE UNITED STATES-CommentsClose CommentsPermalink
`(i) IN GENERAL- Subject to clause (ii), in the case of an alien outside the United States whose period of authorized status as an H-2A worker (including any extensions) has expired, the alien may not again apply for admission to the United States as an H-2A worker unless the alien has remained outside the United States for a continuous period equal to at least 1/5 the duration of the alien's previous period of authorized status as an H-2A worker (including any extensions).CommentsClose CommentsPermalink
`(ii) EXCEPTION- Clause (i) shall not apply in the case of an alien if the alien's period of authorized status as an H-2A worker (including any extensions) was for a period of not more than 10 months and such alien has been outside the United States for at least 2 months during the 12 months preceding the date the alien again is applying for admission to the United States as an H-2A worker.CommentsClose CommentsPermalink
`(i) SPECIAL RULES FOR ALIENS EMPLOYED AS DAIRY WORKERS- Notwithstanding any provision of this Act, an alien admitted under section 101(a)(15)(H)(ii)(a) for employment as a dairy worker--CommentsClose CommentsPermalink
`(1) may be admitted for a period of up to 3 years;CommentsClose CommentsPermalink
`(2) may not be extended beyond 3 years; andCommentsClose CommentsPermalink
`(3) shall not be subject to the requirements of subsection (h)(4).CommentsClose CommentsPermalink
`SEC. 218F. WORKER PROTECTIONS AND LABOR STANDARDS ENFORCEMENT.
`(a) ENFORCEMENT AUTHORITY-CommentsClose CommentsPermalink
`(1) INVESTIGATION OF COMPLAINTS-CommentsClose CommentsPermalink
`(A) AGGRIEVED PERSON OR THIRD-PARTY COMPLAINTS- The Secretary of Labor shall establish a process for the receipt, investigation, and disposition of complaints respecting a petitioner's failure to meet a condition specified in section 218C(b), or an employer's misrepresentation of material facts in an application under section 218C(a). Complaints may be filed by any aggrieved person or organization (including bargaining representatives). No investigation or hearing shall be conducted on a complaint concerning such a failure or misrepresentation unless the complaint was filed not later than 12 months after the date of the failure, or misrepresentation, respectively. The Secretary of Labor shall conduct an investigation under this subparagraph if there is reasonable cause to believe that such a failure or misrepresentation has occurred.CommentsClose CommentsPermalink
`(B) DETERMINATION ON COMPLAINT- Under such process, the Secretary of Labor shall provide, within 30 days after the date such a complaint is filed, for a determination as to whether or not a reasonable basis exists to make a finding described in subparagraph (C), (D), (E), or (G). If the Secretary of Labor determines that such a reasonable basis exists, the Secretary of Labor shall provide for notice of such determination to the interested parties and an opportunity for a hearing on the complaint, in accordance with
`(C) FAILURES TO MEET CONDITIONS- If the Secretary of Labor finds, after notice and opportunity for a hearing, a failure to meet a condition of paragraph (1)(A), (1)(B), (1)(D), (1)(F), (2)(A), (2)(B), or (2)(G) of section 218C(b), a substantial failure to meet a condition of paragraph (1)(C), (1)(E), (2)(C), (2)(D), (2)(E), or (2)(H) of section 218C(b), or a material misrepresentation of fact in an application under section 218C(a)--CommentsClose CommentsPermalink
`(i) the Secretary of Labor shall notify the Secretary of such finding and may, in addition, impose such other administrative remedies (including civil money penalties in an amount not to exceed $1,000 per violation) as the Secretary of Labor determines to be appropriate; andCommentsClose CommentsPermalink
`(ii) the Secretary may disqualify the employer from the employment of aliens described in section 101(a)(15)(H)(ii)(a) for a period of 1 year.CommentsClose CommentsPermalink
`(D) WILLFUL FAILURES AND WILLFUL MISREPRESENTATIONS- If the Secretary of Labor finds, after notice and opportunity for hearing, a willful failure to meet a condition of section 218C(b), a willful misrepresentation of a material fact in an application under section 218C(a), or a violation of subsection (d)(1)--CommentsClose CommentsPermalink
`(i) the Secretary of Labor shall notify the Secretary of such finding and may, in addition, impose such other administrative remedies (including civil money penalties in an amount not to exceed $5,000 per violation) as the Secretary of Labor determines to be appropriate;CommentsClose CommentsPermalink
`(ii) the Secretary of Labor may seek appropriate legal or equitable relief to effectuate the purposes of subsection (d)(1); andCommentsClose CommentsPermalink
`(iii) the Secretary may disqualify the employer from the employment of H-2A workers for a period of 2 years.CommentsClose CommentsPermalink
`(E) DISPLACEMENT OF UNITED STATES WORKERS- If the Secretary of Labor finds, after notice and opportunity for hearing, a willful failure to meet a condition of section 218C(b) or a willful misrepresentation of a material fact in an application under section 218C(a), in the course of which failure or misrepresentation the employer displaced a United States worker employed by the employer during the period of employment on the employer's application under section 218C(a) or during the period of 30 days preceding such period of employment--CommentsClose CommentsPermalink
`(i) the Secretary of Labor shall notify the Secretary of such finding and may, in addition, impose such other administrative remedies (including civil money penalties in an amount not to exceed $15,000 per violation) as the Secretary of Labor determines to be appropriate; andCommentsClose CommentsPermalink
`(ii) the Secretary may disqualify the employer from the employment of H-2A workers for a period of 3 years.CommentsClose CommentsPermalink
`(F) LIMITATIONS ON CIVIL MONEY PENALTIES- The Secretary of Labor shall not impose total civil money penalties with respect to an application under section 218C(a) in excess of $90,000.CommentsClose CommentsPermalink
`(G) FAILURES TO PAY WAGES OR REQUIRED BENEFITS- If the Secretary of Labor finds, after notice and opportunity for a hearing, that the employer has failed to pay the wages, or provide the housing allowance, transportation, subsistence reimbursement, or guarantee of employment, required under section 218D(b), the Secretary of Labor shall assess payment of back wages, or other required benefits, due any United States worker or H-2A worker employed by the employer in the specific employment in question. The back wages or other required benefits under section 218D(b) shall be equal to the difference between the amount that should have been paid and the amount that actually was paid to such worker.CommentsClose CommentsPermalink
`(2) Statutory construction- Nothing in this section shall be construed as limiting the authority of the Secretary of Labor to conduct any compliance investigation under any other labor law, including any law affecting migrant and seasonal agricultural workers, or, in the absence of a complaint under this section, under section 218C or 218D.CommentsClose CommentsPermalink
`(b) RIGHTS ENFORCEABLE BY PRIVATE RIGHT OF ACTION- H-2A workers may enforce the following rights through the private right of action provided in subsection (c), and no other right of action shall exist under Federal or State law to enforce such rights:CommentsClose CommentsPermalink
`(1) The providing of housing or a housing allowance as required under section 218D(b)(1).CommentsClose CommentsPermalink
`(2) The reimbursement of transportation as required under section 218D(b)(2).CommentsClose CommentsPermalink
`(3) The payment of wages required under section 218D(b)(3) when due.CommentsClose CommentsPermalink
`(4) The benefits and material terms and conditions of employment expressly provided in the job offer described in section 218C(a)(2), not including the assurance to comply with other Federal, State, and local labor laws described in section 218D(c), compliance with which shall be governed by the provisions of such laws.CommentsClose CommentsPermalink
`(5) The guarantee of employment required under section 218D(b)(4).CommentsClose CommentsPermalink
`(6) The motor vehicle safety requirements under section 218D(b)(5).CommentsClose CommentsPermalink
`(7) The prohibition of discrimination under subsection (d)(2).CommentsClose CommentsPermalink
`(c) Private Right of Action-CommentsClose CommentsPermalink
`(1) Mediation- Upon the filing of a complaint by an H-2A worker aggrieved by a violation of rights enforceable under subsection (b), and within 60 days of the filing of proof of service of the complaint, a party to the action may file a request with the Federal Mediation and Conciliation Service to assist the parties in reaching a satisfactory resolution of all issues involving all parties to the dispute. Upon a filing of such request and giving of notice to the parties, the parties shall attempt mediation within the period specified in subparagraph (B).CommentsClose CommentsPermalink
`(A) Mediation services- The Federal Mediation and Conciliation Service shall be available to assist in resolving disputes arising under subsection (b) between H-2A workers and agricultural employers without charge to the parties.CommentsClose CommentsPermalink
`(B) 90-day limit- The Federal Mediation and Conciliation Service may conduct mediation or other nonbinding dispute resolution activities for a period not to exceed 90 days beginning on the date on which the Federal Mediation and Conciliation Service receives the request for assistance unless the parties agree to an extension of this period of time.CommentsClose CommentsPermalink
`(C) AUTHORIZATION-CommentsClose CommentsPermalink
`(i) In general- Subject to clause (ii), there are authorized to be appropriated to the Federal Mediation and Conciliation Service $500,000 for each fiscal year to carry out this section.CommentsClose CommentsPermalink
`(ii) Mediation- Notwithstanding any other provision of law, the Director of the Federal Mediation and Conciliation Service is authorized to conduct the mediation or other dispute resolution activities from any other appropriated funds available to the Director and to reimburse such appropriated funds when the funds are appropriated pursuant to this authorization, such reimbursement to be credited to appropriations currently available at the time of receipt.CommentsClose CommentsPermalink
`(2) Maintenance of civil action in district court by aggrieved person- An H-2A worker aggrieved by a violation of rights enforceable under subsection (b) by an agricultural employer or other person may file suit in any district court of the United States having jurisdiction over the parties, without regard to the amount in controversy, without regard to the citizenship of the parties, and without regard to the exhaustion of any alternative administrative remedies under this Act, not later than 3 years after the date the violation occurs.CommentsClose CommentsPermalink
`(3) Election- An H-2A worker who has filed an administrative complaint with the Secretary of Labor may not maintain a civil action under paragraph (2) unless a complaint based on the same violation filed with the Secretary of Labor under subsection (a)(1) is withdrawn before the filing of such action, in which case the rights and remedies available under this subsection shall be exclusive.CommentsClose CommentsPermalink
`(4) Preemption of state contract rights- Nothing in this Act shall be construed to diminish the rights and remedies of an H-2A worker under any other Federal or State law or regulation or under any collective bargaining agreement, except that no court or administrative action shall be available under any State contract law to enforce the rights created by this Act.CommentsClose CommentsPermalink
`(5) Waiver of rights prohibited- Agreements by employees purporting to waive or modify their rights under this Act shall be void as contrary to public policy, except that a waiver or modification of the rights or obligations in favor of the Secretary of Labor shall be valid for purposes of the enforcement of this Act. The preceding sentence may not be construed to prohibit agreements to settle private disputes or litigation.CommentsClose CommentsPermalink
`(6) Award of damages or other equitable relief-CommentsClose CommentsPermalink
`(A) If the court finds that the respondent has intentionally violated any of the rights enforceable under subsection (b), it shall award actual damages, if any, or equitable relief.CommentsClose CommentsPermalink
`(B) Any civil action brought under this section shall be subject to appeal as provided in chapter 83 of title 28, United States Code.CommentsClose CommentsPermalink
`(C) In determining the amount of damages to be awarded under subparagraph (A), the court is authorized to consider whether an attempt was made to resolve the issues in dispute before the resort to litigation.CommentsClose CommentsPermalink
`(7) Workers' compensation benefits-CommentsClose CommentsPermalink
`(A) Exclusive remedy- Notwithstanding any other provision of this section, where a State's workers' compensation law is applicable and coverage is provided for an H-2A worker, the workers' compensation benefits shall be the exclusive remedy for the loss of such worker under this section in the case of bodily injury or death in accordance with such State's workers' compensation law.CommentsClose CommentsPermalink
`(B) Relationship to other relief- The exclusive remedy prescribed in subparagraph (A) precludes the recovery under paragraph (6) of actual damages for loss from an injury or death but does not preclude other equitable relief, except that such relief shall not include back or front pay or in any manner, directly or indirectly, expand or otherwise alter or affect--CommentsClose CommentsPermalink
`(i) a recovery under a State workers' compensation law; orCommentsClose CommentsPermalink
`(ii) rights conferred under a State workers' compensation law.CommentsClose CommentsPermalink
`(C) Considerations- In determining the amount of damages to be awarded under subparagraph (A), a court may consider whether an attempt was made to resolve the issues in dispute prior to resorting to litigation.CommentsClose CommentsPermalink
`(8) Tolling of statute of limitations- If it is determined under a State workers' compensation law that the workers' compensation law is not applicable to a claim for bodily injury or death of an H-2A worker, the statute of limitations for bringing an action for actual damages for such injury or death under subsection (c) shall be tolled for the period during which the claim for such injury or death under such State workers' compensation law was pending. The statute of limitations for an action for actual damages or other equitable relief arising out of the same transaction or occurrence as the injury or death of the H-2A worker shall be tolled for the period during which the claim for such injury or death was pending under the State workers' compensation law.CommentsClose CommentsPermalink
`(9) Preclusive effect- Any settlement by an H-2A worker and an H-2A employer or any person reached through the mediation process required under subsection (c)(1) shall preclude any right of action arising out of the same facts between the parties in any Federal or State court or administrative proceeding, unless specifically provided otherwise in the settlement agreement.CommentsClose CommentsPermalink
`(10) Settlements- Any settlement by the Secretary of Labor with an H-2A employer on behalf of an H-2A worker of a complaint filed with the Secretary of Labor under this section or any finding by the Secretary of Labor under subsection (a)(1)(B) shall preclude any right of action arising out of the same facts between the parties under any Federal or State court or administrative proceeding, unless specifically provided otherwise in the settlement agreement.CommentsClose CommentsPermalink
`(d) Discrimination Prohibited-CommentsClose CommentsPermalink
`(1) In general- It is a violation of this subsection for any person who has filed an application under section 218C(a), to intimidate, threaten, restrain, coerce, blacklist, discharge, or in any other manner discriminate against an employee (which term, for purposes of this subsection, includes a former employee and an applicant for employment) because the employee has disclosed information to the employer, or to any other person, that the employee reasonably believes evidences a violation of section 218C or 218D or any rule or regulation pertaining to section 218C or 218D, or because the employee cooperates or seeks to cooperate in an investigation or other proceeding concerning the employer's compliance with the requirements of section 218C or 218D or any rule or regulation pertaining to either of such sections.CommentsClose CommentsPermalink
`(2) DISCRIMINATION AGAINST H-2A WORKERS- It is a violation of this subsection for any person who has filed an application under section 218C(a), to intimidate, threaten, restrain, coerce, blacklist, discharge, or in any manner discriminate against an H-2A employee because such worker has, with just cause, filed a complaint with the Secretary of Labor regarding a denial of the rights enumerated and enforceable under subsection (b) or instituted, or caused to be instituted, a private right of action under subsection (c) regarding the denial of the rights enumerated under subsection (b), or has testified or is about to testify in any court proceeding brought under subsection (c).CommentsClose CommentsPermalink
`(e) Authorization To Seek Other Appropriate Employment- The Secretary of Labor and the Secretary shall establish a process under which an H-2A worker who files a complaint regarding a violation of subsection (d) and is otherwise eligible to remain and work in the United States may be allowed to seek other appropriate employment in the United States for a period not to exceed the maximum period of stay authorized for such nonimmigrant classification.CommentsClose CommentsPermalink
`(f) Role of Associations-CommentsClose CommentsPermalink
`(1) Violation by a member of an association- An employer on whose behalf an application is filed by an association acting as its agent is fully responsible for such application, and for complying with the terms and conditions of sections 218C and 218D, as though the employer had filed the application itself. If such an employer is determined, under this section, to have committed a violation, the penalty for such violation shall apply only to that member of the association unless the Secretary of Labor determines that the association or other member participated in, had knowledge, or reason to know, of the violation, in which case the penalty shall be invoked against the association or other association member as well.CommentsClose CommentsPermalink
`(2) Violations by an association acting as an employer- If an association filing an application as a sole or joint employer is determined to have committed a violation under this section, the penalty for such violation shall apply only to the association unless the Secretary of Labor determines that an association member or members participated in or had knowledge, or reason to know of the violation, in which case the penalty shall be invoked against the association member or members as well.CommentsClose CommentsPermalink
`SEC. 218G. DEFINITIONS.
`For purposes of this section and section 218C, 218D, 218E, and 218F:CommentsClose CommentsPermalink
`(1) Agricultural employment- The term `agricultural employment' means any service or activity that is considered to be agricultural under section 3(f) of the Fair Labor Standards Act of 1938 (
`(2) Bona fide union- The term `bona fide union' means any organization in which employees participate and which exists for the purpose of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other terms and conditions of work for agricultural employees. Such term does not include an organization formed, created, administered, supported, dominated, financed, or controlled by an employer or employer association or its agents or representatives.CommentsClose CommentsPermalink
`(3) Displace- The term `displace', in the case of an application with respect to 1 or more H-2A workers by an employer, means laying off a United States worker from a job for which the H-2A worker or workers is or are sought.CommentsClose CommentsPermalink
`(4) Eligible- The term `eligible', when used with respect to an individual, means an individual who is not an unauthorized alien (as defined in section 274A).CommentsClose CommentsPermalink
`(5) Employer- The term `employer' means any person or entity, including any farm labor contractor and any agricultural association, that employs workers in agricultural employment.CommentsClose CommentsPermalink
`(6) H-2A employer- The term `H-2A employer' means an employer who seeks to hire 1 or more nonimmigrant aliens described in section 101(a)(15)(H)(ii)(a).CommentsClose CommentsPermalink
`(7) H-2A worker- The term `H-2A worker' means a nonimmigrant described in section 101(a)(15)(H)(ii)(a).CommentsClose CommentsPermalink
`(8) Job opportunity- The term `job opportunity' means a job opening for temporary or seasonal full-time employment at a place in the United States to which United States workers can be referred.CommentsClose CommentsPermalink
`(9) LAYING OFF-CommentsClose CommentsPermalink
`(A) IN GENERAL- The term `laying off', with respect to a worker--CommentsClose CommentsPermalink
`(i) means to cause the worker's loss of employment, other than through a discharge for inadequate performance, violation of workplace rules, cause, voluntary departure, voluntary retirement, contract impossibility (as described in section 218D(b)(4)(D)), or temporary suspension of employment due to weather, markets, or other temporary conditions; butCommentsClose CommentsPermalink
`(ii) does not include any situation in which the worker is offered, as an alternative to such loss of employment, a similar employment opportunity with the same employer (or, in the case of a placement of a worker with another employer under section 218C(b)(2)(E), with either employer described in such section) at equivalent or higher compensation and benefits than the position from which the employee was discharged, regardless of whether or not the employee accepts the offer.CommentsClose CommentsPermalink
`(B) STATUTORY CONSTRUCTION- Nothing in this paragraph is intended to limit an employee's rights under a collective bargaining agreement or other employment contract.CommentsClose CommentsPermalink
`(10) REGULATORY DROUGHT- The term `regulatory drought' means a decision subsequent to the filing of the application under section 218C by an entity not under the control of the employer making such filing which restricts the employer's access to water for irrigation purposes and reduces or limits the employer's ability to produce an agricultural commodity, thereby reducing the need for labor.CommentsClose CommentsPermalink
`(11) SEASONAL-CommentsClose CommentsPermalink
`(A) IN GENERAL- The term `seasonal', with respect to the performance of labor, means that the labor--CommentsClose CommentsPermalink
`(i) ordinarily pertains to or is of the kind exclusively performed at certain seasons or periods of the year; andCommentsClose CommentsPermalink
`(ii) because of the nature of the labor, cannot be continuous or carried on throughout the year.CommentsClose CommentsPermalink
`(B) EXCEPTION- Labor performed on a dairy farm shall be considered to be seasonal labor.CommentsClose CommentsPermalink
`(12) SECRETARY- Except as otherwise provided, the term `Secretary' means the Secretary of Homeland Security.CommentsClose CommentsPermalink
`(13) TEMPORARY- A worker is employed on a `temporary' basis where the employment is intended not to exceed 10 months.CommentsClose CommentsPermalink
`(14) UNITED STATES WORKER- The term `United States worker' means any worker, whether a national of the United States, an alien lawfully admitted for permanent residence, or any other alien, who is authorized to work in the job opportunity within the United States, except an alien admitted or otherwise provided status under section 101(a)(15)(H)(ii)(a).'.CommentsClose CommentsPermalink
(b) TABLE OF CONTENTS- The table of contents of the Immigration and Nationality Act (
`Sec.218C.H-2A employer applications.CommentsClose CommentsPermalink
`Sec.218D.H-2A employment requirements.CommentsClose CommentsPermalink
`Sec.218E.Procedure for admission and extension of stay of H-2A workers.CommentsClose CommentsPermalink
`Sec.218F.Worker protections and labor standards enforcement.CommentsClose CommentsPermalink
`Sec.218G.Definitions.'.CommentsClose CommentsPermalink
(c) CONFORMING AMENDMENT- Section 101(a)(15)(H)(ii)(a) of the Immigration and Nationality Act (
SEC. 405. DETERMINATION AND USE OF USER FEES.
(a) SCHEDULE OF FEES- The Secretary shall establish and periodically adjust a schedule of fees for the employment of aliens pursuant to the amendment made by section 404(a) of this Act and a collection process for such fees from employers. Such fees shall be the only fees chargeable to employers for services provided under such amendment.CommentsClose CommentsPermalink
(b) DETERMINATION OF SCHEDULE-CommentsClose CommentsPermalink
(1) IN GENERAL- The schedule under subsection (a) shall reflect a fee rate based on the number of job opportunities indicated in the employer's application under section 218C of the Immigration and Nationality Act, as amended by section 404 of this Act, and sufficient to provide for the direct costs of providing services related to an employer's authorization to employ aliens pursuant to the amendment made by section 404(a) of this Act, to include the certification of eligible employers, the issuance of documentation, and the admission of eligible aliens.CommentsClose CommentsPermalink
(2) PROCEDURE-CommentsClose CommentsPermalink
(A) IN GENERAL- In establishing and adjusting such a schedule, the Secretary shall comply with Federal cost accounting and fee setting standards.CommentsClose CommentsPermalink
(B) PUBLICATION AND COMMENT- The Secretary shall publish in the Federal Register an initial fee schedule and associated collection process and the cost data or estimates upon which such fee schedule is based, and any subsequent amendments thereto, pursuant to which public comment shall be sought and a final rule issued.CommentsClose CommentsPermalink
(c) USE OF PROCEEDS- Notwithstanding any other provision of law, all proceeds resulting from the payment of the fees pursuant to the amendment made by section 404(a) of this Act shall be available without further appropriation and shall remain available without fiscal year limitation to reimburse the Secretary, the Secretary of State, and the Secretary of Labor for the costs of carrying out sections 218C and 218E of the Immigration and Nationality Act, as amended and added, respectively, by section 404 of this Act, and the provisions of this Act.CommentsClose CommentsPermalink
SEC. 406. REGULATIONS.
(a) REQUIREMENT FOR THE SECRETARY TO CONSULT- The Secretary shall consult with the Secretary of Labor and the Secretary of Agriculture during the promulgation of all regulations to implement the duties of the Secretary under this Act and the amendments made by this Act.CommentsClose CommentsPermalink
(b) REQUIREMENT FOR THE SECRETARY OF STATE TO CONSULT- The Secretary of State shall consult with the Secretary, the Secretary of Labor, and the Secretary of Agriculture on all regulations to implement the duties of the Secretary of State under this Act and the amendments made by this Act.CommentsClose CommentsPermalink
(c) REQUIREMENT FOR THE SECRETARY OF LABOR TO CONSULT- The Secretary of Labor shall consult with the Secretary of Agriculture and the Secretary on all regulations to implement the duties of the Secretary of Labor under this Act and the amendments made by this Act.CommentsClose CommentsPermalink
(d) DEADLINE FOR ISSUANCE OF REGULATIONS- All regulations to implement the duties of the Secretary, the Secretary of State, and the Secretary of Labor created under sections 218C, 218D, 218E, 218F, and 218G of the Immigration and Nationality Act, as amended or added by section 404 of this Act, shall take effect on the effective date of section 404 and shall be issued not later than 1 year after the date of enactment of this Act, or the date such regulations are promulgated, whichever is sooner.CommentsClose CommentsPermalink
SEC. 407. REPORTS TO CONGRESS.
(a) ANNUAL REPORT- Not later than September 30 of each year, the Secretary shall submit a report to Congress that identifies, for the previous year--CommentsClose CommentsPermalink
(1) the number of job opportunities approved for employment of aliens admitted under section 101(a)(15)(H)(ii)(a) of the Immigration and Nationality Act (
(2) the number of such aliens reported to have abandoned employment pursuant to subsection 218E(e)(2) of such Act;CommentsClose CommentsPermalink
(3) the number of such aliens who departed the United States within the period specified in subsection 218E(d) of such Act;CommentsClose CommentsPermalink
(4) the number of aliens who applied for adjustment of status pursuant to section 623;CommentsClose CommentsPermalink
(5) the number of such aliens whose status was adjusted under section 623;CommentsClose CommentsPermalink
(6) the number of aliens who applied for permanent residence pursuant to section 214A(j) of the Immigration and Nationality Act, as amended by 623(b); andCommentsClose CommentsPermalink
(7) the number of such aliens who were approved for permanent residence pursuant to section 214A(j) of the Immigration and Nationality Act, as amended by 623(b).CommentsClose CommentsPermalink
(b) IMPLEMENTATION REPORT- Not later than 180 days after the date of the enactment of this Act, the Secretary shall prepare and submit to Congress a report that describes the measures being taken and the progress made in implementing this Act.CommentsClose CommentsPermalink
SEC. 408. EFFECTIVE DATE.
Except as otherwise provided, sections 404 and 405 shall take effect 1 year after the date of the enactment of this Act, or the date such regulations are promulgated, whichever is sooner.CommentsClose CommentsPermalink
SEC. 409. NUMERICAL LIMITATIONS.
Section 214(g) of the Act (
(1) in paragraph (1)--CommentsClose CommentsPermalink
(A) by striking `(beginning with fiscal year 1992)';CommentsClose CommentsPermalink
(B) by striking subparagraph (B) and inserting the following:CommentsClose CommentsPermalink
`(B) under section 101(a)(15)(Y)(i), may not exceed 200,000 for each fiscal year; orCommentsClose CommentsPermalink
`(C) under section 101(a)(15)(Y)(iii), may not exceed twenty percent of the annual limit on admissions of aliens under section 101(a)(15)(Y)(i) for that fiscal year; orCommentsClose CommentsPermalink
`(D) under section 101(a)(15)(Y)(ii)(II), may not exceed--CommentsClose CommentsPermalink
`(i) 100,000 for the first fiscal year in which the program is implemented;CommentsClose CommentsPermalink
`(ii) in any subsequent fiscal year, subject to clause (iii), the number for the previous fiscal year as adjusted in accordance with the method set forth in paragraph (2); andCommentsClose CommentsPermalink
`(iii) 200,000 for any fiscal year.';CommentsClose CommentsPermalink
andCommentsClose CommentsPermalink
(2) by renumbering paragraph (2) as paragraph (3), and renumbering all subsequent paragraphs accordingly, and inserting the following as paragraph (2):CommentsClose CommentsPermalink
`(2) MARKET-BASED ADJUSTMENT- With respect to the numerical limitation set in subparagraph (A)(ii) or (D)(ii) of paragraph (1)--CommentsClose CommentsPermalink
`(A) if the total number of visas allocated for that fiscal year are allotted within the first half of that fiscal year, then an additional 15 percent of the allocated number shall be made available immediately and the allocated amount for the following fiscal year shall increase by 15 percent of the original allocated amount in the prior fiscal year;CommentsClose CommentsPermalink
`(B) if the total number of visas allocated for that fiscal year are allotted within the second half of that fiscal year, then the allocated amount for the following fiscal year shall increase by 10 percent of the original allocated amount in the prior fiscal year; andCommentsClose CommentsPermalink
`(C) with the exception of the first subsequent fiscal year to the fiscal year in which the program is implemented, if fewer visas were allotted the previous fiscal year than the number of visas allocated for that year and the reason was not due to processing delays or delays in promulgating regulations, then the allocated amount for the following fiscal year shall decrease by 10 percent of the allocated amount in the prior fiscal year.'CommentsClose CommentsPermalink
(3) in paragraph (9)(A) by striking `an alien who has already been counted toward the numerical limitation of paragraph (1)(B) during fiscal year 2004, 2005, or 2006 shall not again be counted toward such limitation during fiscal year 2007.' and inserting `an alien who has been present in the United States as an H-2B nonimmigrant during any 1 of 3 fiscal years immediately preceding the fiscal year of the approved start date of a petition for a nonimmigrant worker described in section 101(a)(15)(H)(ii)(b) shall not be counted toward such limitation for the fiscal year in which the petition is approved. Such alien shall be considered a returning worker.'CommentsClose CommentsPermalink
SEC. 410. REQUIREMENTS FOR PARTICIPATING COUNTRIES.
(a) IN GENERAL- The Secretary of State, in cooperation with the Secretary and the Attorney General, may, as a condition of authorizing the grant of nonimmigrant visas for Y nonimmigrants who are citizens or nationals of any foreign country, negotiate with each such country to enter into a bilateral agreement with the United States that conforms to the requirements under subsection (b).CommentsClose CommentsPermalink
(b) REQUIREMENTS OF BILATERAL AGREEMENTS- It is the sense of Congress that each agreement negotiated under subsection (a) shall require the participating home country to--CommentsClose CommentsPermalink
(1) accept the return of nationals who are ordered removed from the United States within 3 days of such removal;CommentsClose CommentsPermalink
(2) cooperate with the United States Government to--CommentsClose CommentsPermalink
(A) identify, track, and reduce gang membership, violence, and human trafficking and smuggling; andCommentsClose CommentsPermalink
(B) control illegal immigration;CommentsClose CommentsPermalink
(3) provide the United States Government with--CommentsClose CommentsPermalink
(A) passport information and criminal records of aliens who are seeking admission to, or are present in, the United States; andCommentsClose CommentsPermalink
(B) admission and entry data to facilitate United States entry-exit data systems;CommentsClose CommentsPermalink
(4) educate nationals of the home country regarding United States temporary worker programs to ensure that such nationals are not exploited; andCommentsClose CommentsPermalink
(5) evaluate means to provide housing incentives in the alien's home country for returning workers; andCommentsClose CommentsPermalink
(6) agree to such other terms as the Secretary of State considers appropriate and necessary.CommentsClose CommentsPermalink
SEC. 411. COMPLIANCE INVESTIGATORS.
(a) The Secretary of Labor, subject to the availability of appropriations for such purpose, shall increase, by not less than 200 per year for each of the five fiscal years after the date of enactment of [name of bill], the number of positions for compliance investigators and attorneys dedicated to the enforcement of labor standards, including those contained in sections 218A, 218B, and 218C, the Fair Labor Standards Act of 1938 (
SEC. 412. STANDING COMMISSION ON IMMIGRATION AND LABOR MARKETS.
(a) ESTABLISHMENT OF COMMISSION-CommentsClose CommentsPermalink
(1) IN GENERAL- There is established an independent Federal agency within the Executive Branch to be known as the Standing Commission on Immigration and Labor Markets (referred to in this section as the `Commission').CommentsClose CommentsPermalink
(2) PURPOSES- The purposes of the Commission are--CommentsClose CommentsPermalink
(A) to study nonimmigrant programs and the numerical limits imposed by law on admission of nonimmigrants;CommentsClose CommentsPermalink
(B) to study the numerical limits imposed by law on immigrant visas;CommentsClose CommentsPermalink
(C) to study the allocation of immigrant visas through the merit-based system;CommentsClose CommentsPermalink
(D) to make recommendations to the President and Congress with respect to such programs.CommentsClose CommentsPermalink
(3) MEMBERSHIP- The Commission shall be composed of--CommentsClose CommentsPermalink
(A) 6 voting members--CommentsClose CommentsPermalink
(i) who shall be appointed by the President, with the advice and consent of the Senate, not later than 6 months after the establishment of the Y Nonimmigrant Worker Program;CommentsClose CommentsPermalink
(ii) who shall serve for 3-year staggered terms, which can be extended for 1 additional 3-year term;CommentsClose CommentsPermalink
(iii) who shall select a Chair from among the voting members to serve a 2-year term, which can be extended for 1 additional 2-year term;CommentsClose CommentsPermalink
(iv) who shall have expertise in economics, demography, labor, business, or immigration or other pertinent qualifications or experience;CommentsClose CommentsPermalink
(v) who may not be an employee of the Federal Government or of any State or local government; andCommentsClose CommentsPermalink
(vi) not more than 3 of whom may be members of the same political party.CommentsClose CommentsPermalink
(B) 7 ex-officio members, including--CommentsClose CommentsPermalink
(i) the Secretary;CommentsClose CommentsPermalink
(ii) the Secretary of State;CommentsClose CommentsPermalink
(iii) the Attorney General;CommentsClose CommentsPermalink
(iv) the Secretary of Labor;CommentsClose CommentsPermalink
(v) the Secretary of Commerce;CommentsClose CommentsPermalink
(vi) the Secretary of Health and Human Services; andCommentsClose CommentsPermalink
(vii) the Secretary of Agriculture.CommentsClose CommentsPermalink
(4) VACANCIES- Any vacancy in the Commission shall be filled in the same manner as the original appointment.CommentsClose CommentsPermalink
(5) Meetings-CommentsClose CommentsPermalink
(A) INITIAL MEETING- The Commission shall meet and begin carrying out the duties described in subsection (b) as soon as practicable.CommentsClose CommentsPermalink
(B) SUBSEQUENT MEETINGS- After its initial meeting, the Commission shall meet at least once per quarter upon the call of the Chair or a majority of its members.CommentsClose CommentsPermalink
(C) QUORUM- Four voting members of the Commission shall constitute a quorum.CommentsClose CommentsPermalink
(b) DUTIES OF THE COMMISSION- The Commission shall--CommentsClose CommentsPermalink
(1) examine and analyze--CommentsClose CommentsPermalink
(A) the development and implementation of the programs;CommentsClose CommentsPermalink
(B) the criteria for the admission of nonimmigrant workers;CommentsClose CommentsPermalink
(C) the formula for determining the annual numerical limitations of nonimmigrant workers;CommentsClose CommentsPermalink
(D) the impact of nonimmigrant workers on immigration;CommentsClose CommentsPermalink
(E) the impact of nonimmigrant workers on the economy, unemployment rate, wages, workforce, and businesses of the United States;CommentsClose CommentsPermalink
(F) the numerical limits imposed by law on immigrant visas and its effect on the economy, unemployment rate, wages, workforce, and businesses of the United States;CommentsClose CommentsPermalink
(G) the allocation of immigrant visas through the evaluation system established by title V of this Act; andCommentsClose CommentsPermalink
(H) any other matters regarding the programs that the Commission considers appropriate;CommentsClose CommentsPermalink
(2) not later than 18 months after the date of enactment, and every year thereafter, submit a report to the President and Congress that--CommentsClose CommentsPermalink
(A) contains the findings of the analysis conducted under paragraph (1);CommentsClose CommentsPermalink
(B) makes recommendations regarding the necessary adjustments to the programs studied to meet the labor market needs of the United States; andCommentsClose CommentsPermalink
(C) makes other recommendations regarding the programs, including legislative or administrative action, that the Commission determines to be in the national interest.CommentsClose CommentsPermalink
(c) Information and Assistance From Federal Agencies-CommentsClose CommentsPermalink
(1) INFORMATION- The head of any Federal department or agency that receives a request from the Commission for information, including suggestions, estimates, and statistics, as the Commission considers necessary to carry out the provisions of this section, shall furnish such information to the Commission, to the extent allowed by law.CommentsClose CommentsPermalink
(2) ASSISTANCE-CommentsClose CommentsPermalink
(A) GENERAL SERVICES ADMINISTRATION- The Administrator of General Services shall, on a reimbursable basis, provide the Commission with administrative support and other services for the performance of the Commission's functions.CommentsClose CommentsPermalink
(B) OTHER FEDERAL AGENCIES- The departments and agencies of the United States may provide the Commission with such services, funds, facilities, staff, and other support services as the heads of such departments and agencies determine advisable and authorized by law.CommentsClose CommentsPermalink
(d) Personnel Matters-CommentsClose CommentsPermalink
(1) Staff-CommentsClose CommentsPermalink
(A) APPOINTMENT AND COMPENSATION- The Chair, in accordance with rules agreed upon by the Commission, may appoint and fix the compensation of a staff director and such other personnel as may be necessary to enable the Commission to carry out its functions.CommentsClose CommentsPermalink
(B) Federal employees-CommentsClose CommentsPermalink
(i) IN GENERAL- Except as provided under clause (ii), the executive director and any personnel of the Commission who are employees shall be considered to be employees under
(ii) COMMISSION MEMBERS- Clause (i) shall not apply to members of the Commission.CommentsClose CommentsPermalink
(2) DETAILEES- Any employee of the Federal Government may be detailed to the Commission without reimbursement from the Commission. Such detailee shall retain the rights, status, and privileges of his or her regular employment without interruption.CommentsClose CommentsPermalink
(3) CONSULTANT SERVICES- The Commission may procure the services of experts and consultants in accordance with
(e) Compensation and Travel Expenses-CommentsClose CommentsPermalink
(1) COMPENSATION- Each voting member of the Commission may be compensated at a rate not to exceed the daily equivalent of the annual rate of basic pay in effect for a position at level IV of the Executive Schedule under
(2) TRAVEL EXPENSES- Members of the Commission shall be allowed travel expenses, including per diem in lieu of subsistence, under
(f) FUNDING- Fees and fines deposited into the Temporary Worker Program Account under section 286(w) of the Immigration and Nationality Act, as added by section 402 of [name of the Act], may be used by the Commission to carry out its duties under this section.CommentsClose CommentsPermalink
SEC. 412. AGENCY REPRESENTATION AND COORDINATION.
Section 274A(e) (
(1) in paragraph (2)--CommentsClose CommentsPermalink
(A) in subparagraph (A), by striking the comma at the end and inserting a semicolon;CommentsClose CommentsPermalink
(B) in subparagraph (B), by striking `, and' and inserting a semicolon;CommentsClose CommentsPermalink
(C) in subparagraph (C), by striking `paragraph (2).' and inserting `paragraph (1); and'; andCommentsClose CommentsPermalink
(D) by inserting after subparagraph (C) the following:CommentsClose CommentsPermalink
`(D) United States Immigration and Customs Enforcement officials may not misrepresent to employees or employers that they are a member of any agency or organization that provides domestic violence services, enforces health and safety law, provides health care services, or any other services intended to protect life and safety.'.CommentsClose CommentsPermalink
SEC. 413. BILATERAL EFFORTS WITH MEXICO TO REDUCE MIGRATION PRESSURES AND COSTS.
(a) FINDINGS- Congress makes the following findings:CommentsClose CommentsPermalink
(1) Migration from Mexico to the United States is directly linked to the degree of economic opportunity and the standard of living in Mexico.CommentsClose CommentsPermalink
(2) Mexico comprises a prime source of migration to the United States.CommentsClose CommentsPermalink
(3) Remittances from Mexican citizens working in the United States reached a record high of nearly $17,000,000,000 in 2004.CommentsClose CommentsPermalink
(4) Migration patterns may be reduced from Mexico to the United States by addressing the degree of economic opportunity available to Mexican citizens.CommentsClose CommentsPermalink
(5) Many Mexican assets are held extra-legally and cannot be readily used as collateral for loans.CommentsClose CommentsPermalink
(6) A majority of Mexican businesses are small or medium size with limited access to financial capital.CommentsClose CommentsPermalink
(7) These factors constitute a major impediment to broad-based economic growth in Mexico.CommentsClose CommentsPermalink
(8) Approximately 20 percent of Mexico's population works in agriculture, with the majority of this population working on small farms and few on large commercial enterprises.CommentsClose CommentsPermalink
(9) The Partnership for Prosperity is a bilateral initiative launched jointly by the President of the United States and the President of Mexico in 2001, which aims to boost the social and economic standards of Mexican citizens, particularly in regions where economic growth has lagged and emigration has increased.CommentsClose CommentsPermalink
(10) The Presidents of Mexico and the United States and the Prime Minister of Canada, at their trilateral summit on March 23, 2005, agreed to promote economic growth, competitiveness, and quality of life in the agreement on Security and Prosperity Partnership of North America.CommentsClose CommentsPermalink
(b) SENSE OF CONGRESS REGARDING PARTNERSHIP FOR PROSPERITY- It is the sense of Congress that the United States and Mexico should accelerate the implementation of the Partnership for Prosperity to help generate economic growth and improve the standard of living in Mexico, which will lead to reduced migration, by--CommentsClose CommentsPermalink
(1) increasing access for poor and under served populations in Mexico to the financial services sector, including credit unions;CommentsClose CommentsPermalink
(2) assisting Mexican efforts to formalize its extra-legal sector, including the issuance of formal land titles, to enable Mexican citizens to use their assets to procure capital;CommentsClose CommentsPermalink
(3) facilitating Mexican efforts to establish an effective rural lending system for small- and medium-sized farmers that will--CommentsClose CommentsPermalink
(A) provide long term credit to borrowers;CommentsClose CommentsPermalink
(B) develop a viable network of regional and local intermediary lending institutions; andCommentsClose CommentsPermalink
(C) extend financing for alternative rural economic activities beyond direct agricultural production;CommentsClose CommentsPermalink
(4) expanding efforts to reduce the transaction costs of remittance flows in order to increase the pool of savings available to help finance domestic investment in Mexico;CommentsClose CommentsPermalink
(5) encouraging Mexican corporations to adopt internationally recognized corporate governance practices, including anti-corruption and transparency principles;CommentsClose CommentsPermalink
(6) enhancing Mexican efforts to strengthen governance at all levels, including efforts to improve transparency and accountability, and to eliminate corruption, which is the single biggest obstacle to development;CommentsClose CommentsPermalink
(7) assisting the Government of Mexico in implementing all provisions of the Inter-American Convention Against Corruption (ratified by Mexico on May 27, 1997) and urging the Government of Mexico to participate fully in the Convention's formal implementation monitoring mechanism;CommentsClose CommentsPermalink
(8) helping the Government of Mexico to strengthen education and training opportunities throughout the country, with a particular emphasis on improving rural education; andCommentsClose CommentsPermalink
(9) encouraging the Government of Mexico to create incentives for persons who have migrated to the United States to return to Mexico.CommentsClose CommentsPermalink
(c) SENSE OF CONGRESS REGARDING BILATERAL PARTNERSHIP ON HEALTH CARE- It is the sense of Congress that the Government of the United States and the Government of Mexico should enter into a partnership to examine uncompensated and burdensome health care costs incurred by the United States due to legal and illegal immigration, including--CommentsClose CommentsPermalink
(1) increasing health care access for poor and under served populations in Mexico;CommentsClose CommentsPermalink
(2) assisting Mexico in increasing its emergency and trauma health care facilities along the border, with emphasis on expanding prenatal care in the United States-Mexico border region;CommentsClose CommentsPermalink
(3) facilitating the return of stable, incapacitated workers temporarily employed in the United States to Mexico in order to receive extended, long-term care in their home country; andCommentsClose CommentsPermalink
(4) helping the Government of Mexico to establish a program with the private sector to cover the health care needs of Mexican nationals temporarily employed in the United States.CommentsClose CommentsPermalink
SEC. 414. WILLING WORKER-WILLING EMPLOYER ELECTRONIC DATABASE.
