S.1639 - A bill to provide for comprehensive immigration reform and for other purposes.110th Congress (2007-2008)
Bill
Hide Overview| Sponsor: | Sen. Kennedy, Edward M. [D-MA] (Introduced 06/18/2007) |
|---|---|
| Latest Action: | Senate - 06/28/2007 Returned to the Calendar. Calendar No. 208. (All Actions) |
| Roll Call Votes: | There have been 8 roll call votes |
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Placed on Calendar Senate (06/19/2007)
[Congressional Bills 110th Congress]
[From the U.S. Government Printing Office]
[S. 1639 Placed on Calendar Senate (PCS)]
Calendar No. 208
110th CONGRESS
1st Session
S. 1639
To provide for comprehensive immigration reform and for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
June 18, 2007
Mr. Kennedy (for himself and Mr. Specter) introduced the following
bill; which was read the first time
June 19, 2007
Read the second time and placed on the calendar
_______________________________________________________________________
A BILL
To provide for comprehensive immigration reform and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
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 (8 U.S.C.
1101(a)(15)(H)(ii)), as amended by title IV, the programs established
by title IV, and the programs established by title VI that grant legal
status to any individual or that adjust the current status of any
individual who is unlawfully present in the United States to that of an
alien lawfully admitted for permanent residence, shall become effective
on the date that the Secretary submits a written certification to the
President and the Congress, based on analysis by and in consultation
with the Comptroller General, that each of the following border
security and other measures are established, funded, and operational:
(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.
(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.
(3) Strong border barriers.--There has been--
(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--
(i) 300 miles of vehicle barriers;
(ii) 370 miles of fencing; and
(iii) 105 ground-based radar and camera
towers; and
(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.
(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.
(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--
(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--
(i) contains--
(I) a photograph of the alien; and
(II) biometric data identifying the
alien; or
(ii) complies with the requirements for
such documentation under the REAL ID Act
(Public Law 109-13; 119 Stat. 231); and
(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.
(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.
(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.
(c) Presidential Progress Report.--
(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.
(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.
(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.
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:
``(z) Immigration Security Account.--
(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''.
(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.
(3) Appropriations.--
(A) There are hereby appropriated such sums that
are provided under subsection 2 to remain available
until five years after enactment.
(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.
(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:
(i) Fencing and Infrastructure;
(ii) Towers;
(iii) Detention beds;
(iv) Employment Eligibility Verification
System, including funds for expenditures under
section 306 of this Act, relating to the State
Records Improvement Grant Program;
(v) Implementation of programs authorized
in titles IV and VI; and
(vi) Other Federal border and interior
enforcement requirements to ensure the
integrity of programs authorized in titles IV
and VI.
(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.
(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--
(A) identifies one-time and on-going costs;
(B) identifies the level of funding for each
program, project, and activity, and if that funding
will supplement an appropriated program, project, or
activity;
(C) identifies the amount of funding to be
obligated in each fiscal year, by program, project, and
activity;
(D) includes milestones for completion of each
identified program, project, or activity; and
(E) demonstrates how activities will further the
goals and objectives of this Act.
(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.
TITLE I--BORDER ENFORCEMENT
Subtitle A--Assets for Controlling United States Borders
SEC. 101. ENFORCEMENT PERSONNEL.
(a) Additional Personnel.--
(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.
(2) Investigative personnel.--
(A) Immigration and customs enforcement
investigators.--Section 5203 of the Intelligence Reform
and Terrorism Prevention Act of 2004 (Public Law 108-
458; 118 Stat. 3734) is amended by striking ``800'' and
inserting ``1000''.
(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.
(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.
(4) Recruitment of former military personnel.--
(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.
(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.
(b) Authorization of Appropriations.--
(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).
(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).
(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:
``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--
``(1) 2,000 in fiscal year 2007;
``(2) 2,400 in fiscal year 2008;
``(3) 2,400 in fiscal year 2009;
``(4) 2,400 in fiscal year 2010;
``(5) 2,400 in fiscal year 2011; and
``(6) 2,400 in fiscal year 2012.
``(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.
``(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.''.
(c) Shadow Wolves Apprehension and Tracking.--
(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.
(2) Establishment of new units.--
(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.
(B) Membership.--Each new unit established pursuant
to subparagraph (A) shall consist of up to 15 Customs
Patrol Officers.
(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 (25 U.S.C. 1452)) located
on or near (as determined by the Secretary) an international
border with Canada or Mexico, and such other Federal land as
the Secretary determines to be appropriate, by--
(A) investigating and preventing the entry of
terrorists, other unlawful aliens, instruments of
terrorism, narcotics, and other contraband into the
United States; and
(B) carrying out such other duties as the Secretary
determines to be necessary.
(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.
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.
(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.
(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).
SEC. 103. INFRASTRUCTURE.
Section 102 of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (8 U.S.C. 1103 note) is amended--
(1) in subsection (a), by striking ``Attorney General, in
consultation with the Commissioner of Immigration and
Naturalization,'' and inserting ``Secretary of Homeland
Security''; and
(2) in subsection (b)--
(A) by redesignating paragraphs (1), (2), (3), and
(4) as paragraphs (2), (3), (4), and (5), respectively;
(B) by inserting before paragraph (2), as
redesignated, the following:
``(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.''.
(C) in paragraph (2), as redesignated--
(i) in the header, by striking ``Security
features'' and inserting--``Additional fencing
along southwest border''; and
(ii) by striking subparagraphs (A) through
(C) and inserting the following:
``(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.
``(B) Priority areas.--In carrying out this
section, the Secretary of Homeland Security shall--
``(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; and
``(ii) not later than December 31, 2008,
complete construction of reinforced fencing
along the 370 miles identified under clause
(i).
``(C) Consultation.--
``(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.
``(ii) Savings provision.--Nothing in this
subparagraph may be construed to--
``(I) create any right of action
for a State, local government, or other
person or entity affected by this
subsection; or
``(II) affect the eminent domain
laws of the United States or of any
State.
``(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.''; and
(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''.
SEC. 104. PORTS OF ENTRY.
Section 102 of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996, Division C of Public Law 104-208, is
amended by the addition, at the end of that section, of the following
new subsection:
``(e) Construction and Improvements.--The Secretary is authorized
to--
``(1) construct additional ports of entry along the
international land borders of the United States, at locations
to be determined by the Secretary; and
``(2) make necessary improvements to the ports of entry.''.
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 (8 U.S.C. 1185) is amended--
(1) by redesignating subsection (c) as subsection (g);
(2) by moving subsection (g), as redesignated by paragraph
(1), to the end; and
(3) by inserting after subsection (b) the following:
``(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.''.
(b) Inspection of Applicants for Admission.--Section 235(d) (8
U.S.C. 1225 (d)) is amended by adding at the end the following:
``(5) Authority to collect biometric data.--In conducting
inspections under subsections (a) and (b), immigration officers
are authorized to collect biometric data from--
``(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; or
``(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).''.
(c) Collection of Biometric Data From Alien Crewmen.--Section 252
(8 U.S.C. 1282) is amended by adding at the end the following:
``(d) An immigration officer is authorized to collect biometric
data from an alien crewman seeking permission to land temporarily in
the United States.''.
(d) Grounds of Inadmissibility.--Section 212 (8 U.S.C. 1182) is
amended--
(1) in subsection (a)(7), by adding at the end the
following:
``(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.''; and
(2) in subsection (d), by inserting after paragraph (1) the
following:
``(2) The Secretary may waive the application of subsection
(a)(7)(C) for an individual alien or class of aliens.''.
(e) Implementation.--Section 7208 of the 9/11 Commission
Implementation Act of 2004 (8 U.S.C. 1365b) is amended--
(1) in subsection (c), by adding at the end the following:
``(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.''; and
(2) in subsection (l)--
(A) by striking ``There are authorized'' and
inserting the following:
``(1) In general.--There are authorized''; and
(B) by adding at the end the following:
``(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.''.
SEC. 112. UNLAWFUL FLIGHT FROM IMMIGRATION OR CUSTOMS CONTROLS.
(a) In General.--Section 758 of Title 18, United States Code, is
amended to read as follows:
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.
``(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.
``(c) Alternative Penalties.--Notwithstanding the penalties
provided in subsection (a) or (b), any person who violates such
subsection shall--
``(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--
``(A) in excess of the applicable or posted speed
limit,
``(B) in excess of the rated capacity of the motor
vehicle, aircraft, or vessel, or
``(C) in an otherwise dangerous or reckless manner;
``(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;
``(3) be fined under this title, imprisoned not more than
30 years, or both, if the violation caused serious bodily
injury to any person; or
``(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.
``(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.
``(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.
``(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.
``(g) Definitions.--For purposes of this section--
``(1) The term `checkpoint' includes, but is not limited
to, any customs or immigration inspection at a port of entry.
``(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.
``(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.
``(4) The term `motor vehicle' means any motorized or self-
propelled means of terrestrial transportation.
``(5) The term `serious bodily injury' has the meaning
given in section 2119(2) of this title.''.
SEC. 113. RELEASE OF ALIENS FROM NONCONTIGUOUS COUNTRIES.
Section 236(a)(2) (8 U.S.C. 1226(a)(2)) is amended--
(1) by striking ``on'';
(2) in subparagraph (A)--
(A) by inserting ``except as provided under
subparagraph (B), upon the giving of a'' before
``bond''; and
(B) by striking ``or'' at the end;
(3) by redesignating subparagraph (B) as subparagraph (C);
and
(4) by inserting after subparagraph (A) the following:
``(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--
``(i) is a national of a noncontiguous
country;
``(ii) has not been admitted or paroled
into the United States; and
``(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''.