(a) Electronic Job Registry Link-CommentsClose CommentsPermalink
(1) The Secretary of Labor shall establish a publicly accessible Web page on the internet website of the Department of Labor that provides a single Internet link to each State workforce agency's statewide electronic registry of jobs available throughout the United States to United States workers.CommentsClose CommentsPermalink
(2) The Secretary of Labor shall promulgate regulations regarding the maintenance of electronic job registry records by the employer for the purpose of audit or investigations.CommentsClose CommentsPermalink
(3) The Secretary of Labor shall ensure that job opportunities advertised on a State workforce agency statewide electronic job registry established under this section are accessible--CommentsClose CommentsPermalink
(A) by the State workforce agencies, which may further disseminate job opportunity information to interested parties; andCommentsClose CommentsPermalink
(B) through the internet, for access by workers, employers, labor organizations and other interested parties.CommentsClose CommentsPermalink
(4) The Secretary of Labor may work with private companies and nonprofit organizations in the development and operation of the job registry link and system under paragraph (1).CommentsClose CommentsPermalink
(b) Electronic Registry of Certified Applications-CommentsClose CommentsPermalink
(1) The Secretary of Labor shall compile, on a current basis, a registry (by employer and by occupational classification) of the approved labor certification applications filed under this program. Such registry shall include the wage rate, number of workers sought, period of intended employment, and date of need. The Secretary of Labor shall make such registry publicly available through an Internet website.CommentsClose CommentsPermalink
(2) The Secretary of Labor may consult with the Secretary of Homeland Security, and others as appropriate, in the establishment of the registry described in paragraph (1) to ensure its compatibility with any system designed to track Y nonimmigrant employment that is operated and maintained by the Secretary of Homeland Security.CommentsClose CommentsPermalink
(3) The Secretary of Labor shall ensure that job opportunities advertised on the electronic job registry established under this subsection are accessible by the State workforce agencies, which may further disseminate job opportunity information to other interested parties.CommentsClose CommentsPermalink
SEC. 415. ENUMERATION OF SOCIAL SECURITY NUMBER.
The Secretary of Homeland Security, in coordination with the Commissioner of the Social Security Administration, shall implement a system to allow for the prompt enumeration of a Social Security number after the Secretary of Homeland Security has granted an alien Y nonimmigrant status.CommentsClose CommentsPermalink
SEC. 416. CONTRACTING.
Nothing in this section shall be construed to limit the authority of the Secretary of Homeland Security or Secretary of Labor to contract with or license United States entities, as provided for in regulation, to implement any provision of this title, either entirely or in part, to the extent that each Secretary in his discretion determines that such implementation is feasible, cost-effective, secure, and in the interest of the United States. However, nothing in this provision shall be construed to alter or amend any of the requirements of OMB Circular A-76 or any other current law governing federal contracting. Any inherently governmental work already performed by employees of the Department of Homeland Security or the Department of Labor, or any inherently governmental work generated by the requirements of this legislation, shall continue to be performed by Federal employees, and any current commercial work, or new commercial work generated by the requirements of this legislation, that is subject to public-private competition under OMB Circular A-76 or any other relevant law shall continue to be subject to public-private competition.CommentsClose CommentsPermalink
SEC. 417. FEDERAL RULEMAKING REQUIREMENTS.
(a) The Secretaries of Labor and Homeland Security shall each issue an interim final rule within six months of the date of enactment of this subtitle to implement this title and the amendments made by this title. Each such interim final rule shall become effective immediately upon publication in the Federal Register. Each such interim final rule shall sunset two years after issuance unless the relevant Secretary issues a final rule within two years of the issuance of the interim final rule.CommentsClose CommentsPermalink
(b) The exemption provided under subsection (a) shall sunset no later than two years after the date of enactment of this title, provided that, such sunset shall not be construed to impose any requirements on, or affect the validity of, any rule issued or other action taken by either Secretary under such exemption.CommentsClose CommentsPermalink
Subtitle C--Nonimmigrant Visa Reform
SEC. 418. STUDENT VISAS.
(a) IN GENERAL- Section 101(a)(15)(F) of the Immigration and Nationality Act (
(1) in clause (i)--CommentsClose CommentsPermalink
(A) by striking `who is' and inserting, `who is--CommentsClose CommentsPermalink
(B) by striking `consistent with section 214(l)' and inserting `consistent with section 214(m)';CommentsClose CommentsPermalink
(C) by striking the comma at the end and inserting the following: `; orCommentsClose CommentsPermalink
`(II) engaged in temporary employment for optional practical training for an aggregate period of not more than 24 months and related to such alien's major area of study, where such alien has been lawfully enrolled on a full time basis as a nonimmigrant under clause (i) or (iv) at a college, university, conservatory, or seminary described in subclause (i)(I) for one full academic year and such employment occurs:CommentsClose CommentsPermalink
`(aa) during the student's annual vacation and at other times when school is not in session, if the student is currently enrolled, and is eligible for registration and intends to register for the next term or session;CommentsClose CommentsPermalink
`(bb) while school is in session, provided that practical training does not exceed 20 hours a week while school is in session; orCommentsClose CommentsPermalink
`(cc) within a 26-month period after completion of all course requirements for the degree (excluding thesis or equivalent);'; andCommentsClose CommentsPermalink
(D) by striking `Attorney General' the two times that phrase appears and inserting `Secretary of Homeland Security'.CommentsClose CommentsPermalink
(2) in clause (ii)--CommentsClose CommentsPermalink
(A) by inserting `or (iv)' after `clause (i)'; andCommentsClose CommentsPermalink
(B) by striking `, and' and inserting a semicolon; andCommentsClose CommentsPermalink
(3) by adding at the end the following:CommentsClose CommentsPermalink
`(iv) an alien described in clause (i), except that the alien is not required to have a residence in a foreign country that the alien has no intention of abandoning, who has been accepted at and plans to attend an accredited graduate program in mathematics, engineering, information technology, or the natural sciences in the United States for the purpose of obtaining an advanced degree; andCommentsClose CommentsPermalink
`(v) an alien who maintains actual residence and place of abode in the alien's country of nationality, who is described in clause (i), except that the alien's actual course of study may involve a distance learning program, for which the alien is temporarily visiting the United States for a period not to exceed 30 days;'.CommentsClose CommentsPermalink
(b) Off Campus Work Authorization for Foreign Students-CommentsClose CommentsPermalink
(1) IN GENERAL- An alien admitted as a nonimmigrant student described in section 101(a)(15)(F) of the Immigration and Nationality Act (
(A) the alien has enrolled full-time at the educational institution and is maintaining good academic standing;CommentsClose CommentsPermalink
(B) the employer provides the educational institution and the Secretary of Labor with an attestation that the employer--CommentsClose CommentsPermalink
(i) has spent at least 21 days recruiting United States workers to fill the position; andCommentsClose CommentsPermalink
(ii) will pay the alien and other similarly situated workers at a rate equal to not less than the greater of--CommentsClose CommentsPermalink
(I) the actual wage level for the occupation at the place of employment; orCommentsClose CommentsPermalink
(II) the prevailing wage level for the occupation in the area of employment; andCommentsClose CommentsPermalink
(C) the alien will not be employed more than--CommentsClose CommentsPermalink
(i) 20 hours per week during the academic term; orCommentsClose CommentsPermalink
(ii) 40 hours per week during vacation periods and between academic terms.CommentsClose CommentsPermalink
(2) DISQUALIFICATION- If the Secretary of Labor determines that an employer has provided an attestation under paragraph (1)(B) that is materially false or has failed to pay wages in accordance with the attestation, the employer, after notice and opportunity for a hearing, may be disqualified for a period of no more than 5 years from employing an alien student under paragraph (1).CommentsClose CommentsPermalink
(3) SOCIAL SECURITY- Any employment engaged in by a student pursuant to paragraph (1) of this subsection shall, for purposes of section 210 of the Social Security Act (42 USC 410) and section 3121 of the Internal Revenue Code (26 USC 3121), not be considered to be for a purpose related to section 101(a)(15)(F) of the Immigration and Nationality Act.CommentsClose CommentsPermalink
(c) CLARIFYING THE IMMIGRANT INTENT PROVISION- Subsection (b) of section 214 of the Immigration and Nationality Act (
(1) by striking the parenthetical phrase `(other than a nonimmigrant described in subparagraph (L) or (V) of section 101(a)(15), and other than a nonimmigrant described in any provision of section 101(a)(15)(H)(i) except subclause (b1) of such section)' in the first sentence; andCommentsClose CommentsPermalink
(2) by striking `under section 101(a)(15)' and inserting in its place `under the immigration laws.'.CommentsClose CommentsPermalink
(d) GRANTING DUAL INTENT TO CERTAIN NONIMMIGRANT STUDENTS- Subsection (h) of section 214 of the Immigration and Nationality Act (
(1) by inserting `(F)(iv),' following `(H)(i)(b) or (c),'; andCommentsClose CommentsPermalink
(2) by striking `if the alien had obtained a change of status' and inserting in its place `if the alien had been admitted as, provided status as, or obtained a change of status'.CommentsClose CommentsPermalink
SEC. 419. H-1B STREAMLINING AND SIMPLIFICATION.
(a) H-1B Amendments- Section 214(g) of the Immigration and Nationality Act (
(1) in paragraph (1) by deleting clauses (i) through (vii) of subparagraph (A) and inserting in their place--CommentsClose CommentsPermalink
`(i) 115,000 in fiscal year 2008;CommentsClose CommentsPermalink
`(ii) in any subsequent fiscal year, subject to clause (iii), the number for the previous fiscal year as adjusted in accordance with the method set forth in paragraph (2); andCommentsClose CommentsPermalink
`(iii) 180,000 for any fiscal year; or'.CommentsClose CommentsPermalink
(2) in paragraph (9), as renumbered by Section 405--CommentsClose CommentsPermalink
(A) by striking `The annual numeric limitations described in clause (i) shall not exceed' from subclause (ii) of subparagraph (B) and inserting the following: `Without respect to the annual numeric limitation described in clause (i), the Secretary may issue a visa or otherwise grant nonimmigrant status pursuant to section 1101(a)(15)(H)(i)(b) in the following quantities:';CommentsClose CommentsPermalink
(B) by striking subparagraph (B)(iv); andCommentsClose CommentsPermalink
(C) by striking subparagraph (D).CommentsClose CommentsPermalink
(b) REQUIRING A DEGREE- Paragraph (2) of section 214(i) of the Immigration and Nationality Act (
(1) by deleting the comma at the end of subparagraph (A) and inserting in its place `; and'; andCommentsClose CommentsPermalink
(2) by striking subparagraphs (B) and (C) and inserting the following:CommentsClose CommentsPermalink
`(B) attainment of a bachelor's or higher degree in the specific specialty from an educational institution in the United States accredited by a nationally recognized accrediting agency or association (or an equivalent degree from a foreign educational institution that is equivalent to such an institution) as a minimum for entry into the occupation in the United States.'.CommentsClose CommentsPermalink
(c) Provision of W-2 Forms- Section 214(g)(5) of the Immigration and Nationality Act (
`(5) In the case of a nonimmigrant described in section 1101(a)(15)(H)(i)(b) of this title--CommentsClose CommentsPermalink
`(A) The period of authorized admission as such a nonimmigrant may not exceed six years; [Provided that, this provision shall not apply to such a nonimmigrant who has filed a petition for an immigrant visa under section 203(b)(1), if 365 days or more have elapsed since filing and it has not been denied, in which case the Secretary of Homeland Security may extend the stay of an alien in one-year increments until such time as a final decision is made on the alien's lawful permanent residence].CommentsClose CommentsPermalink
`(B) If the alien is granted an initial period of admission less than six years, any subsequent application for an extension of stay for such alien must include the Form W-2 Wage and Tax Statement filed by the employer for such employee, and such other form or information relating to such employment as the Secretary of Homeland Security may in his discretion specify, with respect to such nonimmigrant alien employee for the period of admission granted to the alien.CommentsClose CommentsPermalink
`(C) Notwithstanding
(d) Extension of H-1B Status for Merit-Based Adjustment Applicants-CommentsClose CommentsPermalink
(1) Section 214(g)(4) of the Immigration and Nationality Act (
(2) Sections 106(a) and 106(b) of the American Competitiveness in the Twenty-First Century Act of 2000--Immigration Services and Infrastructure Improvements Act of 2000,
SEC. 420. H-1B EMPLOYER REQUIREMENTS.
(a) Application of Nondisplacement and Good Faith Recruitment Requirements to All H-1B Employers-CommentsClose CommentsPermalink
(1) AMENDMENTS- Section 212(n) of the Immigration and Nationality Act (
(A) in paragraph (1)--CommentsClose CommentsPermalink
(i) in subparagraph (E);CommentsClose CommentsPermalink
(I) in clause (i), by striking `(E)(i) In the case of an application described in clause (ii), the' and inserting `(E) The'; andCommentsClose CommentsPermalink
(II) by striking clause (ii);CommentsClose CommentsPermalink
(ii) in subparagraph (F), by striking `In the case of' and all that follows through `where--' and inserting the following: `The employer will not place the nonimmigrant with another employer if--'; andCommentsClose CommentsPermalink
(iii) in subparagraph (G), by striking `In the case of an application described in subparagraph (E)(ii), subject' and inserting `Subject';CommentsClose CommentsPermalink
(B) in paragraph (2)--CommentsClose CommentsPermalink
(i) in subparagraph (E), by striking `If an H-1B-dependent employer' and inserting `If an employer that employs H-1B nonimmigrants'; andCommentsClose CommentsPermalink
(ii) in subparagraph (F), by striking `The preceding sentence shall apply to an employer regardless of whether or not the employer is an H-1B-dependent employer.'; andCommentsClose CommentsPermalink
(C) by striking paragraph (3).CommentsClose CommentsPermalink
(2) EFFECTIVE DATE- The amendments made by paragraph (1) shall apply to applications filed on or after the date of the enactment of this Act.CommentsClose CommentsPermalink
(b) Nondisplacement Requirement-CommentsClose CommentsPermalink
(1) EXTENDING TIME PERIOD FOR NONDISPLACEMENT- Section 212(n) of such Act, as amended by subsection (a), is further amended--CommentsClose CommentsPermalink
(A) in paragraph (1)--CommentsClose CommentsPermalink
(i) in subparagraph (E), by striking `90 days' each place it appears and inserting `180 days';CommentsClose CommentsPermalink
(ii) in subparagraph (F)(ii), by striking `90 days' each place it appears and inserting `180 days'; andCommentsClose CommentsPermalink
(B) in paragraph (2)(C)(iii), by striking `90 days' each place it appears and inserting `180 days'.CommentsClose CommentsPermalink
(2) EFFECTIVE DATE- The amendments made by paragraph (1)--CommentsClose CommentsPermalink
(A) shall apply to applications filed on or after the date of the enactment of this Act; andCommentsClose CommentsPermalink
(B) shall not apply to displacements for periods occurring more than 90 days before such date.CommentsClose CommentsPermalink
(c) H-1B Nonimmigrants Not Admitted for Jobs Advertised or Offered Only to H-1B Nonimmigrants- Section 212(n)(1) of such Act, as amended by this section, is further amended--CommentsClose CommentsPermalink
(1) by inserting after subparagraph (G) the following:CommentsClose CommentsPermalink
`(H)(i) The employer has not advertised the available jobs specified in the application in an advertisement that states or indicates that--CommentsClose CommentsPermalink
`(I) the job or jobs are only available to persons who are or who may become H-1B nonimmigrants; orCommentsClose CommentsPermalink
`(II) persons who are or who may become H-1B nonimmigrants shall receive priority or a preference in the hiring process.CommentsClose CommentsPermalink
`(ii) The employer has not only recruited persons who are, or who may become, H-1B nonimmigrants to fill the job or jobs.'; andCommentsClose CommentsPermalink
(2) in the undesignated paragraph at the end, by striking `The employer' and inserting the following:CommentsClose CommentsPermalink
`(K) The employer'.CommentsClose CommentsPermalink
(d) Limit on Percentage of H-1B Employees- Section 212(n)(1) of such Act, as amended by this section, is further amended by inserting after subparagraph (H), as added by subsection (d)(1), the following:CommentsClose CommentsPermalink
`(I) If the employer employs not less than 50 employees in the United States, not more than 50 percent of such employees are H-1B nonimmigrants.'.CommentsClose CommentsPermalink
SEC. 421. H-1B GOVERNMENT AUTHORITY AND REQUIREMENTS.
(a) SAFEGUARDS AGAINST FRAUD AND MISREPRESENTATION IN APPLICATION REVIEW PROCESS- Section 212(n)(1)(K) of the Immigration and Nationality Act, as redesignated by section 2(d)(2), is amended--CommentsClose CommentsPermalink
(1) by inserting `and through the Department of Labor's website, without charge.' after `D.C.';CommentsClose CommentsPermalink
(2) by inserting `, clear indicators of fraud, misrepresentation of material fact,' after `completeness';CommentsClose CommentsPermalink
(3) by striking `or obviously inaccurate' and inserting `, presents clear indicators of fraud or misrepresentation of material fact, or is obviously inaccurate';CommentsClose CommentsPermalink
(4) by striking `within 7 days of' and inserting `not later than 14 days after'; andCommentsClose CommentsPermalink
(5) by adding at the end the following: `If the Secretary's review of an application identifies clear indicators of fraud or misrepresentation of material fact, the Secretary may conduct an investigation and hearing under paragraph (2).'CommentsClose CommentsPermalink
(b) INVESTIGATIONS BY DEPARTMENT OF LABOR- Section 212(n)(2) of such Act is amended--CommentsClose CommentsPermalink
(1) in subparagraph (A)--CommentsClose CommentsPermalink
(A) by striking `12 months' and inserting `24 months'; andCommentsClose CommentsPermalink
(B) by striking `The Secretary shall conduct' and all that follows and inserting `Upon the receipt of such a complaint, the Secretary may initiate an investigation to determine if such a failure or misrepresentation has occurred.';CommentsClose CommentsPermalink
(2) in subparagraph (C)(i)--CommentsClose CommentsPermalink
(A) by striking `a condition of paragraph (1)(B), (1)(E), or (1)(F)' and inserting `a condition under subparagraph (B), (C)(i), (E), (F), (H), (I), or (J) of paragraph (1)'; andCommentsClose CommentsPermalink
(B) by striking `(1)(C)' and inserting `(1)(C)(ii)';CommentsClose CommentsPermalink
(3) in subparagraph (G)--CommentsClose CommentsPermalink
(A) in clause (i), by striking `if the Secretary' and all that follows and inserting `with regard to the employer's compliance with the requirements of this subsection.';CommentsClose CommentsPermalink
(B) in clause (ii), by striking `and whose identity' and all that follows through `failure or failures.' and inserting `the Secretary of Labor may conduct an investigation into the employer's compliance with the requirements of this subsection.';CommentsClose CommentsPermalink
(C) in clause (iii), by striking the last sentence;CommentsClose CommentsPermalink
(D) by striking clauses (iv) and (v);CommentsClose CommentsPermalink
(E) by redesignating clauses (vi), (vii), and (viii) as clauses (iv), (v), and (vi), respectively;CommentsClose CommentsPermalink
(F) in clause (iv), as redesignated, by striking `meet a condition described in clause (ii), unless the Secretary of Labor receives the information not later than 12 months' and inserting `comply with the requirements under this subsection, unless the Secretary of Labor receives the information not later than 24 months';CommentsClose CommentsPermalink
(G) by amending clause (v), as redesignated, to read as follows:CommentsClose CommentsPermalink
`(v) The Secretary of Labor shall provide notice to an employer of the intent to conduct an investigation. The notice shall be provided in such a manner, and shall contain sufficient detail, to permit the employer to respond to the allegations before an investigation is commenced. The Secretary is not required to comply with this clause if the Secretary determines that such compliance would interfere with an effort by the Secretary to investigate or secure compliance by the employer with the requirements of this subsection. A determination by the Secretary under this clause shall not be subject to judicial review.'.CommentsClose CommentsPermalink
(H) in clause (vi), as redesignated, by striking `An investigation' and all that follows through `the determination.' and inserting `If the Secretary of Labor, after an investigation under clause (i) or (ii), determines that a reasonable basis exists to make a finding that the employer has failed to comply with the requirements under this subsection, the Secretary shall provide interested parties with notice of such determination and an opportunity for a hearing in accordance with
(I) by adding at the end the following:CommentsClose CommentsPermalink
`(vii) If the Secretary of Labor, after a hearing, finds a reasonable basis to believe that the employer has violated the requirements under this subsection, the Secretary may impose a penalty under subparagraph (C).'; andCommentsClose CommentsPermalink
(4) by striking subparagraph (H).CommentsClose CommentsPermalink
(c) INFORMATION SHARING BETWEEN DEPARTMENT OF LABOR AND DEPARTMENT OF HOMELAND SECURITY- Section 212(n)(2) of such Act, as amended by this section, is further amended by inserting after subparagraph (G) the following:CommentsClose CommentsPermalink
`(H) The Director of United States Citizenship and Immigration Services shall provide the Secretary of Labor with any information contained in the materials submitted by H-1B employers as part of the adjudication process that indicates that the employer is not complying with H-1B visa program requirements. The Secretary may initiate and conduct an investigation and hearing under this paragraph after receiving information of noncompliance under this subparagraph.'.CommentsClose CommentsPermalink
(d) AUDITS- Section 212(n)(2)(A) of such Act, as amended by this section, is further amended by adding at the end the following: `The Secretary may conduct surveys of the degree to which employers comply with the requirements under this subsection and may conduct annual compliance audits of employers that employ H-1B nonimmigrants. The Secretary shall conduct annual compliance audits of not less than 1 percent of the employers that employ H-1B nonimmigrants during the applicable calendar year.'CommentsClose CommentsPermalink
(e) PENALTIES- Section 212(n)(2)(C) of such Act, as amended by this section, is further amended--CommentsClose CommentsPermalink
(1) in clause (i)(I), by striking `$1,000' and inserting `$2,000';CommentsClose CommentsPermalink
(2) in clause (ii)(I), by striking `$5,000' and inserting `$10,000'; andCommentsClose CommentsPermalink
(3) in clause (vi)(III), by striking `$1,000' and inserting `$2,000'.CommentsClose CommentsPermalink
(f) Information Provided to H-1B Nonimmigrants Upon Visa Issuance- Section 212(n) of such Act, as amended by this section, is further amended by inserting after paragraph (2) the following:CommentsClose CommentsPermalink
`(3)(A) Upon issuing an H-1B visa to an applicant outside the United States, the issuing office shall provide the applicant with--CommentsClose CommentsPermalink
`(i) a brochure outlining the employer's obligations and the employee's rights under Federal law, including labor and wage protections; andCommentsClose CommentsPermalink
`(ii) the contact information for Federal agencies that can offer more information or assistance in clarifying employer obligations and workers' rights.'.CommentsClose CommentsPermalink
`(B) Upon the issuance of an H-1B visa to an alien inside the United States, the officer of the Department of Homeland Security shall provide the applicant with--CommentsClose CommentsPermalink
`(i) a brochure outlining the employer's obligations and the employee's rights under Federal law, including labor and wage protections; andCommentsClose CommentsPermalink
`(ii) the contact information for Federal agencies that can offer more information or assistance in clarifying employer's obligations and workers' rights.'.CommentsClose CommentsPermalink
SEC. 422. L-1 VISA FRAUD AND ABUSE PROTECTIONS.
(a) IN GENERAL- Section 214(c)(2) of the Immigration and Nationality Act (
(1) by striking `Attorney General' each place it appears and inserting `Secretary of Homeland Security';CommentsClose CommentsPermalink
(2) in subparagraph (E), by striking `In the case of an alien spouse admitted under section 101(a)(15)(L), who' and inserting `Except as provided in subparagraph (H), if an alien spouse admitted under section 101(a)(15)(L)'; andCommentsClose CommentsPermalink
(3) by adding at the end the following:CommentsClose CommentsPermalink
`(G)(i) If the beneficiary of a petition under this subsection is coming to the United States to open, or be employed in, a new facility, the petition may be approved for up to 12 months only if the employer operating the new facility has--CommentsClose CommentsPermalink
`(I) a business plan;CommentsClose CommentsPermalink
`(II) sufficient physical premises to carry out the proposed business activities; andCommentsClose CommentsPermalink
`(III) the financial ability to commence doing business immediately upon the approval of the petition.CommentsClose CommentsPermalink
`(ii) An extension of the approval period under clause (i) may not be granted until the importing employer submits an application to the Secretary of Homeland Security that contains--CommentsClose CommentsPermalink
`(I) evidence that the importing employer meets the requirements of this subsection;CommentsClose CommentsPermalink
`(II) evidence that the beneficiary meets the requirements under section 101(a)(15)(L);CommentsClose CommentsPermalink
`(III) a statement summarizing the original petition;CommentsClose CommentsPermalink
`(IV) evidence that the importing employer has fully complied with the business plan submitted under clause (i)(I);CommentsClose CommentsPermalink
`(V) evidence of the truthfulness of any representations made in connection with the filing of the original petition;CommentsClose CommentsPermalink
`(VI) evidence that the importing employer, during the preceding 12 months, has been doing business at the new facility through regular, systematic, and continuous provision of goods or services, or has otherwise been taking commercially reasonable steps to establish the new facility as a commercial enterprise;CommentsClose CommentsPermalink
`(VII) a statement of the duties the beneficiary has performed at the new facility during the preceding 12 months and the duties the beneficiary will perform at the new facility during the extension period approved under this clause;CommentsClose CommentsPermalink
`(VIII) a statement describing the staffing at the new facility, including the number of employees and the types of positions held by such employees;CommentsClose CommentsPermalink
`(IX) evidence of wages paid to employees;CommentsClose CommentsPermalink
`(X) evidence of the financial status of the new facility; andCommentsClose CommentsPermalink
`(XI) any other evidence or data prescribed by the Secretary.CommentsClose CommentsPermalink
`(iii) Notwithstanding subclauses (I) through (VI) of clause (ii), and subject to the maximum period of authorized admission set forth in subparagraph (D), the Secretary of Homeland Security may approve a petition subsequently filed on behalf of the beneficiary to continue employment at the facility described in this subsection for a period beyond the initially granted 12-month period if the importing employer demonstrates that the failure to satisfy any of the requirements described in those subclauses was directly caused by extraordinary circumstances beyond the control of the importing employer.CommentsClose CommentsPermalink
`(iv) For purposes of determining the eligibility of an alien for classification under section 101(a)(15)(L), the Secretary of Homeland Security shall work cooperatively with the Secretary of State to verify a company or facility's existence in the United States and abroad.'.CommentsClose CommentsPermalink
(b) Investigations and Audits by Department of Homeland Security-CommentsClose CommentsPermalink
(1) DEPARTMENT OF HOMELAND SECURITY INVESTIGATIONS- Section 214(c)(2) of such Act, as amended by this section, is further amended by adding at the end the following:CommentsClose CommentsPermalink
`(I)(i) The Secretary of Homeland Security may initiate an investigation of any employer that employs nonimmigrants described in section 101(a)(15)(L) with regard to the employer's compliance with the requirements of this subsection.CommentsClose CommentsPermalink
`(ii) If the Secretary of Homeland Security receives specific credible information from a source who is likely to have knowledge of an employer's practices, employment conditions, or compliance with the requirements under this subsection, the Secretary may conduct an investigation into the employer's compliance with the requirements of this subsection. The Secretary may withhold the identity of the source from the employer, and the source's identity shall not be subject to disclosure under section 552 of title 5.CommentsClose CommentsPermalink
`(iii) The Secretary of Homeland Security shall establish a procedure for any person desiring to provide to the Secretary of Homeland Security information described in clause (ii) that may be used, in whole or in part, as the basis for the commencement of an investigation described in such clause, to provide the information in writing on a form developed and provided by the Secretary of Homeland Security and completed by or on behalf of the person.CommentsClose CommentsPermalink
`(iv) No investigation described in clause (ii) (or hearing described in clause (vi) based on such investigation) may be conducted with respect to information about a failure to comply with the requirements under this subsection, unless the Secretary of Homeland Security receives the information not later than 24 months after the date of the alleged failure.CommentsClose CommentsPermalink
`(v) Before commencing an investigation of an employer under clause (i) or (ii), the Secretary of Homeland Security shall provide notice to the employer of the intent to conduct such investigation. The notice shall be provided in such a manner, and shall contain sufficient detail, to permit the employer to respond to the allegations before an investigation is commenced. The Secretary is not required to comply with this clause if the Secretary determines that to do so would interfere with an effort by the Secretary to investigate or secure compliance by the employer with the requirements of this subsection. There shall be no judicial review of a determination by the Secretary under this clause.CommentsClose CommentsPermalink
`(vi) If the Secretary of Homeland Security, after an investigation under clause (i) or (ii), determines that a reasonable basis exists to make a finding that the employer has failed to comply with the requirements under this subsection, the Secretary shall provide interested parties with notice of such determination and an opportunity for a hearing in accordance with
`(vii) If the Secretary of Homeland Security, after a hearing, finds a reasonable basis to believe that the employer has violated the requirements under this subsection, the Secretary may impose a penalty under section 214(c)(2)(J).'.CommentsClose CommentsPermalink
(2) AUDITS- Section 214(c)(2)(I) of such Act, as added by paragraph (1), is amended by adding at the end the following:CommentsClose CommentsPermalink
`(viii) The Secretary of Homeland Security may conduct surveys of the degree to which employers comply with the requirements under this section and may conduct annual compliance audits of employers that employ H-1B nonimmigrants. The Secretary shall conduct annual compliance audits of not less than 1 percent of the employers that employ nonimmigrants described in section 101(a)(15)(L) during the applicable calendar year.'.CommentsClose CommentsPermalink
(3) REPORTING REQUIREMENT- Section 214(c)(8) of such Act is amended by inserting `(L),' after `(H),'.CommentsClose CommentsPermalink
(c) PENALTIES- Section 214(c)(2) of such Act, as amended by this section, is further amended by adding at the end the following:CommentsClose CommentsPermalink
`(J)(i) If the Secretary of Homeland Security finds, after notice and an opportunity for a hearing, a failure by an employer to meet a condition under subparagraph (F), (G), (H), (I), or (K) or a misrepresentation of material fact in a petition to employ 1 or more aliens as nonimmigrants described in section 101(a)(15)(L)--CommentsClose CommentsPermalink
`(I) the Secretary of Homeland Security may impose such other administrative remedies (including civil monetary penalties in an amount not to exceed $2,000 per violation) as the Secretary determines to be appropriate; andCommentsClose CommentsPermalink
`(II) the Secretary of Homeland Security may not, during a period of at least 1 year, approve a petition for that employer to employ 1 or more aliens as such nonimmigrants.CommentsClose CommentsPermalink
`(ii) If the Secretary of Homeland Security finds, after notice and an opportunity for a hearing, a willful failure by an employer to meet a condition under subparagraph (F), (G), (H), (I), or (K) or a misrepresentation of material fact in a petition to employ 1 or more aliens as nonimmigrants described in section 101(a)(15)(L)--CommentsClose CommentsPermalink
`(I) the Secretary of Homeland Security may impose such other administrative remedies (including civil monetary penalties in an amount not to exceed $10,000 per violation) as the Secretary determines to be appropriate; andCommentsClose CommentsPermalink
`(II) the Secretary of Homeland Security may not, during a period of at least 2 years, approve a petition filed for that employer to employ 1 or more aliens as such nonimmigrants.CommentsClose CommentsPermalink
`(iii) If the Secretary of Homeland Security finds, after notice and an opportunity for a hearing, a willful failure by an employer to meet a condition under subparagraph (L)(i)--CommentsClose CommentsPermalink
`(I) the Secretary of Homeland Security may impose such other administrative remedies (including civil monetary penalties in an amount not to exceed $10,000 per violation) as the Secretary determines to be appropriate; andCommentsClose CommentsPermalink
`(II) the employer shall be liable to employees harmed for lost wages and benefits.'.CommentsClose CommentsPermalink
SEC. 423. WHISTLEBLOWER PROTECTIONS.
(a) H-1B Whistleblower Protections- Section 212(n)(2)(C)(iv) of the Immigration and Nationality Act (
(1) by inserting `take, fail to take, or threaten to take or fail to take, a personnel action, or' before `to intimidate'; andCommentsClose CommentsPermalink
(2) by adding at the end the following: `An employer that violates this clause shall be liable to the employees harmed by such violation for lost compensation, including back pay.'.CommentsClose CommentsPermalink
(b) L-1 Whistleblower Protections- Section 214(c)(2) of such Act, as amended by section 4, is further amended by adding at the end the following:CommentsClose CommentsPermalink
`(L)(i) It is a violation of this subparagraph for an employer who has filed a petition to import 1 or more aliens as nonimmigrants described in section 101(a)(15)(L) to take, fail to take, or threaten to take or fail to take, a personnel action, or to intimidate, threaten, restrain, coerce, blacklist, discharge, or discriminate in any other manner against an employee because the employee--CommentsClose CommentsPermalink
`(I) has disclosed information that the employee reasonably believes evidences a violation of this subsection, or any rule or regulation pertaining to this subsection; orCommentsClose CommentsPermalink
`(II) cooperates or seeks to cooperate with the requirements of this subsection, or any rule or regulation pertaining to this subsection.CommentsClose CommentsPermalink
`(ii) An employer that violates this subparagraph shall be liable to the employees harmed by such violation for lost wages and benefits.CommentsClose CommentsPermalink
`(iii) In this subparagraph, the term `employee' includes--CommentsClose CommentsPermalink
`(I) a current employee;CommentsClose CommentsPermalink
`(II) a former employee; andCommentsClose CommentsPermalink
`(III) an applicant for employment.'.CommentsClose CommentsPermalink
SEC. 424. LIMITATIONS ON APPROVAL OF L-1 PETITIONS FOR START-UP COMPANIES.
Section 214(c)(2) of the Immigration and Nationality Act (
(a) by striking `Attorney General' each place it appears and inserting `Secretary of Homeland Security';CommentsClose CommentsPermalink
(b) in subparagraph (E), by striking `In the case' and inserting `Except as provided in subparagraph (H), in the case'; andCommentsClose CommentsPermalink
(c) by adding at the end the following:CommentsClose CommentsPermalink
(G)(i) If the beneficiary of a petition under this subsection is coming to the United States to be employed in a new office, the petition may be approved for a period not to exceed 12 months only if the alien has not been the beneficiary of two or more petitions under this subparagraph within the immediately preceding two years and only if the employer operating the new office has--CommentsClose CommentsPermalink
`(I) an adequate business plan;CommentsClose CommentsPermalink
`(II) sufficient physical premises to carry out the proposed business activities; andCommentsClose CommentsPermalink
`(III) the financial ability to commence doing business immediately upon the approval of the petition.CommentsClose CommentsPermalink
`(ii) An extension of the approval period under clause (i) may not be granted until the importing employer submits to the Secretary of Homeland Security--CommentsClose CommentsPermalink
`(I) evidence that the importing employer meets the requirements of this subsection;CommentsClose CommentsPermalink
`(II) evidence that the beneficiary meets the requirements of section 101(a)(15)(L);CommentsClose CommentsPermalink
`(III) a statement summarizing the original petition;CommentsClose CommentsPermalink
`(IV) evidence that the importing employer has substantially complied with the business plan submitted under clause (i);CommentsClose CommentsPermalink
`(V) evidence of the truthfulness of any representations made in connection with the filing of the original petition if requested by the Secretary;CommentsClose CommentsPermalink
`(VI) evidence that the importing employer, from the date of petition approval under clause (i), has been doing business at the new office through regular, systematic, and continuous provision of goods or services;CommentsClose CommentsPermalink
`(VII) a statement of the duties the beneficiary has performed at the new office during the approval period under clause (i) and the duties the beneficiary will perform at the new office during the extension period approved under this clause;CommentsClose CommentsPermalink
`(VIII) a statement describing the staffing at the new office, including the number of employees and the types of positions held by such employees;CommentsClose CommentsPermalink
`(IX) evidence of wages paid to employees if the beneficiary will be employed in a managerial or executive capacity;CommentsClose CommentsPermalink
`(X) evidence of the financial status of the new office; andCommentsClose CommentsPermalink
`(XI) any other evidence or data prescribed by the Secretary.CommentsClose CommentsPermalink
`(iii) A new office employing the beneficiary of an L-1 petition approved under this subparagraph must do business through regular, systematic, and continuous provision of goods or services for the entire period of petition approval.CommentsClose CommentsPermalink
`(iv) Notwithstanding clause (iii) or subclauses (I) through (VI) of clause (ii), and subject to the maximum period of authorized admission set forth in subparagraph (D), the Secretary of Homeland Security may in his discretion approve a subsequently filed petition on behalf of the beneficiary to continue employment at the office described in this subsection for a period beyond the initially granted 12-month period if the importing employer has been doing business at the new office through regular, systematic, and continuous provision of goods or services for the 6 months immediately preceding the date of extension petition filing and demonstrates that the failure to satisfy any of the requirements described in those subclauses was directly caused by extraordinary circumstances, as determined by the Secretary in his discretion.CommentsClose CommentsPermalink
`(H)(i) The Secretary of Homeland Security may not authorize the spouse of an alien described under section 101(a)(15)(L), who is a dependent of a beneficiary under subparagraph (G), to engage in employment in the United States during the initial 12-month period described in subparagraph (G)(i).CommentsClose CommentsPermalink
`(ii) A spouse described in clause (i) may be provided employment authorization upon the approval of an extension under subparagraph (G)(ii).CommentsClose CommentsPermalink
`(I) For purposes of determining the eligibility of an alien for classification under section 101(a)(15)(L) of this Act, the Secretary of Homeland Security shall establish procedures with the Department of State to verify a company or office's existence in the United States and abroad.'CommentsClose CommentsPermalink
SEC. 425. MEDICAL SERVICES IN UNDERSERVED AREAS.