SEC. 114. SEIZURE OF CONVEYANCE WITH CONCEALED COMPARTMENT: EXPANDING
THE DEFINITION OF CONVEYANCES WITH HIDDEN COMPARTMENTS
SUBJECT TO FORFEITURE.
(a) In General.--Section 1703 of title 19, United States Code is
amended:
(1) by amending the title of such section to read as
follows:
``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:
``(a) Vessels, vehicles, other conveyances and instruments
of international traffic subject to seizure and forfeiture'';
(3) by amending the title of subsection (b) to read as
follows:
``(b) Vessels, vehicles, other conveyances and instruments of
international traffic defined'';
(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);
and
(5) by amending subsection (c) to read as follows:
``(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--
`(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.
`(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.'.''
(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:
``1703. Seizure and forfeiture of vessels, vehicles, other conveyances
or instruments of international traffic.
``(a) Vessels, vehicles, other conveyances or instruments of
international traffic subject to seizure and forfeiture.
``(b) Vessels, vehicles, other conveyances or instruments of
international traffic defined.
``(c) Acts constituting prima facie evidence of vessel, vehicle,
other conveyance or instrument of international traffic engaged in
smuggling.''.
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--
(1) the causes of the deaths; and
(2) the total number of deaths.
(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--
(1) analyzes trends with respect to the statistics
collected under subsection (a) during the preceding year; and
(2) recommends actions to reduce the deaths described in
subsection (a).
SEC. 122. BORDER SECURITY ON CERTAIN FEDERAL LAND.
(a) Definitions.--In this section:
(1) Protected land.--The term ``protected land'' means land
under the jurisdiction of the Secretary concerned.
(2) Secretary concerned.--The term ``Secretary concerned''
means--
(A) with respect to land under the jurisdiction of
the Secretary of Agriculture, the Secretary of
Agriculture; and
(B) with respect to land under the jurisdiction of
the Secretary of the Interior, the Secretary of the
Interior.
(b) Support for Border Security Needs.--
(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--
(A) increased U.S. Customs and Border Protection
personnel to secure protected land along the
international land borders of the United States;
(B) Federal land resource training for U.S. Customs
and Border Protection agents dedicated to protected
land; and
(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.
(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.
(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.
(d) Recommendations.--The Secretary shall--
(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); and
(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 (6 U.S.C.
101)), including the Subcommittee on National Parks of the
Senate and the Subcommittee on National Parks, Recreation and
Public Lands of the House of Representatives, the
recommendations developed under paragraph (1).
(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--
(1) units of the National Park System;
(2) National Forest System land;
(3) land under the jurisdiction of the United States Fish
and Wildlife Service; and
(4) other relevant land under the jurisdiction of the
Department of the Interior or the Department of Agriculture.
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--
(1) among all Border Patrol agents conducting operations
between ports of entry;
(2) between Border Patrol agents and their respective
Border Patrol stations; and
(3) between all appropriate border security agencies of the
Department and State, local, and tribal law enforcement
agencies.
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--
(1) additional sensors;
(2) critical spares;
(3) satellite command and control; and
(4) other necessary equipment for operational support.
(b) Authorization of Appropriations.--
(1) In general.--There are authorized to be appropriated to
the Secretary to carry out subsection (a)--
(A) $178,400,000 for fiscal year 2008; and
(B) $276,000,000 for fiscal year 2009.
(2) Availability of funds.--Amounts appropriated pursuant
to paragraph (1) shall remain available until expended.
SEC. 125. SURVEILLANCE TECHNOLOGIES PROGRAMS.
(a) Aerial Surveillance program.--
(1) In general.--In conjunction with the border
surveillance plan developed under section 5201 of the
Intelligence Reform and Terrorism Prevention Act of 2004
(Public Law 108-458; 8 U.S.C. 1701 note), the Secretary, not
later than 90 days after the date of enactment of this Act,
shall develop and implement a program to fully integrate and
utilize aerial surveillance technologies, including unmanned
aerial vehicles, to enhance the security of the international
border between the United States and Canada and the
international border between the United States and Mexico. The
goal of the program shall be to ensure continuous monitoring of
each mile of each such border.
(2) Assessment and consultation requirements.--In
developing the program under this subsection, the Secretary
shall--
(A) consider current and proposed aerial
surveillance technologies;
(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;
(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; and
(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.
(3) Additional requirements.--
(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--
(i) the significance of previous
experiences with such technologies in border
security or critical infrastructure protection;
(ii) the cost and effectiveness of various
technologies for border security, including
varying levels of technical complexity; and
(iii) liability, safety, and privacy
concerns relating to the utilization of such
technologies for border security.
(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.
(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.
(6) Authorization of appropriations.--There are authorized
to be appropriated such sums as may be necessary to carry out
this subsection.
(b) Integrated and Automated Surveillance Program.--
(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.
(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--
(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;
(B) cameras utilized in the Program do not have to
be manually operated;
(C) such camera views and positions are not fixed;
(D) surveillance video taken by such cameras can be
viewed at multiple designated communications centers;
(E) a standard process is used to collect, catalog,
and report intrusion and response data collected under
the Program;
(F) future remote surveillance technology
investments and upgrades for the Program can be
integrated with existing systems;
(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;
(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;
(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; and
(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.
(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.
(4) Evaluation of contractors.--
(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.
(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.
(5) Authorization of appropriations.--There are authorized
to be appropriated such sums as may be necessary to carry out
this subsection.
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.
(b) Content.--The plan required by subsection (a) shall include the
following:
(1) An assessment of existing technologies employed on the
international land and maritime borders of the United States.
(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.
(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.
(4) A description of the specific surveillance technology
to be deployed.
(5) Identification of any obstacles that may impede such
deployment.
(6) A detailed estimate of all costs associated with such
deployment and with continued maintenance of such technologies.
(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.
(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.
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.
(b) Content.--The National Strategy for Border Security shall
include the following:
(1) The implementation schedule for the comprehensive plan
for systematic surveillance described in section 136.
(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.
(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--
(A) to prevent the entry of terrorists, other
unlawful aliens, instruments of terrorism, narcotics,
and other contraband into the United States; and
(B) to protect critical infrastructure at or near
such ports of entry or borders.
(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.
(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.
(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.
(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.
(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.
(9) A prioritized list of research and development
objectives to enhance the security of the international land
and maritime borders of the United States.
(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.
(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.
(12) A description of the performance metrics to be used to
ensure accountability by the bureaus of the Department in
implementing such Strategy.
(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.
(c) Consultation.--In developing the National Strategy for Border
Security, the Secretary shall consult with representatives of--
(1) State, local, and tribal authorities with
responsibility for locations along the international land and
maritime borders of the United States; and
(2) appropriate private sector entities, nongovernmental
organizations, and affected communities that have expertise in
areas related to border security.
(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.
(e) Submission to Congress.--
(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.
(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.
(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.
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.
(b) Components of Review.--The review under subsection (a) shall
include the following components:
(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.
(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.
(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.
(4) An evaluation of whether utilizing comparable non-
Federal training programs, proficiency testing, and long-
distance learning programs may affect--
(A) the cost-effectiveness of increasing the number
of Border Patrol agents trained per year;
(B) the per agent costs of basic training; and
(C) the scope and quality of basic training needed
to fulfill the mission and duties of a Border Patrol
agent.
SEC. 129. BIOMETRIC DATA ENHANCEMENTS.
Not later than October 1, 2008, the Secretary shall--
(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; and
(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 (8 U.S.C. 1365a).
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--
(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 (8 U.S.C. 1365a);
(2) developing and deploying at such ports of entry the
exit component of the US-VISIT system; and
(3) making interoperable all immigration screening systems
operated by the Secretary.
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.
(b) Forensic Document Laboratory.--The Secretary shall provide all
U.S. Customs and Border Protection officers with access to the Forensic
Document Laboratory.
(c) Assessment.--
(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.
(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).
(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.
SEC. 132. BORDER RELIEF GRANT PROGRAM.
(a) Grants Authorized.--
(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--
(A) criminal activity that occurs in the
jurisdiction of such agency by virtue of such agency's
proximity to the United States border; and
(B) the impact of any lack of security along the
United States border.
(2) Duration.--Grants may be awarded under this subsection
during fiscal years 2008 through 2012.
(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--
(A) with a population of less than 50,000; and
(B) located no more than 100 miles from a United
States border with--
(i) Canada; or
(ii) Mexico.
(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--
(1) to obtain equipment;
(2) to hire additional personnel;
(3) to upgrade and maintain law enforcement technology;
(4) to cover operational costs, including overtime and
transportation costs; and
(5) such other resources as are available to assist that
agency.
(c) Application.--
(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.
(2) Contents.--Each application submitted pursuant to
paragraph (1) shall--
(A) describe the activities for which assistance
under this section is sought; and
(B) provide such additional assurances as the
Secretary determines to be essential to ensure
compliance with the requirements of this section.
(d) Definitions.--For the purposes of this section:
(1) Eligible law enforcement agency.--The term ``eligible
law enforcement agency'' means a tribal, State, or local law
enforcement agency--
(A) located in a county no more than 100 miles from
a United States border with--
(i) Canada; or
(ii) Mexico; or
(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.
(2) High impact area.--The term ``High Impact Area'' means
any county designated by the Secretary as such, taking into
consideration--
(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;
(B) the relationship between any lack of security
along the United States border and the rise, if any, of
criminal activity in that county; and
(C) any other unique challenges that local law
enforcement face due to a lack of security along the
United States border.
(e) Authorization of Appropriations.--
(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.
(2) Division of authorized funds.--Of the amounts
authorized under paragraph (1)--
(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; and
(B) \1/3\ shall be set aside for areas designated
as a High Impact Area under subsection (d).
(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.
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.
(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.
(c) Content.--Each updated study required in subsection (a) shall--
(1) identify port of entry infrastructure and technology
improvement projects that would enhance border security and
facilitate the flow of legitimate commerce if implemented;
(2) include the projects identified in the National Land
Border Security Plan required by section; and
(3) prioritize the projects described in paragraphs (1) and
(2) based on the ability of a project to--
(A) fulfill immediate security requirements; and
(B) facilitate trade across the borders of the
United States.
(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).
(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.
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.
(b) Vulnerability Assessment.--
(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.
(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--
(A) to assist in conducting a vulnerability
assessment at such port; and
(B) to provide other assistance with the
preparation of the plan required in subsection (a).
SEC. 135. PORT OF ENTRY TECHNOLOGY DEMONSTRATION PROGRAM.
(a) Establishment.--The Secretary shall carry out a technology
demonstration program to--
(1) test and evaluate new port of entry technologies;
(2) refine port of entry technologies and operational
concepts; and
(3) train personnel under realistic conditions.
(b) Technology and Facilities.--
(1) Technology testing.--Under the technology demonstration
program, the Secretary shall test technologies that enhance
port of entry operations, including operations related to--
(A) inspections;
(B) communications;
(C) port tracking;
(D) identification of persons and cargo;
(E) sensory devices;
(F) personal detection;
(G) decision support; and
(H) the detection and identification of weapons of
mass destruction.
(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--
(A) cross-training among agencies;
(B) advanced law enforcement training; and
(C) equipment orientation.
(c) Demonstration Sites.--
(1) Number.--The Secretary shall carry out the
demonstration program at not less than 3 sites and not more
than 5 sites.
(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--
(A) have been established not more than 15 years
before the date of the enactment of this Act;
(B) consist of not less than 65 acres, with the
possibility of expansion to not less than 25 adjacent
acres; and
(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.
(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).
(e) Report.--
(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.
(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.
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.
(b) Content.--In developing the plan required by subsection (a),
the Secretary shall consider--
(1) the interoperability of databases utilized to prevent
human smuggling;
(2) adequate and effective personnel training;
(3) methods and programs to effectively target networks
that engage in such smuggling;
(4) effective utilization of--
(A) visas for victims of trafficking and other
crimes; and
(B) investigatory techniques, equipment, and
procedures that prevent, detect, and prosecute
international money laundering and other operations
that are utilized in smuggling;
(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; and
(6) other measures that the Secretary considers appropriate
to combating human smuggling.
(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.
(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.
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.--
(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.
(b) Construction of or Acquisition of Detention Facilities.--
(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.
(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.
(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 Public Law
101-510; 10 U.S.C. 2687 note) for use in accordance with
subsection (a).
(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.
(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.
(d) Technical and Conforming Amendment.--Section 241(g)(1) (8
U.S.C. 1231(g)(1)) is amended by striking ``may expend'' and inserting
``shall expend''.
(e) Authorization of Appropriations.--There are authorized to be
appropriated such sums as may be necessary to carry out this section.
SEC. 138. UNITED STATES-MEXICO BORDER ENFORCEMENT REVIEW COMMISSION.
(a) Establishment of Commission.--
(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'').
(2) Purposes.--The purposes of the Commission are--
(A) to study the overall enforcement strategies,
programs and policies of Federal agencies along the
United States-Mexico border; and
(B) to make recommendations to the President and
Congress with respect to such strategies, programs and
policies.
(3) Membership.--The Commission shall be composed of 17
voting members, who shall be appointed as follows:
(A) The Governors of the States of California, New
Mexico, Arizona, and Texas shall each appoint 4 voting
members of whom--
(i) 1 shall be a local elected official
from the State's border region;
(ii) 1 shall be a local law enforcement
official from the State's border region; and
(iii) 2 shall be from the State's
communities of academia, religious leaders,
civic leaders or community leaders.
(B) 2 nonvoting members, of whom--
(i) 1 shall be appointed by the Secretary;
(ii) 1 shall be appointed by the Attorney
General; and
(iii) 1 shall be appointed by the Secretary
of State.
(4) Qualifications.--
(A) In general.--Members of the Commission shall
be--
(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; and
(ii) representative of a broad cross
section of perspectives from the region along
the international border between the United
States and Mexico;
(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.
(C) Nongovernmental appointees.--An individual
appointed as a voting member to the Commission may not
be an officer or employee of the Federal Government.
(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.
(6) Term of service.--The term of office for members shall
be for life of the Commission.
(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.
(8) Meetings.--
(A) Initial meeting.--The Commission shall meet and
begin the operations of the Commission as soon as
practicable.
(B) Subsequent meetings.--After its initial
meeting, the Commission shall meet upon the call of the
chairman or a majority of its members.
(9) Quorum.--Nine members of the Commission shall
constitute a quorum.
(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.
(b) Duties.--The Commission shall review, examine, and make
recommendations regarding border enforcement policies, strategies, and
programs, including recommendations regarding--
(1) the protection of human and civil rights of community
residents and migrants along the international border between
the United States and Mexico;
(2) the adequacy and effectiveness of human and civil
rights training of enforcement personnel on such border;
(3) the adequacy of the complaint process within the
agencies and programs of the Department that are employed when
an individual files a grievance;
(4) the effect of the operations, technology, and
enforcement infrastructure along such border on the--
(A) environment;
(B) cross border traffic and commerce; and
(C) the quality of life of border communities;
(5) local law enforcement involvement in the enforcement of
Federal immigration law; and
(6) any other matters regarding border enforcement
policies, strategies, and programs the Commission determines
appropriate.
(c) Information and Assistance From Federal Agencies.--
(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.
(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.
(d) Compensation.--
(1) In general.--Members of the Commission shall serve
without pay.
(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.
(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--
(1) findings with respect to the duties of the Commission;
(2) recommendations regarding border enforcement policies,
strategies, and programs;
(3) suggestions for the implementation of the Commission's
recommendations; and
(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.
(f) Authorization of Appropriations.--There are authorized to be
appropriated such sums as may be necessary to carry out this section.
(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).
SEC. 139. NORTHERN BORDER PROSECUTION REIMBURSEMENT.
(a) Short Title.--This section may be cited as the ``Northern
Border Prosecution Initiative Reimbursement Act''.
(b) Northern Border Prosecution Initiative.--
(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.
(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.
(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:
(A) Prosecution and related costs.
(B) Court costs.
(C) Costs of courtroom technology.
(D) Costs of constructing holding spaces.
(E) Costs of administrative staff.
(F) Costs of defense counsel for indigent
defendants.
(G) Detention costs, including pre-trial and post-
trial detention.
(4) Definitions.--In this section:
(A) The term ``eligible northern border entity''
means--
(i) any of the following States: Alaska,
Idaho, Maine, Michigan, Minnesota, Montana, New
Hampshire, New York, North Dakota, Ohio,
Pennsylvania, Vermont, Washington, and
Wisconsin; or
(ii) any unit of local government within a
State referred to in clause (i).
(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.
(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.
(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.
(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.
Subtitle D--Asylum and Detention Safeguards
SEC. 140. SHORT TITLE.
This subtitle may be cited as the ``Secure and Safe Detention and
Asylum Act''.
SEC. 141. DEFINITIONS.
In this subtitle:
(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 (8
U.S.C. 1225(b)(1)(B)(v)).
(2) Detainee.--The term ``detainee'' means an alien in the
custody of the Department of Homeland Security who is held in a
detention facility.
(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.
(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.
(5) Standard.--The term ``standard'' means any policy,
procedure, or other requirement.
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 (8 U.S.C.
1225(b)) are asked in a standard manner, and that both these questions
and the answers provided in response to them are recorded in a uniform
fashion.
(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 (8 U.S.C. 1225(b)(1)(A)) shall be accompanied by a
recording of the interview which served as the basis for that sworn
statement.
(c) Exemption Authority.--
(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.
(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.
(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.
(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.
(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.
(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.
SEC. 143. OPTIONS REGARDING DETENTION DECISIONS.
Section 236 of the Immigration and Nationality Act (8 U.S.C. 1226)
is amended--
(1) in subsection (a)--
(A) in the matter preceding paragraph (1)--
(i) in the first sentence by striking
``Attorney General'' and inserting ``Secretary
of Homeland Security''; and
(ii) in the second sentence by striking
``Attorney General'' and inserting
``Secretary'';
(B) in paragraph (2)--
(i) in subparagraph (A)--
(I) by striking ``Attorney
General'' and inserting ``Secretary'';
and
(II) by striking ``or'' at the end;
(ii) in subparagraph (B), by striking
``but'' at the end; and
(iii) by inserting after subparagraph (B)
the following:
``(C) the alien's own recognizance; or
``(D) a secure alternatives program as provided for
in this section; but'';
(2) in subsection (b), by striking ``Attorney General'' and
inserting ``Secretary'';
(3) in subsection (c)--
(A) by striking ``Attorney General'' and inserting
``Secretary'' each place it appears; and
(B) in paragraph (2), by inserting ``or for
humanitarian reasons,'' after ``such an
investigation,''; and
(4) in subsection (d)--
(A) in paragraph (1), by striking ``Attorney
General'' and inserting ``Secretary'';
(B) in paragraph (1), in subparagraphs (A) and (B),
by striking ``Service'' each place it appears and
inserting ``Department of Homeland Security''; and
(C) in paragraph (3), by striking ``Service'' and
inserting ``Secretary of Homeland Security''.