(a) PERMANENT AUTHORIZATION OF THE CONRAD PROGRAM-CommentsClose CommentsPermalink
(1) IN GENERAL- Section 220(c) of the Immigration and Nationality Technical Corrections Act of 1994 (
(2) EFFECTIVE DATE- The amendment made by paragraph (1) shall take effect as if enacted on June 1, 2007.CommentsClose CommentsPermalink
(b) PILOT PROGRAM REQUIREMENTS- Section 214(l) of the Immigration and Nationality Act (
(1) by adding at the end the following:CommentsClose CommentsPermalink
`(4)(A) Notwithstanding paragraph (1)(B), the Secretary of Homeland Security may grant up to a total of 50 waivers for a State under section 212(e) in a fiscal year if, after the first 30 such waivers for the State are granted in that fiscal year--CommentsClose CommentsPermalink
`(i) an interested State agency requests a waiver; andCommentsClose CommentsPermalink
`(ii) the requirements under subparagraph (B) are met.CommentsClose CommentsPermalink
`(B) The requirements under this subparagraph are met if--CommentsClose CommentsPermalink
`(i) fewer than 20 percent of the physician vacancies in the health professional shortage areas of the State, as designated by the Secretary of Health and Human Services, were filled in the most recent fiscal year;CommentsClose CommentsPermalink
`(ii) all of the waivers allotted for the State under paragraph (1)(B) were used in the most recent fiscal year; andCommentsClose CommentsPermalink
`(iii) all underserved highly rural States--CommentsClose CommentsPermalink
`(I) used the minimum guaranteed number of waivers under section 212(e) in health professional shortage areas in the most recent fiscal year; orCommentsClose CommentsPermalink
`(II) all agreed to waive the right to receive the minimum guaranteed number of such waivers.CommentsClose CommentsPermalink
`(C) In this paragraph:CommentsClose CommentsPermalink
`(i) The term `health professional shortage area' has the meaning given the term in section 332(a)(1) of the Public Health Service Act (
`(ii) The term `underserved highly rural State' means a State with at least 30 counties with a population density of not more than 10 people per square mile, based on the latest available decennial census conducted by the Bureau of Census.CommentsClose CommentsPermalink
`(iii) The term `minimum guaranteed number' means--CommentsClose CommentsPermalink
`(I) for the first fiscal year of the pilot program, 15;CommentsClose CommentsPermalink
`(II) for each subsequent fiscal year, the sum of--CommentsClose CommentsPermalink
`(aa) the minimum guaranteed number for the second fiscal year; andCommentsClose CommentsPermalink
`(bb) 3, if any State received additional waivers under this paragraph in the first fiscal year.CommentsClose CommentsPermalink
`(III) for the third fiscal year, the sum of--CommentsClose CommentsPermalink
`(aa) the minimum guaranteed number for the second fiscal year; andCommentsClose CommentsPermalink
`(bb) 3, if any State received additional waivers under this paragraph in the first fiscal year.'.CommentsClose CommentsPermalink
(c) TERMINATION DATE- The authority provided by the amendments made by subsection (b) shall expire on September 30, 2011.CommentsClose CommentsPermalink
(d) Section 212(j) of the Immigration and Nationality Act (
(1) revising the preamble of paragraph (2) to read `An alien who has graduated from a medical school and who is coming to the United States to practice primary care or specialty medicine as a member of the medical profession may not be admitted as a nonimmigrant under section 1101(a)(15)(H)(i)(b) of this title unless--'CommentsClose CommentsPermalink
(2) redesignating paragraph (2) as paragraph (3);CommentsClose CommentsPermalink
(3) adding new paragraph (2) to read--CommentsClose CommentsPermalink
`(2)(A) An alien who is coming to the United States to receive graduate medical education or training (or seeks to acquire status as a nonimmigrant under section 1101(a)(15)(J) to receive graduate medical education or training) may not change status under section 1258 to a nonimmigrant under section 1101(a)(15)(H)(i)(b) until the alien graduates from the medical education or training program and meets the requirements of paragraph (3)(B).CommentsClose CommentsPermalink
`(B) Any occupation that an alien described in paragraph (2)(A) may be employed in while receiving graduate medical education or training shall not be deemed a `specialty occupation' within the meaning of section 1184(i) for purposes of section 1101(a)(15)(H)(i)(b).'CommentsClose CommentsPermalink
(e) Section 101(a)(15)(J) is amended by adding `(except an alien coming to the United States to receive graduate medical education or training)' after `abandoning'.CommentsClose CommentsPermalink
(f) Section 214(h) of the Immigration and Nationality Act (
(g) Medical Residents Ineligible for H-1B Nonimmigrant Status- Section 214(i) of the Immigration and Nationality Act (
`(1) Except as provided in paragraph (3), for purposes of section 101(a)(15)(H)(i)(b), section 101(a)(15)(E)(iii), and paragraph (2), the term `specialty occupation'--CommentsClose CommentsPermalink
`(A) means an occupation that requires--CommentsClose CommentsPermalink
`(i) theoretical and practical application of a body of highly specialized knowledge, andCommentsClose CommentsPermalink
`(ii) attainment of a bachelor's or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States; andCommentsClose CommentsPermalink
`(B) shall not include graduate medical education or training.'CommentsClose CommentsPermalink
(h) Section 214(l) of the Immigration and Nationality Act (
(1) in paragraph (1)(C)(i) by striking `Attorney General' and inserting `Secretary of Homeland Security';CommentsClose CommentsPermalink
(2) in paragraph (1)(C) by striking subclause (ii) and inserting the following:CommentsClose CommentsPermalink
`(ii) the alien has accepted employment with the health facility or health care organization and agrees to continue to work for a total of not less than 3 years; andCommentsClose CommentsPermalink
`(iii) the alien begins employment within 90 days of:CommentsClose CommentsPermalink
`(I) receiving such waiver; orCommentsClose CommentsPermalink
`(II) receiving nonimmigrant status or employment authorization pursuant to an application filed under paragraph (2)(A) (if such application is filed with 90 days of eligibility of completing graduate medical education or training under a program approved pursuant to section 212(j)(1));CommentsClose CommentsPermalink
`whichever is latest.'CommentsClose CommentsPermalink
(3) by striking at the end `.', inserting `; or' and adding new paragraph (1)(E) to read--CommentsClose CommentsPermalink
`(E) in the case of a request by an interested State agency, the alien agrees to practice primary care or specialty medicine care, for a continuous period of 2 years, only at a federally qualified health facility, health care organization or center, or in a rural health clinic that is located in:CommentsClose CommentsPermalink
`(i) a geographic area which is designated by the Secretary of Health and Human Services as having a shortage of health care professionals; andCommentsClose CommentsPermalink
`(ii) a State that utilized less than 10 of the total allotted waivers for the State under paragraph (1)(B) (excluding the number of waivers available pursuant to paragraph (1)(D)(ii)) in the most recent fiscal year.'CommentsClose CommentsPermalink
(4) in paragraph (2), by amending subparagraph (A) to read as follows:CommentsClose CommentsPermalink
`(A) Notwithstanding section 248(a)(2), upon submission of a request to an interested Federal agency or an interested State agency for recommendation of a waiver under this section by a physician who is maintaining valid nonimmigrant status under section 101(a)(15)(J), the Secretary of Homeland Security may accept as properly filed an application to change the status of such physician to [any applicable nonimmigrant status]. Upon favorable recommendation by the Secretary of State of such request, and approval by the Secretary of Homeland Security the waiver under this section, the Secretary of Homeland Security may change the status of such physician to that of [an appropriate nonimmigrant status.]'CommentsClose CommentsPermalink
(5) in paragraph (3)(A) amended by inserting `requirement of or' before `agreement entered into'.CommentsClose CommentsPermalink
(i) PERIOD OF AUTHORIZED ADMISSION FOR PHYSICIANS ON H-1B VISAS WHO WORK IN MEDICALLY UNDERSERVED COMMUNITIES- Section 214(g)(5), as renumbered by Section 405 and amended by Section 719(c), is further amended by adding at the end the following new subparagraph:CommentsClose CommentsPermalink
`(D) The period of authorized admission under subparagraph (A) shall not apply to an alien physician who fulfills the requirements of section 214(l)(1)(E) and who has practiced primary or specialty care in a medically underserved community for a continuous period of 5 years.'CommentsClose CommentsPermalink
SEC. 426. B-1 VISITOR VISA GUIDELINES AND DATA TRACKING SYSTEMS.
(a) Guidelines-CommentsClose CommentsPermalink
(1) IN GENERAL- Not later than 6 months after the date of enactment of this Act--CommentsClose CommentsPermalink
(A) the Secretary of State shall review existing regulations or internal guidelines relating to the decisionmaking process with respect to the issuance of B-1 visas by consular officers and determine whether modifications are necessary to ensure that such officers make decisions with respect to the issuance of B-1 visas as consistently as possible while ensuring security and maintaining officer discretion over such issuance determinations; andCommentsClose CommentsPermalink
(B) the Secretary of Homeland Security shall review existing regulations or internal guidelines relating to the decisionmaking process of Customs and Border Protection officers concerning whether travelers holding a B-1 visitor visa are admissible to the United States and the appropriate length of stay and shall determine whether modifications are necessary to ensure that such officers make decisions with respect to travelers admissibility and length of stay as consistently as possible while ensuring security and maintaining officer discretion over such determinations.CommentsClose CommentsPermalink
(2) MODIFICATION- If after conducting the reviews under paragraph (1), the Secretary of State or the Secretary of Homeland Security determine that modifications to existing regulations or internal guidelines, or the establishment of new regulations or guidelines, are necessary, the relevant Secretary shall make such modifications during the 6-month period referred to in such paragraph.CommentsClose CommentsPermalink
(3) CONSULTATIONS- In making determinations and preparing guidelines under paragraph (1), the Secretary of State and the Secretary of Homeland Security shall consult with appropriate stakeholders, including consular officials and immigration inspectors.CommentsClose CommentsPermalink
(b) Data Tracking Systems-CommentsClose CommentsPermalink
(1) IN GENERAL- Not later than 18 months after the date of enactment of this Act--CommentsClose CommentsPermalink
(A) the Secretary of State shall develop and implement a system to track aggregate data relating to the issuance of B-1 visitor visas in order to ensure the consistent application of the guidelines established under subsection (a)(1)(A); andCommentsClose CommentsPermalink
(B) the Secretary of Homeland Security shall develop and implement a system to track aggregate data relating to admissibility decision, and length of stays under, B-1 visitor visas in order to ensure the consistent application of the guidelines established under subsection (a)(1)(B).CommentsClose CommentsPermalink
(2) LIMITATION- The systems implemented under paragraph (1) shall not store or track personally identifiable information, except that this paragraph shall not be construed to limit the application of any other system that is being implemented by the Department of State or the Department of Homeland Security to track travelers or travel to the United States.CommentsClose CommentsPermalink
(c) PUBLIC EDUCATION- The Secretary of State and the Secretary of Homeland Security shall carry out activities to provide guidance and education to the public and to visa applicants concerning the nature, purposes, and availability of the B-1 visa for business travelers.CommentsClose CommentsPermalink
(d) REPORT- Not later than 6 and 18 months after the date of enactment of this Act, the Secretary of State and the Secretary of Homeland Security shall submit to Congress, reports concerning the status of the implementation of this section.CommentsClose CommentsPermalink
SEC. 427. AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be appropriated such sums as may be necessary to carry out this title, and the amendments made by this title.CommentsClose CommentsPermalink
TITLE V--IMMIGRATION BENEFITS
SEC. 501. REBALANCING OF IMMIGRANT VISA ALLOCATION.
(a) FAMILY-SPONSORED IMMIGRANTS- Section 201(c) of the Immigration and Nationality Act (
`(c) Worldwide Level of Family-Sponsored Immigrants-CommentsClose CommentsPermalink
`(1) For each fiscal year until visas needed for petitions described in section 503(f)(2) of the [Insert title of Act] become available, the worldwide level of family-sponsored immigrants under this subsection is 567,000 for petitions for classifications under 203(a), plus any immigrant visas not required for the class specified in (d).CommentsClose CommentsPermalink
`(2) Except as provided in paragraph (1), the worldwide level of family-sponsored immigrants under this subsection for a fiscal year is 127,000, plus any immigrant visas not required for the class specified in (d).'.CommentsClose CommentsPermalink
(b) MERIT-BASED IMMIGRANTS- Section 201(d) of the Immigration and Nationality Act (
`(d) Worldwide Level of Merit-Based, Special, and Employment Creation Immigrants-CommentsClose CommentsPermalink
`(1) IN GENERAL- The worldwide level of merit-based, special, and employment creation immigrants under this subsection for a fiscal year--CommentsClose CommentsPermalink
`(A) for the first five fiscal years shall be equal to the number of immigrant visas made available to aliens seeking immigrant visas under section 203(b) of this Act for fiscal year 2005, plus any immigrant visas not required for the class specified in (c), of which:CommentsClose CommentsPermalink
`(i) at least 10,000 will be for exceptional aliens in nonimmigrant status under section 101(a)(15)(Y); andCommentsClose CommentsPermalink
`(ii) 90,000 will be for aliens who were the beneficiaries of an application that was pending or approved at the time of the effective date of this section, per Section 502(d) of the [Insert title of Act].CommentsClose CommentsPermalink
`(B) stating in the sixth fiscal year, shall be equal to 140,000 for each fiscal year until aliens described in section 101(a)(15)(Z) of this Act first become eligible for an immigrant visa, plus any immigrant visas not required for the class specified in (c), of which:CommentsClose CommentsPermalink
`(i) at least 10,000 will be for exceptional aliens in nonimmigrant status under section 101(a)(15)(Y); andCommentsClose CommentsPermalink
`(ii) no more than 90,000 will be for aliens who were the beneficiaries of an application that was pending or approved at the time of the effective date of this section, per Section 502(d) of the [Insert title of Act].CommentsClose CommentsPermalink
`(C)(i) 380,000, for each fiscal year starting in the first fiscal year in which aliens described in section 101(a)(15)(Z) of this Act become eligible for an immigrant visa, of which at least 10,000 will be for exceptional aliens in nonimmigrant status under section 101(a)(15)(Y), plus any immigrant visas not required for the class specified in (c); plusCommentsClose CommentsPermalink
`(ii) the temporary supplemental allocation of additional visas described in paragraph (2) for nonimmigrants described in section 101(a)(15)(Z).CommentsClose CommentsPermalink
`(2) TEMPORARY SUPPLEMENTAL ALLOCATION- The temporary supplemental allocation of visas described in this paragraph is as follows:CommentsClose CommentsPermalink
`(A) for the first five fiscal years in which aliens described in section 101(a)(15)(Z) of this Act are eligible for an immigrant visa, the number calculated pursuant to section 503(f)(2) of the [Insert title of Act];CommentsClose CommentsPermalink
`(B) in the sixth fiscal year in which aliens described in section 101(a)(15)(Z) of this Act are eligible for an immigrant visa, the number calculated pursuant to section 503(f)(3) of [Insert title of Act]; andCommentsClose CommentsPermalink
`(C) starting in the seventh fiscal year in which aliens described in section 101(a)(15)(Z) of this Act are eligible for an immigrant visa, the number equal to the number of Z nonimmigrants who became aliens admitted for permanent residence based on the merit-based evaluation system in the prior fiscal year until no further Z nonimmigrants adjust status;CommentsClose CommentsPermalink
`(3) TERMINATION OF TEMPORARY SUPPLEMENTAL ALLOCATION- The temporary supplemental allocation of visas shall terminate when the number of visas calculated pursuant to paragraph (2)(C) is zero.CommentsClose CommentsPermalink
`(4) LIMITATION- The temporary supplemental visas in paragraph (2) shall not be awarded to any individual other than an individual described in section 101(a)(15)(Z).CommentsClose CommentsPermalink
(c) EFFECTIVE DATE- The amendments made by this section shall take effect on the first day of the fiscal year subsequent to the fiscal year of enactment.CommentsClose CommentsPermalink
SEC. 502. INCREASING AMERICAN COMPETITIVENESS THROUGH A MERIT-BASED EVALUATION SYSTEM FOR IMMIGRANTS.
(a) SENSE OF CONGRESS- It is the sense of Congress that the United States benefits from a work force that has diverse skills, experience and training.CommentsClose CommentsPermalink
(b) CREATION OF MERIT-BASED EVALUATION SYSTEM FOR IMMIGRANTS AND REALLOCATION OF VISAS- Section 203(b) of the Immigration and Nationality Act (
(1) striking paragraphs (1), (2), and (3) and inserting the following:CommentsClose CommentsPermalink
`(1) MERIT-BASED IMMIGRANTS- Visas shall first be made available in a number not to exceed 95 percent of such worldwide level, plus any visas not required for the classes in paragraphs (2) and (3), to qualified immigrants selected through a merit-based evaluation system.CommentsClose CommentsPermalink
`(A) The merit-based evaluation system shall initially consist of the following criteria and weights:CommentsClose CommentsPermalink
-------------------------------------------------------------------------------- CommentsClose CommentsPermalink
Category Description Max pts CommentsClose CommentsPermalink
-------------------------------------------------------------------------------- CommentsClose CommentsPermalink
Employment 47 CommentsClose CommentsPermalink
Education M.D., M.B.A., Graduate degree, etc- 20 pts 28 CommentsClose CommentsPermalink
English & civics Native speaker of English 15 CommentsClose CommentsPermalink
Extended family (Applied if threshold of 55 in above categories.) Adult (21 or older) son or daughter of USC--8 pts 10 CommentsClose CommentsPermalink
If had applied for a family visa in any of the above categories after May 1, 2005--2 pts 100 CommentsClose CommentsPermalink
Agriculture National Interest Worked in agriculture for 3 years, 150 days per year--21 pts 25 CommentsClose CommentsPermalink
U.S. employment exp. Year of lawful employment--1 pt 15 CommentsClose CommentsPermalink
Home ownership Own place of residence--1 pt/year owned 5 CommentsClose CommentsPermalink
Medical Insurance Current medical insurance for entire family 5 CommentsClose CommentsPermalink
-------------------------------------------------------------------------------- CommentsClose CommentsPermalink
`(B) The Secretary of Homeland Security, after consultation with the Secretaries of Commerce and Labor, shall establish procedures to adjudicate petitions filed pursuant to the merit-based evaluation system. The Secretary may establish a time period in a fiscal year in which such petitions must be submitted.CommentsClose CommentsPermalink
`(C) The Standing Commission on Immigration and Labor Markets established pursuant to Section 407 of the [Insert title of Act] shall submit recommendations to Congress concerning the establishment of procedures for modifying the selection criteria and relative weights accorded such criteria in order to ensure that the merit-based evaluation system corresponds to the current needs of the United States economy and the national interest.CommentsClose CommentsPermalink
`(D) No modifications to the selection criteria and relative weights accorded such criteria that are established by the [Insert title of Act] should take effect earlier than the sixth fiscal year in which aliens described in section 101(a)(15)(Z) of this Act are eligible for an immigrant visa.CommentsClose CommentsPermalink
`(E) The application of the selection criteria to any particular visa petition or application pursuant to the merit-based evaluation system shall be within the Secretary's sole and unreviewable discretion.CommentsClose CommentsPermalink
`(F) Any petition filed pursuant to this paragraph that has not been found by the Secretary to have qualified in the merit-based evaluation system shall be deemed denied on the first day of the third fiscal year following the date of such application. Such denial shall not preclude the petitioner from filing a successive petition pursuant to this paragraph. Notwithstanding this paragraph, the Secretary may deny a petition when denial is appropriate under other provisions of law, including but not limited to sections 204(c).'.CommentsClose CommentsPermalink
(2) redesignating paragraph (4) as paragraph (2), by striking `7.1 percent' and inserting `4,200', and striking `5,000' and inserting `2,500';CommentsClose CommentsPermalink
(3) redesignating paragraph (5) as paragraph (3), by striking `7.1 percent' and inserting `2,800', and striking `3,000' and inserting `1,500';CommentsClose CommentsPermalink
(4) redesignating paragraph (6) as paragraph (4).CommentsClose CommentsPermalink
(c) PROCEDURE FOR GRANTING IMMIGRANT STATUS- Section 204(a)(1) of the Immigration and Nationality Act (
(d) EFFECTIVE DATE-CommentsClose CommentsPermalink
(1) IN GENERAL- Subject to paragraph (2), the amendments made by this section shall take effect on the first day of the fiscal year subsequent to the fiscal year of enactment, unless such date is less than 270 days after the date of enactment, in which case the amendments shall take effect on the first day of the following fiscal year.CommentsClose CommentsPermalink
(2) PENDING AND APPROVED PETITIONS AND APPLICATIONS- Petitions for an employment-based visa filed for classification under section 203(b)(1), (2), or (3) of the Immigration and Nationality Act (as such provisions existed prior to the enactment of this section) that were filed prior to the date of the introduction of the [Insert title of Act] and were pending or approved at the time of the effective date of this section, shall be treated as if such provision remained effective and an approved petition may serve as the basis for issuance of an immigrant visa. Aliens with applications for a labor certification pursuant to section 212(a)(5)(A) of the Immigration and Nationality Act shall preserve the immigrant visa priority date accorded by the date of filing of such labor certification application.CommentsClose CommentsPermalink
(e) CONFORMING AMENDMENTS-CommentsClose CommentsPermalink
(1) Section 201 of the Immigration and Nationality Act (
(2) Section 202 of the Immigration and Nationality Act (
(3) Section 203(b) of the Immigration and Nationality Act (
(A) striking the heading and first sentence and inserting the following:CommentsClose CommentsPermalink
`(b) Preference allocation for merit-based, special and employment creation immigrants. Aliens subject to the worldwide level specified in section 201(d) for merit-based, special and employment creation immigrants in a fiscal year shall be allotted visas as follows:';CommentsClose CommentsPermalink
(B) striking `employment based' and inserting `merit-based' and striking `paragraphs (1), (2), and (3)' and inserting `paragraph (1)' in subparagraph (6)(B)(i); andCommentsClose CommentsPermalink
(C) striking `employment based' and inserting `merit-based' and striking `each of paragraphs (1) through (3)' and inserting `paragraph (1)' in subparagraph (6)(B)(iii).CommentsClose CommentsPermalink
(4) Section 212(a)(4) of the Immigration and Nationality Act (
(5) Section 213A(f) of the Immigration and Nationality Act (
(A) striking subparagraph (4);CommentsClose CommentsPermalink
(B) striking subparagraph (5) and inserting the following:CommentsClose CommentsPermalink
`(4) NON-PETITIONING CASES- Such term also includes an individual who does not meet the requirement of paragraph (1)(D) but who is a spouse, parent, mother in law, father in law, sibling, child (if at least 18 years of age), son, daughter, son in law, daughter in law, sister in law, brother in law, grandparent, or grandchild of a sponsored alien or a legal guardian of a sponsored alien, meets the requirements of paragraph (1) (other than subparagraph (D)), and executes an affidavit of support with respect to such alien in a case in which--CommentsClose CommentsPermalink
`(A) the individual petitioning under section 204 for the classification of such alien died after the approval of such petition; andCommentsClose CommentsPermalink
`(B) the Secretary of Homeland Security has determined for humanitarian reasons that revocation of such petition under section 205 would be inappropriate.';CommentsClose CommentsPermalink
(C) redesignating subparagraph (6) as subparagraph (5); andCommentsClose CommentsPermalink
(D) striking `(6)' and inserting `(5)' in subparagraph (1)(E).CommentsClose CommentsPermalink
(6) Section 212(a) of the Immigration and Nationality Act (
(7) Section 218(g)(3) of the Immigration and Nationality Act (
(8)(A) Section 207(c)(3) of the Immigration and Nationality Act (
(B) Section 209(c) of the Immigration and Nationality Act (
(C) Section 210(c)(2)(A) of the Immigration and Nationality Act (
(D) Section 237(a)(1)(H)(i)(II) of the Immigration and Nationality Act (
(E) Section 245(h)(2)(A) of the Immigration and Nationality Act (
(F) Section 245A(d)(2)(A) of the Immigration and Nationality Act (
(G) Section 286(s)(6) of the Immigration and Nationality Act (
(f) References to Secretary of Homeland Security-CommentsClose CommentsPermalink
(1) Section 203 of the Immigration and Nationality Act (
(2) Section 204 of the Immigration and Nationality Act (
SEC. 503. REDUCING CHAIN MIGRATION AND PERMITTING PETITIONS BY NATIONALS.
(a) CAP EXEMPT CATEGORIES- Paragraph (1) of section 201(b) of the Immigration and Nationality Act (
`(F) Aliens admitted under section 211(a) on the basis of a prior issuance of a visa under section 203(a) to their accompanying parent who is an immediate relative.CommentsClose CommentsPermalink
`(G) Aliens born to an alien lawfully admitted for permanent residence during a temporary visit abroad.'.CommentsClose CommentsPermalink
(b) Immediate Relatives-CommentsClose CommentsPermalink
(1) IMMEDIATE RELATIVE REDEFINED- Paragraph (2) of section 201(b) of the Immigration and Nationality Act (
`(2) Immediate relatives-CommentsClose CommentsPermalink
`(A) IN GENERAL- For purposes of this subsection, the term `immediate relative' means a child or spouse of a citizen of the United States (and each child of such child or spouse who is accompanying or following to join the alien).CommentsClose CommentsPermalink
`(B) SPOUSE OF A DECEASED U.S. CITIZEN- An alien who was the spouse of a citizen of the United States and not legally separated from the citizen at the time of the citizen's death, who was married to the citizen for not less than 2 years at the time of the citizen's death (or, if married for less than 2 years at the time of the citizen's death, who proves by a preponderance of the evidence that the marriage was entered into in good faith and not solely for the purpose of obtaining an immigration benefit), and each child of such alien, may be considered, for purposes of this subsection, to remain an immediate relative after the date of the citizen's death if the spouse files a petition under section 204(a)(1)(A)(ii) before the earlier of--CommentsClose CommentsPermalink
`(i) 2 years after such date; orCommentsClose CommentsPermalink
`(ii) the date on which the spouse remarries.CommentsClose CommentsPermalink
`(C) BATTERED SPOUSE OR CHILD- An alien who has filed a petition under clause (iii) or (iv) of section 204(a)(1)(A) remains an immediate relative if the United States citizen spouse or parent loses United States citizenship on account of the abuse.'.CommentsClose CommentsPermalink
(2) PETITION- Section 204(a)(1)(A)(ii) of the Immigration and Nationality Act (
(c) PREFERENCE CATEGORIES- Section 203(a) of the Immigration and Nationality Act (
(1) By striking paragraph (1) and inserting the following:CommentsClose CommentsPermalink
`(1) Parents of a citizen of the United States if the citizen is at least 21 years of age. Qualified immigrants who are the parents of a citizen of the United States where the citizen is at least 21 years of age shall be allocated visas in a number not to exceed 40,000, plus any visas not required for the classes specified in paragraph (3), or'.CommentsClose CommentsPermalink
(2) By striking paragraph (2) and inserting the following:CommentsClose CommentsPermalink
`(2) Spouses or children of an alien lawfully admitted for permanent residence or a national. Qualified immigrants who are the spouses or children of an alien lawfully admitted for permanent residence or a noncitizen national of the United States as defined in section 101(a)(22)(B) of this Act who is resident in the United States shall be allocated visas in a number not to exceed 87,000, plus any visas not required for the class specified in paragraph (1)'CommentsClose CommentsPermalink
(3) By striking paragraph (3) and inserting the following:CommentsClose CommentsPermalink
`(3) Family-based visa petitions filed before january 1, 2007, for which visas will be available before january 1, 2027-CommentsClose CommentsPermalink
`(A) IN GENERAL- The allocation of immigrant visas described in paragraph (4) shall apply to an alien for whom--CommentsClose CommentsPermalink
`(i) a family-based visa petition was filed on or before January 1, 2007; andCommentsClose CommentsPermalink
`(ii) as of January 1, 2007, the Secretary of Homeland Security calculates under subparagraph (B) that a visa can reasonably be expected to become available before January 1, 2027.CommentsClose CommentsPermalink
`(B) REASONABLE EXPECTATION OF AVAILABLITY OF VISAS- In calculating the date on which a family-based visa can reasonably be expected to become available for an alien described in subparagraph (A), the Secretary of Homeland Security shall take into account--CommentsClose CommentsPermalink
`(i) the number of visas allocated annually for the family preference class under which the alien's petition was filed;CommentsClose CommentsPermalink
`(ii) the effect of any per country ceilings applicable to the alien's petition;CommentsClose CommentsPermalink
`(iii) the number of petitions filed before the alien's petition was filed that were filed under the same family preference class; andCommentsClose CommentsPermalink
`(iv) the rate at which visas made available in the family preference class under which the alien's petition was filed were unclaimed in previous years.CommentsClose CommentsPermalink
`(4) ALLOCATION OF FAMILY-BASED IMMIGRANT VISAS- Immigrant visas totaling 440,000 shall be allotted visas as follows:CommentsClose CommentsPermalink
`(A) Qualified immigrants who are the unmarried sons or daughters of citizens of the United States shall be allocated visas totaling 70,400 immigrant visas, plus any visas not required for the class specified in (D).CommentsClose CommentsPermalink
`(B) Qualified immigrants who are the unmarried sons or unmarried daughters of an alien lawfully admitted for permanent residence, shall be allocated visas totaling 110,000 immigrant visas, plus any visas not required for the class specified in (A).CommentsClose CommentsPermalink
`(C) Qualified immigrants who are the married sons or married daughters of citizens of the United States shall be allocated visas totaling 70,400 immigrant visas, plus any visas not required for the class specified in (A) and (B).CommentsClose CommentsPermalink
`(D) Qualified immigrants who are the brothers or sisters of citizens of the United States, if such citizens are at least 21 years of age, shall be allocated visas totaling 189,200 immigrant visas, plus any visas not required for the class specified in (A), (B), and (C).'.CommentsClose CommentsPermalink
(4) By striking paragraph (4).CommentsClose CommentsPermalink
(d) PETITION- Section 204(a)(1)(A)(i) of the Immigration and Nationality Act (
(e) Effective Date-CommentsClose CommentsPermalink
(1) IN GENERAL- The amendments made by this section shall take effect on the first day of the fiscal year subsequent to the fiscal year of enactment.CommentsClose CommentsPermalink
(2) PENDING AND APPROVED PETITIONS- Petitions for a family-sponsored visa filed for classification under section 203(a)(1), (2)(B), (3), or (4) of the Immigration and Nationality Act (as such provisions existed prior to the enactment of this section) which were filed before May 1, 2005, regardless of whether the petitions have been approved before May 1, 2005, shall be treated as if such provision remained in effect, and an approved petition may be the basis of an immigrant visa pursuant to section 203(a)(3).CommentsClose CommentsPermalink
(f) Determinations of Number of Intending Lawful Permanent Residents-CommentsClose CommentsPermalink
(1) SURVEY OF PENDING AND APPROVED FAMILY-BASED PETITIONS- The Secretary of Homeland Security may require a submission from petitioners with approved or pending family-based petitions filed for classification under section 203(a)(1), (2)(B), (3), or (4) of the Immigration and Nationality Act (as such provisions existed prior to the enactment of this section) filed on or before May 1, 2005 to determine that the petitioner and the beneficiary have a continuing commitment to the petition for the alien relative under the classification. In the event the Secretary requires a submission pursuant to this section, the Secretary shall take reasonable steps to provide notice of such a requirement. In the event that the petitioner or beneficiary is no longer committed to the beneficiary obtaining an immigrant visa under this classification or if the petitioner does not respond to the request for a submission, the Secretary of Homeland Security may deny the petition if the petition has not been adjudicated or revoke the petition without additional notice pursuant to section 205 if it has been approved.CommentsClose CommentsPermalink
(2) FIRST SURVEY OF Z NONIMMIGRANTS INTENDING TO ADJUST STATUS- The Secretary shall establish procedures by which nonimmigrants described in section 101(a)(15)(Z) who seek to become aliens lawfully admitted for permanent residence under the merit-based immigrant system shall establish their eligibility, pay any applicable fees and penalties, and file their petitions. No later than the conclusion of the eighth fiscal year after the effective date of section 218D of the Immigration and Nationality Act, the Secretary will determine the total number of qualified applicants who have followed the procedures set forth in this section. The number calculated pursuant to this paragraph shall be 20 percent of the total number of qualified applicants. The Secretary will calculate the number of visas needed per year.CommentsClose CommentsPermalink
(3) SECOND SURVEY OF Z NONIMMIGRANTS INTENDING TO ADJUST STATUS- No later than the conclusion of the thirteenth fiscal year after the effective date of section 218D of the Immigration and Nationality Act, the Secretary will determine the total number of qualified applicants not described in paragraph (2) who have followed the procedures set forth in this section. The number calculated pursuant to this paragraph shall be the lesser of:CommentsClose CommentsPermalink
(A) the number of qualified applicants, as determined by the Secretary pursuant to this paragraph; andCommentsClose CommentsPermalink
(B) the number calculated pursuant to paragraph (2).CommentsClose CommentsPermalink
(g) Conforming Amendments-CommentsClose CommentsPermalink
(1) Section 212(d)(12)(B) of the Immigration and Nationality Act (
(2) Section 101(a)(15)(K) of the Immigration and Nationality Act (
(3) Section 204(a) of the Immigration and Nationality Act (
(4) Section 214(r)(3)(A) of the Immigration and Nationality Act (
SEC. 504. CREATION OF PROCESS FOR IMMIGRATION OF FAMILY MEMBERS IN HARDSHIP CASES.
(a) IN GENERAL- The Immigration and Nationality Act (
`SEC. 203A. IMMIGRANT VISAS FOR HARDSHIP CASES.
`(a) IN GENERAL- Immigrant visas under this section may not exceed 5,000 per fiscal year.CommentsClose CommentsPermalink
`(b) DETERMINATION OF ELIGIBILITY- The Secretary of Homeland Security may grant an immigrant visa to an applicant who satisfies the following qualifications:CommentsClose CommentsPermalink
`(1) FAMILY RELATIONSHIP- Visas under this section will be given to aliens who are:CommentsClose CommentsPermalink
`(A) the unmarried sons or daughters of citizens of the United States;CommentsClose CommentsPermalink
`(B) the unmarried sons or the unmarried daughters of aliens lawfully admitted for permanent residence;CommentsClose CommentsPermalink
`(C) the married sons or married daughters of citizens of the United States; orCommentsClose CommentsPermalink
`(D) the brothers or sisters of citizens of the United States, if such citizens are at least 21 years of age,CommentsClose CommentsPermalink
`(2) NECESSARY HARDSHIP- The petitioner must demonstrate to the satisfaction of the Secretary of Homeland Security that the lack of an immigrant visa under this clause would result in extreme hardship to the petitioner or the beneficiary that cannot be relieved by temporary visits as a nonimmigrant.CommentsClose CommentsPermalink
`(3) INELIGIBILITY TO IMMIGRATE THROUGH OTHER MEANS- The alien described in clause (1) must be ineligible to immigrate or adjust status through other means, including but not limited to obtaining an immigrant visa filed for classification under section 201(b)(2)(A) or section 203(a) or (b) of this Act, and obtaining cancellation of removal under section 240A(b) of this Act. A determination under this section that an alien is eligible to immigrate through other means does not foreclose or restrict any later determination on the question of eligibility by the Secretary of Homeland Security or the Attorney General.CommentsClose CommentsPermalink
`(c) Processing of Applications-CommentsClose CommentsPermalink
`(1) An alien selected for an immigrant visa pursuant to this section shall remain eligible to receive such visa only if the alien files an application for an immigrant visa or an application for adjustment of status within the fiscal year in which the visa becomes available, or at such reasonable time as the Secretary may specify after the end of the fiscal year for petitions approved in the last quarter of the fiscal year.CommentsClose CommentsPermalink
`(2) All petitions for an immigrant visa under this section shall automatically terminate if not granted within the fiscal year in which they were filed. The Secretary may in his discretion establish such reasonable application period or other procedures for filing petitions as he may deem necessary in order to ensure their orderly processing within the fiscal year of filing.CommentsClose CommentsPermalink
`(3) The secretary may reserve up to 2,500 of the immigrant visas under this section for approval in the period between March 31 and September 30 of a fiscal year.CommentsClose CommentsPermalink
`(d) Decisions whether an alien qualifies for an immigrant visa under this section are in the unreviewable discretion of the Secretary.'.CommentsClose CommentsPermalink
SEC. 505. ELIMINATION OF DIVERSITY VISA PROGRAM.
(a) Section 201 of the Immigration and Nationality Act (
(1) in subsection (a)--CommentsClose CommentsPermalink
(A) by inserting `and' at the end of paragraph (1);CommentsClose CommentsPermalink
(B) by striking `; and' at the end of paragraph (2) and inserting a period; andCommentsClose CommentsPermalink
(C) by striking paragraph (3); andCommentsClose CommentsPermalink
(2) by striking subsection (e).CommentsClose CommentsPermalink
(b) Section 203 of the Immigration and Nationality Act (
(1) by striking subsection (c);CommentsClose CommentsPermalink
(2) in subsection (d), by striking `(a), (b), or (c),' and inserting `(a) or (b),';CommentsClose CommentsPermalink
(3) in subsection (e), by striking paragraph (2) and redesignating paragraph (3) as paragraph (2);CommentsClose CommentsPermalink
(4) in subsection (f), by striking `(a), (b), or (c)' and inserting `(a) or (b)'; andCommentsClose CommentsPermalink
(5) in subsection (g), by striking `(a), (b), and (c)' and inserting `(a) and (b)'.CommentsClose CommentsPermalink
(c) Section 204 of the Immigration and Nationality Act (
(1) by striking subsection (a)(1)(I);CommentsClose CommentsPermalink
(2) by redesignating subparagraphs (J), (K), and (L) of subsection (a)(1) as subparagraphs (I), (J), and (K), respectively; andCommentsClose CommentsPermalink
(3) in subsection (e), by striking `(a), (b), or (c)' and inserting `(a) or (b)'.CommentsClose CommentsPermalink
(d) REPEAL OF TEMPORARY REDUCTION IN VISAS FOR OTHER WORKERS- Section 203(e) of the Nicaraguan Adjustment and Central American Relief Act, as amended (
(e) Effective Date-CommentsClose CommentsPermalink
(1) The amendments made by this section shall take effect on October 1, 2008;CommentsClose CommentsPermalink
(2) No alien may receive lawful permanent resident status based on the diversity visa program on or after the effective date of this section.CommentsClose CommentsPermalink
(g) CONFORMING AMENDMENTS- Section 203 of the Immigration and Nationality Act (
SEC. 506. FAMILY VISITOR VISAS.
(a) Section 101(a)(15)(B) of the Immigration and Nationality Act (
`(B) an alien (other than one coming for the purpose of study or of performing skilled or unskilled labor or as a representative of foreign press, radio, film, or other foreign information media coming to engage in such vocation) having a residence in a foreign country which he or she has no intention of abandoning and who is visiting the United States temporarily for business or temporarily for pleasure. The requirement that the alien have a residence in a foreign country which the alien has no intention of abandoning shall not apply to an alien described in section 214(s) who is seeking to enter as a temporary visitor for pleasure;'.CommentsClose CommentsPermalink
(b) Section 214 of the Immigration and Nationality Act (
`(s) Parent Visitor Visas-CommentsClose CommentsPermalink
`(1) IN GENERAL- The parent of a United States citizen at least 21 years of age, or the spouse or child of an alien in nonimmigrant status under 101(a)(15)(Y)(i), demonstrating satisfaction of the requirements of this subsection may be granted a nonimmigrant visa under section 101(a)(15)(B) as a temporary visitor for pleasure.CommentsClose CommentsPermalink
`(2) REQUIREMENTS- An alien seeking a nonimmigrant visa under this subsection must demonstrate through presentation of such documentation as the Secretary may by regulations prescribe, that--CommentsClose CommentsPermalink
`(A) the alien's United States citizen son or daughter who is at least 21 years of age or the alien's spouse or parent in nonimmigrant status under 101(a)(15)(Y)(i), is sponsoring the alien's visit to the United States;CommentsClose CommentsPermalink
`(B) the sponsoring United States citizen, or spouse or parent in nonimmigrant status under 101(a)(15)(Y)(i), has, according to such procedures as the Secretary may by regulations prescribe, posted on behalf of the alien a bond in the amount of $1,000, which shall be forfeit if the alien overstays the authorized period of admission (except as provided in subparagraph (5)(B)) or otherwise violates the terms and conditions of his or her nonimmigrant status; andCommentsClose CommentsPermalink
`(C) the alien, the sponsoring United States citizen son or daughter, or the spouse or parent in nonimmigrant status under 101(a)(15)(Y)(i), possesses the ability and financial means to return the alien to his or her country of residence.CommentsClose CommentsPermalink
`(3) TERMS AND CONDITIONS- An alien admitted as a visitor for pleasure under the provisions of this subsection--CommentsClose CommentsPermalink
`(A) may not stay in the United States for an aggregate period in excess of 30 days within any calendar year;CommentsClose CommentsPermalink
`(B) must, according to such procedures as the Secretary may by regulations prescribe, register with the Secretary upon departure from the United States; andCommentsClose CommentsPermalink
`(C) may not be issued employment authorization by the Secretary or be employed.CommentsClose CommentsPermalink
`(4) Certification-CommentsClose CommentsPermalink
`(A) REPORT- No later than January 1 of each year, the Secretary of Homeland Security shall submit a written report to Congress estimating the percentage of aliens admitted to the United States during the preceding fiscal year as visitors for pleasure under the terms and conditions of this subsection who have remained in the United States beyond their authorized period of admission (except as provided in subparagraph (5)(B)). When preparing this report, the Secretary shall determine which countries, if any, have a disproportionately high rate of nationals overstaying their period of authorized admission under this subsection.CommentsClose CommentsPermalink
`(B) TERMINATION OF ELIGIBILITY OF NATIONALS OF CERTAIN COUNTRIES- Except as provided in subparagraph (C), if the Secretary reports under subparagraph (A) for two consecutive fiscal years that the percentage of aliens overstaying their period of authorized admission exceeds 7 percent, the Secretary may, in his discretion, determine that no more visas under this section may be issued for those countries whose nationals have a disproportionately high rate of aliens overstaying their period of authorized admission under this subsection.CommentsClose CommentsPermalink
`(C) TERMINATION OF THE PROGRAM- Notwithstanding subparagraph (B), if the Secretary reports under subparagraph (A) for two consecutive fiscal years that the percentage of aliens overstaying their period of authorized admission under this subsection exceeds 7 percent and the percentage is not significantly affected by countries whose nationals have a disproportionately high rate of aliens overstaying their period of authorized admission, the Secretary may, in his discretion, determine that no more visas may be issued under this subsection as of the date of the second consecutive report described in subparagraph (A) finding an overstay rate in excess of 7 percent.CommentsClose CommentsPermalink
`(D) EFFECT ON EXISTING VISAS- In the event the Secretary determines to that no more visas shall be issued under subparagraphs (B) or (C), all visas previously issued under this subsection and still valid on the date that the Secretary determines that no more visas should be issued shall expire on the visa's date of expiration or 12 months after the date of the determination, whichever is soonest.CommentsClose CommentsPermalink
`(5) Permanent bars for overstays-CommentsClose CommentsPermalink
`(A) IN GENERAL- Any alien admitted as a visitor for pleasure under the terms and conditions of this subsection who remains in the United States beyond his or her authorized period of admission is permanently barred from any future immigration benefits under the immigration laws, except--CommentsClose CommentsPermalink
`(i) asylum under section 208(a);CommentsClose CommentsPermalink
`(ii) withholding of removal under section 241(b)(3); orCommentsClose CommentsPermalink
`(iii) protection under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, done at New York December 10, 1984.CommentsClose CommentsPermalink
`(B) EXCEPTION- Overstay of the authorized period of admission granted to aliens admitted as visitors for pleasure under the terms and conditions of this subsection may be excused in the discretion of the Secretary where it is demonstrated that--CommentsClose CommentsPermalink
`(i) the period of overstay was due to extraordinary circumstances beyond the control of the applicant, and the Secretary finds the period commensurate with the circumstances; andCommentsClose CommentsPermalink
`(ii) the alien has not otherwise violated his or her nonimmigrant status.CommentsClose CommentsPermalink
`(6) BAR ON SPONSOR OF OVERSTAY- The United States citizen or Y-1 nonimmigrant sponsor of an alien--CommentsClose CommentsPermalink
`(A) admitted as a visitor for pleasure under the terms and conditions of this subsection, andCommentsClose CommentsPermalink
`(B) who remains in the United States beyond his or her authorized period of admission,CommentsClose CommentsPermalink
shall be permanently barred from sponsoring that alien or any other alien for admission as a visitor for pleasure under the terms and conditions of this subsection, and, in the case of a Y-1 nonimmigrant sponsor, shall have his Y-1 nonimmigrant status terminated.CommentsClose CommentsPermalink
`(7) CONSTRUCTION- Nothing in this subsection shall be construed, except as provided in this subsection, to make inapplicable the requirements for admissibility and eligibility, as well as the terms and conditions of admission, as a nonimmigrant under section 101(a)(15)(B).'.CommentsClose CommentsPermalink
SEC. 507. PREVENTION OF VISA FRAUD.