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:
(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.
(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.
(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.
(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.
(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.
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.
(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.
(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).
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.
(b) Procedures and Standards.--The Secretary shall promulgate new
standards, or modify existing detention standards, to comply with the
following policies and procedures:
(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.
(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.
(3) Investigation of grievances.--Procedures for the prompt
and effective investigation of grievances raised by detainees.
(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.
(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.
(6) Procedures governing transfers of detainees.--
Procedures governing the transfer of a detainee that take into
account--
(A) the detainee's access to legal representatives;
and
(B) the proximity of the facility to the venue of
the asylum or removal proceeding.
(7) Quality of medical care.--
(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.
(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.
(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.
(9) Recreational programs and activities.--Frequent access
to indoor and outdoor recreational programs and activities.
(c) Special Standards for Noncriminal Detainees.--The Secretary
shall promulgate new standards, or modifications to existing standards,
that--
(1) recognize the distinctions between persons with
criminal convictions or a history of violent behavior and all
other detainees; and
(2) ensure that procedures and conditions of detention are
appropriate for a noncriminal, nonviolent population.
(d) Special Standards for Specific Populations.--The Secretary
shall promulgate new standards, or modifications to existing standards,
that--
(1) recognize the unique needs of--
(A) victims of persecution, torture, trafficking,
and domestic violence;
(B) families with children;
(C) detainees who do not speak English; and
(D) detainees with special religious, cultural, or
spiritual considerations; and
(2) ensure that procedures and conditions of detention are
appropriate for the populations described in paragraph (1).
(e) Training of Personnel.--
(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--
(A) aliens who have established credible fear of
persecution;
(B) victims of torture or other trauma and victims
of persecution, trafficking, and domestic violence; and
(C) families with children, detainees who do not
speak English, and detainees with special religious,
cultural, or spiritual considerations.
(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.
(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.
SEC. 147. OFFICE OF DETENTION OVERSIGHT.
(a) Establishment of the Office.--
(1) In general.--There shall be established within the
Department an Office of Detention Oversight (in this section
referred to as the ``Office'').
(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.
(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.
(b) Responsibilities of the Office.--
(1) Inspections of detention centers.--The Administrator of
the Office shall--
(A) undertake regular and, where appropriate,
unannounced inspections of all detention facilities;
(B) develop a procedure for any detainee or the
detainee's representative to file a confidential
written complaint directly with the Office; and
(C) report to the Secretary and to the Assistant
Secretary all findings of a detention facility's
noncompliance with detention standards.
(2) Investigations.--The Administrator of the Office
shall--
(A) initiate investigations, as appropriate, into
allegations of systemic problems at detention
facilities or incidents that constitute serious
violations of detention standards;
(B) conduct any review or audit relating to
detention as directed by the Secretary or the Assistant
Secretary;
(C) report to the Secretary and the Assistant
Secretary the results of all investigations, reviews,
or audits; and
(D) refer matters, where appropriate, for further
action to--
(i) the Department of Justice;
(ii) the Office of the Inspector General of
the Department;
(iii) the Office of Civil Rights and Civil
Liberties of the Department; or
(iv) any other relevant office or agency.
(3) Report to congress.--
(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.
(B) Contents of report.--Each report required by
subparagraph (A) shall include--
(i) a description of--
(I) each detention facility found
to be in noncompliance with the
standards for detention required by
this subtitle; and
(II) the actions taken by the
Department to remedy any findings of
noncompliance or other identified
problems; and
(ii) information regarding whether such
actions were successful and resulted in
compliance with detention standards.
(c) Cooperation With Other Offices and Agencies.--Whenever
appropriate, the Administrator of the Office shall cooperate and
coordinate its activities with--
(1) the Office of the Inspector General of the Department;
(2) the Office of Civil Rights and Civil Liberties of the
Department;
(3) the Privacy Officer of the Department;
(4) the Department of Justice; or
(5) any other relevant office or agency.
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.
(b) Program Requirements.--
(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.
(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.
(3) Aliens eligible for secure alternatives program.--
(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.
(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--
(i) the alien's continued presence at all
future immigration proceedings;
(ii) the alien's compliance with any future
order or removal; and
(iii) the public safety or national
security.
(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.
(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.
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.
(b) Criteria.--In pursuing the development of detention facilities
pursuant to this section, the Secretary shall--
(1) consider the design, operation, and conditions of
existing secure but less restrictive detention facilities; and
(2) to the extent practicable, construct or use detention
facilities where--
(A) movement within and between indoor and outdoor
areas of the facility is subject to minimal
restrictions;
(B) detainees have ready access to social,
psychological, and medical services;
(C) detainees with special needs, including those
who have experienced trauma or torture, have ready
access to services and treatment addressing their
needs;
(D) detainees have frequent access to programs and
recreation;
(E) detainees are permitted contact visits with
legal representatives and family members; and
(F) special facilities are provided to families
with children.
(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--
(1) procedures and conditions of detention are appropriate
for families with minor children; and
(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.
(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--
(1) part of a family with minor children;
(2) a victim of persecution, torture, trafficking, or
domestic violence; or
(3) a nonviolent, noncriminal detainee.
(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.
(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.
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.
(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.
TITLE II--INTERIOR ENFORCEMENT
SEC. 201. ADDITIONAL IMMIGRATION PERSONNEL.
(a) Department of Homeland Security.--
(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.
(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.
(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).
(b) Department of Justice.--
(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. Sec. 6301 et seq.].
(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.
(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.
(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--
(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; and
(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.
(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.
(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--
(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; and
(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.
(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.
(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.
(d) Legal Orientation Program.--
(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.
(2) Authorization of appropriations.--There are authorized
to be appropriated such sums as may be necessary to carry out
such legal orientation program.
SEC. 202. DETENTION AND REMOVAL OF ALIENS ORDERED REMOVED.
(a) In General.--
(1) Amendments.--Section 241(a) (8 U.S.C. 1231(a)) is
amended--
(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'';
(B) by striking ``Attorney General'' any other
place it appears and inserting ``Secretary'';
(C) in paragraph (1)--
(i) in subparagraph (B), by amending clause
(ii) to read as follows:
``(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.'';
(ii) by amending subparagraph (C) to read
as follows:
``(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--
``(i) make all reasonable efforts to comply
with the removal order; or
``(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.''; and
(iii) by adding at the end the following:
``(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.'';
(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.'';
(E) in paragraph (3), by amending subparagraph (D)
to read as follows:
``(D) to obey reasonable restrictions on the
alien's conduct or activities, or to perform
affirmative acts, that the Secretary prescribes for the
alien--
``(i) to prevent the alien from absconding;
``(ii) for the protection of the community;
or
``(iii) for other purposes related to the
enforcement of the immigration laws.'';
(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'';
(G) by redesignating paragraph (7) as paragraph
(10); and
(H) by inserting after paragraph (6) the following:
``(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.
``(8) Additional rules for detention or release of
aliens.--The following procedures shall apply to an alien
detained under this section:
``(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.
``(B) Alien described.--An alien is described in
this subparagraph if the alien--
``(i) has effected an entry into the United
States;
``(ii) has made all reasonable efforts to
comply with the alien's removal order;
``(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; and
``(iv) has not conspired or acted to
prevent removal.
``(C) Evidence.--In making a determination under
subparagraph (A), the Secretary--
``(i) shall consider any evidence submitted
by the alien;
``(ii) may consider any other evidence,
including--
``(I) any information or assistance
provided by the Department of State or
other Federal agency; and
``(II) any other information
available to the Secretary pertaining
to the ability to remove the alien.
``(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)).
``(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--
``(i) determines that there is a
significant likelihood that the alien will be
removed in the reasonably foreseeable future;
or
``(ii) certifies in writing--
``(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;
``(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;
``(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;
``(IV) that--
``(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; and
``(bb) the alien--
``(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; or
(BB) has committed
a crime of violence (as
defined in section 16
of title 18, United
States Code, but not
including a purely
political offense) and,
because of a mental
condition or
personality disorder
and behavior associated
with that condition or
disorder, is likely to
engage in acts of
violence in the future;
or
``(V) that--
``(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; and
``(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.
``(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.
``(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)).
``(H) Renewal and delegation of certification.--
``(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).
``(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.
``(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).
``(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).
``(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--
``(i) the alien fails to comply with the
conditions of release;
``(ii) the alien fails to continue to
satisfy the conditions described in
subparagraph (B); or
``(iii) upon reconsideration, the Secretary
determines that the alien can be detained under
subparagraph (E).
``(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.
``(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--
``(i) has effected an entry into the United
States; and
``(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--
``(aa) failed or refused to make
all reasonable efforts to comply with a
removal order;
``(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; or
``(cc) conspired or acted to
prevent removal; or
``(II) the Secretary makes a certification
as specified in subparagraph (E), or the
renewal of a certification specified in
subparagraph (H).
``(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.
``(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.''.
(2) Effective date.--The amendments made by paragraph (1)--
(A) shall take effect on the date of the enactment
of this Act; and
(B) shall apply to--
(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; and
(ii) any act or condition occurring or
existing before, on, or after the date of the
enactment of this Act.
SEC. 203. AGGRAVATED FELONY.
(a) Definition of Aggravated Felony.--Section 101(a)( 43) (8 U.S.C.
1101(a)(43)) is amended--
(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--'';
(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;'';
(3) in subparagraph (N), by striking ``paragraph (1)(A) or
(2) of''; and
(4) by striking the undesignated matter following
subparagraph (U).
(b) Effective Date and Application.--
(1) In general.--The amendments made by subsection (a)
shall--
(A) take effect on the date of the enactment of
this Act; and
(B) apply to any conviction that occurred on or
after the date of the enactment of this Act.
(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 Public Law 104-208;
110 Stat. 3009-627) shall continue to apply, whether the
conviction was entered before, on, or after September 30, 1996.
SEC. 204. INADMISSIBILITY AND DEPORTABILITY OF GANG MEMBERS.
(a) Definition of Criminal Gang.--Section 101(a) (8 U.S.C. 1101(a))
is amended by inserting after paragraph (51) the following:
``(52)(A) The term `criminal gang' means an ongoing group,
club, organization, or association of 5 or more persons--
``(i) that has, as 1 of its primary purposes, the
commission of 1 or more of the criminal offenses
described in subparagraph (B); and
``(ii) the members of which engage, or have engaged
within the past 5 years, in a continuing series of
offenses described in subparagraph (B).
``(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--
``(i) a felony drug offense (as defined in section
102 of the Controlled Substances Act (21 U.S.C. 802));
``(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);
``(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);
``(iv) a felony crime of violence as defined in
section 16 of title 18, United States Code, which is
punishable by a sentence of imprisonment of 5 years or
more, including first degree murder, arson, possession,
brandishment, or discharge of firearm in connection
with crime of violence or drug trafficking offense, use
of a short-barreled or semi-automatic weapons, use of a
machine gun, murder of individuals involved in aiding a
Federal investigation, kidnapping, bank robbery if
death results or a hostage is kidnapped, sexual
exploitation and other abuse of children, selling or
buying of children, activities relating to material
involving the sexual exploitation of a minor,
activities relating to material constituting or
containing child pornography, or illegal transportation
of a minor;
``(v) a crime involving obstruction of justice;
tampering with or retaliating against a witness,
victim, or informant; or burglary;
``(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); and
``(vii) a conspiracy to commit an offense described
in clause (i) through (vi).''.
(b) Inadmissibility.--Section 212(a)(2) (8 U.S.C. 1182(a)(2)) is
amended--
(1) by redesignating subparagraph (F) as subparagraph (L);
and
(2) by inserting after subparagraph (E) the following:
``(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.''.
(c) Deportability.--Section 237(a)(2) (8 U.S.C. 1227(a)(2)) is
amended by adding at the end the following:
``(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.''.
(d) Temporary Protected Status.--Section 244 (8 U.S.C. 1254a) is
amended--
(1) by striking ``, Attorney General'' each place it
appears and inserting ``Secretary of Homeland Security'';
(2) in subparagraph (c)(2)(B)--
(A) in clause (i), by striking ``or'' and inserting
a semicolon;
(B) in clause (ii), by striking the period at the
end and inserting ``or''; and
(C) by adding at the end the following:
``(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.''; and
(3) in subsection (d)--
(A) in paragraph (2)--
(i) by striking ``Subject to paragraph (3),
such'' and inserting ``Such''; and
(ii) by striking ``(under paragraph (3))'';
(B) by striking paragraph (3); and
(C) by redesignating paragraph (4) as paragraph
(3); and
(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.''.
(e) Increased Penalties Barring the Admission of Convicted Sex
Offenders Failing to Register and Requiring Deportation of Sex
Offenders Failing to Register.--
(1) Inadmissibility.--Section 212(a)(2)(A)(i) (8 U.S.C.
1182(a)(2)(A)(i)), as amended by section 209(a)(3), is further
amended--
(A) in subclause (II), by striking ``or'' at the
end;
(B) in subclause (III), by striking the comma at
the end and inserting a semicolon; and
(C) by inserting after subclause (III) the
following:
``(IV) a violation of section 2250
of title 18, United States Code
(relating to failure to register as a
sex offender); or''.
(2) Deportability.--Section 237(a)(2)(A)(i) (8 U.S.C.
1227(a)(2)(A)(i)) is amended--
(A) in subclause (I), by striking ``, and'' and
inserting a semicolon;
(B) in subclause (II), by striking the comma at the
end and inserting ``; or''; and
(C) by adding at the end the following:
``(III) a violation of section 2250
of title 18, United States Code
(relating to failure to register as a
sex offender).''.
(f) Precluding Admissibility of Aliens Convicted of Serious
Criminal Offenses and Domestic Violence, Stalking, Child Abuse and
Violation of Protection Orders.--
(1) Inadmissibility on criminal and related grounds;
waivers.--Section 212 (8 U.S.C. 1182) is amended--
(A) in subsection (a)(2), by adding at the end the
following:
``(J) Crimes of domestic violence, stalking, or
violation of protective orders; crimes against
children.--
``(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 section 16 of title 18, United
States Code) against a person committed by a
current or former spouse of the person, by an
individual with whom the person shares a child
in common, by an individual who is cohabiting
with or has cohabited with the person as a
spouse, by an individual similarly situated to
a spouse of the person under the domestic or
family violence laws of the jurisdiction where
the offense occurs, or by any other individual
against a person who is protected from that
individual's acts under the domestic or family
violence laws of the United States or any
State, Indian tribal government, or unit of
local or foreign government.
``(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.
``(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--
``(I) the alien was acting in self-
defense;
``(II) the alien was found to have
violated a protection order intended to
protect the alien; or
``(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.'';
and
(B) in subsection (h)--
(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)''; and
(ii) by inserting ``or Secretary of
Homeland Security'' after ``the Attorney
General'' each place it appears.
(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.
SEC. 205. INCREASED CRIMINAL PENALTIES RELATED TO DRUNK DRIVING,
ILLEGAL ENTRY, PERJURY, AND FIREARMS OFFENSES.
(a) Drunk Driving.--
(1) Inadmissibility.--Section 212(a)(2) (8 U.S.C.
1182(a)(2)) is amended by inserting after subparagraph (J), as
added by section 204(f) the following:
``(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.'' .
(2) Deportability.--Section 237(a)(2) (8 U.S.C. 1227(a)(2))
is amended by adding at the end the following:
``(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.''.
(3) Conforming amendment.--Section 212(h) (8 U.S.C.
1182(h)) is amended--
(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)''; and
(B) in the matter preceding paragraph (1), by
striking ``and (E)'' and inserting ``(E), and (F)''.
(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.
(b) Illegal Entry.--
(1) In general.--Section 275 (8 U.S.C. 1325) is amended to
read as follows:
``SEC. 275. ILLEGAL ENTRY.
``(a) In General.--
``(1) Criminal offenses.--An alien shall be subject to the
penalties set forth in paragraph (2) if the alien--
``(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;
``(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; or
``(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).
``(2) Criminal penalties.--Any alien who violates any
provision under paragraph (1)--
``(A) shall, for the first violation, be fined
under title 18, United States Code, imprisoned not more
than 6 months, or both;
``(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;
``(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;
``(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; and
``(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.
``(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--
``(A) alleged in the indictment or information; and
``(B) proven beyond a reasonable doubt at trial or
admitted by the defendant.
``(4) Duration of offense.--An offense under this
subsection continues until the alien is discovered within the
United States by an immigration officer.
``(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.
``(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--
``(1) not less than $50 and not more than $250 for each
such entry, crossing, attempted entry, or attempted crossing;
or
``(2) twice the amount specified in paragraph (1) if the
alien had previously been subject to a civil penalty under this
subsection.''.
(2) Clerical amendment.--The table of contents is amended
by striking the item relating to section 275 and inserting the
following:
``Sec.275.Illegal entry.''.
(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.
(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 section 1621
of title 18, United States Code, or for making such a statement or
representation under section 1001 of that title.
(d) Increased Penalties Relating to Firearms Offenses.--
(1) Penalties related to removal.--Section 243 (8 U.S.C.
1253) is amended--
(A) in subsection (a)(1)--
(i) in the matter preceding subparagraph
(A), by inserting ``212(a)'' or after
``section''; and
(ii) in the matter following subparagraph
(D)--
(I) by striking ``or imprisoned not
more than four years'' and inserting
``and imprisoned for not more than 5
years''; and
(II) by striking ``, or both'';
(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)).''; and
(2) Prohibiting carrying or using a firearm during and in
relation to an alien smuggling crime.--Section 924(c) of title
18, United States Code, is amended--
(A) in paragraph (1)--
(i) in subparagraph (A), by inserting ``,
alien smuggling crime,'' after ``any crime of
violence'';
(ii) in subparagraph (A), by inserting ``,
alien smuggling crime,'' after ``such crime of
violence''; and
(iii) in subparagraph (D)(ii), by inserting
``, alien smuggling crime,'' after ``crime of
violence''; and
(B) by adding at the end the following:
``(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 (8
U.S.C. 1324(a), 1327, and 1328).''.