(a) Section 204 of the Immigration and Nationality Act (
`(h) FRAUD PREVENTION- The Secretary of Homeland Security may audit and evaluate the information furnished as part of the applications filed under subsection (a) and refer evidence of fraud to appropriate law enforcement agencies based on the audit information.'.CommentsClose CommentsPermalink
(b) Sections 286(v)(2)(B) and (C) of the Immigration and Nationality Act (
`(B) SECRETARY OF HOMELAND SECURITY- One-third of the amounts deposited into the Fraud Prevention and Detection Account shall remain available to the Secretary of Homeland Security until expended for programs and activities to prevent and detect immigration benefit fraud, including but not limited to fraud with respect to petitions under paragraph (1) or (2)(A) of section 214(c) to grant an alien nonimmigrant status described in subparagraph (H)(i), (H)(ii), or (L) of section 101(a)(15).CommentsClose CommentsPermalink
`(C) SECRETARY OF LABOR- One third of the amounts deposited into the Fraud Prevention and Detection Account shall remain available to the Secretary of Labor until expended for enforcement programs and activities described in section 212(n), and for enforcement programs, and fraud detection and prevention activities not otherwise authorized under 212(n), to be conducted by the Secretary of Labor that focus on industries likely to employ nonimmigrants.'.CommentsClose CommentsPermalink
SEC. 508. INCREASING PER-COUNTRY LIMITS FOR FAMILY-BASED AND EMPLOYMENT-BASED IMMIGRANTS.
(a) Section 202(a) of the Immigration and Nationality Act (
`(2) PER COUNTRY LEVELS FOR FAMILY-SPONSORED AND MERIT-BASED IMMIGRANTS- Subject to paragraphs (3), (4), (5), (6), and (7), the total number of immigrant visas made available to natives of any single foreign state or dependent area under subsections (a) and (b) of section 203 in any fiscal year may not exceed 10 percent (in the case of a single foreign state) or 3 percent (in the case of a dependent area) of the total number of such visas made available under such subsections in that fiscal year;'.CommentsClose CommentsPermalink
(b) Section 202(a) of the Immigration and Nationality Act (
`(6) RULES FOR CERTAIN FAMILY-BASED PETITION FILED BEFORE MAY 1, 2005- In the event that the per country levels in paragraph (2) prevent the use of otherwise available visas described in section 201(c)(1)(B), then the per country level will not apply for such visas.CommentsClose CommentsPermalink
`(7) EXCEPTION FOR Z NONIMMIGRANTS- Paragraph (2) shall not apply to aliens who are nonimmigrants described in section 101(a)(15)(Z) of this Act who are eligible to seek lawful permanent resident status based on a petition for classification under section 203(b)(1) of this Act.'.CommentsClose CommentsPermalink
SEC. 509. EXEMPTION FROM IMMIGRANT VISA LIMIT.
Section 201(b)(1) (
`(H) Aliens who are eligible for a visa under paragraph (1) or (3) of section 203(a) and who have a parent who was naturalized pursuant to section 405 of the Immigration Act of 1990 (
TITLE VI--NONIMMIGRANTS IN THE UNITED STATES PREVIOUSLY IN UNLAWFUL STATUS
SEC. 601. (a) IN GENERAL- Notwithstanding any other provision of law, (including section 244(h) of the Immigration and Nationality Act (hereinafter `the Act') (
(b) DEFINITION OF Z NONIMMIGRANTS- Section 101(a)(15) of the Act (
`(Z) subject to Title VI of the [Insert title of Act], an alien who--CommentsClose CommentsPermalink
`(i) is physically present in the United States, has maintained continuous physical presence in the United States since January 1, 2007, is employed, and seeks to continue performing labor, services or education; orCommentsClose CommentsPermalink
`(ii) is physically present in the United States, has maintained continuous physical presence in the United States since January 1, 2007, and--CommentsClose CommentsPermalink
`(I) is the spouse or parent (65 years of age or older) of an alien described in (i); orCommentsClose CommentsPermalink
`(II) was, within two years of the date on which [Name of this Act] was introduced, the spouse of an alien who was subsequently classified as a Z nonimmigrant under this section, or is eligible for such classification, if--CommentsClose CommentsPermalink
`(aa) the termination of the relationship with such spouse was connected to domestic violence; andCommentsClose CommentsPermalink
`(bb) the spouse has been battered or subjected to extreme cruelty by the spouse or parent who is a Z nonimmigrant.CommentsClose CommentsPermalink
`(iii) is under 18 years of age at the time of application for nonimmigrant status under this subparagraph, is physically present in the United States, has maintained continuous physical presence in the United States since January 1, 2007, and was born to or legally adopted by at least one parent who is at the time of application described in (i) or (ii).'CommentsClose CommentsPermalink
(c) Presence in the United States-CommentsClose CommentsPermalink
(1) IN GENERAL- The alien shall establish that the alien was not present in lawful status in the United States on January 1, 2007, under any classification described in section 101(a)(15) of the Act (
(2) CONTINUOUS PRESENCE- For purposes of this section, an absence from the United States without authorization for a continuous period of 90 days or more than 180 days in the aggregate shall constitute a break in continuous physical presence.CommentsClose CommentsPermalink
(d) Other Criteria-CommentsClose CommentsPermalink
(1) GROUNDS OF INELIGIBILITY- An alien is ineligible for Z nonimmigrant status if the Secretary determines that the alien--CommentsClose CommentsPermalink
(A)(1) is inadmissible to the United States under section 212(a) of the Act (
(2) Nothing in this paragraph shall require the Secretary to commence removal proceedings against an alien.CommentsClose CommentsPermalink
(B) is subject to the execution of an outstanding administratively final order of removal, deportation, or exclusion;CommentsClose CommentsPermalink
(C) is described in or is subject to section 241(a)(5) of the Act;CommentsClose CommentsPermalink
(D) has ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion;CommentsClose CommentsPermalink
(E) is an alien--CommentsClose CommentsPermalink
(i) for whom there are reasonable grounds for believing that the alien has committed a serious criminal offense as described in section 101(h) of the Act outside the United States before arriving in the United States; orCommentsClose CommentsPermalink
(ii) for whom there are reasonable grounds for regarding the alien as a danger to the security of the United States; orCommentsClose CommentsPermalink
(F) has been convicted of--CommentsClose CommentsPermalink
(i) a felony;CommentsClose CommentsPermalink
(ii) an aggravated felony as defined at section 101(a)(43) of the Act;CommentsClose CommentsPermalink
(iii) 3 or more misdemeanors under Federal or State law; orCommentsClose CommentsPermalink
(iv) a serious criminal offense as described in section 101(h) of the Act;CommentsClose CommentsPermalink
(G) has entered or attempted to enter the United States illegally on or after January 1, 2007; andCommentsClose CommentsPermalink
(H) with respect to an applicant for Z-2 or Z-3 nonimmigrant status, a Z-2 nonimmigrant, or a Z-3 nonimmigrant who is under 18 years of age, the alien is ineligible for Z nonimmigrant status if the principal Z-1 nonimmigrant or Z-1 nonimmigrant status applicant is ineligible.CommentsClose CommentsPermalink
(I) The Secretary may in his discretion waive ineligibility under subparagraph (B) or (C) if the alien has not been physically removed from the United States and if the alien demonstrates that his departure from the United States would result in extreme hardship to the alien or the alien's spouse, parent or child.CommentsClose CommentsPermalink
(2) GROUNDS OF INADMISSIBILITY-CommentsClose CommentsPermalink
(A) IN GENERAL- In determining an alien's admissibility under paragraph (1)(A)--CommentsClose CommentsPermalink
(i) paragraphs (6)(A)(i) (with respect to an alien present in the United States without being admitted or paroled before the date of application, but not with respect to an alien who has arrived in the United States on or after January 1, 2007), (6)(B), (6)(C)(i), (6)(C)(ii), (6)(D), (6)(F), (6)(G), (7), (9)(B), (9)(C)(i)(I), and (10)(B) of section 212(a) of the Act shall not apply, but only with respect to conduct occurring or arising before the date of application;CommentsClose CommentsPermalink
(ii) the Secretary may not waive--CommentsClose CommentsPermalink
(I) subparagraph (A), (B), (C), (D)(ii), (E), (F), (G), (H), or (I) of section 212(a)(2) of the Act (relating to criminals);CommentsClose CommentsPermalink
(II) section 212(a)(3) of the Act (relating to security and related grounds);CommentsClose CommentsPermalink
(III) with respect to an application for Z nonimmigrant status, section 212(a)(6)(C)(i) of the Act;CommentsClose CommentsPermalink
(IV) paragraph (6)(A)(i) of section 212(a) of the Act (with respect to any entries occurring on or after January 1, 2007);CommentsClose CommentsPermalink
(V) section 212(a)(9)(C)(i)(II);CommentsClose CommentsPermalink
(VI) subparagraph (A), (C), or (D) of section 212(a)(10) of the Act (relating to polygamists, child abductors, and unlawful voters);CommentsClose CommentsPermalink
(iii) the Secretary may in his discretion waive the application of any provision of section 212(a) of the Act not listed in subparagraph (B) on behalf of an individual alien for humanitarian purposes, to ensure family unity, or if such waiver is otherwise in the public interest; andCommentsClose CommentsPermalink
(B) CONSTRUCTION- Nothing in this paragraph shall be construed as affecting the authority of the Secretary other than under this paragraph to waive the provisions of section 212(a) of the Act.CommentsClose CommentsPermalink
(e) ELIGIBILITY REQUIREMENTS- To be eligible for Z nonimmigrant status an alien shall meet the following and any other applicable requirements set forth in this section:CommentsClose CommentsPermalink
(1) ELIGIBILITY- The alien must not fall within a class of aliens ineligible for Z nonimmigrant status listed under subsection (d)(1).CommentsClose CommentsPermalink
(2) ADMISSIBILITY- The alien must not be inadmissible as a nonimmigrant to the United States under section 212, except as provided in subsection (d)(2), regardless of whether the alien has previously been admitted to the United States.CommentsClose CommentsPermalink
(3) PRESENCE- To be eligible for Z-1 or Z-2 nonimmigrant status, or for nonimmigrant status under section 101(a)(15)(Z)(iii)(I), the alien must--CommentsClose CommentsPermalink
(A) have been physically present in the United States before January 1, 2007, and have maintained continuous physical presence in the United States since that date;CommentsClose CommentsPermalink
(B) be physically present in the United States on the date of application for Z nonimmigrant status; andCommentsClose CommentsPermalink
(C) be on January 1, 2007, and on the date of application for Z nonimmigrant status, not present in lawful status in the United States under any classification described in section 101(a)(15) of the Immigration and Nationality Act (
(4) EMPLOYMENT- An alien seeking Z-1 nonimmigrant status must be employed in the United States on the date of filing of the application for Z-1 nonimmigrant status.CommentsClose CommentsPermalink
(5) FEES AND PENALTIES-CommentsClose CommentsPermalink
(A) PROCESSING FEES-CommentsClose CommentsPermalink
(i) An alien making an initial application for Z nonimmigrant status shall be required to pay a processing fee in an amount sufficient to recover the full cost of adjudicating the application, but no more than $1,500 for a single Z nonimmigrant.CommentsClose CommentsPermalink
(ii) An alien applying for extension of his Z nonimmigrant status shall be required to pay a processing fee in an amount sufficient to cover administrative and other expenses associated with processing the extension application, but no more than $1,500 for a single Z nonimmigrant.CommentsClose CommentsPermalink
(B) PENALTIES-CommentsClose CommentsPermalink
(i) An alien making an initial application for Z-1 nonimmigrant status shall be required to pay, in addition to the processing fee in subparagraph (A), a penalty of $1,000.CommentsClose CommentsPermalink
(ii) A Z-1 nonimmigrant making an initial application for Z-1 nonimmigrant status shall be required to pay a $500 penalty for each alien seeking Z-2 or Z-3 nonimmigrant status derivative to the Z-1 applicant.CommentsClose CommentsPermalink
(iii) An alien who is a Z-2 or Z-3 nonimmigrant and who has not previously been a Z-1 nonimmigrant, and who changes status to that of a Z-1 nonimmigrant, shall in addition to processing fees be required to pay the initial application penalties applicable to Z-1 nonimmigrants.CommentsClose CommentsPermalink
(C) STATE IMPACT ASSISTANCE FEE- In addition to any other amounts required to be paid under this subsection, a Z-1 nonimmigrant making an initial application for Z-1 nonimmigrant status shall be required to pay a State impact assistance fee equal to $500.CommentsClose CommentsPermalink
(D) DEPOSIT AND SPENDING OF FEES- The processing fees under subparagraph (A) shall be deposited and remain available until expended as provided by sections 286(m) and (n).CommentsClose CommentsPermalink
(E) Deposit, allocation, and spending of penalties-CommentsClose CommentsPermalink
(i) DEPOSIT OF PENALTIES- The penalty under subparagraph (B) shall be deposited and remain available as provided by section 286(w).CommentsClose CommentsPermalink
(ii) DEPOSIT OF STATE IMPACT ASSISTANCE FUNDS- The funds under subparagraph (C) shall be deposited and remain available as provided by section 286(x).CommentsClose CommentsPermalink
(6) INTERVIEW- An applicant for Z nonimmigrant status must appear to be interviewed.CommentsClose CommentsPermalink
(7) MILITARY SELECTIVE SERVICE- The alien shall establish that if the alien is within the age period required under the Military Selective Service Act (50 U.S.C. App. 451 et seq.) that such alien has registered under that Act.CommentsClose CommentsPermalink
(f) Application Procedures-CommentsClose CommentsPermalink
(1) IN GENERAL- The Secretary of Homeland Security shall prescribe by notice in the Federal Register, in accordance with the procedures described in section 610 of the [NAME OF THIS ACT], the procedures for an alien in the United States to apply for Z nonimmigrant status and the evidence required to demonstrate eligibility for such status.CommentsClose CommentsPermalink
(2) INITIAL RECEIPT OF APPLICATIONS- The Secretary of Homeland Security, or such other entities as are authorized by the Secretary to accept applications under the procedures established under this subsection, shall accept applications from aliens for Z nonimmigrant status for a period of one year starting the first day of the first month beginning no more than 180 days after the date of enactment of this section. If, during the one-year initial period for the receipt of applications for Z nonimmigrant status, the Secretary of Homeland Security determines that additional time is required to register applicants for Z nonimmigrant status, the Secretary may in his discretion extend the period for accepting applications by up to 12 months.CommentsClose CommentsPermalink
(3) BIOMETRIC DATA- Each alien applying for Z nonimmigrant status must submit biometric data in accordance with procedures established by the Secretary of Homeland Security.CommentsClose CommentsPermalink
(g) Content of Application Filed by Alien-CommentsClose CommentsPermalink
(1) APPLICATION FORM- The Secretary of Homeland Security shall create an application form that an alien shall be required to complete as a condition of obtaining Z nonimmigrant status.CommentsClose CommentsPermalink
(2) Application information-CommentsClose CommentsPermalink
(A) IN GENERAL- The application form shall request such information as the Secretary deems necessary and appropriate, including but not limited to, information concerning the alien's physical and mental health; complete criminal history, including all arrests and dispositions; gang membership, renunciation of gang affiliation; immigration history; employment history; and claims to United States citizenship.CommentsClose CommentsPermalink
(3) Security and law enforcement background checks-CommentsClose CommentsPermalink
(A) SUBMISSION OF FINGERPRINTS- The Secretary may not accord Z nonimmigrant status unless the alien submits fingerprints and other biometric data in accordance with procedures established by the Secretary.CommentsClose CommentsPermalink
(B) BACKGROUND CHECKS- The Secretary shall utilize fingerprints and other biometric data provided by the alien to conduct appropriate background checks of such alien to search for criminal, national security, or other law enforcement actions that would render the alien ineligible for classification under this section.CommentsClose CommentsPermalink
(h) Treatment of Applicants-CommentsClose CommentsPermalink
(1) IN GENERAL- An alien who files an application for Z nonimmigrant status shall, upon submission of any evidence required under paragraphs (f) and (g) and after the Secretary has conducted appropriate background checks, to include name and fingerprint checks, that have not by the end of the next business day produced information rendering the applicant ineligible--CommentsClose CommentsPermalink
(A) be granted probationary benefits in the form of employment authorization pending final adjudication of the alien's application;CommentsClose CommentsPermalink
(B) may in the Secretary's discretion receive advance permission to re-enter the United States pursuant to existing regulations governing advance parole;CommentsClose CommentsPermalink
(C) may not be detained for immigration purposes, determined inadmissible or deportable, or removed pending final adjudication of the alien's application, unless the alien is determined to be ineligible for Z nonimmigrant status; andCommentsClose CommentsPermalink
(D) may not be considered an unauthorized alien (as defined in section 274A(h)(3) of the Immigration and Nationality Act (
(2) TIMING OF PROBATIONARY BENEFITS- No probationary benefits shall be issued to an alien until the alien has passed all appropriate background checks or the end of the next business day, whichever is sooner.CommentsClose CommentsPermalink
(3) CONSTRUCTION- Nothing in this section shall be construed to limit the Secretary's authority to conduct any appropriate background and security checks subsequent to issuance of evidence of probationary benefits under paragraph (4).CommentsClose CommentsPermalink
(4) PROBATIONARY AUTHORIZATION DOCUMENT- The Secretary shall provide each alien described in paragraph (1) with a counterfeit-resistant document that reflects the benefits and status set forth in paragraph (h)(1). The Secretary may by regulation establish procedures for the issuance of documentary evidence of probationary benefits and, except as provided herein, the conditions under which such documentary evidence expires, terminates, or is renewed. All documentary evidence of probationary benefits shall expire no later than six months after the date on which the Secretary begins to approve applications for Z nonimmigrant status.CommentsClose CommentsPermalink
(5) BEFORE APPLICATION PERIOD- If an alien is apprehended between the date of enactment and the date on which the period for initial registration closes under subsection (f)(2), and the alien can establish prima facie eligibility for Z nonimmigrant status, the Secretary shall provide the alien with a reasonable opportunity to file an application under this section after such regulations are promulgated.CommentsClose CommentsPermalink
(6) DURING CERTAIN PROCEEDINGS- Notwithstanding any provision of the Act, if the Secretary determines that an alien who is in removal proceedings is prima facie eligible for Z nonimmigrant status, then the Secretary shall affirmatively communicate such determination to the immigration judge. The immigration judge shall then terminate or administratively close such proceedings and permit the alien a reasonable opportunity to apply for such classification.CommentsClose CommentsPermalink
(i) ADJUDICATION OF APPLICATION FILED BY ALIEN-CommentsClose CommentsPermalink
(1) IN GENERAL- The Secretary may approve the issuance of documentation of status, as described in subsection (j), to an applicant for a Z nonimmigrant visa who satisfies the requirements of this section.CommentsClose CommentsPermalink
(2) EVIDENCE OF CONTINUOUS PHYSICAL PRESENCE, EMPLOYMENT, OR EDUCATION-CommentsClose CommentsPermalink
(A) PRESUMPTIVE DOCUMENTS- A Z nonimmigrant or an applicant for Z nonimmigrant status may presumptively establish satisfaction of each required period of presence, employment, or study by submitting records to the Secretary that demonstrate such presence, employment, or study, and that the Secretary verifies have been maintained by the Social Security Administration, the Internal Revenue Service, or any other Federal, State, or local government agency.CommentsClose CommentsPermalink
(B) VERIFICATION- Each Federal agency, and each State or local government agency, as a condition of receipt of any funds under Section 286(x), shall within 90 days of enactment ensure that procedures are in place under which such agency shall--CommentsClose CommentsPermalink
(i) consistent with all otherwise applicable laws, including but not limited to laws governing privacy, provide documentation to an alien upon request to satisfy the documentary requirements of this paragraph; orCommentsClose CommentsPermalink
(ii) notwithstanding any other provision of law, including
(I) presence or employment required under this section, orCommentsClose CommentsPermalink
(II) a requirement for any other benefit under the immigration laws.CommentsClose CommentsPermalink
(C) OTHER DOCUMENTS- A Z nonimmigrant or an applicant for Z nonimmigrant status who is unable to submit a document described in subparagraph (i) may establish satisfaction of each required period of presence, employment, or study by submitting to the Secretary at least 2 other types of reliable documents that provide evidence of employment, including--CommentsClose CommentsPermalink
(i) bank records;CommentsClose CommentsPermalink
(ii) business records;CommentsClose CommentsPermalink
(iii) employer records;CommentsClose CommentsPermalink
(iv) records of a labor union or day labor center; andCommentsClose CommentsPermalink
(v) remittance records.CommentsClose CommentsPermalink
(D) ADDITIONAL DOCUMENTS- The Secretary may--CommentsClose CommentsPermalink
(i) designate additional documents to evidence the required period of presence, employment, or study; andCommentsClose CommentsPermalink
(ii) set such terms and conditions on the use of affidavits as is necessary to verify and confirm the identity of any affiant or otherwise prevent fraudulent submissions.CommentsClose CommentsPermalink
(3) PAYMENT OF INCOME TAXES-CommentsClose CommentsPermalink
(A) IN GENERAL- Not later than the date on which status is adjusted under this section, the alien establishes the payment of any applicable Federal tax liability by establishing that--CommentsClose CommentsPermalink
(i) no such tax liability exists;CommentsClose CommentsPermalink
(ii) all outstanding liabilities have been paid; orCommentsClose CommentsPermalink
(iii) the alien has entered into an agreement for payment of all outstanding liabilities with the Internal Revenue Service.CommentsClose CommentsPermalink
(B) APPLICABLE FEDERAL TAX LIABILITY- For purposes of clause (i), the term `applicable Federal tax liability' means liability for Federal taxes, including penalties and interest, owed for any year during the period of employment required by subparagraph (D)(i) for which the statutory period for assessment of any deficiency for such taxes has not expired.CommentsClose CommentsPermalink
(C) IRS COOPERATION- The Secretary of the Treasury shall establish rules and procedures under which the Commissioner of Internal Revenue shall provide documentation to an alien upon request to establish the payment of all taxes required by this subparagraph.CommentsClose CommentsPermalink
(D) IN GENERAL- The alien may satisfy such requirement by establishing that--CommentsClose CommentsPermalink
(i) no such tax liability exists;CommentsClose CommentsPermalink
(ii) all outstanding liabilities have been met; orCommentsClose CommentsPermalink
(iii) the alien has entered into an agreement for payment of all outstanding liabilities with the Internal Revenue Service and with the department of revenue of each State to which taxes are owed.CommentsClose CommentsPermalink
(4) BURDEN OF PROOF- An alien who is applying for a Z nonimmigrant visa under this section shall prove, by a preponderance of the evidence, that the alien has satisfied the requirements of this section.CommentsClose CommentsPermalink
(5) DENIAL OF APPLICATION-CommentsClose CommentsPermalink
(i) An alien who fails to satisfy the eligibility requirements for a Z nonimmigrant visa shall have his application denied and may not file additional applications.CommentsClose CommentsPermalink
(ii) An alien who fails to submit requested initial evidence, including requested biometric data, and requested additional evidence by the date required by the Secretary shall, except where the alien demonstrates to the satisfaction of the Secretary that such failure was reasonably excusable or was not willful, have his application considered abandoned. Such application shall be denied and the alien may not file additional applications.CommentsClose CommentsPermalink
(j) EVIDENCE OF NONIMMIGRANT STATUS-CommentsClose CommentsPermalink
(1) IN GENERAL- Documentary evidence of nonimmigrant status shall be issued to each Z nonimmigrant.CommentsClose CommentsPermalink
(2) FEATURES OF DOCUMENTATION- Documentary evidence of Z nonimmigrant status:CommentsClose CommentsPermalink
(A) shall be machine-readable, tamper-resistant, and shall contain a digitized photograph and other biometric identifiers that can be authenticated;CommentsClose CommentsPermalink
(B) shall be designed in consultation with U.S. Immigration and Customs Enforcement's Forensic Document Laboratory;CommentsClose CommentsPermalink
(C) shall, during the alien's authorized period of admission under subsection (k), serve as a valid travel and entry document for the purpose of applying for admission to the United States where the alien is applying for admission at a Port of Entry.CommentsClose CommentsPermalink
(D) may be accepted during the period of its validity by an employer as evidence of employment authorization and identity under section 274A(b)(1)(B); andCommentsClose CommentsPermalink
(E) shall be issued to the Z nonimmigrant by the Secretary of Homeland Security promptly after final adjudication of such alien's application for Z nonimmigrant status, except that an alien may not be granted permanent Z nonimmigrant status until all appropriate background checks on the alien are completed to the satisfaction of the Secretary of Homeland Security.CommentsClose CommentsPermalink
(k) PERIOD OF AUTHORIZED ADMISSION-CommentsClose CommentsPermalink
(1) INITIAL PERIOD- The initial period of authorized admission as a Z nonimmigrant shall be four years.CommentsClose CommentsPermalink
(2) EXTENSIONS-CommentsClose CommentsPermalink
(A) IN GENERAL- Z nonimmigrants may seek an indefinite number of four-year extensions of the initial period of authorized admission.CommentsClose CommentsPermalink
(B) REQUIREMENTS- In order to be eligible for an extension of the initial or any subsequent period of authorized admission under this paragraph, an alien must satisfy the following requirements:CommentsClose CommentsPermalink
(i) ELIGIBILITY- The alien must demonstrate continuing eligibility for Z nonimmigrant status;CommentsClose CommentsPermalink
(ii) ENGLISH LANGUAGE AND CIVICS-CommentsClose CommentsPermalink
(I) REQUIREMENT AT FIRST RENEWAL- At or before the time of application for the first extension of Z nonimmigrant status, an alien who is 18 years of age or older must demonstrate an attempt to gain an understanding of the English language and knowledge of United States civics by taking the naturalization test described in sections 312(a)(1) and (2) by demonstrating enrollment in or placement on a waiting list for English classes.CommentsClose CommentsPermalink
(II) REQUIREMENT AT SECOND RENEWAL- At or before the time of application for the second extension of Z nonimmigrant status, an alien who is 18 years of age or older must pass the naturalization test described in sections 312(a)(1) and (2). The alien may make up to three attempts to demonstrate such understanding and knowledge but must satisfy this requirement prior to the expiration of the second extension of Z nonimmigrant status.CommentsClose CommentsPermalink
(III) EXCEPTION- The requirement of subclauses (I) and (II) shall not apply to any person who, on the date of the filing of the person's application for an extension of Z nonimmigrant status--CommentsClose CommentsPermalink
(aa) is unable because of physical or developmental disability or mental impairment to comply therewith;CommentsClose CommentsPermalink
(bb) is over 50 years of age and has been living in the United States for periods totaling at least 20 years; orCommentsClose CommentsPermalink
(cc) is over 55 years of age and has been living in the United States for periods totaling at least fifteen years.CommentsClose CommentsPermalink
(iii) EMPLOYMENT- With respect to an extension of Z-1 or Z-3 nonimmigrant status an alien must demonstrate satisfaction of the employment or study requirements provided in subsection (m) during the alien's most recent authorized period of stay as of the date of application; andCommentsClose CommentsPermalink
(iv) FEES- The alien must pay a processing fee in an amount sufficient to recover the full cost of adjudicating the application, but no more than $1,500 for a single Z nonimmigrant.CommentsClose CommentsPermalink
(C) SECURITY AND LAW ENFORCEMENT BACKGROUND CHECKS- An alien applying for extension of Z nonimmigrant status may be required to submit to a renewed security and law enforcement background check that must be completed to the satisfaction of the Secretary of Homeland Security before such extension may be granted.CommentsClose CommentsPermalink
(D) TIMELY FILING AND MAINTENANCE OF STATUS-CommentsClose CommentsPermalink
(i) IN GENERAL- An extension of stay under this paragraph, or a change of status to another Z nonimmigrant status under subsection (l), may not be approved for an applicant who failed to maintain Z nonimmigrant status or where such status expired or terminated before the application was filed.CommentsClose CommentsPermalink
(ii) EXCEPTION- Failure to file before the period of previously authorized status expired or terminated may be excused in the discretion of the Secretary and without separate application, with any extension granted from the date the previously authorized stay expired, where it is demonstrated at the time of filing that:CommentsClose CommentsPermalink
(I) the delay was due to extraordinary circumstances beyond the control of the applicant, and the Secretary finds the delay commensurate with the circumstances; andCommentsClose CommentsPermalink
(II) the alien has not otherwise violated his Z nonimmigrant status.CommentsClose CommentsPermalink
(iii) EXEMPTIONS FROM PENALTY AND EMPLOYMENT REQUIREMENTS- An alien demonstrating extraordinary circumstances under clause (ii), including the spouse of a Z-1 nonimmigrant who has been battered or has been the subject of extreme cruelty perpetrated by the Z-1 nonimmigrant, and who is changing to Z-1 nonimmigrant status, may be exempted by the Secretary, in his discretion, from--CommentsClose CommentsPermalink
(I) the requirements under subsection (m) for a period of up to 180 days; andCommentsClose CommentsPermalink
(II) the penalty provisions of section (e)(6)(B)(iii), except that the alien must pay the penalty under section (e)(6)(B) at the time of application for the alien's first subsequent extension of Z-1 nonimmigrant status.CommentsClose CommentsPermalink
(E) BARS TO EXTENSION- Except as provided in subparagraph (D), a Z nonimmigrant shall not be eligible to extend such nonimmigrant status if:CommentsClose CommentsPermalink
(i) the alien has violated any term or condition of his or her Z nonimmigrant status, including but not limited to failing to comply with the change of address reporting requirements under section 265;CommentsClose CommentsPermalink
(ii) the period of authorized admission of the Z nonimmigrant has been terminated for any reason; orCommentsClose CommentsPermalink
(iii) with respect to a Z-2 or Z-3 nonimmigrant, the principal alien's Z-1 nonimmigrant status has been terminated.CommentsClose CommentsPermalink
(l) CHANGE OF STATUS-CommentsClose CommentsPermalink
(1) CHANGE FROM Z NONIMMIGRANT STATUS-CommentsClose CommentsPermalink
(A) IN GENERAL- A Z nonimmigrant may not change status under section 248 to another nonimmigrant status, except another Z nonimmigrant status or status under subparagraph (U) of section 101(a)(15).CommentsClose CommentsPermalink
(B) CHANGE FROM Z-A STATUS- A Z-A nonimmigrant may change status to Z nonimmigrant status at the time of renewal referenced in section 214A(j)(1)(C) of the Immigration and Nationality Act.CommentsClose CommentsPermalink
(C) LIMIT ON CHANGES- A Z nonimmigrant may not change status more than one time per 365-day period. The Secretary may, in his discretion, waive the application of this subparagraph to an alien if it is established to the satisfaction of the Secretary that application of this subparagraph would result in extreme hardship to the alien.CommentsClose CommentsPermalink
(2) NO CHANGE TO Z NONIMMIGRANT STATUS- A nonimmigrant under the immigration laws may not change status under section 248 to Z nonimmigrant status.CommentsClose CommentsPermalink
(m) EMPLOYMENT-CommentsClose CommentsPermalink
(1) Z-1 AND Z-3 NONIMMIGRANTS-CommentsClose CommentsPermalink
(A) IN GENERAL- Z-1 and Z-3 nonimmigrants shall be authorized to work in the United States.CommentsClose CommentsPermalink
(B) CONTINUOUS EMPLOYMENT REQUIREMENT- All requirements that an alien be employed or seeking employment for purposes of this Title shall not apply to an alien who is under 16 years or over 65 years of age. A Z-1 or Z-3 nonimmigrant between 16 and 65 years of age must remain continuously employed full time in the United States as a condition of such nonimmigrant status, except where--CommentsClose CommentsPermalink
(i) the alien is pursuing a full course of study at an established college, university, seminary, conservatory, trade school, academic high school, elementary school, or other academic institution or language training program;CommentsClose CommentsPermalink
(ii) the alien is employed while also engaged in study at an established college, university, seminary, conservatory, academic high school, elementary school, or other academic institution or language training program;CommentsClose CommentsPermalink
(iii) the alien cannot demonstrate employment because of a physical or mental disability (as defined under section 3(2) of the Americans with Disabilities Act of 1990 (
(iv) the alien's ability to work has been temporarily interrupted by an event that the Secretary has determined to be a force majeure interruption.CommentsClose CommentsPermalink
(2) Z-2 nonimmigrants- Z-2 nonimmigrants shall be authorized to work in the United States.CommentsClose CommentsPermalink
(3) PORTABILITY- Nothing in this subsection shall be construed to limit the ability of a Z nonimmigrant to change employers during the alien's period of authorized admission.CommentsClose CommentsPermalink
(n) TRAVEL OUTSIDE THE UNITED STATES-CommentsClose CommentsPermalink
(1) IN GENERAL- A Z nonimmigrant--CommentsClose CommentsPermalink
(A) may travel outside of the United States; andCommentsClose CommentsPermalink
(B) may be readmitted (if otherwise admissible) without having to obtain a visa if--CommentsClose CommentsPermalink
(i) the alien's most recent period of authorized admission has not expired;CommentsClose CommentsPermalink
(ii) the alien is the bearer of valid documentary evidence of Z nonimmigrant status that satisfies the conditions set forth in section (j); andCommentsClose CommentsPermalink
(iii) the alien is not subject to the bars on extension described in subsection (k)(2)(E).CommentsClose CommentsPermalink
(2) ADMISSIBILITY- On seeking readmission to the United States after travel outside the United States an alien granted Z nonimmigrant status must establish that he or she is not inadmissible, except as provided by subsection (d)(2).CommentsClose CommentsPermalink
(3) EFFECT ON PERIOD OF AUTHORIZED ADMISSION- Time spent outside the United States under paragraph (1) shall not extend the most recent period of authorized admission in the United States under subsection (k).CommentsClose CommentsPermalink
(o) TERMINATION OF BENEFITS-CommentsClose CommentsPermalink
(1) IN GENERAL- Any benefit provided to a Z nonimmigrant or an applicant for Z nonimmigrant status under this section shall terminate if--CommentsClose CommentsPermalink
(A) the Secretary determines that the alien is ineligible for such classification and all review procedures under section 603 of the [Insert title of Act] have been exhausted or waived by the alien;CommentsClose CommentsPermalink
(B)(i) the alien is found removable from the United States under section 237 of the Immigration and Nationality Act (
(ii) the alien becomes inadmissible under section 212 (except as provided in subsection (d)(2), orCommentsClose CommentsPermalink
(iii) the alien becomes ineligible under subsection (d)(1);CommentsClose CommentsPermalink
(C) the alien has used documentation issued under this section for unlawful or fraudulent purposes;CommentsClose CommentsPermalink
(D) in the case of the spouse or child of an alien applying for a Z nonimmigrant visa or classified as a Z nonimmigrant under this section, the benefits for the principal alien are terminated;CommentsClose CommentsPermalink
(E) with respect to a Z-1 or Z-3 nonimmigrant, the employment or study requirements under subsection (m) have been violated; orCommentsClose CommentsPermalink
(F) with respect to probationary benefits, the alien's application for Z nonimmigrant status is denied.CommentsClose CommentsPermalink
(2) DENIAL OF IMMIGRANT VISA OR ADJUSTMENT APPLICATION- Any application for an immigrant visa or adjustment of status to lawful permanent resident status made under this section by an alien whose Z nonimmigrant status is terminated under paragraph (1) shall be denied.CommentsClose CommentsPermalink
(3) DEPARTURE FROM THE UNITED STATES- Any alien whose period of authorized admission or probationary benefits is terminated under paragraph (1), as well as the alien's Z-2 or Z-3 nonimmigrant dependents, shall depart the United States immediately.CommentsClose CommentsPermalink
(4) INVALIDATION OF DOCUMENTATION- Any documentation that is issued by the Secretary of Homeland Security under subsection (j) or pursuant to subsection (h)(4) to any alien, whose period of authorized admission terminates under paragraph (1), shall automatically be rendered invalid for any purpose except departure.CommentsClose CommentsPermalink
(p) REVOCATION- If, at any time after an alien has obtained status under section 601 of the [Insert title of Act] but not yet adjusted such status to that of an alien lawfully admitted for permanent residence under section 602, the Secretary may, for good and sufficient cause, if it appears that the alien was not in fact eligible for status under section 601, revoke the alien's status following appropriate notice to the alien.CommentsClose CommentsPermalink
(q) DISSEMINATION OF INFORMATION ON Z PROGRAM- During the 2-year period immediately after the issuance of regulations implementing this title, the Secretary, in cooperation with entities approved by the Secretary, shall broadly disseminate information respecting Z classification under this section and the requirements to be satisfied to obtain such classification. The Secretary shall disseminate information to employers and labor unions to advise them of the rights and protections available to them and to workers who file applications under this section. Such information shall be broadly disseminated, in no fewer than the top five principal languages, as determined by the Secretary in his discretion, spoken by aliens who would qualify for classification under this section, including to television, radio, and print media to which such aliens would have access.CommentsClose CommentsPermalink
(r) DEFINITIONS- In this title and section 214A of the Immigration and Nationality Act:CommentsClose CommentsPermalink
(1) Z NONIMMIGRANT; Z NONIMMIGRANT WORKER- The term `Z nonimmigrant worker' means an alien admitted to the United States under paragraph (Z) of subsection 101(a)(15). The term does not include aliens granted probationary benefits under subsection (h) and whose applications for nonimmigrant status under section 101(a)(15)(Z) of the Act have not yet been adjudicated.CommentsClose CommentsPermalink
(2) Z-1 nonimmigrant; z-1 worker- The term `Z-1 nonimmigrant' or `Z-1 worker' means an alien admitted to the United States under paragraph (i)(I) of subsection 101(a)(15)(Z).CommentsClose CommentsPermalink
(3) Z-A NONIMMIGRANT; Z-A WORKER- The term `Z-A nonimmigrant' or `Z-A worker' means an alien admitted to the United States under paragraph (ii)(II) of subsection 101(a)(15)(Z).CommentsClose CommentsPermalink
(4) Z-2 nonimmigrant- The term `Z-2 nonimmigrant' means an alien admitted to the United States under paragraph (ii) of subsection 101(a)(15)(Z).CommentsClose CommentsPermalink
(5) Z-3 nonimmigrant; z-3 worker- The term `Z-3 nonimmigrant' or `Z-3 worker' means an alien admitted to the United States under paragraph (iii) of subsection 101(a)(15)(Z).CommentsClose CommentsPermalink
SEC. 602. EARNED ADJUSTMENT FOR Z STATUS ALIENS.