(3) Inadmissibility for firearms offenses.--Section
212(a)(2)(A) (8 U.S.C. 1182(a)(2)(A)), as amended by sections
204(e) and 209(a)(3), is amended--
(A) in clause (i), by inserting after subclause
(IV) the following:
``(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
section 921(a) of title 18, United States Code),
provided the alien was sentenced to at least 1 year for
the offense,''; and
(B) in clause (ii), by striking ``Clause (i)(I)''
and inserting ``Subclauses (I), (IV), and (V) of clause
(i)''.
SEC. 206. ILLEGAL ENTRY.
(a) In General.--Section 275 (8 U.S.C. 1325) is amended to read as
follows:
``SEC. 275. ILLEGAL ENTRY.
``(a) In General.--
``(1) Criminal offenses.--An alien shall be subject to the
penalties set forth in paragraph (2) if the alien--
``(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;
``(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; or
``(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).
``(2) Criminal penalties.--Any alien who violates any
provision under paragraph (1)--
``(A) shall, for the first violation, be fined
under title 18, United States Code, imprisoned not more
than 6 months, or both;
``(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;
``(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;
``(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; and
``(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.
``(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--
``(A) alleged in the indictment or information; and
``(B) proven beyond a reasonable doubt at trial or
admitted by the defendant.
``(4) Duration of offense.--An offense under this
subsection continues until the alien is discovered within the
United States by an immigration officer.
``(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.
``(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--
``(1) not less than $50 or more than $250 for each such
entry, crossing, attempted entry, or attempted crossing; or
``(2) twice the amount specified in paragraph (1) if the
alien had previously been subject to a civil penalty under this
subsection.''.
(b) Clerical Amendment.--The table of contents is amended by
striking the item relating to section 275 and inserting the following:
``Sec.275.Illegal Entry.''.
(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.
SEC. 207. ILLEGAL REENTRY.
Section 276 (8 U.S.C. 1326) is amended to read as follows:
``SEC. 276. REENTRY OF REMOVED ALIEN.
Strike subsections (a) through (c) of section 276 of the
Immigration and Nationality Act, and insert the following:
``(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.
``(b) Reentry of Criminal Offenders.--Notwithstanding the penalty
provided in subsection (a), if an alien described in that subsection--
``(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;
``(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;
``(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;
``(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; or
``(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.
``(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.''.
``(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--
``(1) alleged in the indictment or information; and
``(2) proven beyond a reasonable doubt at trial or admitted
by the defendant.
``(e) Affirmative Defenses.--It shall be an affirmative defense to
a violation of this section that--
``(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;
``(2) with respect to an alien previously denied admission
and removed, the alien--
``(A) was not required to obtain such advance
consent under the Immigration and Nationality Act or
any prior Act; and
``(B) had complied with all other laws and
regulations governing the alien's admission into the
United States; or
``(3) at the time of the prior exclusion, deportation,
removal, or denial of admission alleged in the violation, the
alien--
``(A) was under the age of eighteen, and
``(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.
``(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--
``(1) the alien exhausted all administrative remedies that
may have been available to seek relief against the order;
``(2) the removal proceedings at which the order was issued
improperly deprived the alien of the opportunity for judicial
review; and
``(3) the entry of the order was fundamentally unfair.
``(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.
``(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.
``(i) Definitions.--In this section:
``(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.
``(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.
``(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.
``(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.''.
SEC. 208. REFORM OF PASSPORT, VISA, AND IMMIGRATION FRAUD OFFENSES.
(a) Passport, Visa, and Immigration Fraud.--
(1) In general.--Chapter 75 of title 18, United States
Code, is amended to read as follows:
``Chapter 75--Passport, Visa, and Immigration Fraud
``Sec.
``1541. Trafficking in passports.
``1542. False statement in an application for a passport.
``1543. Forgery and unlawful production of a passport.
``1544. Misuse of a passport.
``1545. Schemes to defraud aliens.
``1546. Immigration and visa fraud.
``1547. Marriage fraud.
``1548. Attempts and conspiracies.
``1549. Alternative penalties for certain offenses.
``1550. Seizure and forfeiture.
``1551. Additional jurisdiction.
``1552. Definitions.
``1553. Authorized law enforcement activities.''.
``SEC. 1541. TRAFFICKING IN PASSPORTS.
``(a) Multiple Passports.--Any person who, during any period of 3
years or less, knowingly--
``(1) and without lawful authority produces, issues, or
transfers 10 or more passports;
``(2) forges, counterfeits, alters, or falsely makes 10 or
more passports;
``(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; or
``(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,
shall be fined under this title, imprisoned not more than 20 years, or
both.
``(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.
``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.
``(b) Venue.--
``(1) An offense under subsection (a) may be prosecuted in
any district,
``(A) in which the false statement or
representation was made or the application for a United
States passport was prepared or signed, or
``(B) in which or to which the application was
mailed or presented.
``(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.
``(c) Savings Clause.--Nothing in this section may be construed to
limit the venue otherwise available under sections 3237 and 3238 of
this title.
``SEC. 1543. FORGERY AND UNLAWFUL PRODUCTION OF A PASSPORT.
``(a) Forgery.--Any person who--
``(1) knowingly forges, counterfeits, alters, or falsely
makes any passport; or
``(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,
shall be fined under this title, imprisoned not more than 15 years, or
both.
``(b) Unlawful Production.--Any person who knowingly and without
lawful authority--
``(1) produces, issues, authorizes, or verifies a passport
in violation of the laws, regulations, or rules governing the
issuance of the passport;
``(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; or
``(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,
shall be fined under this title, imprisoned not more than 15 years, or
both.
``SEC. 1544. MISUSE OF A PASSPORT.
``Any person who knowingly--
``(1) uses any passport issued or designed for the use of
another;
``(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;
``(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; or
``(4) violates the terms and conditions of any safe conduct
duly obtained and issued under the authority of the United
States,
shall be fined under this title, imprisoned not more than 15 years, or
both.
``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--
``(1) defraud any person, or
``(2) obtain or receive money or anything else of value
from any person, by means of false or fraudulent pretenses,
representations, or promises,
shall be fined under this title, imprisoned not more than 15 years, or
both.
``(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.
``SEC. 1546. IMMIGRATION AND VISA FRAUD.
``(a) In General.--Any person who knowingly--
``(1) uses any immigration document issued or designed for
the use of another;
``(2) forges, counterfeits, alters, or falsely makes any
immigration document;
``(3) completes, mails, prepares, presents, signs, or
submits any immigration document knowing it to contain any
materially false statement or representation;
``(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;
``(5) adopts or uses a false or fictitious name to evade or
to attempt to evade the immigration laws; or
``(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,
shall be fined under this title, imprisoned not more than 15 years, or
both.
``(b) Any person who, during any period of 3 years or less,
knowingly--
``(1) and without lawful authority produces, issues, or
transfers 10 or more immigration documents;
``(2) forges, counterfeits, alters, or falsely makes 10 or
more immigration documents;
``(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; or
``(4) completes, mails, prepares, presents, signs, or
submits 10 or more immigration documents knowing the documents
to contain any materially false statement or representation,
shall be fined under this title, imprisoned not more than 20 years, or
both.
``(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.
``(d) Employment Documents.--Whoever uses--
``(1) an identification document, knowing (or having reason
to know) that the document was not issued lawfully for the use
of the possessor;
``(2) an identification document knowing (or having reason
to know) that the document is false; or
``(3) a false attestation,
for the purpose of satisfying a requirement of section 274A(b) of the
Immigration and Nationality Act (8 U.S.C. 1324a(b)), shall be fined
under this title, imprisoned not more than 5 years, or both.''.
``SEC. 1547. MARRIAGE FRAUD.
``(a) Evasion or Misrepresentation.--Any person who--
``(1) knowingly enters into a marriage for the purpose of
evading any provision of the immigration laws; or
``(2) knowingly misrepresents the existence or
circumstances of a marriage--
``(A) in an application or document authorized by
the immigration laws; or
``(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),
shall be fined under this title, imprisoned not more than 10 years, or
both.
``(b) Multiple Marriages.--Any person who--
``(1) knowingly enters into 2 or more marriages for the
purpose of evading any immigration law; or
``(2) knowingly arranges, supports, or facilitates 2 or
more marriages designed or intended to evade any immigration
law,
shall be fined under this title, imprisoned not more than 20 years, or
both.
``(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.
``(d) Duration of Offense.--
``(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.
``(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.
``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.
``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--
(1) if committed to facilitate a drug trafficking crime (as
defined in 929(a)) is 20 years; and
(2) if committed to facilitate an act of international
terrorism (as defined in section 2331) is 25 years.
``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.
``(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.
``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.
``(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--
``(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;
``(2) the offense is in or affects foreign commerce;
``(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;
``(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;
``(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 (8 U.S.C. 1101(a))); or
``(6) the offender is a stateless person whose habitual
residence is in the United States.
``SEC. 1552. DEFINITIONS.
``As used in this chapter:
``(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--
``(A) contains a statement or representation that
is false, fictitious, or fraudulent;
``(B) has no basis in fact or law; or
``(C) otherwise fails to state a fact which is
material to the purpose for which the document was
created, designed, or submitted.
``(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.
``(3) The term `false statement or representation' includes
a personation or an omission.