(a) LAWFUL PERMANENT RESIDENCE-CommentsClose CommentsPermalink
(1) Z-1 nonimmigrants-CommentsClose CommentsPermalink
(A) PROHIBITION ON IMMIGRANT VISA- A Z-1 nonimmigrant may not be issued an immigrant visa pursuant to sections 221 and 222.CommentsClose CommentsPermalink
(B) ADJUSTMENT- Notwithstanding sections 245 (a) and (c), the status of any Z-1 nonimmigrant may be adjusted by the Secretary of Homeland Security to that of an alien lawfully admitted for permanent residence.CommentsClose CommentsPermalink
(C) REQUIREMENTS- A Z-1 nonimmigrant may adjust status to that of an alien lawfully admitted for permanent residence upon satisfying, in addition to all other requirements imposed by law, including the merit requirements set forth in section 203(b)(1)(A)[INSERT CITE], the following requirements:CommentsClose CommentsPermalink
(i) STATUS- The alien must be in valid Z-1 nonimmigrant status.CommentsClose CommentsPermalink
(ii) CONSULAR APPLICATION-CommentsClose CommentsPermalink
(I) IN GENERAL- A Z-1 nonimmigrant's application for adjustment of status to that of an alien lawfully admitted for permanent residence must be filed in person with a United States consulate abroad.CommentsClose CommentsPermalink
(II) PLACE OF APPLICATION- Unless otherwise directed by the Secretary of State, a Z-1 nonimmigrant applying for adjustment of status under this paragraph shall make an application at a consular office in the alien's country of origin. A consular office in a country that is not a Z-1 nonimmigrant's country of origin may as a matter of discretion, or shall at the direction of the Secretary of State, accept an application for adjustment of status from such an alien.CommentsClose CommentsPermalink
(iii) APPROVED PETITION- The alien must be the beneficiary of an approved petition under section 204 of the Act or have an approved petition that was filed pursuant to the evaluation system under section 203(b)(1)(A) of the Act.CommentsClose CommentsPermalink
(iv) ADMISSIBILITY- The alien must not be inadmissible under section 212(a), except for those grounds previously waived under subsection (d)(2).CommentsClose CommentsPermalink
(v) FEES AND PENALTIES- In addition to the fees payable to the Secretary of Homeland Security and Secretary of State in connection with the filing of an immigrant petition and application for adjustment of status, a Z-1 head of household must pay a $4,000 penalty at the time of submission of any immigrant petition on his behalf, regardless of whether the alien submits such petition on his own behalf or the alien is the beneficiary of an immigrant petition filed by another party.CommentsClose CommentsPermalink
(D) EXEMPTIONS- Section 602(a)(1)(c)(ii) shall not apply to an alien who, on the date on which the application for adjustment of status is filed under this section, is exempted from the employment requirements under subsection (m)(1)(B)(iii).CommentsClose CommentsPermalink
(E) FAILURE TO ESTABLISH LAWFUL ADMISSION TO THE UNITED STATES- Unless exempted under subparagraph (D), a Z immigrant who fails to depart and reenter the United States in accordance with paragraph (1) may not become a lawful permanent resident under this section.CommentsClose CommentsPermalink
(2) Z-2 and z-3 nonimmigrants-CommentsClose CommentsPermalink
(A) RESTRICTION ON VISA ISSUANCE OR ADJUSTMENT- An application for an immigrant visa or for adjustment of status to that of an alien lawfully admitted for permanent residence of a Z-2 nonimmigrant or a Z-3 nonimmigrant under 18 years of age may not be approved before the adjustment of status of the alien's principal Z-1 nonimmigrant.CommentsClose CommentsPermalink
(B) ADJUSTMENT OF STATUS-CommentsClose CommentsPermalink
(i) ADJUSTMENT- Notwithstanding sections 245 (a) and (c), the status of any Z-2 or Z-3 nonimmigrant may be adjusted by the Secretary of Homeland Security to that of an alien lawfully admitted for permanent residence.CommentsClose CommentsPermalink
(ii) REQUIREMENTS- A Z-2 or Z-3 nonimmigrant may adjust status to that of an alien lawfully admitted for permanent residence upon satisfying, in addition to all other requirements imposed by law, the following requirements:CommentsClose CommentsPermalink
(I) STATUS- The alien must be in valid Z-2 or Z-3 nonimmigrant status.CommentsClose CommentsPermalink
(II) APPROVED PETITION- The alien must be the beneficiary of an approved petition under section 204 of the Act or have an approved petition that was filed pursuant to the merit-based evaluation system under section 203(b)(1)(A) of the Act.CommentsClose CommentsPermalink
(III) ADMISSIBILITY- The alien must not be inadmissible under section 212(a), except for those grounds previously waived under subsection (d)(2).CommentsClose CommentsPermalink
(IV) FEES- The alien must pay the fees payable to the Secretary of Homeland Security and Secretary of State in connection with the filing of an immigrant petition and application for an immigrant visa.CommentsClose CommentsPermalink
(3) MAINTENANCE OF WAIVERS OF INADMISSIBILITY- The grounds of inadmissibility not applicable under section (d)(2) shall also be considered inapplicable for purposes of admission as an immigrant or adjustment pursuant to this subsection.CommentsClose CommentsPermalink
(4) APPLICATION OF OTHER LAW- In processing applications under this subsection on behalf of aliens who have been battered or subjected to extreme cruelty, the Secretary shall apply--CommentsClose CommentsPermalink
(A) the provisions under section 204(a)(1)(J) of the Immigration and Nationality Act (
(B) the protections, prohibitions, and penalties under section 384 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (
(5) BACK OF THE LINE- An alien may not adjust status to that of a lawful permanent resident under this section until 30 days after an immigrant visa becomes available for approved petitions filed under sections 201, 202, and 203 of the Act that were filed before May 1, 2005.CommentsClose CommentsPermalink
(6) INELIGIBILITY FOR PUBLIC BENEFITS- For purposes of section 403 of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (
(7) MEDICAL EXAMINATION- An applicant for earned adjustment shall undergo an appropriate medical examination (including a determination of immunization status) that conforms to generally accepted professional standards of medical practice.CommentsClose CommentsPermalink
(8) PAYMENT OF INCOME TAXES-CommentsClose CommentsPermalink
(A) IN GENERAL- Not later than the date on which status is adjusted under this section, the applicant shall satisfy any applicable Federal tax liability accrued during the period of Z status by establishing that--CommentsClose CommentsPermalink
(i) no such tax liability exists;CommentsClose CommentsPermalink
(ii) all outstanding liabilities have been paid; orCommentsClose CommentsPermalink
(iii) the applicant has entered into, and is in compliance with, an agreement for payment of all outstanding liabilities with the Internal Revenue Service.CommentsClose CommentsPermalink
(B) IRS COOPERATION- The Secretary of the Treasury shall establish rules and procedures under which the Commissioner of Internal Revenue shall provide documentation to--CommentsClose CommentsPermalink
(i) the applicant, upon request, to establish the payment of all taxes required under this subsection; orCommentsClose CommentsPermalink
(ii) the Secretary, upon request, regarding the payment of Federal taxes by an alien applying for a benefit under this section.CommentsClose CommentsPermalink
(9) DEPOSIT OF FEES- Fees collected under this paragraph shall be deposited into the Immigration Examination Fee Account and shall remain available as provided under subsections (m) and (n) of section 286 of the Immigration and Nationality Act (
(10) DEPOSIT OF PENALTIES- Penalties collected under this paragraph shall be deposited into the Temporary Worker Program Account and shall remain available as provided under section 286(w) of the Immigration and Nationality Act.CommentsClose CommentsPermalink
SEC. 603. ADMINISTRATIVE REVIEW, REMOVAL PROCEEDINGS, AND JUDICIAL REVIEW FOR ALIENS WHO HAVE APPLIED FOR LEGAL STATUS.
(a) ADMINISTRATIVE REVIEW FOR ALIENS WHO HAVE APPLIED FOR STATUS UNDER THIS TITLE-CommentsClose CommentsPermalink
(1) EXCLUSIVE REVIEW- Administrative review of a determination respecting nonimmigrant status under this title shall be conducted solely in accordance with this subsection.CommentsClose CommentsPermalink
(2) ADMINISTRATIVE APPELLATE REVIEW- Except as provided in subparagraph (b)(2), an alien whose status under this title has been denied, terminated, or revoked may file not more than one appeal of the denial, termination, or rescission with the Secretary not later than 30 calendar days after the date of the decision or mailing thereof, whichever occurs later in time. The Secretary shall establish an appellate authority to provide for a single level of administrative appellate review of a denial, termination, or rescission of status under [this Act].CommentsClose CommentsPermalink
(3) STANDARD FOR REVIEW- Such administrative appellate review shall be based solely upon the administrative record established at the time of the determination on the application and upon such additional newly discovered or previously unavailable evidence as the administrative appellate review authority may decide to consider at the time of the determination.CommentsClose CommentsPermalink
(4) LIMITATION ON MOTIONS TO REOPEN AND RECONSIDER- During the administrative appellate review process the alien may file not more than one motion to reopen or to reconsider. The Secretary's decision whether to consider any such motion is committed to the Secretary's discretion.CommentsClose CommentsPermalink
(b) REMOVAL OF ALIENS WHO HAVE BEEN DENIED STATUS UNDER THIS TITLE-CommentsClose CommentsPermalink
(1) SELF-INITIATED REMOVAL- Any alien who receives a denial under subsection (a) may request, not later than 30 calendar days after the date of the denial or the mailing thereof, whichever occurs later in time, that the Secretary place the alien in removal proceedings. The Secretary shall place the alien in removal proceedings to which the alien would otherwise be subject, unless the alien is subject to an administratively final order of removal, provided that no court shall have jurisdiction to review the timing of the Secretary's initiation of such proceedings. If the alien is subject to an administratively final order of removal, the alien may seek review of the denial under this section pursuant to subsection 242(h) as though the order of removal had been entered on the date of the denial, provided that the court shall not review the order of removal except as otherwise provided by law.CommentsClose CommentsPermalink
(2) ALIENS WHO ARE DETERMINED TO BE INELIGIBLE DUE TO CRIMINAL CONVICTIONS-CommentsClose CommentsPermalink
(A) AGGRAVATED FELONS- Notwithstanding any other provision of this Act, an alien whose application for status under this title has been denied or whose status has been terminated or revoked by the Secretary under clause (1)(F)(ii) of subsection 601(d) of [this Act] because the alien has been convicted of an aggravated felony, as defined in paragraph 101(a)(43) of the INA, may be placed forthwith in proceedings pursuant to section 238(b) of the INA.CommentsClose CommentsPermalink
(B) OTHER CRIMINALS- Notwithstanding any other provision of this Act, any other alien whose application for status under this title has been denied or whose status has been terminated or revoked by the Secretary under clauses (1)(F) (i), (iii), or (iv) of subsection [CITE: 601(d)] of [this Act] may be placed forthwith in removal proceedings under section 240 of the INA.CommentsClose CommentsPermalink
(C) FINAL DENIAL, TERMINATION OR RESCISSION- The Secretary's denial, termination, or rescission of the status of any alien described in clauses (i) and (ii) of this subparagraph shall be final for purposes of subparagraph 242(h)(3)(C) of the INA and shall represent the exhaustion of all review procedures for purposes of subsections 601(h) (relating to treatment of applicants) and 601(o) (relating to termination of proceedings) of this Act, notwithstanding paragraph (a)(2) of this section.CommentsClose CommentsPermalink
(3) LIMITATION ON MOTIONS TO REOPEN AND RECONSIDER- During the removal process under this subsection the alien may file not more than one motion to reopen or to reconsider. The Secretary's or Attorney General's decision whether to consider any such motion is committed to the Attorney General's discretion.CommentsClose CommentsPermalink
(c) JUDICIAL REVIEW- Section 242 of the Immigration and Nationality Act is amended by adding at the end the following subsection (h):CommentsClose CommentsPermalink
`(h) Judicial Review of Eligibility Determinations Relating to Status Under Title VI of [this Act]-CommentsClose CommentsPermalink
`(1) EXCLUSIVE REVIEW- Notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of title 28, or any other habeas corpus provision, and sections 1361 and 1651 of such title, and except as provided in this subsection, no court shall have jurisdiction to review a determination respecting an application for status under title VI of [this Act], including, without limitation, a denial, termination, or rescission of such status.CommentsClose CommentsPermalink
`(2) NO REVIEW FOR LATE FILINGS- An alien may not file an application for status under title VI of [this Act] beyond the period for receipt of such applications established by subsection 601(f) thereof. The denial of any application filed beyond the expiration of the period established by that subsection shall not be subject to judicial review or remedy.CommentsClose CommentsPermalink
`(3) REVIEW OF A DENIAL, TERMINATION, OR RESCISSION OF STATUS UNDER TITLE VI OF [THIS ACT]- A denial, termination, or rescission of status under subsection 601 of [this Act] may be reviewed only in conjunction with the judicial review of an order of removal under this section, provided that:CommentsClose CommentsPermalink
`(A) the venue provision set forth in (b)(2) shall govern;CommentsClose CommentsPermalink
`(B) the deadline for filing the petition for review in (b)(1) shall control;CommentsClose CommentsPermalink
`(C) the alien has exhausted all administrative remedies available to the alien as of right, including but not limited to the timely filing of an administrative appeal pursuant to subsection 603(a) of [this Act];CommentsClose CommentsPermalink
`(D) the court shall decide a challenge to the denial of status only on the administrative record on which the Secretary's denial, termination, or rescission was based;CommentsClose CommentsPermalink
`(E) LIMITATION ON REVIEW- Notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of title 28, or any other habeas corpus provision, and sections 1361 and 1651 of such title, no court reviewing a denial, termination, or rescission of status under Title VI of [this Act] may review any discretionary decision or action of the Secretary regarding any application for or termination or rescission of such status; andCommentsClose CommentsPermalink
`(F) LIMITATION ON MOTIONS TO REOPEN AND RECONSIDER- The alien may file not more than one motion to reopen or to reconsider in proceedings brought under this section.CommentsClose CommentsPermalink
`(4) STANDARD FOR JUDICIAL REVIEW- Judicial review of the Secretary's denial, termination, or rescission of status under title VI of [this Act] relating to any alien shall be based solely upon the administrative record before the Secretary when he enters a final denial, termination, or rescission. The administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary. The legal determinations are conclusive unless manifestly contrary to law.CommentsClose CommentsPermalink
`(5) CHALLENGES ON VALIDITY OF THE SYSTEM-CommentsClose CommentsPermalink
`(A) IN GENERAL- Any claim that title VI of [this Act], or any regulation, written policy, or written directive issued or unwritten policy or practice initiated by or under the authority of the Secretary of Homeland Security to implement that title, violates the Constitution of the United States or is otherwise in violation of law is available exclusively in an action instituted in the United States District Court for the District of Columbia in accordance with the procedures prescribed in this paragraph. Nothing in this subparagraph shall preclude an applicant for status under title VI of [this Act] from asserting that an action taken or decision made by the Secretary with respect to his status under that title was contrary to law in a proceeding under section 603 of [this Act] and paragraph (b)(2) of this section.CommentsClose CommentsPermalink
`(B) DEADLINES FOR BRINGING ACTIONS- Any action instituted under this paragraph,CommentsClose CommentsPermalink
(i) must, if it asserts a claim that title VI of [this Act] or any regulation, written policy, or written directive issued by or under the authority of the Secretary to implement that title violates the Constitution or is otherwise unlawful, be filed no later than one year after the date of the publication or promulgation of the challenged regulation, policy or directive or, in cases challenging the validity of the Act, within one year of enactment; andCommentsClose CommentsPermalink
(ii) must, if it asserts a claim that an unwritten policy or practice initiated by or under the authority of the Secretary violates the Constitution or is otherwise unlawful, be filed no later than one year after the plaintiff knew or reasonably should have known of the unwritten policy or practice.CommentsClose CommentsPermalink
`(C) CLASS ACTIONS- Any claim described in subparagraph (A) that is brought as a class action shall be brought in conformity with
`(D) PRECLUSIVE EFFECT- The final disposition of any claim brought under subparagraph (5)(A) shall be preclusive of any such claim asserted in a subsequent proceeding under this subsection or under subsection 603 [of this Act].CommentsClose CommentsPermalink
`(E) EXHAUSTION AND STAY OF PROCEEDINGS- No claim brought under this paragraph shall require the plaintiff to exhaust administrative remedies under subsection 603 of [this Act], but nothing shall prevent the court from staying proceedings under this paragraph to permit the Secretary to evaluate an allegation of an unwritten policy or practice or to take corrective action. In issuing such a stay, the court shall take into account any harm the stay may cause to the claimant. The court shall have no authority to stay proceedings initiated under any other section of the INA.'CommentsClose CommentsPermalink
SEC. 604. MANDATORY DISCLOSURE OF INFORMATION.
(a) IN GENERAL- Except as otherwise provided in this section, no Federal agency or bureau, or any officer or employee of such agency or bureau, may--CommentsClose CommentsPermalink
(1) use the information furnished by the applicant pursuant to an application filed under section 601 and 602, for any purpose, other than to make a determination on the application;CommentsClose CommentsPermalink
(2) make any publication through which the information furnished by any particular applicant can be identified; orCommentsClose CommentsPermalink
(3) permit anyone other than the sworn officers, employees or contractors of such agency, bureau, or approved entity, as approved by the Secretary of Homeland Security, to examine individual applications that have been filed.CommentsClose CommentsPermalink
(b) REQUIRED DISCLOSURES- The Secretary of Homeland Security and the Secretary of State shall provide the information furnished pursuant to an application filed under section 601 and 602, and any other information derived from such furnished information, to--CommentsClose CommentsPermalink
(1) a law enforcement entity, intelligence agency, national security agency, component of the Department of Homeland Security, court, or grand jury in connection with a criminal investigation or prosecution or a national security investigation or prosecution, in each instance about an individual suspect or group of suspects, when such information is requested by such entity;CommentsClose CommentsPermalink
(2) a law enforcement entity, intelligence agency, national security agency, or component of the Department of Homeland Security in connection with a duly authorized investigation of a civil violation, in each instance about an individual suspect or group of suspects, when such information is requested by such entity; orCommentsClose CommentsPermalink
(3) an official coroner for purposes of affirmatively identifying a deceased individual, whether or not the death of such individual resulted from a crime.CommentsClose CommentsPermalink
(c) INAPPLICABILITY AFTER DENIAL- The limitations under subsection (a)--CommentsClose CommentsPermalink
(1) shall apply only until an application filed under section 601 and 602 is denied and all opportunities for administrative appeal of the denial have been exhausted; andCommentsClose CommentsPermalink
(2) shall not apply to the use of the information furnished pursuant to such application in any removal proceeding or other criminal or civil case or action relating to an alien whose application has been granted that is based upon any violation of law committed or discovered after such grant.CommentsClose CommentsPermalink
(d) CRIMINAL CONVICTIONS- Notwithstanding any other provision of this section, information concerning whether the applicant has at any time been convicted of a crime may be used or released for immigration enforcement and law enforcement purposes.CommentsClose CommentsPermalink
(e) AUDITING AND EVALUATION OF INFORMATION- The Secretary may audit and evaluate information furnished as part of any application filed under sections 601 and 602, any application to extend such status under section 601(k), or any application to adjust status to that of an alien lawfully admitted for permanent residence under section 602, for purposes of identifying fraud or fraud schemes, and may use any evidence detected by means of audits and evaluations for purposes of investigating, prosecuting or referring for prosecution, denying, or terminating immigration benefits.CommentsClose CommentsPermalink
(f) USE OF INFORMATION IN PETITIONS AND APPLICATIONS SUBSEQUENT TO ADJUSTMENT OF STATUS- If the Secretary has adjusted an alien's status to that of an alien lawfully admitted for permanent residence pursuant to section 602, then at any time thereafter the Secretary may use the information furnished by the alien in the application for adjustment of status or in the applications for status pursuant to sections 601 or 602 to make a determination on any petition or application.CommentsClose CommentsPermalink
(g) CRIMINAL PENALTY- Whoever knowingly uses, publishes, or permits information to be examined in violation of this section shall be fined not more than $10,000.CommentsClose CommentsPermalink
(h) CONSTRUCTION- Nothing in this section shall be construed to limit the use, or release, for immigration enforcement purposes of information contained in files or records of the Secretary or Attorney General pertaining to an application filed under sections 601 or 602, other than information furnished by an applicant pursuant to the application, or any other information derived from the application, that is not available from any other source.CommentsClose CommentsPermalink
(i) REFERENCES- References in this section to section 601 or 602 are references to sections 601 and 602 of this Act and the amendments made by those sections.CommentsClose CommentsPermalink
SEC. 605. EMPLOYER PROTECTIONS.
(a) Copies of employment records or other evidence of employment provided by an alien or by an alien's employer in support of an alien's application for Z nonimmigrant status shall not be used in a prosecution or investigation (civil or criminal) of that employer under section 247A (
(b) APPLICABILITY OF OTHER LAW- Nothing in this section may be used to shield an employer from liability under section 274B of the Immigration and Nationality Act (
SEC. 606. ENUMERATION OF SOCIAL SECURITY NUMBER.
The Secretary of Homeland Security, in coordination with the Commissioner of the Social Security Administration, shall implement a system to allow for the prompt enumeration of a Social Security number after the Secretary of Homeland Security has granted an alien Z nonimmigrant status or any probationary benefits based upon application for such status.CommentsClose CommentsPermalink
SEC. 607. PRECLUSION OF SOCIAL SECURITY CREDITS FOR PERIODS WITHOUT WORK AUTHORIZATION.
(a) INSURED STATUS- Section 214 of the Social Security Act (
`(c)(1) Except as provided in paragraph (2), for purposes of subsections (a) and (b), no quarter of coverage shall be credited for any calendar year beginning on or after January 1, 2004, with respect to an individual who is not a natural-born United States citizen, unless the Commissioner of Social Security determines, on the basis of information provided to the Commissioner in accordance with an agreement entered into under subsection (d) or otherwise, that the individual was authorized to be employed in the United States during such quarter.CommentsClose CommentsPermalink
`(2) Paragraph (1) shall not apply to an individual who was assigned a social security account number prior to January 1, 2004.CommentsClose CommentsPermalink
`(d) Not later than 180 days after the date of the enactment of this subsection, the Secretary of Homeland Security shall enter into an agreement with the Commissioner of Social Security to provide such information as the Commissioner determines necessary to carry out the limitation on crediting quarters of coverage under subsection (c).'.CommentsClose CommentsPermalink
(b) BENEFIT COMPUTATION- Section 215(e) of the Social Security Act (
(1) by striking `and' at the end of paragraph (1);CommentsClose CommentsPermalink
(2) by striking the period at the end of paragraph (2) and inserting `; and'; andCommentsClose CommentsPermalink
(3) by adding at the end the following new paragraph:CommentsClose CommentsPermalink
`(3) in computing the average indexed monthly earnings of an individual, there shall not be counted any wages or self-employment income for any year for which no quarter of coverage may be credited to such individual as a result of the application of section 214(c).'.CommentsClose CommentsPermalink
(c) EFFECTIVE DATE- The amendments made by this section shall apply to benefit applications filed on or after the date that is 180 days after the date of the enactment of this Act based on the wages or self-employment income of an individual with respect to whom a primary insurance amount has not been determined under title II of the Social Security Act (
SEC. 608. PAYMENT OF PENALTIES AND USE OF PENALTIES COLLECTED.
(a) The Secretary shall by regulation establish procedures allowing for the payment of 80 percent of the penalties described in Section 601(e)(6)(B) and Section 602(a)(1)(C)(v) through an installment payment plan.CommentsClose CommentsPermalink
(b) Any penalties received under this title with respect to an application for Z-1 nonimmigrant status shall be used in the following order of priority:CommentsClose CommentsPermalink
(1) shall be credited as offsetting collections to appropriations provided pursuant to section 611 for the fiscal year in which this Act is enacted and the subsequent fiscal year; andCommentsClose CommentsPermalink
(2) shall be deposited and remain available as otherwise provided under this title.CommentsClose CommentsPermalink
SEC. 609. LIMITATIONS ON ELIGIBILITY.
(a) IN GENERAL- An alien is not ineligible for any immigration benefit under any provision of this title, or any amendment made by this title, solely on the basis that the alien violated section 1543, 1544, or 1546 of title 18, United States Code, or any amendments made by the [NAME OF THIS ACT], during the period beginning on the date of the enactment of such Act and ending on the date on which the alien applies for any benefits under this title, except with respect to any forgery, fraud or misrepresentation on the application for Z nonimmigrant status filed by the alien.CommentsClose CommentsPermalink
(b) PROSECUTION- An alien who commits a violation of section 1543, 1544, or 1546 of such title or any amendments made by the [NAME OF THIS ACT], during the period beginning on the date of the enactment of such Act and ending on the date that the alien applies for eligibility for such benefit may be prosecuted for the violation if the alien's application for such benefit is denied.CommentsClose CommentsPermalink
SEC. 610. RULEMAKING.
(a) The Secretary shall issue an interim final rule within six months of the date of enactment of this subtitle to implement this title and the amendments made by this title. The interim final rule shall become effective immediately upon publication in the Federal Register. The interim final rule shall sunset two years after issuance unless the Secretary issues a final rule within two years of the issuance of the interim final rule.CommentsClose CommentsPermalink
(b) The exemption provided under this section shall sunset no later than two years after the date of enactment of this subtitle, provided that, such sunset shall not be construed to impose any requirements on, or affect the validity of, any rule issued or other action taken by the Secretary under such exemptions.CommentsClose CommentsPermalink
SEC. 611. AUTHORIZATION OF APPROPRIATIONS.
(a) The first $4,400,000,000 of such penalties shall be deposited into the general fund of the Treasury as repayment of funds transferred into the Immigration Security Account under section 286(z)(1) of the Immigration and Nationality Act.CommentsClose CommentsPermalink
(b) Penalties in excess of $4,400,000,000 shall be deposited and remain available as otherwise provided under this Act.CommentsClose CommentsPermalink
(c) SENSE OF CONGRESS- It is the sense of the Congress that funds authorized to be appropriated under subsection (a) should be directly appropriated so as to facilitate the orderly and timely commencement of the processing of applications filed under sections 601 and 602.CommentsClose CommentsPermalink
Subtitle B--DREAM Act
SEC. 612. SHORT TITLE.
This subtitle may be cited as the `Development, Relief, and Education for Alien Minors Act of 2007' or the `DREAM Act of 2007'.CommentsClose CommentsPermalink
SEC. 613. DEFINITIONS.
In this subtitle:CommentsClose CommentsPermalink
(1) INSTITUTION OF HIGHER EDUCATION- The term `institution of higher education' has the meaning given that term in section 101 of the Higher Education Act of 1965 (
(2) UNIFORMED SERVICES- The term `uniformed services' has the meaning given that term in
SEC. 614. ADJUSTMENT OF STATUS OF CERTAIN LONG-TERM RESIDENTS WHO ENTERED THE UNITED STATES AS CHILDREN.
(a) SPECIAL RULE FOR CERTAIN LONG-TERM RESIDENTS WHO ENTERED THE UNITED STATES AS CHILDREN-CommentsClose CommentsPermalink
(1) IN GENERAL- Notwithstanding any other provision of law and except as otherwise provided in this subtitle, the Secretary may beginning on the date that is three years after the date of enactment of this Act adjust to the status of an alien lawfully admitted for permanent residence an alien who is determined to be eligible for or has been issued a probationary Z or Z nonimmigrant visa if the alien demonstrates that--CommentsClose CommentsPermalink
(A) the alien has been physically present in the United States for a continuous period since January 1, 2007, is under 30 years of age on the date of enactment, and had not yet reached the age of 16 years at the time of initial entry;CommentsClose CommentsPermalink
(B) the alien has earned a high school diploma or obtained a general education development certificate in the United States;CommentsClose CommentsPermalink
(C) The alien has not abandoned the alien's residence in the United States. The Secretary shall presume that the alien has abandoned such residence if the alien is absent from the United States for more than 365 days, in the aggregate, during the period of conditional residence, unless the alien demonstrates that alien has not abandoned the alien's residence. An alien who is absent from the United States due to active service in the uniformed services has not abandoned the alien's residence in the United States during the period of such service.CommentsClose CommentsPermalink
(D) The alien has--CommentsClose CommentsPermalink
(i) acquired a degree from an institution of higher education in the United States or has completed at least 2 years, in good standing, in a program for a bachelor's degree or higher degree in the United States; orCommentsClose CommentsPermalink
(ii) The alien has served in the uniformed services for at least 2 years and, if discharged, has received an honorable discharge.CommentsClose CommentsPermalink
(E) The alien has provided a list of all of the secondary educational institutions that the alien attended in the United States; andCommentsClose CommentsPermalink
(F) The alien is in compliance with the eligibility and admissibility criteria set forth in section 601(d).CommentsClose CommentsPermalink
(b) TREATMENT OF PERIOD FOR PURPOSES OF NATURALIZATION- Solely for purposes of title III of the Immigration and Nationality Act (
(c) EXEMPTION FROM NUMERICAL LIMITATIONS- Nothing in this section may be construed to apply a numerical limitation on the number of aliens who may be eligible for adjustment of status.CommentsClose CommentsPermalink
(d) REGULATIONS-CommentsClose CommentsPermalink
(1) PROPOSED REGULATIONS- Not later than 180 days after the date of enactment of this Act, the Secretary shall publish proposed regulations implementing this section. Such regulations shall be effective immediately on an interim basis, but are subject to change and revision after public notice and opportunity for a period for public comment.CommentsClose CommentsPermalink
(2) INTERIM, FINAL REGULATIONS- Within a reasonable time after publication of the interim regulations in accordance with paragraph (1), the Secretary shall publish final regulations implementing this section.CommentsClose CommentsPermalink
SEC. 615. EXPEDITED PROCESSING OF APPLICATIONS; PROHIBITION ON FEES.
Regulations promulgated under this subtitle shall provide that no additional fee will be charged to an applicant for a Z nonimmigrant visa for applying for benefits under this subtitle.CommentsClose CommentsPermalink
SEC. 616. HIGHER EDUCATION ASSISTANCE.
(a) Section 505 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (
(b) Notwithstanding any provision of the Higher Education Act of 1965 (
(1) Student loans under parts B, D, and E of such title IV (
(2) Federal work-study programs under part C of such title IV (
(3) Services under such title IV (
SEC. 617. DELAY OF FINES AND FEES.
(a) Payment of the penalties and fees specified in section 601(e)(6) shall not be required with respect to an alien who meets the eligibility criteria set forth in section 614(a)(1)(A), (B), and (F) until the date that is six years and six months after the date of enactment of this Act or the alien reaches the age of 24, whichever is later. If the alien makes all of the demonstrations specified in section 614(a)(1) by such date, the penalties shall be waived. If the alien fails to make the demonstrations specified in section 614(a)(1) by such date, the alien's Z nonimmigrant status will be terminated unless the alien pays the penalties and fees specified in section 601(e)(6) consistent with the procedures set forth in section 608 within 90 days.CommentsClose CommentsPermalink
(b) With respect to an alien who meets the eligibility criteria set forth in section 614(a)(1)(A) and (F), but not the eligibility criteria in section 614(a)(1)(B), the individual who pays the penalties specified in section 601(e)(6) shall be entitled to a refund when the alien makes all the demonstrations specified in section 614(a)(1).CommentsClose CommentsPermalink
SEC. 618. GAO REPORT.
Seven years after the date of enactment of this Act, the Comptroller General of the United States shall submit a report to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives, which sets forth--CommentsClose CommentsPermalink
(1) the number of aliens who were eligible for adjustment of status under section 623(a);CommentsClose CommentsPermalink
(2) the number of aliens who applied for adjustment of status under section 623(a); andCommentsClose CommentsPermalink
(3) the number of aliens who were granted adjustment of status under section 623(a).CommentsClose CommentsPermalink
SEC. 619. REGULATIONS, EFFECTIVE DATE, AUTHORIZATION OF APPROPRIATIONS.
(a) REGULATIONS- The Secretary shall issue regulations to carry out the amendments made by this subtitle not later than the first day of the seventh month that begins after the date of enactment of this Act.CommentsClose CommentsPermalink
(b) EFFECTIVE DATE- This subtitle shall take effect on the date that regulations required by subsection (a) are issued, regardless of whether such regulations are issued on an interim basis or on any other basis.CommentsClose CommentsPermalink
(c) AUTHORIZATION OF APPROPRIATIONS- There are authorized to be appropriated to the Secretary such sums as may be necessary to implement this subtitle, including any sums needed for costs associated with the initiation of such implementation.CommentsClose CommentsPermalink
PART II--CORRECTION OF SOCIAL SECURITY RECORDS
SEC. 620. CORRECTION OF SOCIAL SECURITY RECORDS.
(a) IN GENERAL- Section 208(e)(1) of the Social Security Act (
(1) in subparagraph (B)(ii), by striking `or' at the end;CommentsClose CommentsPermalink
(2) in subparagraph (C), by inserting `or' at the end;CommentsClose CommentsPermalink
(3) by inserting after subparagraph (C) the following:CommentsClose CommentsPermalink
`(D) who is granted nonimmigrant status pursuant to section 101(a)(15)(Z-A) of the Immigration and Nationality Act,'; andCommentsClose CommentsPermalink
(4) by striking `1990.' and inserting `1990, or in the case of an alien described in subparagraph (D), if such conduct is alleged to have occurred before the date on which the alien was granted such nonimmigrant status.'.CommentsClose CommentsPermalink
(b) EFFECTIVE DATE- The amendments made by subsection (a) shall take effect on the first day of the seventh month that begins after the date of the enactment of this Act.CommentsClose CommentsPermalink
Subtitle C--Agricultural Workers
SEC. 621. SHORT TITLE.
This subtitle may be cited as the `Agricultural Job Opportunities, Benefits, and Security Act of 2007' or the `AgJOBS Act of 2007'.CommentsClose CommentsPermalink
PART I--ADMISSION OF AGRICULTURAL WORKERS
SEC. 622. ADMISSION OF AGRICULTURAL WORKERS.
(a) Z-A NONIMMIGRANT VISA CATEGORY-CommentsClose CommentsPermalink
(1) ESTABLISHMENT- Paragraph (15) of section 101(a) of the Immigration and Nationality Act (
`(Z-A)(i) an alien who is coming to the United States to perform any service or activity that is considered to be agricultural under section 3(f) of the Fair Labor Standards Act of 1938 (
`(ii) the spouse or minor child of an alien described in clause (i) who is residing in the United States.'.CommentsClose CommentsPermalink
(b) REQUIREMENTS FOR ISSUANCE OF NONIMMIGRANT VISA- Chapter 2 of title II of the Immigration and Nationality Act (
`SEC. 214A. ADMISSION OF AGRICULTURAL WORKERS.
`(a) DEFINITIONS- In this section:CommentsClose CommentsPermalink
`(1) AGRICULTURAL EMPLOYMENT- The term `agricultural employment' means any service or activity that is considered to be agricultural under section 3(f) of the Fair Labor Standards Act of 1938 (
`(2) DEPARTMENT- The term `Department' means the Department of Homeland Security.CommentsClose CommentsPermalink
`(3) EMPLOYER- The term `employer' means any person or entity, including any farm labor contractor and any agricultural association, that employs workers in agricultural employment.CommentsClose CommentsPermalink
`(4) QUALIFIED DESIGNATED ENTITY- The term `qualified designated entity' means--CommentsClose CommentsPermalink
`(A) a qualified farm labor organization or an association of employers designated by the Secretary; orCommentsClose CommentsPermalink
`(B) any such other person designated by the Secretary if that Secretary determines such person is qualified and has substantial experience, demonstrated competence, and has a history of long-term involvement in the preparation and submission of applications for adjustment of status under section 209, 210, or 245, the Act entitled `An Act to adjust the status of Cuban refugees to that of lawful permanent residents of the United States, and for other purposes', approved November 2, 1966 (
`(5) SECRETARY- Except as otherwise provided, the term `Secretary' means the Secretary of Homeland Security.CommentsClose CommentsPermalink
`(6) TEMPORARY- A worker is employed on a `temporary' basis when the employment is intended not to exceed 10 months.CommentsClose CommentsPermalink
`(7) WORK DAY- The term `work day' means any day in which the individual is employed 5.75 or more hours in agricultural employment.CommentsClose CommentsPermalink
`(8) Z-A DEPENDENT VISA- The term `Z-A dependent visa' means a nonimmigrant visa issued pursuant to section 101(a)(15)(Z-A)(ii).CommentsClose CommentsPermalink
`(9) Z-A VISA- The term `Z-A visa' means a nonimmigrant visa issued pursuant to section 101(a)(15)(Z-A)(i).CommentsClose CommentsPermalink
`(b) AUTHORIZATION FOR PRESENCE, EMPLOYMENT, AND TRAVEL IN THE UNITED STATES-CommentsClose CommentsPermalink
`(1) IN GENERAL- An alien issued a Z-A visa or a Z-A dependent visa may remain in, and be employed in, the United States during the period such visa is valid.CommentsClose CommentsPermalink
`(2) AUTHORIZED EMPLOYMENT- The Secretary shall provide an alien who is granted a Z-A visa or a Z-A dependent visa an employment authorized endorsement or other appropriate work permit, in the same manner as an alien lawfully admitted for permanent residence.CommentsClose CommentsPermalink
`(3) AUTHORIZED TRAVEL- An alien who is granted a Z-A visa or a Z-A dependent visa is authorized to travel outside the United States (including commuting to the United States from a residence in a foreign country) in the same manner as an alien lawfully admitted for permanent residence.CommentsClose CommentsPermalink
`(c) QUALIFICATIONS-CommentsClose CommentsPermalink
`(1) Z-A VISA- Notwithstanding any other provision of law, the Secretary shall, pursuant to the requirements of this section, grant a Z-A visa to an alien if the Secretary determines that the alien--CommentsClose CommentsPermalink
(A) has performed agricultural employment in the United States for at least 863 hours or 150 work days during the 24-month period ending on December 31, 2006;CommentsClose CommentsPermalink
(B) applied for such status during the 18-month application period beginning on the first day of the seventh month that begins after the date of enactment of this Act;CommentsClose CommentsPermalink
(C) is admissible to the United States under section 212, except as otherwise provided in paragraph (4);CommentsClose CommentsPermalink
(D) has not been convicted of any felony or a misdemeanor, an element of which involves bodily injury, threat of serious bodily injury, or harm to property in excess of $500; andCommentsClose CommentsPermalink
`(E) meets the requirements of paragraph (3).CommentsClose CommentsPermalink
`(2) Z-A DEPENDENT VISA- Notwithstanding any other provision of law, the Secretary shall grant a Z-A dependent visa to an alien who is--CommentsClose CommentsPermalink
(A) described in section 101(a)(15)(Z-A)(ii);CommentsClose CommentsPermalink
(B) meets the requirements of paragraph (3); andCommentsClose CommentsPermalink
(C) is admissible to the United States under section 212, except as otherwise provided in paragraph (4).CommentsClose CommentsPermalink
`(3) SECURITY AND LAW ENFORCEMENT BACKGROUND CHECKS-CommentsClose CommentsPermalink
(A) FINGERPRINTS- An alien seeking a Z-A visa or a Z-A dependent visa shall submit fingerprints to the Secretary at such time and in manner as the Secretary may require.CommentsClose CommentsPermalink
(B) BACKGROUND CHECKS- The Secretary shall utilize fingerprints provided under subparagraph (A) and other biometric data provided by an alien to conduct a background check of the alien, including searching the alien's criminal history and any law enforcement actions taken with respect to the alien and ensuring that the alien is not a risk to national security.CommentsClose CommentsPermalink
`(4) WAIVER OF CERTAIN GROUNDS OF INADMISSIBILITY- In the determination of an alien's eligibility for a Z-A visa or a Z-A dependent visa the following shall apply:CommentsClose CommentsPermalink
(A) GROUNDS OF EXCLUSION NOT APPLICABLE- The provisions of paragraphs (5), (6)(A), (7), and (9) of section 212(a) shall not apply.CommentsClose CommentsPermalink
(B) WAIVER OF OTHER GROUNDS-CommentsClose CommentsPermalink
`(i) IN GENERAL- Except as provided in clause (ii), the Secretary may waive any provision of such section 212(a), other than the paragraphs described in subparagraph (A), in the case of individual aliens for humanitarian purposes, to ensure family unity, or if such waiver is otherwise in the public interest.CommentsClose CommentsPermalink
`(ii) GROUNDS THAT MAY NOT BE WAIVED- Except as provided in subparagraph (C), subparagraphs (A), (B), and (C) of paragraph (2), and paragraphs (3) and (4) of section 212(a) may not be waived by the Secretary under clause (i).CommentsClose CommentsPermalink
`(iii) CONSTRUCTION- Nothing in this subparagraph shall be construed as affecting the authority of the Secretary other than under this subparagraph to waive provisions of such section 212(a).CommentsClose CommentsPermalink
`(C) SPECIAL RULE FOR DETERMINATION OF PUBLIC CHARGE- An alien is not ineligible for a Z-A visa or a Z-A dependent visa by reason of a ground of inadmissibility under section 212(a)(4) if the alien demonstrates a history of employment in the United States evidencing self-support without reliance on public cash assistance.CommentsClose CommentsPermalink
`(d) APPLICATION-CommentsClose CommentsPermalink
`(1) IN GENERAL- An alien seeking a Z-A visa shall submit an application to the Secretary for such a visa, including information regarding any Z-A dependent visa for the spouse of child of the alien.CommentsClose CommentsPermalink
`(2) SUBMISSION- Applications for a Z-A visa under may be submitted--CommentsClose CommentsPermalink
`(A) to the Secretary if the applicant is represented by an attorney or a nonprofit religious, charitable, social service, or similar organization recognized by the Board of Immigration Appeals under section 292.2 of title 8, Code of Federal Regulations (or similar successor regulations); orCommentsClose CommentsPermalink
`(B) to a qualified designated entity if the applicant consents to the forwarding of the application to the Secretary.CommentsClose CommentsPermalink
`(3) PROOF OF ELIGIBILITY-CommentsClose CommentsPermalink
`(A) IN GENERAL- An alien may establish that the alien meets the requirement for a Z-A visa through government employment records or records supplied by employers or collective bargaining organizations, and other reliable documentation as the alien may provide. The Secretary shall establish special procedures to properly credit work in cases in which an alien was employed under an assumed name.CommentsClose CommentsPermalink
`(B) DOCUMENTATION OF WORK HISTORY-CommentsClose CommentsPermalink
`(i) BURDEN OF PROOF- An alien applying for a Z-A visa or applying for adjustment of status described in subsection (j) has the burden of proving by a preponderance of the evidence that the alien has performed the requisite number of hours or days of agricultural employment required for such application or adjustment of status, as applicable.CommentsClose CommentsPermalink
`(ii) TIMELY PRODUCTION OF RECORDS- If an employer or farm labor contractor employing such an alien has kept proper and adequate records respecting such employment, the alien's burden of proof under clause (i) may be met by securing timely production of such records under regulations to be promulgated by the Secretary.CommentsClose CommentsPermalink
`(iii) SUFFICIENT EVIDENCE- An alien may meet the burden of proof under clause (i) to establish that the alien has performed the requisite number of hours or days of agricultural employment by producing sufficient evidence to show the extent of that employment as a matter of just and reasonable inference.CommentsClose CommentsPermalink
`(4) APPLICATIONS SUBMITTED TO QUALIFIED DESIGNATED ENTITIES-CommentsClose CommentsPermalink
`(A) REQUIREMENTS- Each qualified designated entity shall agree--CommentsClose CommentsPermalink
`(i) to forward to the Secretary an application submitted to that entity pursuant to paragraph (2)(B) if the alien for whom the application is being submitted has consented to such forwarding;CommentsClose CommentsPermalink
`(ii) not to forward to the Secretary any such application if such an alien has not consented to such forwarding; andCommentsClose CommentsPermalink
`(iii) to assist an alien in obtaining documentation of the alien's work history, if the alien requests such assistance.CommentsClose CommentsPermalink
`(B) NO AUTHORITY TO MAKE DETERMINATIONS- No qualified designated entity may make a determination required by this section to be made by the Secretary.CommentsClose CommentsPermalink
`(5) APPLICATION FEES-CommentsClose CommentsPermalink
`(A) FEE SCHEDULE- The Secretary shall provide for a schedule of fees that--CommentsClose CommentsPermalink
`(i) shall be charged for applying for a Z-A visa under this section or for an adjustment of status described in subsection (j); andCommentsClose CommentsPermalink
`(ii) may be charged by qualified designated entities to help defray the costs of services provided to such aliens making such an application.CommentsClose CommentsPermalink
`(B) PROHIBITION ON EXCESS FEES BY QUALIFIED DESIGNATED ENTITIES- A qualified designated entity may not charge any fee in excess of, or in addition to, the fees authorized under subparagraph (A)(ii) for services provided to applicants.CommentsClose CommentsPermalink
`(6) LIMITATION ON ACCESS TO INFORMATION- Files and records collected or compiled by a qualified designated entity for the purposes of this section are confidential and the Secretary shall not have access to such a file or record relating to an alien without the consent of the alien, except as allowed by a court order issued pursuant to [X].CommentsClose CommentsPermalink
`(7) TREATMENT OF APPLICANTS-CommentsClose CommentsPermalink
(A) IN GENERAL- An alien who files an application under this section to receive a Z-A visa and any spouse or child of the alien seeking a Z-A dependant visa, on the date described in subparagraph (B)--CommentsClose CommentsPermalink
`(i) shall be granted probationary benefits in the form of employment authorization pending final adjudication of the alien's application;CommentsClose CommentsPermalink
`(ii) may in the Secretary's discretion receive advance permission to re-enter the United States pursuant to existing regulations governing advance parole;CommentsClose CommentsPermalink
`(iii) may not be detained for immigration purposes, determined inadmissible or deportable, or removed pending final adjudication of the alien's application, unless the alien is determined to be ineligible for Z-A visa; andCommentsClose CommentsPermalink
`(iv) may not be considered an unauthorized alien (as defined in section 274A) until the date on which [the alien's application for a Z-A visa] is denied.CommentsClose CommentsPermalink
`(B) TIMING OF PROBATIONARY BENEFITS-CommentsClose CommentsPermalink
`(i) IN GENERAL- Subject to clause (ii), an alien who submits an application for a Z-A visa under subsection (d), including any evidence required under such subsection, and any spouse or child of the alien seeking a Z-A dependent visa shall receive the probationary benefits described in clauses (i) through (iv) of subparagraph (A) at the earlier of--CommentsClose CommentsPermalink
`(I) the date and time that the alien has passed all appropriate background checks, including name and fingerprint checks; orCommentsClose CommentsPermalink
`(II) the end of the next business day after the date that the Secretary receives the alien's application for Z-A visa.CommentsClose CommentsPermalink
`(ii) EXCEPTION- If the Secretary determines that the alien fails the background checks referred to in clause (i)(I), the alien may not be granted probationary benefits described in clauses (i) through (iv) of subparagraph (A).CommentsClose CommentsPermalink
`(C) PROBATIONARY AUTHORIZATION DOCUMENT- The Secretary shall provide each alien granted probationary benefits described in clauses (i) through (iv) of subparagraph (A) with a counterfeit-resistant document that reflects the benefits and status set forth in subparagraph (A). The Secretary may by regulation establish procedures for the issuance of documentary evidence of probationary benefits and, except as provided herein, the conditions under which such documentary evidence expires, terminates, or is renewed.CommentsClose CommentsPermalink
`(D) CONSTRUCTION- Nothing in this section may be construed to limit the Secretary's authority to conduct any appropriate background and security checks subsequent to issuance of evidence of probationary benefits under this paragraph.CommentsClose CommentsPermalink
`(8) TEMPORARY STAY OF REMOVAL AND WORK AUTHORIZATION FOR CERTAIN APPLICANTS-CommentsClose CommentsPermalink
`(A) BEFORE APPLICATION PERIOD- Beginning on the date of enactment of the AgJOBS Act of 2007, the Secretary shall provide that, in the case of an alien who is apprehended prior to the first date of the application period described in subsection (c)(1)(B) and who can establish a nonfrivolous case of eligibility for a Z-A visa (but for the fact that the alien may not apply for such status until the beginning of such period), the alien--CommentsClose CommentsPermalink
`(i) may not be removed; andCommentsClose CommentsPermalink
`(ii) shall be granted authorization to engage in employment in the United States and be provided an employment authorized endorsement or other appropriate work permit for such purpose.CommentsClose CommentsPermalink
`(B) DURING APPLICATION PERIOD- The Secretary shall provide that, in the case of an alien who presents a nonfrivolous application for Z-A visa during the application period described in subsection (c)(1)(B), including an alien who files such an application within 30 days of the alien's apprehension, and until a final determination on the application has been made in accordance with this section, the alien--CommentsClose CommentsPermalink
`(i) may not be removed; andCommentsClose CommentsPermalink
`(ii) shall be granted authorization to engage in employment in the United States and be provided an employment authorized endorsement or other appropriate work permit for such purpose.CommentsClose CommentsPermalink
`(e) NUMERICAL LIMITATIONS-CommentsClose CommentsPermalink
`(1) Z-A VISA- The Secretary may not issue more than 1,500,000 Z-A visas.CommentsClose CommentsPermalink
`(2) Z-A DEPENDENT VISA- The Secretary may not count any Z-A dependent visa issued against the numerical limitation described in paragraph (1).CommentsClose CommentsPermalink
`(f) EVIDENCE OF NONIMMIGRANT STATUS-CommentsClose CommentsPermalink
`(1) IN GENERAL- Documentary evidence of nonimmigrant status shall be issued to each alien granted a Z-A visa or a Z-A dependent visa.CommentsClose CommentsPermalink
`(2) FEATURES OF DOCUMENTATION- Documentary evidence of a Z-A visa or a Z-A dependent visa--CommentsClose CommentsPermalink
`(A) shall be machine-readable, tamper-resistant, and shall contain a digitized photograph and other biometric identifiers that can be authenticated;CommentsClose CommentsPermalink
`(B) shall be designed in consultation with U.S. Immigration and Customs Enforcement's Forensic Document Laboratory;CommentsClose CommentsPermalink
`(C) shall serve as a valid travel and entry document for an alien granted a Z-A visa or a Z-A dependent visa for the purpose of applying for admission to the United States where the alien is applying for admission at a port of entry;CommentsClose CommentsPermalink
`(D) may be accepted during the period of its validity by an employer as evidence of employment authorization and identity under section 274A; andCommentsClose CommentsPermalink
`(E) shall be issued to the alien granted the visa by the Secretary promptly after final adjudication of such alien's application for the visa, except that an alien may not be granted a Z-A visa or a Z-A dependent visa until all appropriate background checks on each alien are completed to the satisfaction of the Secretary.CommentsClose CommentsPermalink
`(g) FINE- An alien granted a Z-A visa shall pay a fine of $100 to the Secretary.CommentsClose CommentsPermalink
`(h) TREATMENT OF ALIENS GRANTED A Z-A VISA-CommentsClose CommentsPermalink
`(1) IN GENERAL- Except as otherwise provided under this subsection, an alien granted a Z-A visa or a Z-A dependent visa shall be considered to be an alien lawfully admitted for permanent residence for purposes of any law other than any provision of this Act.CommentsClose CommentsPermalink
`(2) DELAYED ELIGIBILITY FOR CERTAIN FEDERAL PUBLIC BENEFITS- An alien granted a Z-A visa shall not be eligible, by reason of such status, for any form of assistance or benefit described in section 403(a) of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (
`(3) TERMS OF EMPLOYMENT-CommentsClose CommentsPermalink
`(A) PROHIBITION- No alien granted a Z-A visa may be terminated from employment by any employer during the period of a Z-A visa except for just cause.CommentsClose CommentsPermalink
`(B) TREATMENT OF COMPLAINTS-CommentsClose CommentsPermalink
`(i) ESTABLISHMENT OF PROCESS- The Secretary shall establish a process for the receipt, initial review, and disposition of complaints by aliens granted a Z-A visa who allege that they have been terminated without just cause. No proceeding shall be conducted under this subparagraph with respect to a termination unless the Secretary determines that the complaint was filed not later than 6 months after the date of the termination.CommentsClose CommentsPermalink
`(ii) INITIATION OF ARBITRATION- If the Secretary finds that an alien has filed a complaint in accordance with clause (i) and there is reasonable cause to believe that the alien was terminated from employment without just cause, the Secretary shall initiate binding arbitration proceedings by requesting the Federal Mediation and Conciliation Service to appoint a mutually agreeable arbitrator from the roster of arbitrators maintained by such Service for the geographical area in which the employer is located. The procedures and rules of such Service shall be applicable to the selection of such arbitrator and to such arbitration proceedings. The Secretary shall pay the fee and expenses of the arbitrator, subject to the availability of appropriations for such purpose.CommentsClose CommentsPermalink
`(iii) ARBITRATION PROCEEDINGS- The arbitrator shall conduct the proceeding under this subparagraph in accordance with the policies and procedures promulgated by the American Arbitration Association applicable to private arbitration of employment disputes. The arbitrator shall make findings respecting whether the termination was for just cause. The arbitrator may not find that the termination was for just cause unless the employer so demonstrates by a preponderance of the evidence. If the arbitrator finds that the termination was not for just cause, the arbitrator shall make a specific finding of the number of days or hours of work lost by the employee as a result of the termination. The arbitrator shall have no authority to order any other remedy, including reinstatement, back pay, or front pay to the affected employee. Not later than 30 days after the date of the conclusion of the arbitration proceeding, the arbitrator shall transmit the findings in the form of a written opinion to the parties to the arbitration and the Secretary. Such findings shall be final and conclusive, and no official or court of the United States shall have the power or jurisdiction to review any such findings.CommentsClose CommentsPermalink
`(iv) EFFECT OF ARBITRATION FINDINGS- If the Secretary receives a finding of an arbitrator that an employer has terminated the employment of an alien who is granted a Z-A visa without just cause, the Secretary shall credit the alien for the number of days of work not performed during such period of termination for the purpose of determining if the alien meets the qualifying employment requirement of subsection (f)(2).CommentsClose CommentsPermalink
`(v) TREATMENT OF ATTORNEY'S FEES- Each party to an arbitration under this subparagraph shall bear the cost of their own attorney's fees for the arbitration.CommentsClose CommentsPermalink
`(vi) NONEXCLUSIVE REMEDY- The complaint process provided for in this subparagraph is in addition to any other rights an employee may have in accordance with applicable law.CommentsClose CommentsPermalink
`(vii) EFFECT ON OTHER ACTIONS OR PROCEEDINGS- Any finding of fact or law, judgment, conclusion, or final order made by an arbitrator in the proceeding before the Secretary shall not be conclusive or binding in any separate or subsequent action or proceeding between the employee and the employee's current or prior employer brought before an arbitrator, administrative agency, court, or judge of any State or the United States, regardless of whether the prior action was between the same or related parties or involved the same facts, except that the arbitrator's specific finding of the number of days or hours of work lost by the employee as a result of the employment termination may be referred to the Secretary pursuant to clause (iv).CommentsClose CommentsPermalink
`(4) RECORD OF EMPLOYMENT-CommentsClose CommentsPermalink
`(A) IN GENERAL- Each employer of an alien who is granted a Z-A visa shall annually--CommentsClose CommentsPermalink
`(i) provide a written record of employment to the alien; andCommentsClose CommentsPermalink
`(ii) provide a copy of such record to the Secretary.CommentsClose CommentsPermalink
`(B) CIVIL PENALTIES-CommentsClose CommentsPermalink
`(i) IN GENERAL- If the Secretary finds, after notice and opportunity for a hearing, that an employer of an alien granted a Z-A visa has failed to provide the record of employment required under subparagraph (A) or has provided a false statement of material fact in such a record, the employer shall be subject to a civil money penalty in an amount not to exceed $1,000 per violation.CommentsClose CommentsPermalink
`(ii) LIMITATION- The penalty applicable under clause (i) for failure to provide records shall not apply unless the alien has provided the employer with evidence of employment authorization granted under this subsection.CommentsClose CommentsPermalink
`(i) TERMINATION OF A GRANT OF Z-A VISA-CommentsClose CommentsPermalink
`(1) IN GENERAL- The Secretary may terminate a Z-A visa or a Z-A dependent visa granted to an alien only if the Secretary determines that the alien is deportable.CommentsClose CommentsPermalink
`(2) GROUNDS FOR TERMINATION- Prior to the date that an alien granted a Z-A visa or a Z-A dependent visa becomes eligible for adjustment of status described in subsection (j), the Secretary may deny adjustment to permanent resident status and provide for termination of the alien's Z-A visa or Z-A dependent visa if--CommentsClose CommentsPermalink
`(A) the Secretary finds, by a preponderance of the evidence, that the grant of a Z-A visa was the result of fraud or willful misrepresentation (as described in section 212(a)(6)(C)(i)); orCommentsClose CommentsPermalink
`(B) the alien--CommentsClose CommentsPermalink
`(i) commits an act that makes the alien inadmissible to the United States as an immigrant, except as provided under subsection (c)(4);CommentsClose CommentsPermalink
`(ii) is convicted of a felony or 3 or more misdemeanors committed in the United States;CommentsClose CommentsPermalink
`(iii) is convicted of an offense, an element of which involves bodily injury, threat of serious bodily injury, or harm to property in excess of $500; orCommentsClose CommentsPermalink
`(iv) in the case of an alien granted a Z-A visa, fails to perform the agricultural employment described in subsection (j)(1)(A) unless the alien was unable to work in agricultural employment due to the extraordinary circumstances described in subsection (j)(1)(A)(iii).CommentsClose CommentsPermalink
`(3) REPORTING REQUIREMENT- The Secretary shall promulgate regulations to ensure that the alien granted a Z-A visa complies with the qualifying agricultural employment described in subsection (j)(1)(A) at the end of the 5-year work period, which may include submission of an application pursuant to this subsection.CommentsClose CommentsPermalink
`(j) ADJUSTMENT TO PERMANENT RESIDENCE-CommentsClose CommentsPermalink
`(1) Z-A VISA- Except as provided in this subsection, the Secretary shall award the maximum number of points available pursuant to section 203(b)(1) and adjust the status of an alien granted a Z-A visa to that of an alien lawfully admitted for permanent residence under this Act, if the Secretary determines that the following requirements are satisfied:CommentsClose CommentsPermalink
`(A) QUALIFYING EMPLOYMENT-CommentsClose CommentsPermalink
`(i) IN GENERAL- Subject to clauses (ii) and (iii), the alien has performed at least--CommentsClose CommentsPermalink
`(I) 5 years of agricultural employment in the United States for at least 100 work days per year, during the 5-year period beginning on the date of enactment of the AgJobs Act of 2007; orCommentsClose CommentsPermalink
`(II) 3 years of agricultural employment in the United States for at least 150 work days per year, during the 3-year period beginning on such date of enactment.CommentsClose CommentsPermalink
`(ii) FOUR-YEAR PERIOD OF EMPLOYMENT- An alien shall be considered to meet the requirements of clause (i) if the alien has performed 4 years of agricultural employment in the United States for at least 150 work days during 3 years of those 4 years and at least 100 work days during the remaining year, during the 4-year period beginning on such date of enactment.CommentsClose CommentsPermalink
`(iii) EXTRAORDINARY CIRCUMSTANCES- In determining whether an alien has met the requirement of clause (i), the Secretary may credit the alien with not more than 12 additional months to meet the requirement of that clause if the alien was unable to work in agricultural employment due to--CommentsClose CommentsPermalink
`(I) pregnancy, injury, or disease, if the alien can establish such pregnancy, disabling injury, or disease through medical records;CommentsClose CommentsPermalink
`(II) illness, disease, or other special needs of a minor child, if the alien can establish such illness, disease, or special needs through medical records; orCommentsClose CommentsPermalink
`(III) severe weather conditions that prevented the alien from engaging in agricultural employment for a significant period of time.CommentsClose CommentsPermalink
`(B) PROOF- An alien may demonstrate compliance with the requirements of subparagraph (A) by submitting--CommentsClose CommentsPermalink
`(i) the record of employment described in subsection (h)(4); orCommentsClose CommentsPermalink
`(ii) such documentation as may be submitted under subsection (d)(3).CommentsClose CommentsPermalink
`(C) APPLICATION PERIOD- Not later than 8 years after the date of the enactment of the AgJOBS Act of 2007, the alien must--CommentsClose CommentsPermalink
`(i) apply for adjustment of status; orCommentsClose CommentsPermalink
`(ii) renew the alien's Z visa status as described in section 601(k)(2).CommentsClose CommentsPermalink
`(D) FINE- The alien pays to the Secretary a fine of $400; orCommentsClose CommentsPermalink
`(2) SPOUSES AND MINOR CHILDREN- Notwithstanding any other provision of law, the Secretary shall confer the status of lawful permanent resident on the spouse and minor child of an alien granted any adjustment of status under paragraph (1), including any individual who was a minor child on the date such alien was granted a Z-A visa, if the spouse or minor child applies for such status, or if the principal alien includes the spouse or minor child in an application for adjustment of status to that of a lawful permanent resident.CommentsClose CommentsPermalink
`(3) GROUNDS FOR DENIAL OF ADJUSTMENT OF STATUS- The Secretary may deny an alien granted a Z-A visa or a Z-A dependent visa an adjustment of status under this Act and provide for termination of such visa if--CommentsClose CommentsPermalink
`(A) the Secretary finds by a preponderance of the evidence that grant of the Z-A visa was the result of fraud or willful misrepresentation (as described in section 212(a)(6)(C)(i)); orCommentsClose CommentsPermalink
`(B) the alien--CommentsClose CommentsPermalink
`(i) commits an act that makes the alien inadmissible to the United States under section 212, except as provided under subsection (c)(4);CommentsClose CommentsPermalink
`(ii) is convicted of a felony or 3 or more misdemeanors committed in the United States; orCommentsClose CommentsPermalink
`(iii) is convicted of an offense, an element of which involves bodily injury, threat of serious bodily injury, or harm to property in excess of $500.CommentsClose CommentsPermalink
`(4) GROUNDS FOR REMOVAL- Any alien granted Z-A visa status who does not apply for adjustment of status or renewal of Z status under section 601(k)(2) prior to the expiration of the application period described in subsection (c)(1)(B) or who fails to meet the other requirements of paragraph (1) by the end of the application period, is deportable and may be removed under section 240.CommentsClose CommentsPermalink
`(5) PAYMENT OF TAXES-CommentsClose CommentsPermalink
`(A) IN GENERAL- Not later than the date on which an alien's status is adjusted as described in this subsection, the alien shall establish that the alien does not owe any applicable Federal tax liability by establishing that--CommentsClose CommentsPermalink
`(i) no such tax liability exists;CommentsClose CommentsPermalink
`(ii) all such outstanding tax liabilities have been paid; orCommentsClose CommentsPermalink
`(iii) the alien has entered into an agreement for payment of all outstanding liabilities with the Internal Revenue Service.CommentsClose CommentsPermalink
`(B) APPLICABLE FEDERAL TAX LIABILITY- In this paragraph, the term `applicable Federal tax liability' means liability for Federal taxes, including penalties and interest, owed for any year during the period of employment required under paragraph (1)(A) for which the statutory period for assessment of any deficiency for such taxes has not expired.CommentsClose CommentsPermalink
`(C) IRS COOPERATION- The Secretary of the Treasury shall establish rules and procedures under which the Commissioner of Internal Revenue shall provide documentation to an alien upon request to establish the payment of all taxes required by this subsection.CommentsClose CommentsPermalink
`(6) ENGLISH LANGUAGE-CommentsClose CommentsPermalink
`(A) IN GENERAL- Not later than the date on which a Z-A nonimmigrant's status is adjusted or renewed under section 601(k)(2), a Z-A nonimmigrant who is 18 years of age or older must pass the naturalization test described in sections 312(a)(1) and (2).CommentsClose CommentsPermalink
`(B) EXCEPTION- The requirement of subparagraph (A) shall not apply to any person who, on the date of the filing of the person's application for an extension of Z-A nonimmigrant status--CommentsClose CommentsPermalink
(i) is unable because of physical or developmental disability or mental impairment to comply therewith;CommentsClose CommentsPermalink
(ii) is over fifty years of age and has been living in the United States for periods totaling at least twenty years, orCommentsClose CommentsPermalink
(iii) is over fifty-five years of age and has been living in the United States for periods totaling at least fifteen years.CommentsClose CommentsPermalink
`(7) PRIORITY OF APPLICATIONS-CommentsClose CommentsPermalink
`(A) BACK OF LINE- An alien may not adjust status to that of a lawful permanent resident under this subsection until 30 days after the date on which an immigrant visa becomes available for approved petitions filed under sections 201, 202, and 203 of the Act that were filed before May 1, 2005 (referred to in this paragraph as the `processing date').CommentsClose CommentsPermalink
`(B) OTHER APPLICANTS- The processing of applications for an adjustment of status under this subsection shall be processed not later than 1 year after the processing date.CommentsClose CommentsPermalink
`(C) CONSULAR APPLICATION-CommentsClose CommentsPermalink
(i) IN GENERAL- A Z-A nonimmigrant's application for adjustment of status to that of an alien lawfully admitted for permanent residence must be filed in person with a United States consulate abroad.CommentsClose CommentsPermalink
(ii) PLACE OF APPLICATION- Unless otherwise directed by the Secretary of State, a Z-A nonimmigrant applying for adjustment of status under this paragraph shall make an application at a consular office in the alien's country of origin. The Secretary of State shall direct a consular office in a country that is not a Z-A nonimmigrant's country of origin to accept an application for adjustment of status from such an alien, where the Z-A nonimmigrant's country of origin is not contiguous to the United States, and as consular resources make possible.CommentsClose CommentsPermalink
`(k) CONFIDENTIALITY OF INFORMATION- Applicants for Z-A nonimmigrant status under this subtitle shall be afforded confidentiality as provided under section 604.CommentsClose CommentsPermalink
`(l) PENALTIES FOR FALSE STATEMENTS IN APPLICATIONS-CommentsClose CommentsPermalink
`(1) CRIMINAL PENALTY- Any person who--CommentsClose CommentsPermalink
`(A) applies for a Z-A visa or a Z-A dependent visa under this section or an adjustment of status described in subsection (j) and knowingly and willfully falsifies, conceals, or covers up a material fact or makes any false, fictitious, or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious, or fraudulent statement or entry; orCommentsClose CommentsPermalink
`(B) creates or supplies a false writing or document for use in making such an application, shall be fined in accordance with title 18, United States Code, imprisoned not more than 5 years, or both.CommentsClose CommentsPermalink
`(2) INADMISSIBILITY- An alien who is convicted of a crime under paragraph (1) shall be considered to be inadmissible to the United States on the ground described in section 212(a)(6)(C)(i).CommentsClose CommentsPermalink
`(m) ELIGIBILITY FOR LEGAL SERVICES- Section 504(a)(11) of
`(n) ADMINISTRATIVE AND JUDICIAL REVIEW- Administrative or judicial review of a determination on an application for a Z-A visa shall be such as is provided under section 603.CommentsClose CommentsPermalink
`(o) PUBLIC OUTREACH- Beginning not later than the first day of the application period described in subsection (c)(1)(B), the Secretary shall cooperate with qualified designated entities to broadly disseminate information regarding the availability of Z-A visas, the benefits of such visas, and the requirements to apply for and be granted such a visa.'.CommentsClose CommentsPermalink
(c) NUMERICAL LIMITATIONS-CommentsClose CommentsPermalink
(1) WORLDWIDE LEVEL OF IMMIGRATION- Section 201(b)(1) of the Immigration and Nationality Act (
(A) in subparagraph (A), by striking `subparagraph (A) or (B)' and inserting `subparagraph (A), (B), or (N)'; andCommentsClose CommentsPermalink
(B) by adding at the end, the following new subparagraph:CommentsClose CommentsPermalink
`(N) Aliens issued a Z-A visa or a Z-A dependent visa (as those terms are defined in section 214A) who receive an adjustment of status to that of an alien lawfully admitted for permanent residence.'.CommentsClose CommentsPermalink
(2) NUMERICAL LIMITATIONS ON INDIVIDUAL FOREIGN STATES- Section 202(a) of the Immigration and Nationality Act (
`(6) SPECIAL RULE FOR Z-A NONIMMIGRANTS- An immigrant visa may be made available to an alien issued a Z-A visa or a Z-A dependent visa (as those terms are defined in section 214A) without regard to the numerical limitations of this section.'.CommentsClose CommentsPermalink
(d) CLERICAL AMENDMENT- The table of contents of the Immigration and Nationality Act (
`Sec. 214A. Admission of agricultural worker.'.CommentsClose CommentsPermalink
SEC. 623. AGRICULTURAL WORKER IMMIGRATION STATUS ADJUSTMENT ACCOUNT.
Section 286 of the Immigration and Nationality Act (
`(y) AGRICULTURAL WORKER IMMIGRATION STATUS ADJUSTMENT ACCOUNT-CommentsClose CommentsPermalink
`(1) ESTABLISHMENT- There is established in the general fund of the Treasury a separate account, which shall be known as the `Agricultural Worker Immigration Status Adjustment Account'. Notwithstanding any other provision of law, there shall be deposited as offsetting receipts into the account all fees collected under section 214A.CommentsClose CommentsPermalink
`(2) USE OF FEES- The fees deposited into the Agricultural Worker Immigration Status Adjustment Account shall be used by the Secretary of Homeland Security for processing applications made by aliens seeking nonimmigrant status under section 101(a)(15)(Z-A) or for processing applications made by such an alien who is seeking an adjustment of status.CommentsClose CommentsPermalink
`(3) AVAILABILITY OF FUNDS- All amounts deposited in the Agricultural Worker Immigration Status Adjustment Account under this subsection shall remain available until expended.'.CommentsClose CommentsPermalink
SEC. 624. REGULATIONS, EFFECTIVE DATE, AUTHORIZATION OF APPROPRIATIONS.
(a) REGULATIONS- The Secretary shall issue regulations to carry out the amendments made by this subtitle not later than the first day of the seventh month that begins after the date of enactment of this Act.CommentsClose CommentsPermalink
(b) EFFECTIVE DATE- This subtitle shall take effect on the date that regulations required by subsection (a) are issued, regardless of whether such regulations are issued on an interim basis or on any other basis.CommentsClose CommentsPermalink
(c) AUTHORIZATION OF APPROPRIATIONS- There are authorized to be appropriated to the Secretary such sums as may be necessary to implement this subtitle, including any sums needed for costs associated with the initiation of such implementation.CommentsClose CommentsPermalink
SEC. 625. LIMITATION ON CLAIMING EARNED INCOME TAX CREDIT.
Any alien who is unlawfully present in the United States, receives adjustment of status under section 601 of this Act (relating to aliens who were illegally present in the United States prior to January 1, 2007), or enters the United States to work on a Y visa under section 402 of this Act, shall not be eligible for the tax credit provided under section 32 of the Internal Revenue Code (relating to earned income) until such alien has his or her status adjusted to legal permanent resident status.CommentsClose CommentsPermalink
SEC. 626. EARNED INCOME TAX CREDIT.
Nothing in this Act, or the amendments made by this Act, may be construed to modify any provision of the Internal Revenue Code of 1986 which prohibits illegal aliens from qualifying for earned income tax credit under section 32 of such Code.CommentsClose CommentsPermalink
PART II--CORRECTION OF SOCIAL SECURITY RECORDS
SEC. 627. CORRECTION OF SOCIAL SECURITY RECORDS.
(a) IN GENERAL- Section 208(e)(1) of the Social Security Act (
(1) in subparagraph (B)(ii), by striking `or' at the end;CommentsClose CommentsPermalink
(2) in subparagraph (C), by inserting `or' at the end;CommentsClose CommentsPermalink
(3) by inserting after subparagraph (C) the following:CommentsClose CommentsPermalink
`(D) who is granted nonimmigrant status pursuant to section 101(a)(15)(Z-A) of the Immigration and Nationality Act,'; andCommentsClose CommentsPermalink
(4) by striking `1990.' and inserting `1990, or in the case of an alien described in subparagraph (D), if such conduct is alleged to have occurred before the date on which the alien was granted such nonimmigrant status.'.CommentsClose CommentsPermalink
(b) EFFECTIVE DATE- The amendments made by subsection (a) shall take effect on the first day of the seventh month that begins after the date of the enactment of this Act.CommentsClose CommentsPermalink
TITLE VII--MISCELLANEOUS
Subtitle A--Miscellaneous Immigration Reform
SEC. 701. WAIVER OF REQUIREMENT FOR FINGERPRINTS FOR MEMBERS OF THE ARMED FORCES.
Notwithstanding any other provision of law or any regulation, for aliens currently serving in the U.S. Armed Forces overseas and applying for naturalization from overseas, the Secretary of Defense shall provide in a form designated by the Secretary of Homeland Security, and the Secretary of Homeland Security shall use the fingerprints provided by the Secretary of Defense for such individuals, if the individual--CommentsClose CommentsPermalink
(a) may be naturalized pursuant to section 328 or 329 of the Immigration and Nationality Act (
(b) was fingerprinted in accordance with the requirements of the Secretary of Defense at the time the individual enlisted in the Armed Forces; andCommentsClose CommentsPermalink
(c) submits the application to become a naturalized citizen of the United States not later than 12 months after the date the applicant is fingerprinted.CommentsClose CommentsPermalink
SEC. 702. ENGLISH AS NATIONAL LANGUAGE.
(a) SHORT TITLE- This section may be cited as the `S.I. Hayakawa National Language Amendment Act of 2007'.CommentsClose CommentsPermalink
(b) IN GENERAL- Title 4, United States Code, is amended by adding at the end the following new chapter:CommentsClose CommentsPermalink
`CHAPTER 6--LANGUAGE OF THE GOVERNMENT
`Sec.CommentsClose CommentsPermalink
`161. Declaration of national language.CommentsClose CommentsPermalink
`162. Preserving and enhancing the role of the national language.CommentsClose CommentsPermalink
`163. Use of language other than English.CommentsClose CommentsPermalink
`SEC. 161. DECLARATION OF NATIONAL LANGUAGE.
`English shall be the national language of the Government of the United States.CommentsClose CommentsPermalink
`SEC. 162. PRESERVING AND ENHANCING THE ROLE OF THE NATIONAL LANGUAGE.
`(a) IN GENERAL- The Government of the United States shall preserve and enhance the role of English as the national language of the United States of America.CommentsClose CommentsPermalink
`(b) EXCEPTION- Unless specifically provided by statute, no person has a right, entitlement, or claim to have the Government of the United States or any of its officials or representatives act, communicate, perform or provide services, or provide materials in any language other than English. If an exception is made with respect to the use of a language other than English, the exception does not create a legal entitlement to additional services in that language or any language other than English.CommentsClose CommentsPermalink
`(c) FORMS- If any form is issued by the Federal Government in a language other than English (or such form is completed in a language other than English), the English language version of the form is the sole authority for all legal purposes.CommentsClose CommentsPermalink
`SEC. 163. USE OF LANGUAGE OTHER THAN ENGLISH.
`Nothing in this chapter shall prohibit the use of a language other than English.'.CommentsClose CommentsPermalink
(c) CONFORMING AMENDMENT- The table of chapters for title 4, United States Code, is amended by adding at the end the following new item:CommentsClose CommentsPermalink
`6. Language of the GovernmentCommentsClose CommentsPermalink
--161'.CommentsClose CommentsPermalink
SEC. 703. DECLARATION OF ENGLISH AS LANGUAGE.
(a) IN GENERAL- English is the common language of the United States.CommentsClose CommentsPermalink
(b) PRESERVING AND ENHANCING THE ROLE OF THE ENGLISH LANGUAGE- The Government of the United States shall preserve and enhance the role of English as the language of the United States. Nothing in this Act shall diminish or expand any existing rights under the laws of the United States relative to services or materials provided by the Government of the United States in any language other than English.CommentsClose CommentsPermalink
(c) DEFINITION OF LAW- For purposes of this section, the term `laws of the United States' includes the Constitution of the United States, any provision of Federal statute, or any rule or regulation issued under such statute, any judicial decisions interpreting such statute, or any Executive Order of the President.CommentsClose CommentsPermalink
SEC. 704. PILOT PROJECT REGARDING IMMIGRATION PRACTITIONER COMPLAINTS.
(a) Within 180 days of the enactment of this Act, the Secretary of Homeland Security, in consultation with the Attorney General, shall institute a three-year pilot project to--CommentsClose CommentsPermalink
(1) Encourage alien victims of immigration practitioner fraud, and related crimes, to come forward and file practitioner fraud complaints with the Department of Homeland Security by utilizing existing statutory and administrative authority;CommentsClose CommentsPermalink
(2) Cooperate with Federal, State, and local law enforcement officials who are responsible for investigating and prosecuting such crimes; andCommentsClose CommentsPermalink
(3) Increase public awareness regarding the problem of immigration practitioner fraud.CommentsClose CommentsPermalink
(b) REPORTING- Not later than 1 year after the end of the three-year pilot period, the Secretary of Homeland Security shall submit to Congress a report that includes information concerning--CommentsClose CommentsPermalink
(1) the number of individuals who file practitioner fraud complaints via the pilot program;CommentsClose CommentsPermalink
(2) the demographic characteristics, nationality, and immigration status of the complainants;CommentsClose CommentsPermalink
(3) the number of indictments that result from the pilot; andCommentsClose CommentsPermalink
(4) the number of successful fraud prosecutions that result from the pilot.CommentsClose CommentsPermalink
Subtitle B--Assimilation and Naturalization
SEC. 705. THE OFFICE OF CITIZENSHIP AND INTEGRATION.
Section 451(f) of the Homeland Security Act of 2002,
(1) inserting `and Integration' after `Office of Citizenship' the two times that phrase appears; andCommentsClose CommentsPermalink
(2) in paragraph (f)(2), striking `instruction and training on citizenship responsibilities' and inserting `civic integration, and instruction and training on citizenship responsibilities and requirements for citizenship'.CommentsClose CommentsPermalink
SEC. 706. SPECIAL PROVISIONS FOR ELDERLY IMMIGRANTS.
Section 312(b) of the Immigration and Nationality Act (
SEC. 707. FUNDING FOR THE OFFICE OF CITIZENSHIP AND INTEGRATION.
(a) AUTHORIZATION OF APPROPRIATIONS- There is authorized to be appropriated to the Secretary of Homeland Security the sum of [$100] million to carry out the mission and operations of the Office of Citizenship and Integration in U.S. Citizenship and Immigration Services, including the patriotic integration of prospective citizens into--CommentsClose CommentsPermalink
(1) American common values and traditions, including an understanding of American history and the principles of the Constitution of the United States; andCommentsClose CommentsPermalink
(2) civic traditions of the United States, including the Pledge of Allegiance, respect for the flag of the United States, and voting in public elections.CommentsClose CommentsPermalink
SEC. 708. CITIZENSHIP AND INTEGRATION COUNCILS.
(a) GRANTS AUTHORIZED- The Office of Citizenship and Immigrant Integration shall provide grants to States and municipalities for effective integration of immigrants into American society through the creation of New Americans Integrations Councils.CommentsClose CommentsPermalink
(b) USE OF FUNDS-CommentsClose CommentsPermalink
(1) IN GENERAL- Grants awarded under this section shall be used--CommentsClose CommentsPermalink
(A) To report on the status of new immigrants, lawful permanent residents, and citizens within the State or municipality;CommentsClose CommentsPermalink
(B) To conduct a needs assessment, including the availability of and demand for English language services and instruction classes, for new immigrants, lawful permanent residents, Z non-immigrants, and citizens;CommentsClose CommentsPermalink
(C) To convene public hearings and meetings to assist in the development of a comprehensive plan to integrate new immigrants, lawful permanent residents, Z non-immigrants, and citizens; andCommentsClose CommentsPermalink
(D) To develop a comprehensive plan to integrate new immigrants, lawful permanent residents, Z non-immigrants, and citizens into States and municipalities.CommentsClose CommentsPermalink
(2) MEMBERSHIP OF INTEGRATION COUNCILS- New Americans Integration Councils established under this section shall consist of no less than ten and no more than fifteen individuals from the following sectors:CommentsClose CommentsPermalink
(A) State and local government;CommentsClose CommentsPermalink
(B) Business;CommentsClose CommentsPermalink
(C) Faith-based organizations;CommentsClose CommentsPermalink
(D) Civic organizations;CommentsClose CommentsPermalink
(E) Philanthropic leaders; andCommentsClose CommentsPermalink
(F) Nonprofit organizations with experience working with immigrant communities.CommentsClose CommentsPermalink
(c) REPORTING- The Government Accountability Office, in coordination with the Office of Citizenship and Immigrant Integration, shall conduct an annual evaluation of the grant program conducted under this section. Such evaluation shall be used by the Office of Citizenship and Immigrant Integration--CommentsClose CommentsPermalink
(1) To determine and improve upon the program's effectiveness;CommentsClose CommentsPermalink
(2) To develop recommended best practices for states and municipalities who receive grant awards; andCommentsClose CommentsPermalink
(3) To further define the program's goals and objectives.CommentsClose CommentsPermalink
(d) AUTHORIZATION OF APPROPRIATIONS- There are authorized to be appropriated to the Office of Citizenship and Immigrant Integration such sums as may be necessary for each of the fiscal years 2008 through 2012 to carry out this section.CommentsClose CommentsPermalink
SEC. 709. PRESIDENTIAL AWARD FOR BUSINESS LEADERSHIP IN PROMOTING AMERICAN CITIZENSHIP.
(a) ESTABLISHMENT- There is established the Presidential Award for Business Leadership in Promoting American Citizenship, which shall be awarded to companies and other organizations that make extraordinary efforts in assisting their employees and members to learn English and increase their understanding of American history and civics.CommentsClose CommentsPermalink
(b) SELECTION AND PRESENTATION OF AWARD-CommentsClose CommentsPermalink
(1) SELECTION- The President, upon recommendations from the Secretary, the Secretary of Labor, and the Secretary of Education, shall periodically award the Citizenship Education Award to large and small companies and other organizations described in subsection (a).CommentsClose CommentsPermalink
(2) PRESENTATION- The presentation of the award shall be made by the President, or designee of the President, in conjunction with an appropriate ceremony.CommentsClose CommentsPermalink
SEC. 710. HISTORY AND GOVERNMENT TEST.
(a) HISTORY AND GOVERNMENT TEST- The Secretary shall incorporate a knowledge and understanding of the meaning of the Oath of Allegiance provided by section 337 of the Immigration and Nationality Act (
SEC. 711. ENGLISH LEARNING PROGRAM.
(a) The Secretary of Education shall develop an open source electronic program, useable on personal computers and through the Internet, that teaches the English language at various levels of proficiency, up to and including the ability to pass the Test of English as a Foreign Language, to individuals inside the United States whose primary language is a language other than English. The Secretary shall make the program available to the public for free, including by placing it on the Department of Education website, and shall ensure that it is readily accessible to public libraries throughout the United States. The program shall be fully accessible, at a minimum, to speakers of the top five foreign languages spoken inside the United States.CommentsClose CommentsPermalink
(b) AUTHORIZATION OF APPROPRIATIONS- There is authorized to be appropriated to the Secretary of Education such sums as are necessary to carry out the purposes of this section.CommentsClose CommentsPermalink
SEC. 712. GAO STUDY ON THE APPELLATE PROCESS FOR IMMIGRATION APPEALS.