``(4) The term `immigration document'--
``(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; and
``(B) includes any document, photograph, or other
piece of evidence attached to or submitted in support
of an immigration document.
``(5) The term `immigration laws' includes--
``(A) the laws described in section 101(a)(17) of
the Immigration and Nationality Act (8 U.S.C.
1101(a)(17));
``(B) the laws relating to the issuance and use of
passports; and
``(C) the regulations prescribed under the
authority of any law described in paragraphs (A) and
(B).
``(6) The term `immigration proceeding' includes an
adjudication, interview, hearing, or review.
``(7) A person does not exercise `lawful authority' if the
person abuses or improperly exercises lawful authority the
person otherwise holds.
``(8) The term `passport' means--
``(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; or
``(B) any instrument purporting to be a document
described in subparagraph (A).
``(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.
``(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.
``(11) The term `produce' means to make, prepare, assemble,
issue, print, authenticate, or alter.
``(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.
``(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.'
``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).
(b) Protection for Legitimate Refugees and Asylum Seekers--
(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)).
(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.
SEC. 209. INADMISSIBILITY AND REMOVAL FOR PASSPORT AND IMMIGRATION
FRAUD OFFENSES.
(a) Inadmissibility.--Section 212(a)(2)(A)(i) (8 U.S.C.
1182(a)(2)(A)(i)) is amended--
(1) in subclause (I), by striking `, or' at the end and
inserting a semicolon;
(2) in subclause (II), by striking the comma at the end and
inserting `; or'; and
(3) by inserting after subclause (II) the following:
``(III) a violation of (or a
conspiracy or attempt to violate)
section 1541, 1545, subsection (b) of
section 1546, or subsection (b) of
section 1547 of title 18, United States
Code,'.
(b) Removal.--Section 237(a)(3)(B)(iii) (8 U.S.C.
1227(a)(3)(B)(iii)) is amended to read as follows:
``(iii) a violation of (or a conspiracy or
attempt to violate) section 1541, 1545, 1546,
or subsection (b) of section 1547 of title 18,
United States Code,''.
(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.
SEC. 210. INCARCERATION OF CRIMINAL ALIENS.
(a) Institutional Removal Program.--
(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--
(A) identify removable criminal aliens in Federal
and State correctional facilities;
(B) ensure that such aliens are not released into
the community; and
(C) remove such aliens from the United States after
the completion of their sentences.
(2) Expansion.--The Secretary may extend the scope of the
Program to all States.
(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.
(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).
(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.
SEC. 211. ENCOURAGING ALIENS TO DEPART VOLUNTARILY.
(a) In General.--Section 240B (8 U.S.C. 1229c) is amended--
(1) in subsection (a)--
(A) by amending paragraph (1) to read as follows:
``(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.';
(B) by striking paragraph (3);
(C) by redesignating paragraph (2) as paragraph
(3);
(D) by adding after paragraph (1) the following:
``(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.'';
(E) in paragraph (3), as redesignated--
(i) by amending subparagraph (A) to read as
follows:
``(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.'';
(ii) by redesignating subparagraphs (B),
(C), and (D) as paragraphs (C), (D), and (E),
respectively;
(iii) by adding after subparagraph (A) the
following:
``(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 alien 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.'';
(iv) in subparagraph (C), as redesignated,
by striking ``subparagraphs (C) and(D)(ii)''
and inserting ``subparagraphs (D) and
(E)(ii)'';
(v) in subparagraph (D), as redesignated,
by striking ``subparagraph (B)'' each place
that term appears and inserting ``subparagraph
(C)''; and
(vi) in subparagraph (E), as redesignated,
by striking ``subparagraph (B)'' each place
that term appears and inserting ``subparagraph
(C)''; and
(F) in paragraph (4), by striking ``paragraph (1)''
and inserting ``paragraphs (1) and (2)'';
(2) in subsection (b)(2), by striking ``a period exceeding
60 days'' and inserting ``any period in excess of 45 days'';
(3) by amending subsection (c) to read as follows:
``(c) Conditions on Voluntary Departure.--
``(1) Voluntary departure agreement.--Voluntary departure
may only be granted as part of an affirmative agreement by the
alien.
``(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).
``(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.
``(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--
``(A) ineligible for the benefits of the agreement;
``(B) subject to the penalties described in
subsection (d); and
``(C) subject to an alternate order of removal if
voluntary departure was granted under subsection (a)(2)
or (b)'';
(4) by amending subsection (d) to read as follows:
``(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:
``(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.
``(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.
``(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--
``(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; and
``(B) makes a sufficient showing to the
satisfaction of the Attorney General that the alien is
otherwise eligible for such protection.''; and
(5) by amending subsection (e) to read as follows:
``(e) Eligibility.--
``(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.
``(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.''; and
(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.''.
(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 (8
U.S.C. 1229c(d)).
(c) Effective Dates.--
(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 (8 U.S.C. 1229c) made on or
after the date that is 180 days after the enactment of this
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.
SEC. 212. DETERRING ALIENS ORDERED REMOVED FROM REMAINING IN THE UNITED
STATES UNLAWFULLY.
(a) Inadmissible Aliens.--Section 212(a)(9)(A) (8 U.S.C.
1182(a)(9)(A)) is amended--
(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''; and
(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''.
(b) Bar on Discretionary Relief.--Section 274D (8 U.S.C. 1324d) is
amended--
(1) in subsection (a), by striking ``Commissioner'' and
inserting ``Secretary of Homeland Security''; and
(2) by adding at the end the following:
``(c) Ineligibility for Relief.--
``(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.
``(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--
``(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; and
``(B) makes a sufficient showing to the
satisfaction of the Attorney General that the alien is
otherwise eligible for such protection.''.
(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.
SEC. 213. PROHIBITION OF THE SALE OF FIREARMS TO, OR THE POSSESSION OF
FIREARMS BY CERTAIN ALIENS.
Section 922 of title 18, United States Code, is amended--
(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'';
(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''; and
(3) in subsection (y)--
(A) in the header, by striking ``Admitted Under
Nonimmigrant Visas'' and inserting ``not Lawfully
Admitted for Permanent Residence'';
(B) in paragraph (1), by amending subparagraph (B)
to read as follows:
``(B) the term ``lawfully admitted for permanent
residence'' has the same meaning as in section
101(a)(20) of the Immigration and Nationality Act (8
U.S.C. 1101(a)(20)).'';
(C) in paragraph (2), by striking ``under a
nonimmigrant visa'' and inserting ``but not lawfully
admitted for permanent residence''; and
(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''.
SEC. 214. UNIFORM STATUTE OF LIMITATIONS FOR CERTAIN IMMIGRATION,
PASSPORT, AND NATURALIZATION OFFENSES.
(a) In General.--Section 3291 of title 18, United States Code, is
amended to read as follows:
``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 (8
U.S.C. 1253, 1306, 1324, 1325, 1326, 1327, and 1328), or for an attempt
or conspiracy to violate any such section, unless the indictment is
returned or the information filed not later than 10 years after the
commission of the offense.''.
(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:
``3291. Immigration, passport, and naturalization offenses.''.
SEC. 215. DIPLOMATIC SECURITY SERVICE.
(a) Section 2709(a)(1) of title 22, United States Code, is amended
to read as follows:
``(1) conduct investigations concerning--
``(A) illegal passport or visa issuance or use;
``(B) identity theft or document fraud affecting or
relating to the programs, functions, and authorities of
the Department of State;
``(C) violations of chapter 77 of title 18, United
States Code; and
``(D) Federal offenses committed within the special
maritime and territorial jurisdiction defined in
paragraph (9) of section 7 of title 18, United States
Code, except as that jurisdiction relates to the
premises of United States military missions and related
residences;''.
(b) Construction.--Nothing in this section shall be construed to
limit the investigative authority of any other Federal department or
agency.
SEC. 216. STREAMLINED PROCESSING OF BACKGROUND CHECKS CONDUCTED FOR
IMMIGRATION BENEFITS.
(a) Information Sharing; Interagency Task Force.--Section 105 (8
U.S.C. 1105) is amended by adding at the end the following:
``(e) Interagency Task Force.--
``(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.
``(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.''.
(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.
(c) Report on Background and Security Checks.--
(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.
(2) Content.--The report required under paragraph (1) shall
include--
(A) a description of the background and security
check program;
(B) a statistical breakdown of the background and
security check delays associated with different types
of immigration applications;
(C) a statistical breakdown of the background and
security check delays by applicant country of origin;
and
(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.
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--
(1) indigent defense;
(2) criminal prosecution;
(3) autopsies;
(4) translators and interpreters; and
(5) courts costs.
(b) Authorization of Appropriations.--
(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).
(2) Compensation upon request.--Section 241(i)(5) (8 U.S.C.
1231(i)) is amended to read as follows:
``(5) There are authorized to be appropriated to carry this
subsection--
``(A) such sums as may be necessary for fiscal year
2008;
``(B) $750,000,000 for fiscal year 2009;
``(C) $850,000,000 for fiscal year 2010; and
``(D) $950,000,000 for each of the fiscal years
2011 through 2013.''.
(c) Technical Amendment.--Section 501 of the Immigration Reform and
Control Act of 1986 (8 U.S.C. 1365) is amended by striking ``Attorney
General'' each place it appears and inserting ``Secretary of Homeland
Security''.
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.
(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.
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.