(a) IN GENERAL- The Comptroller General of the United States shall, not later than 180 days after enactment of this Act, conduct a study on the appellate process for immigration appeals.CommentsClose CommentsPermalink
(b) REQUIREMENTS- In conducting the study under subsection (a), the Comptroller General shall consider the possibility of consolidating all appeals from the Board of Immigration Appeals and habeas corpus petitions in immigration cases into 1 United States Court of Appeals, by--CommentsClose CommentsPermalink
(1) consolidating all such appeals into an existing circuit court, such as the United States Court of Appeals for the Federal Circuit;CommentsClose CommentsPermalink
(2) consolidating all such appeals into a centralized appellate court consisting of active circuit court judges temporarily assigned from the various circuits, in a manner similar to the Foreign Intelligence Surveillance Court or the Temporary Emergency Court of Appeals; orCommentsClose CommentsPermalink
(3) implementing a mechanism by which a panel of active circuit court judges shall have the authority to reassign such appeals from circuits with relatively high caseloads to circuits with relatively low caseloads.CommentsClose CommentsPermalink
(c) FACTORS TO CONSIDER- In conducting the study under subsection (a), the Comptroller General, in consultation with the Attorney General, the Secretary, and the Judicial Conference of the United States, shall consider--CommentsClose CommentsPermalink
(1) the resources needed for each alternative, including judges, attorneys and other support staff, case management techniques including technological requirements, physical infrastructure, and other procedural and logistical issues as appropriate;CommentsClose CommentsPermalink
(2) the impact of each plan on various circuits, including their caseload in general and caseload per panel;CommentsClose CommentsPermalink
(3) the possibility of utilizing case management techniques to reduce the impact of any consolidation option, such as requiring certificates of reviewability, similar to procedures for habeas and existing summary dismissal procedures in local rules of the courts of appeals;CommentsClose CommentsPermalink
(4) the effect of reforms in this Act on the ability of the circuit courts to adjudicate such appeals;CommentsClose CommentsPermalink
(5) potential impact, if any, on litigants; andCommentsClose CommentsPermalink
(6) other reforms to improve adjudication of immigration matters, including appellate review of motions to reopen and reconsider, and attorney fee awards with respect to review of final orders of removal.CommentsClose CommentsPermalink
Subtitle C--American Competitiveness Scholarship Program
SEC. 713. AMERICAN COMPETITIVENESS SCHOLARSHIP PROGRAM.
(a) ESTABLISHMENT- The Director of the National Science Foundation (referred to in this section as the `Director') shall award scholarships to eligible individuals to enable such individuals to pursue associate, undergraduate, or graduate level degrees in mathematics, engineering, health care, or computer science.CommentsClose CommentsPermalink
(b) ELIGIBILITY-CommentsClose CommentsPermalink
(1) IN GENERAL- To be eligible to receive a scholarship under this section, an individual shall--CommentsClose CommentsPermalink
(A) be a citizen of the United States, a national of the United States (as defined in section 101(a) of the Immigration and Nationality Act (
(B) prepare and submit to the Director an application at such time, in such manner, and containing such information as the Director may require; andCommentsClose CommentsPermalink
(C) certify to the Director that the individual intends to use amounts received under the scholarship to enroll or continue enrollment at an institution of higher education (as defined in section 101(a) of the Higher Education Act of 1965 (
(2) ABILITY- Awards of scholarships under this section shall be made by the Director solely on the basis of the ability of the applicant, except that in any case in which 2 or more applicants for scholarships are deemed by the Director to be possessed of substantially equal ability, and there are not sufficient scholarships available to grant one to each of such applicants, the available scholarship or scholarships shall be awarded to the applicants in a manner that will tend to result in a geographically wide distribution throughout the United States of recipients' places of permanent residence.CommentsClose CommentsPermalink
(c) AMOUNT OF SCHOLARSHIP; RENEWAL-CommentsClose CommentsPermalink
(1) AMOUNT OF SCHOLARSHIP- The amount of a scholarship awarded under this section shall be $15,000 per year, except that no scholarship shall be greater than the annual cost of tuition and fees at the institution of higher education in which the scholarship recipient is enrolled or will enroll.CommentsClose CommentsPermalink
(2) RENEWAL- The Director may renew a scholarship under this section for an eligible individual for not more than 4 years.CommentsClose CommentsPermalink
(d) FUNDING- The Director shall carry out this section only with funds made available under section 286(x) of the Immigration and Nationality Act (as added by section 712) (
(e) FEDERAL REGISTER- Not later than 60 days after the date of enactment of this Act, the Director shall publish in the Federal Register a list of eligible programs of study for a scholarship under this section.CommentsClose CommentsPermalink
SEC. 714. SUPPLEMENTAL H-1B NONIMMIGRANT PETITIONER ACCOUNT.
Section 286 of the Immigration and Nationality Act (
`(x) Supplemental H-1B Nonimmigrant Petitioner Account-CommentsClose CommentsPermalink
`(1) IN GENERAL- There is established in the general fund of the Treasury a separate account, which shall be known as the `Supplemental H-1B Nonimmigrant Petitioner Account'. Notwithstanding any other section of this Act, there shall be deposited as offsetting receipts into the account all fees collected under section 214(c)(15).CommentsClose CommentsPermalink
`(2) USE OF FEES FOR AMERICAN COMPETITIVENESS SCHOLARSHIP PROGRAM- The amounts deposited into the Supplemental H-1B Nonimmigrant Petitioner Account shall remain available to the Director of the National Science Foundation until expended for scholarships described in section 711 of the Secure Borders, Economic Opportunity and Immigration Reform Act of 2007 for students enrolled in a program of study leading to a degree in mathematics, engineering, health care, or computer science.'.CommentsClose CommentsPermalink
SEC. 715. SUPPLEMENTAL FEES.
Section 214(c) of the Immigration and Nationality Act (
`(15)(A) In each instance where the Attorney General, the Secretary of Homeland Security, or the Secretary of State is required to impose a fee pursuant to paragraph (9) or (11), the Attorney General, the Secretary of Homeland Security, or the Secretary of State, as appropriate, shall impose a supplemental fee on the employer in addition to any other fee required by such paragraph or any other provision of law, in the amount determined under subparagraph (B).CommentsClose CommentsPermalink
`(B) The amount of the supplemental fee shall be $3,500, except that the fee shall be 1/2 that amount for any employer with not more than 25 full-time equivalent employees who are employed in the United States (determined by including any affiliate or subsidiary of such employer).CommentsClose CommentsPermalink
`(C) Fees collected under this paragraph shall be deposited in the Treasury in accordance with section 286(x).'.CommentsClose CommentsPermalink
TITLE VIII--MISCELLANEOUS
Subtitle A--Unaccompanied Alien Child Protection Act of 2007
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) SHORT TITLE- This Act may be cited as the `Unaccompanied Alien Child Protection Act of 2007'.CommentsClose CommentsPermalink
(b) TABLE OF CONTENTS- The table of contents for this Act is as follows:CommentsClose CommentsPermalink
Sec. 1. Short title; table of contents.CommentsClose CommentsPermalink
Sec. 2. Definitions.CommentsClose CommentsPermalink
TITLE I--CUSTODY, RELEASE, FAMILY REUNIFICATION, AND DETENTION
Sec. 101. Procedures when encountering unaccompanied alien children.CommentsClose CommentsPermalink
Sec. 102. Family reunification for unaccompanied alien children with relatives in the United States.CommentsClose CommentsPermalink
Sec. 103. Appropriate conditions for detention of unaccompanied alien children.CommentsClose CommentsPermalink
Sec. 104. Repatriated unaccompanied alien children.CommentsClose CommentsPermalink
Sec. 105. Establishing the age of an unaccompanied alien child.CommentsClose CommentsPermalink
Sec. 106. Effective date.CommentsClose CommentsPermalink
TITLE II--ACCESS BY UNACCOMPANIED ALIEN CHILDREN TO CHILD ADVOCATES AND COUNSEL
Sec. 201. Child advocates.CommentsClose CommentsPermalink
Sec. 202. Counsel.CommentsClose CommentsPermalink
Sec. 203. Effective date; applicability.CommentsClose CommentsPermalink
TITLE III--STRENGTHENING POLICIES FOR PERMANENT PROTECTION OF ALIEN CHILDREN
Sec. 301. Special immigrant juvenile classification.CommentsClose CommentsPermalink
Sec. 302. Training for officials and certain private parties who come into contact with unaccompanied alien children.CommentsClose CommentsPermalink
Sec. 303. Report.CommentsClose CommentsPermalink
TITLE IV--CHILDREN REFUGEE AND ASYLUM SEEKERS
Sec. 401. Guidelines for children's asylum claims.CommentsClose CommentsPermalink
Sec. 402. Unaccompanied refugee children.CommentsClose CommentsPermalink
Sec. 403. Exceptions for unaccompanied alien children in asylum and refugee-like circumstances.CommentsClose CommentsPermalink
TITLE V--AMENDMENTS TO THE HOMELAND SECURITY ACT OF 2002
Sec. 501. Additional responsibilities and powers of the Office of Refugee Resettlement with respect to unaccompanied alien children.CommentsClose CommentsPermalink
Sec. 502. Technical corrections.CommentsClose CommentsPermalink
Sec. 503. Effective date.CommentsClose CommentsPermalink
TITLE VI--AUTHORIZATION OF APPROPRIATIONS
Sec. 601. Authorization of appropriations.CommentsClose CommentsPermalink
SEC. 2. DEFINITIONS.
(a) IN GENERAL- In this Act:CommentsClose CommentsPermalink
(1) COMPETENT- The term `competent', in reference to counsel, means an attorney, or a representative authorized to represent unaccompanied alien children in immigration proceedings or matters, who--CommentsClose CommentsPermalink
(A) complies with the duties set forth in this Act;CommentsClose CommentsPermalink
(B) is--CommentsClose CommentsPermalink
(i) properly qualified to handle matters involving unaccompanied alien children; orCommentsClose CommentsPermalink
(ii) working under the auspices of a qualified nonprofit organization that is experienced in handling such matters; andCommentsClose CommentsPermalink
(C) if an attorney--CommentsClose CommentsPermalink
(i) is a member in good standing of the bar of the highest court of any State, possession, territory, Commonwealth, or the District of Columbia; andCommentsClose CommentsPermalink
(ii) is not under any order of any court suspending, enjoining, restraining, disbarring, or otherwise restricting the attorney in the practice of law.CommentsClose CommentsPermalink
(2) DEPARTMENT- The term `Department' means the Department of Homeland Security.CommentsClose CommentsPermalink
(3) DIRECTOR- The term `Director' means the Director of the Office.CommentsClose CommentsPermalink
(4) OFFICE- The term `Office' means the Office of Refugee Resettlement established by section 411 of the Immigration and Nationality Act (
(5) SECRETARY- The term `Secretary' means the Secretary of Homeland Security.CommentsClose CommentsPermalink
(6) UNACCOMPANIED ALIEN CHILD- The term `unaccompanied alien child' has the meaning given the term in 101(a)(51) of the Immigration and Nationality Act, as added by subsection (b).CommentsClose CommentsPermalink
(7) VOLUNTARY AGENCY- The term `voluntary agency' means a private, nonprofit voluntary agency with expertise in meeting the cultural, developmental, or psychological needs of unaccompanied alien children, as certified by the Director.CommentsClose CommentsPermalink
(b) AMENDMENTS TO THE IMMIGRATION AND NATIONALITY ACT- Section 101(a) of the Immigration and Nationality Act (
`(51) The term `unaccompanied alien child' means a child who--CommentsClose CommentsPermalink
`(A) has no lawful immigration status in the United States;CommentsClose CommentsPermalink
`(B) has not attained 18 years of age; andCommentsClose CommentsPermalink
`(C) with respect to whom--CommentsClose CommentsPermalink
`(i) there is no parent or legal guardian in the United States; orCommentsClose CommentsPermalink
`(ii) no parent or legal guardian in the United States is available to provide care and physical custody.CommentsClose CommentsPermalink
`(52) The term `unaccompanied refugee children' means persons described in paragraph (42) who--CommentsClose CommentsPermalink
`(A) have not attained 18 years of age; andCommentsClose CommentsPermalink
`(B) with respect to whom there are no parents or legal guardians available to provide care and physical custody.'.CommentsClose CommentsPermalink
(c) RULE OF CONSTRUCTION-CommentsClose CommentsPermalink
`(1) STATE COURTS ACTING IN LOCO PARENTIS- A department or agency of a State, or an individual or entity appointed by a State court or a juvenile court located in the United States, acting in loco parentis, shall not be considered a legal guardian for purposes of section 462 of the Homeland Security Act of 2002 (
(2) CLARIFICATION OF THE DEFINITION OF UNACCOMPANIED ALIEN CHILD- For the purposes of section 462(g)(2) of the Homeland Security Act of 2002 (
TITLE I--CUSTODY, RELEASE, FAMILY REUNIFICATION, AND DETENTION
SEC. 101. PROCEDURES WHEN ENCOUNTERING UNACCOMPANIED ALIEN CHILDREN.
(a) UNACCOMPANIED CHILDREN FOUND ALONG THE UNITED STATES BORDER OR AT UNITED STATES PORTS OF ENTRY-CommentsClose CommentsPermalink
(1) IN GENERAL- Subject to paragraph (2), an immigration officer who finds an unaccompanied alien child described in paragraph (2) at a land border or port of entry of the United States and determines that such child is inadmissible under the Immigration and Nationality Act (
(A) permit such child to withdraw the child's application for admission pursuant to section 235(a)(4) of the Immigration and Nationality Act (
(B) return such child to the child's country of nationality or country of last habitual residence.CommentsClose CommentsPermalink
(2) SPECIAL RULE FOR CONTIGUOUS COUNTRIES-CommentsClose CommentsPermalink
(A) IN GENERAL- Any child who is a national or habitual resident of a country, which is contiguous with the United States and has an agreement in writing with the United States that provides for the safe return and orderly repatriation of unaccompanied alien children who are nationals or habitual residents of such country, shall be treated in accordance with paragraph (1) if the Secretary determines, on a case-by-case basis, that--CommentsClose CommentsPermalink
(i) such child is a national or habitual resident of a country described in this subparagraph;CommentsClose CommentsPermalink
(ii) such child does not have a fear of returning to the child's country of nationality or country of last habitual residence owing to a fear of persecution;CommentsClose CommentsPermalink
(iii) the return of such child to the child's country of nationality or country of last habitual residence would not endanger the life or safety of such child; andCommentsClose CommentsPermalink
(iv) the child is able to make an independent decision to withdraw the child's application for admission due to age or other lack of capacity.CommentsClose CommentsPermalink
(B) RIGHT OF CONSULTATION- Any child described in subparagraph (A) shall have the right, and shall be informed of that right in the child's native language--CommentsClose CommentsPermalink
(i) to consult with a consular officer from the child's country of nationality or country of last habitual residence prior to repatriation; andCommentsClose CommentsPermalink
(ii) to consult, telephonically, with the Office.CommentsClose CommentsPermalink
(3) RULE FOR APPREHENSIONS AT THE BORDER- The custody of unaccompanied alien children not described in paragraph (2) who are apprehended at the border of the United States or at a United States port of entry shall be treated in accordance with subsection (b).CommentsClose CommentsPermalink
(b) CARE AND CUSTODY OF UNACCOMPANIED ALIEN CHILDREN FOUND IN THE INTERIOR OF THE UNITED STATES-CommentsClose CommentsPermalink
(1) ESTABLISHMENT OF JURISDICTION-CommentsClose CommentsPermalink
(A) IN GENERAL- Except as otherwise provided under subparagraphs (B) and (C) and subsection (a), the care and custody of all unaccompanied alien children, including responsibility for their detention, where appropriate, shall be under the jurisdiction of the Office.CommentsClose CommentsPermalink
(B) EXCEPTION FOR CHILDREN WHO HAVE COMMITTED CRIMES- Notwithstanding subparagraph (A), the Department of Justice shall retain or assume the custody and care of any unaccompanied alien who is--CommentsClose CommentsPermalink
(i) in the custody of the Department of Justice pending prosecution for a Federal crime other than a violation of the Immigration and Nationality Act; orCommentsClose CommentsPermalink
(ii) serving a sentence pursuant to a conviction for a Federal crime.CommentsClose CommentsPermalink
(C) EXCEPTION FOR CHILDREN WHO THREATEN NATIONAL SECURITY- Notwithstanding subparagraph (A), the Department shall retain or assume the custody and care of an unaccompanied alien child if the Secretary has substantial evidence, based on an individualized determination, that such child could personally endanger the national security of the United States.CommentsClose CommentsPermalink
(2) NOTIFICATION-CommentsClose CommentsPermalink
(A) IN GENERAL- Each department or agency of the Federal Government shall promptly notify the Office upon--CommentsClose CommentsPermalink
(i) the apprehension of an unaccompanied alien child;CommentsClose CommentsPermalink
(ii) the discovery that an alien in the custody of such department or agency is an unaccompanied alien child;CommentsClose CommentsPermalink
(iii) any claim by an alien in the custody of such department or agency that such alien is younger than 18 years of age; orCommentsClose CommentsPermalink
(iv) any suspicion that an alien in the custody of such department or agency who has claimed to be at least 18 years of age is actually younger than 18 years of age.CommentsClose CommentsPermalink
(B) SPECIAL RULE- The Director shall--CommentsClose CommentsPermalink
(i) make an age determination for an alien described in clause (iii) or (iv) of subparagraph (A) in accordance with section 105; andCommentsClose CommentsPermalink
(ii) take whatever other steps are necessary to determine whether such alien is eligible for treatment under section 462 of the Homeland Security Act of 2002 (
(3) TRANSFER OF UNACCOMPANIED ALIEN CHILDREN-CommentsClose CommentsPermalink
(A) TRANSFER TO THE OFFICE- Any Federal department or agency that has an unaccompanied alien child in its custody shall transfer the custody of such child to the Office--CommentsClose CommentsPermalink
(i) not later than 72 hours after a determination is made that such child is an unaccompanied alien, if the child is not described in subparagraph (B) or (C) of paragraph (1);CommentsClose CommentsPermalink
(ii) if the custody and care of the child has been retained or assumed by the Attorney General under paragraph (1)(B) or by the Department under paragraph (1)(C), following a determination that the child no longer meets the description set forth in such subparagraphs; orCommentsClose CommentsPermalink
(iii) if the child was previously released to an individual or entity described in section 102(a)(1), upon a determination by the Director that such individual or entity is no longer able to care for the child.CommentsClose CommentsPermalink
(B) TRANSFER TO THE DEPARTMENT- The Director shall transfer the care and custody of an unaccompanied alien child in the custody of the Office or the Department of Justice to the Department upon determining that the child is described in subparagraph (B) or (C) of paragraph (1).CommentsClose CommentsPermalink
(C) PROMPTNESS OF TRANSFER- If a child needs to be transferred under this paragraph, the sending office shall make prompt arrangements to transfer such child and the receiving office shall make prompt arrangements to receive such child.CommentsClose CommentsPermalink
(c) AGE DETERMINATIONS- If the age of an alien is in question and the resolution of questions about the age of such alien would affect the alien's eligibility for treatment under section 462 of the Homeland Security Act of 2002 (
(d) ACCESS TO ALIEN- The Secretary and the Attorney General shall permit the Office to have reasonable access to aliens in the custody of the Secretary or the Attorney General to ensure a prompt determination of the age of such alien, if necessary under subsection (b)(2)(B).CommentsClose CommentsPermalink
SEC. 102. FAMILY REUNIFICATION FOR UNACCOMPANIED ALIEN CHILDREN WITH RELATIVES IN THE UNITED STATES.
(a) PLACEMENT OF RELEASED CHILDREN-CommentsClose CommentsPermalink
(1) ORDER OF PREFERENCE- Subject to the discretion of the Director under paragraph (4), section 103(a)(2), and section 462(b)(2) of the Homeland Security Act of 2002 (
(A) A parent who seeks to establish custody under paragraph (3)(A).CommentsClose CommentsPermalink
(B) A legal guardian who seeks to establish custody under paragraph (3)(A).CommentsClose CommentsPermalink
(C) An adult relative.CommentsClose CommentsPermalink
(D) An individual or entity designated by the parent or legal guardian that is capable and willing to care for the well being of the child.CommentsClose CommentsPermalink
(E) A State-licensed family foster home, small group home, or juvenile shelter willing to accept custody of the child.CommentsClose CommentsPermalink
(F) A qualified adult or entity, as determined by the Director by regulation, seeking custody of the child if the Director determines that no other likely alternative to long-term detention exists and family reunification does not appear to be a reasonable alternative.CommentsClose CommentsPermalink
(2) SUITABILITY ASSESSMENT-CommentsClose CommentsPermalink
(A) GENERAL REQUIREMENTS- Notwithstanding paragraph (1), and subject to the requirements of subparagraph (B), an unaccompanied alien child may not be placed with a person or entity described in any of subparagraphs (A) through (F) of paragraph (1) unless the Director provides written certification that the proposed custodian is capable of providing for the child's physical and mental well-being, based on--CommentsClose CommentsPermalink
(i) with respect to an individual custodian--CommentsClose CommentsPermalink
(I) verification of such individual's identity and employment;CommentsClose CommentsPermalink
(II) a finding that such individual has not engaged in any activity that would indicate a potential risk to the child, including the people and activities described in paragraph (4)(A)(i);CommentsClose CommentsPermalink
(III) a finding that such individual is not the subject of an open investigation by a State or local child protective services authority due to suspected child abuse or neglect;CommentsClose CommentsPermalink
(IV) verification that such individual has a plan for the provision of care for the child;CommentsClose CommentsPermalink
(V) verification of familial relationship of such individual, if any relationship is claimed; andCommentsClose CommentsPermalink
(VI) verification of nature and extent of previous relationship;CommentsClose CommentsPermalink
(ii) with respect to a custodial entity, verification of such entity's appropriate licensure by the State, county, or other applicable unit of government; andCommentsClose CommentsPermalink
(iii) such other information as the Director determines appropriate.CommentsClose CommentsPermalink
(B) HOME STUDY-CommentsClose CommentsPermalink
(i) IN GENERAL- The Director shall place a child with any custodian described in any of subparagraphs (A) through (F) of paragraph (1) unless the Director determines that a home study with respect to such custodian is necessary.CommentsClose CommentsPermalink
(ii) SPECIAL NEEDS CHILDREN- A home study shall be conducted to determine if the custodian can properly meet the needs of--CommentsClose CommentsPermalink
(I) a special needs child with a disability (as defined in section 3 of the Americans with Disabilities Act of 1990 (
(II) a child who has been the object of physical or mental injury, sexual abuse, negligent treatment, or maltreatment under circumstances which indicate that the child's health or welfare has been harmed or threatened.CommentsClose CommentsPermalink
(iii) FOLLOW-UP SERVICES- The Director shall conduct follow-up services for at least 90 days on custodians for whom a home study was conducted under this subparagraph.CommentsClose CommentsPermalink
(C) CONTRACT AUTHORITY- The Director may, by grant or contract, arrange for some or all of the activities under this section to be carried out by--CommentsClose CommentsPermalink
(i) an agency of the State of the child's proposed residence;CommentsClose CommentsPermalink
(ii) an agency authorized by such State to conduct such activities; orCommentsClose CommentsPermalink
(iii) an appropriate voluntary or nonprofit agency.CommentsClose CommentsPermalink
(D) DATABASE ACCESS- In conducting suitability assessments, the Director shall have access to all relevant information in the appropriate Federal, State, and local law enforcement and immigration databases.CommentsClose CommentsPermalink
(3) RIGHT OF PARENT OR LEGAL GUARDIAN TO CUSTODY OF UNACCOMPANIED ALIEN CHILD-CommentsClose CommentsPermalink
(A) PLACEMENT WITH PARENT OR LEGAL GUARDIAN- If an unaccompanied alien child is placed with any person or entity other than a parent or legal guardian, and subsequent to that placement a parent or legal guardian seeks to establish custody, the Director shall--CommentsClose CommentsPermalink
(i) assess the suitability of placing the child with the parent or legal guardian; andCommentsClose CommentsPermalink
(ii) make a written determination regarding the child's placement within 30 days.CommentsClose CommentsPermalink
(B) RULE OF CONSTRUCTION- Nothing in this Act shall be construed to--CommentsClose CommentsPermalink
(i) supersede obligations under any treaty or other international agreement to which the United States is a party, including--CommentsClose CommentsPermalink
(I) the Convention on the Civil Aspects of International Child Abduction, done at The Hague, October 25, 1980 (TIAS 11670);CommentsClose CommentsPermalink
(II) the Vienna Declaration and Program of Action, adopted at Vienna, June 25, 1993; andCommentsClose CommentsPermalink
(III) the Declaration of the Rights of the Child, adopted at New York, November 20, 1959; orCommentsClose CommentsPermalink
(ii) limit any right or remedy under such international agreement.CommentsClose CommentsPermalink
(4) PROTECTION FROM SMUGGLERS AND TRAFFICKERS-CommentsClose CommentsPermalink
(A) POLICIES AND PROGRAMS-CommentsClose CommentsPermalink
(i) IN GENERAL- The Director shall establish policies and programs to ensure that unaccompanied alien children are protected from smugglers, traffickers, or other persons seeking to victimize or otherwise engage such children in criminal, harmful, or exploitative activity.CommentsClose CommentsPermalink
(ii) WITNESS PROTECTION PROGRAMS INCLUDED- Programs established pursuant to clause (i) may include witness protection programs.CommentsClose CommentsPermalink
(B) CRIMINAL INVESTIGATIONS AND PROSECUTIONS- Any officer or employee of the Office or of the Department, and any grantee or contractor of the Office or of the Department, who suspects any individual of involvement in any activity described in subparagraph (A) shall report such individual to Federal or State prosecutors for criminal investigation and prosecution.CommentsClose CommentsPermalink
(C) DISCIPLINARY ACTION- Any officer or employee of the Office or the Department, and any grantee or contractor of the Office, who believes that a competent attorney or representative has been a participant in any activity described in subparagraph (A), shall report the attorney to the State bar association of which the attorney is a member, or to other appropriate disciplinary authorities, for appropriate disciplinary action, including private or public admonition or censure, suspension, or disbarment of the attorney from the practice of law.CommentsClose CommentsPermalink
(5) GRANTS AND CONTRACTS- The Director may award grants to, and enter into contracts with, voluntary agencies to carry out this section or section 462 of the Homeland Security Act of 2002 (
(b) CONFIDENTIALITY-CommentsClose CommentsPermalink
(1) IN GENERAL- All information obtained by the Office relating to the immigration status of a person described in subparagraphs (A), (B), and (C) of subsection (a)(1) shall remain confidential and may only be used to determine such person's qualifications under subsection (a)(1).CommentsClose CommentsPermalink
(2) NONDISCLOSURE OF INFORMATION- In consideration of the needs and privacy of unaccompanied alien children in the custody of the Office or its agents, and the necessity to guarantee the confidentiality of such children's information in order to facilitate their trust and truthfulness with the Office, its agents, and clinicians, the Office shall maintain the privacy and confidentiality of all information gathered in the course of the care, custody, and placement of unaccompanied alien children, consistent with its role and responsibilities under the Homeland Security Act to act as guardian in loco parentis in the best interest of the unaccompanied alien child, by not disclosing such information to other government agencies or nonparental third parties.CommentsClose CommentsPermalink
(c) REQUIRED DISCLOSURE- The Secretary or the Secretary of Health and Human Services shall provide the information furnished under this section, and any other information derived from such furnished information, to--CommentsClose CommentsPermalink
(1) a duly recognized law enforcement entity in connection with an investigation or prosecution of an offense described in paragraph (2) or (3) of section 212(a) of the Immigration and Nationality Act (
(2) an official coroner for purposes of affirmatively identifying a deceased individual (whether or not such individual is deceased as a result of a crime).CommentsClose CommentsPermalink
(d) PENALTY- Any person who knowingly uses, publishes, or permits information to be examined in violation of this section shall be fined not more than $10,000.CommentsClose CommentsPermalink
SEC. 103. APPROPRIATE CONDITIONS FOR DETENTION OF UNACCOMPANIED ALIEN CHILDREN.
(a) STANDARDS FOR PLACEMENT-CommentsClose CommentsPermalink
(1) ORDER OF PREFERENCE- An unaccompanied alien child who is not released pursuant to section 102(a)(1) shall be placed in the least restrictive setting possible in the following order of preference:CommentsClose CommentsPermalink
(A) Licensed family foster home.CommentsClose CommentsPermalink
(B) Small group home.CommentsClose CommentsPermalink
(C) Juvenile shelter.CommentsClose CommentsPermalink
(D) Residential treatment center.CommentsClose CommentsPermalink
(E) Secure detention.CommentsClose CommentsPermalink
(2) PROHIBITION OF DETENTION IN CERTAIN FACILITIES- Except as provided under paragraph (3), an unaccompanied alien child shall not be placed in an adult detention facility or a facility housing delinquent children.CommentsClose CommentsPermalink
(3) DETENTION IN APPROPRIATE FACILITIES- An unaccompanied alien child who has exhibited violent or criminal behavior that endangers others may be detained in conditions appropriate to such behavior in a facility appropriate for delinquent children.CommentsClose CommentsPermalink
(4) STATE LICENSURE- A child shall not be placed with an entity described in section 102(a)(1)(E), unless the entity is licensed by an appropriate State agency to provide residential, group, child welfare, or foster care services for dependent children.CommentsClose CommentsPermalink
(5) CONDITIONS OF DETENTION-CommentsClose CommentsPermalink
(A) IN GENERAL- The Director and the Secretary shall promulgate regulations incorporating standards for conditions of detention in placements described in paragraph (1) that provide for--CommentsClose CommentsPermalink
(i) educational services appropriate to the child;CommentsClose CommentsPermalink
(ii) medical care;CommentsClose CommentsPermalink
(iii) mental health care, including treatment of trauma, physical and sexual violence, and abuse;CommentsClose CommentsPermalink
(iv) access to telephones;CommentsClose CommentsPermalink
(v) access to legal services;CommentsClose CommentsPermalink
(vi) access to interpreters;CommentsClose CommentsPermalink
(vii) supervision by professionals trained in the care of children, taking into account the special cultural, linguistic, and experiential needs of children in immigration proceedings;CommentsClose CommentsPermalink
(viii) recreational programs and activities;CommentsClose CommentsPermalink
(ix) spiritual and religious needs; andCommentsClose CommentsPermalink
(x) dietary needs.CommentsClose CommentsPermalink
(B) NOTIFICATION OF CHILDREN- Regulations promulgated under subparagraph (A) shall provide that all children in such placements are notified of such standards orally and in writing in the child's native language.CommentsClose CommentsPermalink
(b) PROHIBITION OF CERTAIN PRACTICES- The Director and the Secretary shall develop procedures prohibiting the unreasonable use of--CommentsClose CommentsPermalink
(1) shackling, handcuffing, or other restraints on children;CommentsClose CommentsPermalink
(2) solitary confinement; orCommentsClose CommentsPermalink
(3) pat or strip searches.CommentsClose CommentsPermalink
(c) RULE OF CONSTRUCTION- Nothing in this section shall be construed to supersede procedures favoring release of children to appropriate adults or entities or placement in the least secure setting possible, as described in paragraph 23 of the Stipulated Settlement Agreement under Flores v. Reno.CommentsClose CommentsPermalink
SEC. 104. REPATRIATED UNACCOMPANIED ALIEN CHILDREN.
(a) COUNTRY CONDITIONS-CommentsClose CommentsPermalink
(1) SENSE OF CONGRESS- It is the sense of Congress that, to the extent consistent with the treaties and other international agreements to which the United States is a party, and to the extent practicable, the United States Government should undertake efforts to ensure that it does not repatriate children in its custody into settings that would threaten the life and safety of such children.CommentsClose CommentsPermalink
(2) ASSESSMENT OF CONDITIONS-CommentsClose CommentsPermalink
(A) IN GENERAL- The Secretary of State shall include, in the annual Country Reports on Human Rights Practices, an assessment of the degree to which each country protects children from smugglers and traffickers.CommentsClose CommentsPermalink
(B) FACTORS FOR ASSESSMENT- The Secretary shall consult the Country Reports on Human Rights Practices and the Trafficking in Persons Report in assessing whether to repatriate an unaccompanied alien child to a particular country.CommentsClose CommentsPermalink
(b) REPORT ON REPATRIATION OF UNACCOMPANIED ALIEN CHILDREN-CommentsClose CommentsPermalink
(1) IN GENERAL- Not later than 18 months after the date of the enactment of this Act, and annually thereafter, the Secretary shall submit a report to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives on efforts to repatriate unaccompanied alien children.CommentsClose CommentsPermalink
(2) CONTENTS- The report submitted under paragraph (1) shall include--CommentsClose CommentsPermalink
(A) the number of unaccompanied alien children ordered removed and the number of such children actually removed from the United States;CommentsClose CommentsPermalink
(B) a description of the type of immigration relief sought and denied to such children;CommentsClose CommentsPermalink
(C) a statement of the nationalities, ages, and gender of such children;CommentsClose CommentsPermalink
(D) a description of the procedures used to effect the removal of such children from the United States;CommentsClose CommentsPermalink
(E) a description of steps taken to ensure that such children were safely and humanely repatriated to their country of origin; andCommentsClose CommentsPermalink
(F) any information gathered in assessments of country and local conditions pursuant to subsection (a)(2).CommentsClose CommentsPermalink
SEC. 105. ESTABLISHING THE AGE OF AN UNACCOMPANIED ALIEN CHILD.
(a) PROCEDURES-CommentsClose CommentsPermalink
(1) IN GENERAL- The Director, in consultation with the Secretary, shall develop procedures to make a prompt determination of the age of an alien, which procedures shall be used--CommentsClose CommentsPermalink
(A) by the Secretary, with respect to aliens in the custody of the Department;CommentsClose CommentsPermalink
(B) by the Director, with respect to aliens in the custody of the Office; andCommentsClose CommentsPermalink
(C) by the Attorney General, with respect to aliens in the custody of the Department of Justice.CommentsClose CommentsPermalink
(2) EVIDENCE- The procedures developed under paragraph (1) shall--CommentsClose CommentsPermalink
(A) permit the presentation of multiple forms of evidence, including testimony of the alien, to determine the age of the unaccompanied alien for purposes of placement, custody, parole, and detention; andCommentsClose CommentsPermalink
(B) allow the appeal of a determination to an immigration judge.CommentsClose CommentsPermalink
(b) PROHIBITION ON SOLE MEANS OF DETERMINING AGE- Radiographs or the attestation of an alien may not be used as the sole means of determining age for the purposes of determining an alien's eligibility for treatment under this Act or section 462 of the Homeland Security Act of 2002 (
(c) RULE OF CONSTRUCTION- Nothing in this section may be construed to place the burden of proof in determining the age of an alien on the Government.CommentsClose CommentsPermalink
SEC. 106. EFFECTIVE DATE.
This title shall take effect on the date which is 90 days after the date of the enactment of this Act.CommentsClose CommentsPermalink
TITLE II--ACCESS BY UNACCOMPANIED ALIEN CHILDREN TO CHILD ADVOCATES AND COUNSEL
SEC. 201. CHILD ADVOCATES.
(a) ESTABLISHMENT OF CHILD ADVOCATE PROGRAM-CommentsClose CommentsPermalink
(1) APPOINTMENT- The Director may appoint a child advocate, who meets the qualifications described in paragraph (2), for an unaccompanied alien child. The Director is encouraged, if practicable, to contract with a voluntary agency for the selection of an individual to be appointed as a child advocate under this paragraph.CommentsClose CommentsPermalink
(2) QUALIFICATIONS OF CHILD ADVOCATE-CommentsClose CommentsPermalink
(A) IN GENERAL- A person may not serve as a child advocate unless such person--CommentsClose CommentsPermalink
(i) is a child welfare professional or other individual who has received training in child welfare matters;CommentsClose CommentsPermalink
(ii) possesses special training on the nature of problems encountered by unaccompanied alien children; andCommentsClose CommentsPermalink
(iii) is not an employee of the Department, the Department of Justice, or the Department of Health and Human Services.CommentsClose CommentsPermalink
(B) INDEPENDENCE OF CHILD ADVOCATE-CommentsClose CommentsPermalink
(i) INDEPENDENCE FROM AGENCIES OF GOVERNMENT- The child advocate shall act independently of any agency of government in making and reporting findings or making recommendations with respect to the best interests of the child. No agency shall terminate, reprimand, de-fund, intimidate, or retaliate against any person or entity appointed under paragraph (1) because of the findings and recommendations made by such person relating to any child.CommentsClose CommentsPermalink
(ii) PROHIBITION OF CONFLICT OF INTEREST- No person shall serve as a child advocate for a child if such person is providing legal services to such child.CommentsClose CommentsPermalink
(3) DUTIES- The child advocate of a child shall--CommentsClose CommentsPermalink
(A) conduct interviews with the child in a manner that is appropriate, taking into account the child's age;CommentsClose CommentsPermalink
(B) investigate the facts and circumstances relevant to the child's presence in the United States, including facts and circumstances--CommentsClose CommentsPermalink
(i) arising in the country of the child's nationality or last habitual residence; andCommentsClose CommentsPermalink
(ii) arising subsequent to the child's departure from such country;CommentsClose CommentsPermalink
(C) work with counsel to identify the child's eligibility for relief from removal or voluntary departure by sharing with counsel relevant information collected under subparagraph (B);CommentsClose CommentsPermalink
(D) develop recommendations on issues relative to the child's custody, detention, release, and repatriation;CommentsClose CommentsPermalink
(E) take reasonable steps to ensure that--CommentsClose CommentsPermalink
(i) the best interests of the child are promoted while the child participates in, or is subject to, proceedings or matters under the Immigration and Nationality Act (
(ii) the child understands the nature of the legal proceedings or matters and determinations made by the court, and that all information is conveyed to the child in an age-appropriate manner;CommentsClose CommentsPermalink
(F) report factual findings and recommendations consistent with the child's best interests relating to the custody, detention, and release of the child during the pendency of the proceedings or matters, to the Director and the child's counsel;CommentsClose CommentsPermalink
(G) in any proceeding involving an alien child in which a complaint has been filed with any appropriate disciplinary authority against an attorney or representative for criminal, unethical, or unprofessional conduct in connection with the representation of the alien child, provide the immigration judge with written recommendations or testimony on any information the child advocate may have regarding the conduct of the attorney; andCommentsClose CommentsPermalink
(H) in any proceeding involving an alien child in which the safety of the child upon repatriation is at issue, and after the immigration judge has considered and denied all applications for relief other than voluntary departure, provide the immigration judge with written recommendations or testimony on any information the child advocate may have regarding the child's safety upon repatriation.CommentsClose CommentsPermalink
(4) TERMINATION OF APPOINTMENT- The child advocate shall carry out the duties described in paragraph (3) until the earliest of the date on which--CommentsClose CommentsPermalink
(A) those duties are completed;CommentsClose CommentsPermalink
(B) the child departs from the United States;CommentsClose CommentsPermalink
(C) the child is granted permanent resident status in the United States;CommentsClose CommentsPermalink
(D) the child reaches 18 years of age; orCommentsClose CommentsPermalink
(E) the child is placed in the custody of a parent or legal guardian.CommentsClose CommentsPermalink
(5) POWERS- The child advocate--CommentsClose CommentsPermalink
(A) shall have reasonable access to the child, including access while such child is being held in detention or in the care of a foster family;CommentsClose CommentsPermalink
(B) shall be permitted to review all records and information relating to such proceedings that are not deemed privileged or classified;CommentsClose CommentsPermalink
(C) may seek independent evaluations of the child;CommentsClose CommentsPermalink
(D) shall be notified in advance of all hearings or interviews involving the child that are held in connection with proceedings or matters under the Immigration and Nationality Act (
(E) shall be permitted to accompany and consult with the child during any hearing or interview involving such child; andCommentsClose CommentsPermalink
(F) shall be provided at least 24 hours advance notice of a transfer of that child to a different placement, absent compelling and unusual circumstances warranting the transfer of such child before such notification.CommentsClose CommentsPermalink
(b) TRAINING-CommentsClose CommentsPermalink
(1) IN GENERAL- The Director shall provide professional training for all persons serving as child advocates under this section.CommentsClose CommentsPermalink
(2) TRAINING TOPICS- The training provided under paragraph (1) shall include training in--CommentsClose CommentsPermalink
(A) the circumstances and conditions faced by unaccompanied alien children; andCommentsClose CommentsPermalink
(B) various immigration benefits for which such alien child might be eligible.CommentsClose CommentsPermalink
(c) PILOT PROGRAM-CommentsClose CommentsPermalink
(1) IN GENERAL- Not later than 180 days after the date of the enactment of this Act, the Director shall establish and begin to carry out a pilot program to test the implementation of subsection (a). Any pilot program existing before the date of the enactment of this Act shall be deemed insufficient to satisfy the requirements of this subsection.CommentsClose CommentsPermalink
(2) PURPOSE- The purpose of the pilot program established pursuant to paragraph (1) is to--CommentsClose CommentsPermalink
(A) study and assess the benefits of providing child advocates to assist unaccompanied alien children involved in immigration proceedings or matters;CommentsClose CommentsPermalink
(B) assess the most efficient and cost-effective means of implementing the child advocate provisions under this section; andCommentsClose CommentsPermalink
(C) assess the feasibility of implementing such provisions on a nationwide basis for all unaccompanied alien children in the care of the Office.CommentsClose CommentsPermalink
(3) SCOPE OF PROGRAM-CommentsClose CommentsPermalink
(A) SELECTION OF SITE- The Director shall select 3 sites at which to operate the pilot program established under paragraph (1).CommentsClose CommentsPermalink
(B) NUMBER OF CHILDREN- Each site selected under subparagraph (A) should have not less than 25 children held in immigration custody at any given time, to the greatest extent possible.CommentsClose CommentsPermalink
(4) REPORT TO CONGRESS- Not later than 1 year after the date on which the first pilot program site is established under paragraph (1), the Director shall submit a report on the achievement of the purposes described in paragraph (2) to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives.CommentsClose CommentsPermalink
(5) AUTHORIZATION OF APPROPRIATIONS- There are authorized to be appropriated such sums as may be necessary to carry out this section.CommentsClose CommentsPermalink
SEC. 202. COUNSEL.
(a) ACCESS TO COUNSEL-CommentsClose CommentsPermalink
(1) IN GENERAL- The Director shall ensure, to the greatest extent practicable, that all unaccompanied alien children in the custody of the Office or the Department, who are not described in section 101(a)(2), have competent counsel to represent them in immigration proceedings or matters.CommentsClose CommentsPermalink
(2) PRO BONO REPRESENTATION- To the greatest extent practicable, the Director shall--CommentsClose CommentsPermalink
(A) make every effort to utilize the services of competent pro bono counsel who agree to provide representation to such children without charge; andCommentsClose CommentsPermalink
(B) ensure that placements made under subparagraphs (D), (E), and (F) of section 102(a)(1) are in cities in which there is a demonstrated capacity for competent pro bono representation.CommentsClose CommentsPermalink
(3) DEVELOPMENT OF NECESSARY INFRASTRUCTURES AND SYSTEMS- The Director shall develop the necessary mechanisms to identify and recruit entities that are available to provide legal assistance and representation under this subsection.CommentsClose CommentsPermalink
(4) CONTRACTING AND GRANT MAKING AUTHORITY-CommentsClose CommentsPermalink
(A) IN GENERAL- The Director shall enter into contracts with, or award grants to, nonprofit agencies with relevant expertise in the delivery of immigration-related legal services to children in order to carry out the responsibilities of this Act, including providing legal orientation, screening cases for referral, recruiting, training, and overseeing pro bono attorneys.CommentsClose CommentsPermalink
(B) SUBCONTRACTING- Nonprofit agencies may enter into subcontracts with, or award grants to, private voluntary agencies with relevant expertise in the delivery of immigration-related legal services to children in order to carry out this subsection.CommentsClose CommentsPermalink
(C) CONSIDERATIONS REGARDING GRANTS AND CONTRACTS- In awarding grants and entering into contracts with agencies under this paragraph, the Director shall take into consideration the capacity of the agencies in question to properly administer the services covered by such grants or contracts without an undue conflict of interest.CommentsClose CommentsPermalink
(5) MODEL GUIDELINES ON LEGAL REPRESENTATION OF CHILDREN-CommentsClose CommentsPermalink
(A) DEVELOPMENT OF GUIDELINES- The Director of the Executive Office for Immigration Review of the Department of Justice, in consultation with voluntary agencies and national experts, shall develop model guidelines for the legal representation of alien children in immigration proceedings. Such guidelines shall be based on the children's asylum guidelines, the American Bar Association Model Rules of Professional Conduct, and other relevant domestic or international sources.CommentsClose CommentsPermalink
(B) PURPOSE OF GUIDELINES- The guidelines developed under subparagraph (A) shall be designed to help protect each child from any individual suspected of involvement in any criminal, harmful, or exploitative activity associated with the smuggling or trafficking of children, while ensuring the fairness of the removal proceeding in which the child is involved.CommentsClose CommentsPermalink
(C) IMPLEMENTATION- Not later than 180 days after the date of the enactment of this Act, the Director of the Executive Office for Immigration Review shall--CommentsClose CommentsPermalink
(i) adopt the guidelines developed under subparagraph (A); andCommentsClose CommentsPermalink
(ii) submit the guidelines for adoption by national, State, and local bar associations.CommentsClose CommentsPermalink
(b) DUTIES- Counsel under this section shall--CommentsClose CommentsPermalink
(1) represent the unaccompanied alien child in all proceedings and matters relating to the immigration status of the child or other actions involving the Department;CommentsClose CommentsPermalink
(2) appear in person for all individual merits hearings before the Executive Office for Immigration Review and interviews involving the Department; andCommentsClose CommentsPermalink
(3) owe the same duties of undivided loyalty, confidentiality, and competent representation to the child as is due to an adult client.CommentsClose CommentsPermalink
(c) ACCESS TO CHILD-CommentsClose CommentsPermalink
(1) IN GENERAL- Counsel under this section shall have reasonable access to the unaccompanied alien child, including access while the child is--CommentsClose CommentsPermalink
(A) held in detention;CommentsClose CommentsPermalink
(B) in the care of a foster family; orCommentsClose CommentsPermalink
(C) in any other setting that has been determined by the Office.CommentsClose CommentsPermalink
(2) RESTRICTION ON TRANSFERS- Absent compelling and unusual circumstances, a child who is represented by counsel may not be transferred from the child's placement to another placement unless advance notice of at least 24 hours is made to counsel of such transfer.CommentsClose CommentsPermalink
(d) NOTICE TO COUNSEL DURING IMMIGRATION PROCEEDINGS-CommentsClose CommentsPermalink
(1) IN GENERAL- Except when otherwise required in an emergency situation involving the physical safety of the child, counsel shall be given prompt and adequate notice of all immigration matters affecting or involving an unaccompanied alien child, including adjudications, proceedings, and processing, before such actions are taken.CommentsClose CommentsPermalink
(2) OPPORTUNITY TO CONSULT WITH COUNSEL- An unaccompanied alien child in the custody of the Office may not give consent to any immigration action, including consenting to voluntary departure, unless first afforded an opportunity to consult with counsel.CommentsClose CommentsPermalink
(e) ACCESS TO RECOMMENDATIONS OF CHILD ADVOCATE- Counsel shall be given an opportunity to review the recommendations of the child advocate affecting or involving a client who is an unaccompanied alien child.CommentsClose CommentsPermalink
(f) COUNSEL FOR UNACCOMPANIED ALIEN CHILDREN- Nothing in this Act may be construed to require the Government of the United States to pay for counsel to any unaccompanied alien child.CommentsClose CommentsPermalink
SEC. 203. EFFECTIVE DATE; APPLICABILITY.
(a) EFFECTIVE DATE- This title shall take effect on the date which is 180 days after the date of the enactment of this Act.CommentsClose CommentsPermalink
(b) APPLICABILITY- The provisions of this title shall apply to all unaccompanied alien children in Federal custody before, on, or after the effective date of this title.CommentsClose CommentsPermalink
TITLE III--STRENGTHENING POLICIES FOR PERMANENT PROTECTION OF ALIEN CHILDREN
SEC. 301. SPECIAL IMMIGRANT JUVENILE CLASSIFICATION.
(a) J CLASSIFICATION-CommentsClose CommentsPermalink
(1) IN GENERAL- Section 101(a)(27)(J) of the Immigration and Nationality Act (
`(J) an immigrant, who is 18 years of age or younger on the date of application for classification as a special immigrant and present in the United States--CommentsClose CommentsPermalink
`(i) who, by a court order supported by written findings of fact, which shall be binding on the Secretary of Homeland Security for purposes of adjudications under this subparagraph--CommentsClose CommentsPermalink
`(I) was declared dependent on a juvenile court located in the United States or has been legally committed to, or placed under the custody of, a department or agency of a State, or an individual or entity appointed by a State or juvenile court located in the United States; andCommentsClose CommentsPermalink
`(II) should not be reunified with his or her parents due to abuse, neglect, abandonment, or a similar basis found under State law;CommentsClose CommentsPermalink
`(ii) for whom it has been determined by written findings of fact in administrative or judicial proceedings that it would not be in the alien's best interest to be returned to the alien's or parent's previous country of nationality or country of last habitual residence; andCommentsClose CommentsPermalink
`(iii) with respect to a child in Federal custody, for whom the Office of Refugee Resettlement of the Department of Health and Human Services has certified to the Director of U.S. Citizenship and Immigration Services that the classification of an alien as a special immigrant under this subparagraph has not been made solely to provide an immigration benefit to that alien.'.CommentsClose CommentsPermalink
(2) RULE OF CONSTRUCTION- Nothing in subparagraph (J) of section 101(a)(27) of the Immigration and Nationality Act, as amended by paragraph (1), shall be construed to grant, to any natural parent or prior adoptive parent of any alien provided special immigrant status under such subparagraph, by virtue of such parentage, any right, privilege, or status under such Act.CommentsClose CommentsPermalink
(b) ADJUSTMENT OF STATUS- Section 245(h)(2)(A) of the Immigration and Nationality Act (
`(A) paragraphs (4), (5)(A), (6)(A), (7)(A), 9(B), and 9(C)(i)(I) of section 212(a) shall not apply; and'.CommentsClose CommentsPermalink
(c) ELIGIBILITY FOR ASSISTANCE-CommentsClose CommentsPermalink
(1) IN GENERAL- A child who has been certified under section 101(a)(27)(J) of the Immigration and Nationality Act, as amended by subsection (a)(1), and who was in the custody of the Office at the time a dependency order was granted for such child, shall be eligible for placement and services under section 412(d) of such Act (
(A) the date on which the child reaches the age designated in section 412(d)(2)(B) of such Act (
(B) the date on which the child is placed in a permanent adoptive home.CommentsClose CommentsPermalink
(2) STATE REIMBURSEMENT- If foster care funds are expended on behalf of a child who is not described in paragraph (1) and has been granted relief under section 101(a)(27)(J) of the Immigration and Nationality Act, the Federal Government shall reimburse the State in which the child resides for such expenditures by the State.CommentsClose CommentsPermalink
(d) TRANSITION RULE- Notwithstanding any other provision of law, a child described in section 101(a)(27)(J) of the Immigration and Nationality Act, as amended by subsection (a)(1), may not be denied such special immigrant juvenile classification after the date of the enactment of this Act based on age if the child--CommentsClose CommentsPermalink
(1) filed an application for special immigrant juvenile classification before the date of the enactment of this Act and was 21 years of age or younger on the date such application was filed; orCommentsClose CommentsPermalink
(2) was younger than 21 years of age on the date on which the child applied for classification as a special immigrant juvenile and can demonstrate exceptional circumstances warranting relief.CommentsClose CommentsPermalink
(e) RULEMAKING- Not later than 90 days after the date of the enactment of this Act, the Secretary shall promulgate rules to carry out this section.CommentsClose CommentsPermalink
(f) EFFECTIVE DATE- The amendments made by this section shall apply to all aliens who were in the United States before, on, or after the date of enactment of this Act.CommentsClose CommentsPermalink
SEC. 302. TRAINING FOR OFFICIALS AND CERTAIN PRIVATE PARTIES WHO COME INTO CONTACT WITH UNACCOMPANIED ALIEN CHILDREN.
(a) TRAINING OF STATE AND LOCAL OFFICIALS AND CERTAIN PRIVATE PARTIES-CommentsClose CommentsPermalink
(1) IN GENERAL- The Secretary of Health and Human Services, acting jointly with the Secretary, shall provide appropriate training materials, and upon request, direct training, to State and county officials, child welfare specialists, teachers, public counsel, and juvenile judges who come into contact with unaccompanied alien children.CommentsClose CommentsPermalink
(2) CURRICULUM- The training required under paragraph (1) shall include education on the processes pertaining to unaccompanied alien children with pending immigration status and on the forms of relief potentially available. The Director shall establish a core curriculum that can be incorporated into education, training, or orientation modules or formats that are currently used by these professionals.CommentsClose CommentsPermalink
(3) VIDEO CONFERENCING- Direct training requested under paragraph (1) may be conducted through video conferencing.CommentsClose CommentsPermalink
(b) TRAINING OF DEPARTMENT PERSONNEL- The Secretary, acting jointly with the Secretary of Health and Human Services, shall provide specialized training to all personnel of the Department who come into contact with unaccompanied alien children. Training for agents of the Border Patrol and immigration inspectors shall include specific training on identifying--CommentsClose CommentsPermalink
(1) children at the international borders of the United States or at United States ports of entry who have been victimized by smugglers or traffickers; andCommentsClose CommentsPermalink
(2) children for whom asylum or special immigrant relief may be appropriate, including children described in section 101(a)(2)(A).CommentsClose CommentsPermalink
SEC. 303. REPORT.
Not later than 1 year after the date of the enactment of this Act, and annually thereafter, the Secretary of Health and Human Services shall submit a report to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives that contains, for the most recently concluded fiscal year--CommentsClose CommentsPermalink
(1) data related to the implementation of section 462 of the Homeland Security Act (
(2) data regarding the care and placement of children under this Act;CommentsClose CommentsPermalink
(3) data regarding the provision of child advocate and counsel services under this Act; andCommentsClose CommentsPermalink
(4) any other information that the Director or the Secretary of Health and Human Services determines to be appropriate.CommentsClose CommentsPermalink
TITLE IV--CHILDREN REFUGEE AND ASYLUM SEEKERS
SEC. 401. GUIDELINES FOR CHILDREN'S ASYLUM CLAIMS.
(a) SENSE OF CONGRESS- Congress--CommentsClose CommentsPermalink
(1) commends the former Immigration and Naturalization Service for its `Guidelines for Children's Asylum Claims', issued in December 1998;CommentsClose CommentsPermalink
(2) encourages and supports the Department to implement such guidelines to facilitate the handling of children's affirmative asylum claims;CommentsClose CommentsPermalink
(3) commends the Executive Office for Immigration Review of the Department of Justice for its `Guidelines for Immigration Court Cases Involving Unaccompanied Alien Children', issued in September 2004;CommentsClose CommentsPermalink
(4) encourages and supports the continued implementation of such guidelines by the Executive Office for Immigration Review in its handling of children's asylum claims before immigration judges; andCommentsClose CommentsPermalink
(5) understands that the guidelines described in paragraph (3)--CommentsClose CommentsPermalink
(A) do not specifically address the issue of asylum claims; andCommentsClose CommentsPermalink
(B) address the broader issue of unaccompanied alien children.CommentsClose CommentsPermalink
(b) TRAINING-CommentsClose CommentsPermalink
(1) IMMIGRATION OFFICERS- The Secretary shall provide periodic comprehensive training under the `Guidelines for Children's Asylum Claims' to asylum officers and immigration officers who have contact with children in order to familiarize and sensitize such officers to the needs of children asylum seekers.CommentsClose CommentsPermalink
(2) IMMIGRATION JUDGES- The Director of the Executive Office for Immigration Review shall--CommentsClose CommentsPermalink
(A) provide periodic comprehensive training under the `Guidelines for Immigration Court Cases Involving Unaccompanied Alien Children' and the `Guidelines for Children's Asylum Claims' to immigration judges and members of the Board of Immigration Appeals; andCommentsClose CommentsPermalink
(B) redistribute the `Guidelines for Children's Asylum Claims' to all immigration courts as part of its training of immigration judges.CommentsClose CommentsPermalink
(3) USE OF VOLUNTARY AGENCIES- Voluntary agencies shall be allowed to assist in the training described in this subsection.CommentsClose CommentsPermalink
(c) STATISTICS AND REPORTING-CommentsClose CommentsPermalink
(1) STATISTICS-CommentsClose CommentsPermalink
(A) DEPARTMENT OF JUSTICE- The Attorney General shall compile and maintain statistics on the number of cases in immigration court involving unaccompanied alien children, which shall include, with respect to each such child, information about--CommentsClose CommentsPermalink
(i) the age;CommentsClose CommentsPermalink
(ii) the gender;CommentsClose CommentsPermalink
(iii) the country of nationality;CommentsClose CommentsPermalink
(iv) representation by counsel;CommentsClose CommentsPermalink
(v) the relief sought; andCommentsClose CommentsPermalink
(vi) the outcome of such cases.CommentsClose CommentsPermalink
(B) DEPARTMENT OF HOMELAND SECURITY- The Secretary shall compile and maintain statistics on the instances of unaccompanied alien children in the custody of the Department, which shall include, with respect to each such child, information about--CommentsClose CommentsPermalink
(i) the age;CommentsClose CommentsPermalink
(ii) the gender;CommentsClose CommentsPermalink
(iii) the country of nationality; andCommentsClose CommentsPermalink
(iv) the length of detention.CommentsClose CommentsPermalink
(2) REPORTS TO CONGRESS- Not later than 90 days after the date of the enactment of this Act and annually, thereafter, the Attorney General, in consultation with the Secretary, Secretary of Health and Human Services, and any other necessary government official, shall submit a report to the Committee on the Judiciary of the Senate and the Committee on the Judiciary House of Representatives on the number of alien children in Federal custody during the most recently concluded fiscal year. Information contained in the report, with respect to such children, shall be categorized by--CommentsClose CommentsPermalink
(A) age;CommentsClose CommentsPermalink
(B) gender;CommentsClose CommentsPermalink
(C) country of nationality;CommentsClose CommentsPermalink
(D) length of time in custody;CommentsClose CommentsPermalink
(E) the department or agency with custody; andCommentsClose CommentsPermalink
(F) treatment as an unaccompanied alien child.CommentsClose CommentsPermalink
SEC. 402. UNACCOMPANIED REFUGEE CHILDREN.
(a) IDENTIFYING UNACCOMPANIED REFUGEE CHILDREN- Section 207(e) of the Immigration and Nationality Act (
(1) by redesignating paragraphs (3), (4), (5), (6), and (7) as paragraphs (4), (5), (6), (7), and (8), respectively; andCommentsClose CommentsPermalink
(2) by inserting after paragraph (2) the following:CommentsClose CommentsPermalink
`(3) An analysis of the worldwide situation faced by unaccompanied refugee children, categorized by region, which shall include an assessment of--CommentsClose CommentsPermalink
`(A) the number of unaccompanied refugee children;CommentsClose CommentsPermalink
`(B) the capacity of the Department of State to identify such refugees;CommentsClose CommentsPermalink
`(C) the capacity of the international community to care for and protect such refugees;CommentsClose CommentsPermalink
`(D) the capacity of the voluntary agency community to resettle such refugees in the United States;CommentsClose CommentsPermalink
`(E) the degree to which the United States plans to resettle such refugees in the United States in the following fiscal year; andCommentsClose CommentsPermalink
`(F) the fate that will befall such unaccompanied refugee children for whom resettlement in the United States is not possible.'.CommentsClose CommentsPermalink
(b) TRAINING ON THE NEEDS OF UNACCOMPANIED REFUGEE CHILDREN- Section 207(f)(2) of the Immigration and Nationality Act (
(1) by striking `and' after `countries,'; andCommentsClose CommentsPermalink
(2) by inserting `, and instruction on the needs of unaccompanied refugee children' before the period at the end.CommentsClose CommentsPermalink
SEC. 403. EXCEPTIONS FOR UNACCOMPANIED ALIEN CHILDREN IN ASYLUM AND REFUGEE-LIKE CIRCUMSTANCES.
(a) PLACEMENT IN REMOVAL PROCEEDINGS- Any unaccompanied alien child apprehended by the Department, except for an unaccompanied alien child subject to exceptions under paragraph (1)(A) or (2) of section (101)(a), shall be placed in removal proceedings under section 240 of the Immigration and Nationality Act (
(b) EXCEPTION FROM TIME LIMIT FOR FILING ASYLUM APPLICATION- Section 208 of the Immigration and Nationality Act (
(1) in subsection (a)(2), by adding at the end the following:CommentsClose CommentsPermalink
`(E) APPLICABILITY- Subparagraphs (A) and (B) shall not apply to an unaccompanied alien child.'; andCommentsClose CommentsPermalink
(2) in subsection (b)(3), by adding at the end the following:CommentsClose CommentsPermalink
`(C) INITIAL JURISDICTION- United States Citizenship and Immigration Services shall have initial jurisdiction over any asylum application filed by an unaccompanied alien child.'.CommentsClose CommentsPermalink
TITLE V--AMENDMENTS TO THE HOMELAND SECURITY ACT OF 2002
SEC. 501. ADDITIONAL RESPONSIBILITIES AND POWERS OF THE OFFICE OF REFUGEE RESETTLEMENT WITH RESPECT TO UNACCOMPANIED ALIEN CHILDREN.
(a) ADDITIONAL RESPONSIBILITIES OF THE DIRECTOR- Section 462(b)(1) of the Homeland Security Act of 2002 (
(1) in subparagraph (K), by striking `and' at the end;CommentsClose CommentsPermalink
(2) in subparagraph (L), by striking the period at the end and inserting `, including regular follow-up visits to such facilities, placements, and other entities, to assess the continued suitability of such placements; and'; andCommentsClose CommentsPermalink
(3) by adding at the end the following:CommentsClose CommentsPermalink
`(M) ensuring minimum standards of care for all unaccompanied alien children--CommentsClose CommentsPermalink
`(i) for whom detention is necessary; andCommentsClose CommentsPermalink
`(ii) who reside in settings that are alternative to detention.'.CommentsClose CommentsPermalink
(b) ADDITIONAL AUTHORITY OF THE DIRECTOR- Section 462(b) of the Homeland Security Act of 2002 (
`(4) AUTHORITY- In carrying out the duties under paragraph (3), the Director may--CommentsClose CommentsPermalink
`(A) contract with service providers to perform the services described in sections 102, 103, 201, and 202 of the Unaccompanied Alien Child Protection Act of 2007; andCommentsClose CommentsPermalink
`(B) compel compliance with the terms and conditions set forth in section 103 of such Act, by--CommentsClose CommentsPermalink
`(i) declaring providers to be in breach and seek damages for noncompliance;CommentsClose CommentsPermalink
`(ii) terminating the contracts of providers that are not in compliance with such conditions; orCommentsClose CommentsPermalink
`(iii) reassigning any unaccompanied alien child to a similar facility that is in compliance with such section.'.CommentsClose CommentsPermalink
SEC. 502. TECHNICAL CORRECTIONS.
Section 462(b) of the Homeland Security Act of 2002 (
(1) in paragraph (3), by striking `paragraph (1)(G)' and inserting `paragraph (1)'; andCommentsClose CommentsPermalink
(2) by adding at the end the following:CommentsClose CommentsPermalink
`(5) RULE OF CONSTRUCTION- Nothing in paragraph (2)(B) may be construed to require that a bond be posted for unaccompanied alien children who are released to a qualified sponsor.'.CommentsClose CommentsPermalink
SEC. 503. EFFECTIVE DATE.
The amendments made by this title shall take effect as if included in the Homeland Security Act of 2002 (
TITLE VI--AUTHORIZATION OF APPROPRIATIONS
SEC. 601. AUTHORIZATION OF APPROPRIATIONS.
(a) IN GENERAL- There are authorized to be appropriated to the Department, the Department of Justice, and the Department of Health and Human Services, such sums as may be necessary to carry out--CommentsClose CommentsPermalink
(1) the provisions of section 462 of the Homeland Security Act of 2002 (
(2) the provisions of this Act.CommentsClose CommentsPermalink
(b) AVAILABILITY OF FUNDS- Amounts appropriated pursuant to subsection (a) shall remain available until expended.CommentsClose CommentsPermalink
TITLE IX--STUDY OF WARTIME TREATMENT OF CERTAIN PEOPLE
SEC. 901. SHORT TITLE.
This title may be cited as the `Wartime Treatment Study Act'.CommentsClose CommentsPermalink
SEC. 902. FINDINGS.
Congress makes the following findings:CommentsClose CommentsPermalink
(1) During World War II, the United States Government deemed as `enemy aliens' more than 600,000 Italian-born and 300,000 German-born United States resident aliens and their families and required them to carry Certificates of Identification and limited their travel and personal property rights. At that time, these groups were the 2 largest foreign-born groups in the United States.CommentsClose CommentsPermalink
(2) During World War II, the United States Government arrested, interned, or otherwise detained thousands of European Americans, some remaining in custody for years after cessation of World War II hostilities, and repatriated, exchanged, or deported European Americans, including American-born children, to European Axis nations, many to be exchanged for Americans held in those nations.CommentsClose CommentsPermalink
(3) Pursuant to a policy coordinated by the United States with Latin American nations, many European Latin Americans, including German and Austrian Jews, were arrested, brought to the United States, and interned. Many were later expatriated, repatriated, or deported to European Axis nations during World War II, many to be exchanged for Americans and Latin Americans held in those nations.CommentsClose CommentsPermalink
(4) Millions of European Americans served in the armed forces and thousands sacrificed their lives in defense of the United States.CommentsClose CommentsPermalink
(5) The wartime policies of the United States Government were devastating to the Italian American and German American communities, individuals, and their families. The detrimental effects are still being experienced.CommentsClose CommentsPermalink
(6) Prior to and during World War II, the United States restricted the entry of Jewish refugees who were fleeing persecution or genocide and sought safety in the United States. During the 1930s and 1940s, the quota system, immigration regulations, visa requirements, and the time required to process visa applications affected the number of Jewish refugees, particularly those from Germany and Austria, who could gain admittance to the United States.CommentsClose CommentsPermalink
(7) The United States Government should conduct an independent review to fully assess and acknowledge these actions. Congress has previously reviewed the United States Government's wartime treatment of Japanese Americans through the Commission on Wartime Relocation and Internment of Civilians. An independent review of the treatment of German Americans and Italian Americans and of Jewish refugees fleeing persecution and genocide has not yet been undertaken.CommentsClose CommentsPermalink
(8) Time is of the essence for the establishment of commissions, because of the increasing danger of destruction and loss of relevant documents, the advanced age of potential witnesses and, most importantly, the advanced age of those affected by the United States Government's policies. Many who suffered have already passed away and will never know of this effort.CommentsClose CommentsPermalink
SEC. 903. DEFINITIONS.
In this title:CommentsClose CommentsPermalink
(1) DURING WORLD WAR II- The term `during World War II' refers to the period between September 1, 1939, through December 31, 1948.CommentsClose CommentsPermalink
(2) EUROPEAN AMERICANS-CommentsClose CommentsPermalink
(A) IN GENERAL- The term `European Americans' refers to United States citizens and resident aliens of European ancestry, including Italian Americans, German Americans, Hungarian Americans, Romanian Americans, and Bulgarian Americans.CommentsClose CommentsPermalink
(B) ITALIAN AMERICANS- The term `Italian Americans' refers to United States citizens and resident aliens of Italian ancestry.CommentsClose CommentsPermalink
(C) GERMAN AMERICANS- The term `German Americans' refers to United States citizens and resident aliens of German ancestry.CommentsClose CommentsPermalink
(3) EUROPEAN LATIN AMERICANS- The term `European Latin Americans' refers to persons of European ancestry, including Italian or German ancestry, residing in a Latin American nation during World War II.CommentsClose CommentsPermalink
(4) LATIN AMERICAN NATION- The term `Latin American nation' refers to any nation in Central America, South America, or the Carribean.CommentsClose CommentsPermalink
Subtitle A--Commission on Wartime Treatment of European Americans
SEC. 911. ESTABLISHMENT OF COMMISSION ON WARTIME TREATMENT OF EUROPEAN AMERICANS.
(a) IN GENERAL- There is established the Commission on Wartime Treatment of European Americans (referred to in this subtitle as the `European American Commission').CommentsClose CommentsPermalink
(b) MEMBERSHIP- The European American Commission shall be composed of 7 members, who shall be appointed not later than 90 days after the date of enactment of this Act as follows:CommentsClose CommentsPermalink
(1) Three members shall be appointed by the President.CommentsClose CommentsPermalink
(2) Two members shall be appointed by the Speaker of the House of Representatives, in consultation with the minority leader.CommentsClose CommentsPermalink
(3) Two members shall be appointed by the majority leader of the Senate, in consultation with the minority leader.CommentsClose CommentsPermalink
(c) TERMS- The term of office for members shall be for the life of the European American Commission. A vacancy in the European American Commission shall not affect its powers, and shall be filled in the same manner in which the original appointment was made.CommentsClose CommentsPermalink
(d) REPRESENTATION- The European American Commission shall include 2 members representing the interests of Italian Americans and 2 members representing the interests of German Americans.CommentsClose CommentsPermalink
(e) MEETINGS- The President shall call the first meeting of the European American Commission not later than 120 days after the date of enactment of this Act.CommentsClose CommentsPermalink
(f) QUORUM- Four members of the European American Commission shall constitute a quorum, but a lesser number may hold hearings.CommentsClose CommentsPermalink
(g) CHAIRMAN- The European American Commission shall elect a Chairman and Vice Chairman from among its members. The term of office of each shall be for the life of the European American Commission.CommentsClose CommentsPermalink
(h) COMPENSATION-CommentsClose CommentsPermalink
(1) IN GENERAL- Members of the European American Commission shall serve without pay.CommentsClose CommentsPermalink
(2) REIMBURSEMENT OF EXPENSES- All members of the European American Commission shall be reimbursed for reasonable travel and subsistence, and other reasonable and necessary expenses incurred by them in the performance of their duties.CommentsClose CommentsPermalink
SEC. 912. DUTIES OF THE EUROPEAN AMERICAN COMMISSION.
(a) IN GENERAL- It shall be the duty of the European American Commission to review the United States Government's wartime treatment of European Americans and European Latin Americans as provided in subsection (b).CommentsClose CommentsPermalink
(b) SCOPE OF REVIEW- The European American Commission's review shall include the following:CommentsClose CommentsPermalink
(1) A comprehensive review of the facts and circumstances surrounding United States Government actions during World War II with respect to European Americans and European Latin Americans pursuant to the Alien Enemies Acts (
(2) A comprehensive review of United States Government action during World War II with respect to European Americans and European Latin Americans pursuant to the Alien Enemies Acts (
(A) all temporary detention and long-term internment facilities in the United States and Latin American nations that were used to detain or intern European Americans and European Latin Americans during World War II (in this paragraph referred to as `World War II detention facilities');CommentsClose CommentsPermalink
(B) the names of European Americans and European Latin Americans who died while in World War II detention facilities and where they were buried;CommentsClose CommentsPermalink
(C) the names of children of European Americans and European Latin Americans who were born in World War II detention facilities and where they were born; andCommentsClose CommentsPermalink
(D) the nations from which European Latin Americans were brought to the United States, the ships that transported them to the United States and their departure and disembarkation ports, the locations where European Americans and European Latin Americans were exchanged for persons held in European Axis nations, and the ships that transported them to Europe and their departure and disembarkation ports.CommentsClose CommentsPermalink
(3) A brief review of the participation by European Americans in the United States Armed Forces including the participation of European Americans whose families were excluded, interned, repatriated, or exchanged.CommentsClose CommentsPermalink
(4) A recommendation of appropriate remedies, including how civil liberties can be protected during war, or an actual, attempted, or threatened invasion or incursion, an assessment of the continued viability of the Alien Enemies Acts (
(c) FIELD HEARINGS- The European American Commission shall hold public hearings in such cities of the United States as it deems appropriate.CommentsClose CommentsPermalink
(d) REPORT- The European American Commission shall submit a written report of its findings and recommendations to Congress not later than 18 months after the date of the first meeting called pursuant to section --011(e).CommentsClose CommentsPermalink
SEC. 913. POWERS OF THE EUROPEAN AMERICAN COMMISSION.
(a) IN GENERAL- The European American Commission or, on the authorization of the Commission, any subcommittee or member thereof, may, for the purpose of carrying out the provisions of this subtitle, hold such hearings and sit and act at such times and places, and request the attendance and testimony of such witnesses and the production of such books, records, correspondence, memorandum, papers, and documents as the Commission or such subcommittee or member may deem advisable. The European American Commission may request the Attorney General to invoke the aid of an appropriate United States district court to require, by subpoena or otherwise, such attendance, testimony, or production.CommentsClose CommentsPermalink
(b) GOVERNMENT INFORMATION AND COOPERATION- The European American Commission may acquire directly from the head of any department, agency, independent instrumentality, or other authority of the executive branch of the Government, available information that the European American Commission considers useful in the discharge of its duties. All departments, agencies, and independent instrumentalities, or other authorities of the executive branch of the Government shall cooperate with the European American Commission and furnish all information requested by the European American Commission to the extent permitted by law, including information collected under the Commission on Wartime and Internment of Civilians Act (
SEC. 914. ADMINISTRATIVE PROVISIONS.
The European American Commission is authorized to--CommentsClose CommentsPermalink
(1) appoint and fix the compensation of such personnel as may be necessary, without regard to the provisions of title 5, United States Code, governing appointments in the competitive service, and without regard to the provisions of chapter 51 and subchapter III of chapter 53 of such title relating to classification and General Schedule pay rates, except that the compensation of any employee of the Commission may not exceed a rate equivalent to the rate payable under GS-15 of the General Schedule under section 5332 of such title;CommentsClose CommentsPermalink
(2) obtain the services of experts and consultants in accordance with the provisions of section 3109 of such title;CommentsClose CommentsPermalink
(3) obtain the detail of any Federal Government employee, and such detail shall be without reimbursement or interruption or loss of civil service status or privilege;CommentsClose CommentsPermalink
(4) enter into agreements with the Administrator of General Services for procurement of necessary financial and administrative services, for which payment shall be made by reimbursement from funds of the Commission in such amounts as may be agreed upon by the Chairman of the Commission and the Administrator;CommentsClose CommentsPermalink
(5) procure supplies, services, and property by contract in accordance with applicable laws and regulations and to the extent or in such amounts as are provided in appropriation Acts; andCommentsClose CommentsPermalink
(6) enter into contracts with Federal or State agencies, private firms, institutions, and agencies for the conduct of research or surveys, the preparation of reports, and other activities necessary to the discharge of the duties of the Commission, to the extent or in such amounts as are provided in appropriation Acts.CommentsClose CommentsPermalink
SEC. 915. FUNDING.
Of the amounts authorized to be appropriated to the Department of Justice, $600,000 shall be available to carry out this subtitle.CommentsClose CommentsPermalink
SEC. 916. SUNSET.
The European American Commission shall terminate 60 days after it submits its report to Congress.CommentsClose CommentsPermalink
Subtitle B--Commission on Wartime Treatment of Jewish Refugees
SEC. 921. ESTABLISHMENT OF COMMISSION ON WARTIME TREATMENT OF JEWISH REFUGEES.
(a) IN GENERAL- There is established the Commission on Wartime Treatment of Jewish Refugees (referred to in this subtitle as the `Jewish Refugee Commission').CommentsClose CommentsPermalink
(b) MEMBERSHIP- The Jewish Refugee Commission shall be composed of 7 members, who shall be appointed not later than 90 days after the date of enactment of this Act as follows:CommentsClose CommentsPermalink
(1) Three members shall be appointed by the President.CommentsClose CommentsPermalink
(2) Two members shall be appointed by the Speaker of the House of Representatives, in consultation with the minority leader.CommentsClose CommentsPermalink
(3) Two members shall be appointed by the majority leader of the Senate, in consultation with the minority leader.CommentsClose CommentsPermalink
(c) TERMS- The term of office for members shall be for the life of the Jewish Refugee Commission. A vacancy in the Jewish Refugee Commission shall not affect its powers, and shall be filled in the same manner in which the original appointment was made.CommentsClose CommentsPermalink
(d) REPRESENTATION- The Jewish Refugee Commission shall include 2 members representing the interests of Jewish refugees.CommentsClose CommentsPermalink
(e) MEETINGS- The President shall call the first meeting of the Jewish Refugee Commission not later than 120 days after the date of enactment of this Act.CommentsClose CommentsPermalink
(f) QUORUM- Four members of the Jewish Refugee Commission shall constitute a quorum, but a lesser number may hold hearings.CommentsClose CommentsPermalink
(g) CHAIRMAN- The Jewish Refugee Commission shall elect a Chairman and Vice Chairman from among its members. The term of office of each shall be for the life of the Jewish Refugee Commission.CommentsClose CommentsPermalink
(h) COMPENSATION-CommentsClose CommentsPermalink
(1) IN GENERAL- Members of the Jewish Refugee Commission shall serve without pay.CommentsClose CommentsPermalink
(2) REIMBURSEMENT OF EXPENSES- All members of the Jewish Refugee Commission shall be reimbursed for reasonable travel and subsistence, and other reasonable and necessary expenses incurred by them in the performance of their duties.CommentsClose CommentsPermalink
SEC. 922. DUTIES OF THE JEWISH REFUGEE COMMISSION.
(a) IN GENERAL- It shall be the duty of the Jewish Refugee Commission to review the United States Government's refusal to allow Jewish and other refugees fleeing persecution or genocide in Europe entry to the United States as provided in subsection (b).CommentsClose CommentsPermalink
(b) SCOPE OF REVIEW- The Jewish Refugee Commission's review shall cover the period between January 1, 1933, through December 31, 1945, and shall include, to the greatest extent practicable, the following:CommentsClose CommentsPermalink
(1) A review of the United States Government's decision to deny Jewish and other refugees fleeing persecution or genocide entry to the United States, including a review of the underlying rationale of the United States Government's decision to refuse the Jewish and other refugees entry, the information the United States Government received or acquired suggesting such refusal was necessary, the perceived benefit of such refusal, and the impact of such refusal on the refugees.CommentsClose CommentsPermalink
(2) A review of Federal refugee law and policy relating to those fleeing persecution or genocide, including recommendations for making it easier in the future for victims of persecution or genocide to obtain refuge in the United States.CommentsClose CommentsPermalink
(c) FIELD HEARINGS- The Jewish Refugee Commission shall hold public hearings in such cities of the United States as it deems appropriate.CommentsClose CommentsPermalink
(d) REPORT- The Jewish Refugee Commission shall submit a written report of its findings and recommendations to Congress not later than 18 months after the date of the first meeting called pursuant to section X021(e).CommentsClose CommentsPermalink
SEC. 923. POWERS OF THE JEWISH REFUGEE COMMISSION.
(a) IN GENERAL- The Jewish Refugee Commission or, on the authorization of the Commission, any subcommittee or member thereof, may, for the purpose of carrying out the provisions of this subtitle, hold such hearings and sit and act at such times and places, and request the attendance and testimony of such witnesses and the production of such books, records, correspondence, memorandum, papers, and documents as the Commission or such subcommittee or member may deem advisable. The Jewish Refugee Commission may request the Attorney General to invoke the aid of an appropriate United States district court to require, by subpoena or otherwise, such attendance, testimony, or production.CommentsClose CommentsPermalink
(b) GOVERNMENT INFORMATION AND COOPERATION- The Jewish Refugee Commission may acquire directly from the head of any department, agency, independent instrumentality, or other authority of the executive branch of the Government, available information that the Jewish Refugee Commission considers useful in the discharge of its duties. All departments, agencies, and independent instrumentalities, or other authorities of the executive branch of the Government shall cooperate with the Jewish Refugee Commission and furnish all information requested by the Jewish Refugee Commission to the extent permitted by law, including information collected as a result of the Commission on Wartime and Internment of Civilians Act (
SEC. 924. ADMINISTRATIVE PROVISIONS.
The Jewish Refugee Commission is authorized to--CommentsClose CommentsPermalink
(1) appoint and fix the compensation of such personnel as may be necessary, without regard to the provisions of title 5, United States Code, governing appointments in the competitive service, and without regard to the provisions of chapter 51 and subchapter III of chapter 53 of such title relating to classification and General Schedule pay rates, except that the compensation of any employee of the Commission may not exceed a rate equivalent to the rate payable under GS-15 of the General Schedule under section 5332 of such title;CommentsClose CommentsPermalink
(2) obtain the services of experts and consultants in accordance with the provisions of section 3109 of such title;CommentsClose CommentsPermalink
(3) obtain the detail of any Federal Government employee, and such detail shall be without reimbursement or interruption or loss of civil service status or privilege;CommentsClose CommentsPermalink
(4) enter into agreements with the Administrator of General Services for procurement of necessary financial and administrative services, for which payment shall be made by reimbursement from funds of the Commission in such amounts as may be agreed upon by the Chairman of the Commission and the Administrator;CommentsClose CommentsPermalink
(5) procure supplies, services, and property by contract in accordance with applicable laws and regulations and to the extent or in such amounts as are provided in appropriation Acts; andCommentsClose CommentsPermalink
(6) enter into contracts with Federal or State agencies, private firms, institutions, and agencies for the conduct of research or surveys, the preparation of reports, and other activities necessary to the discharge of the duties of the Commission, to the extent or in such amounts as are provided in appropriation Acts.CommentsClose CommentsPermalink
SEC. 925. FUNDING.
Of the amounts authorized to be appropriated to the Department of Justice, $600,000 shall be available to carry out this subtitle.CommentsClose CommentsPermalink
SEC. 926. SUNSET.
The Jewish Refugee Commission shall terminate 60 days after it submits its report to CongressCommentsClose CommentsPermalink
Calendar No. 208CommentsClose CommentsPermalink
To provide for comprehensive immigration reform and for other purposes.CommentsClose CommentsPermalink
June 19, 2007
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- Yes, let's stride towards an open VCS for legislation (or, GitHub for laws on OC) May 23, 2012
- With SOPA Shelved, Congress Readies its Next Attack on the Internet Feb 13, 2012
- Anti-Web Censorship Bill Protest from Our Perspective at OC Feb 08, 2012
- Indefinite military detention for U.S. citizens now in the hands of a secretive conference committee Dec 08, 2011
- Supercommittee Failure and Stimulus Nov 22, 2011
Recent OC Blog Articles
- Yes, let's stride towards an open VCS for legislation (or, GitHub for laws on OC) May 23, 2012
- Contact Congress Today to #FreeTHOMAS May 17, 2012
- Yochai Benkler: Blueprint for Democratic Participation May 10, 2012
- New NDAA Would Give the Military Clandestine Cyberwar Powers May 08, 2012
- The Week Ahead in Congress May 07, 2012