(b) Use of Funds.--Grants awarded under subsection (a) may be used
for--
(1) law enforcement activities;
(2) health care services;
(3) environmental restoration; and
(4) the preservation of cultural resources.
(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--
(1) describes the level of access of Border Patrol agents
on tribal lands;
(2) describes the extent to which enforcement of
immigration laws may be improved by enhanced access to tribal
lands;
(3) contains a strategy for improving such access through
cooperation with tribal authorities; and
(4) identifies grants provided by the Department for Indian
tribes, either directly or through State or local grants,
relating to border security expenses.
(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.
SEC. 220. ALTERNATIVES TO DETENTION.
The Secretary shall conduct a study of--
(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;
(2) the effectiveness of the Intensive Supervision
Appearance Program and the costs and benefits of expanding that
program to all States; and
(3) other alternatives to detention, including--
(A) release on an order of recognizance;
(B) appearance bonds; and
(C) electronic monitoring devices.
SEC. 221. STATE AND LOCAL ENFORCEMENT OF FEDERAL IMMIGRATION LAWS.
(a) In General.--Section 287(g) (8 U.S.C. 1357(g)) is amended--
(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.''; and
(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.''.
(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.
SEC. 222. PROTECTING IMMIGRANTS FROM CONVICTED SEX OFFENDERS.
(a) Immigrants.--Section 204(a)(1) (8 U.S.C. 1154(a)(1)), is
amended--
(1) in subparagraph (A), by amending clause (viii) to read
as follows:
``(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.''; and
(2) in subparagraph (B)(i), by amending subclause (II) to
read as follows:
``(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
with respect to whom a petition
described in subclause (I) is filed.''.
(b) Nonimmigrants.--Section 101(a)(15)(K) (8 U.S.C.
1101(a)(15)(K)), is amended by inserting ``(other than a citizen
described in section 204(a)(1)(A)(viii))'' after ``citizen of the
United States'' each place that phrase appears.
SEC. 223. LAW ENFORCEMENT AUTHORITY OF STATES AND POLITICAL
SUBDIVISIONS AND TRANSFER TO FEDERAL CUSTODY.
(a) In General.--Title II (8 U.S.C. 1151 et. seq.) is amended by
adding after section 240C the following new section:
``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--
``(1) shall--
``(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 (8 U.S.C. 1373(c)), and
expeditiously inform the requesting entity whether such
individual is an alien lawfully admitted to the United
States or is otherwise lawfully present in the United
States; and
``(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--
``(i) take the illegal alien into the
custody of the Federal Government not later
than 72 hours after--
``(I) the conclusion of the State
charging process or dismissal process;
or
``(II) the illegal alien is
apprehended, if no State charging or
dismissal process is required; or
``(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; and
``(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.
``(b) Reimbursement.--
``(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).
``(2) Cost computation.--Compensation provided for costs
incurred under subparagraphs (A) and (B) of subsection (c)(1)
shall be--
``(A) the product of--
``(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
by
``(ii) the number of days that the alien
was in the custody of the State or political
subdivision; plus
``(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; plus
``(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.
``(c) Requirement for Appropriate Security.--The Secretary of
Homeland Security shall ensure that--
``(1) aliens incarcerated in a Federal facility pursuant to
this section are held in facilities which provide an
appropriate level of security; and
``(2) if practicable, aliens detained solely for civil
violations of Federal immigration law are separated within a
facility or facilities.
``(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.
``(e) Authority for Contracts.--
``(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.
``(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 (8 U.S.C. 1373). The Secretary shall not allocate any of
the funds made available under this section to any State or
political subdivision that has in place a policy that violates
such section.''.
(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 (8 U.S.C. 1101 et seq.).
SEC. 224. LAUNDERING OF MONETARY INSTRUMENTS.
Section 1956(c)(7)(D) of title 18, United States Code, is amended--
(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),''; and
(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 (19 U.S.C. 1590) (relating to aviation
smuggling),''.
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 (8 U.S.C. 1357(g)) with at least 1 law
enforcement agency in each State, to train law enforcement officers in
the detection and apprehension of individuals engaged in transporting,
harboring, sheltering, or encouraging aliens in violation of section
274 of such Act (8 U.S.C. 1324).
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--
(1) increasing the daily operations of such System with
buses and air hubs in 3 geographic regions;
(2) allocating a set number of seats for such aliens for
each metropolitan area;
(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; and
(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.
SEC. 227. DIRECTIVE TO THE UNITED STATES SENTENCING COMMISSION.
(a) In General.--Pursuant to the authority under section 994 of
title 28, United States Code, the United States Sentencing Commission
shall promulgate or amend the sentencing guidelines, policy statements,
and official commentaries related to passport fraud offenses, including
the offenses described in chapter 75 of title 18, United States Code,
as amended by section 208 of this Act, to reflect the serious nature of
such offenses.
(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.
SEC. 228. CANCELLATION OF VISAS.
Section 222(g) (8 U.S.C. 1202(g)) is amended--
(1) in paragraph (1)--
(A) by striking ``Attorney General'' and inserting
``Secretary'';
(B) by inserting ``or otherwise violated any of the
terms of the nonimmigrant classification in which the
alien was admitted,'' before ``such visa''; and
(C) by inserting ``and any other nonimmigrant visa
issued by the United States that is in the possession
of the alien'' after ``such visa''; and
(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''.
SEC. 229. JUDICIAL REVIEW OF VISA REVOCATION.
(a) In General.--Section 221(i) of the Immigration and Nationality
Act (8 U.S.C. 1201(i)) is amended by striking ``There shall be no means
of judicial review'' and all that follows and inserting the following:
``Notwithstanding any other provision of law, including section 2241 of
title 28, United States Code, any other habeas corpus provision, and
sections 1361 and 1651 of such title, a revocation under this
subsection may not be reviewed by any court, and no court shall have
jurisdiction to hear any claim arising from, or any challenge to, such
a revocation, provided that the revocation is executed by the
Secretary.''.
(b) Effective Date.--The amendment made by subsection (a) shall--
(1) take effect on the date of the enactment of this Act;
and
(2) apply to all revocations made on or after such date.
TITLE III--WORKSITE ENFORCEMENT
Sec.301.Purposes.
Sec.302.Unlawful employment of aliens.
Sec.303.Effective date.
Sec.304.Disclosure of certain taxpayer information to assist in
immigration enforcement.
Sec.305.Increasing security and integrity of Social Security cards.
Sec.306.Increasing security and integrity of identity documents.
Sec.307.Voluntary advanced verification program to combat identity
theft.
Sec.308.Responsibilities of the Social Security Administration.
Sec.309.Immigration enforcement support by the Internal Revenue Service
and the Social Security Administration.
Sec.310.Authorization of appropriations.
TITLE III--WORKSITE ENFORCEMENT
SEC. 301. PURPOSES.
(a) To continue to prohibit the hiring, recruitment, or referral of
unauthorized aliens.
(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.
(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.
(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.
(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.
(f) To collect information on employee hires.
(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.
(h) To provide for record retention of EEVS inquiries, to prevent
identity fraud and employment authorization fraud.
(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.
(j) To establish the following:
(1) a document verification process requiring employers to
inspect, copy, and retain identity and work authorization
documents;
(2) an EEVS requiring employers to obtain confirmation of
an individual's identity and work authorization;
(3) procedures for employers to register for the EEVS and
to confirm work eligibility through the EEVS;
(4) a streamlined enforcement procedure to ensure efficient
adjudication of violations of this Title;
(5) a system for the imposition of civil penalties and
their enforcement, remission or mitigation;
(6) an enhancement of criminal and civil penalties;
(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;
(8) increased penalties under the Internal Revenue Code for
employers who have violations relating to the employment of
unauthorized aliens.
SEC. 302. UNLAWFUL EMPLOYMENT OF ALIENS.
(a) Section 274A of the Immigration and Nationality Act (8 U.S.C.
1324a) is amended to read as follows:
``(a) Making Employment of Unauthorized Aliens Unlawful.--
``(1) In general.--It is unlawful for an employer--
``(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; or
``(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).
``(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.
``(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).
``(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.
``(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.
``(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.
``(4) Application to federal government.--For purposes of
this section, the term `employer' includes entities in any
branch of the Federal Government.
``(5) Defense.--An employer that establishes that it has
complied in good faith with the requirements of
subsections (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:
``(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);
and
``(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).
``(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.
``(b) Definitions.--
``(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--
``(A) an alien lawfully admitted for permanent
residence; or
``(B) authorized to be so employed by this Act or
by the Secretary.
``(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.
``(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:
``(1) Attestation after examination of documentation.
``(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--
``(i) a document described in subparagraph
(B); or
``(ii) a document described in subparagraph
(C) and a document described in subparagraph
(D).
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.
``(B) Documents establishing both employment
authorization and identity.--A document described in
this subparagraph is an individual's--
``(i) United States passport, or passport
card issued pursuant to the Secretary of
State's authority under 22 U.S.C. 211a;
``(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--
``(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;
``(II) is evidence of authorization
for employment in the United States;
and
``(III) contains security features
to make it resistant to tampering,
counterfeiting, and fraudulent use; or
``(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.
``(C) Documents establishing identity of
individual.--A document described in this subparagraph
includes--
``(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 Public Law
109-13) (49 U.S.C. 30301 note) and implementing
regulations issued by the Secretary of Homeland
Security once those requirements become
effective;
``(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--
``(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,
``(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, and
``(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,
``(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; or
``(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).
``(D) Documents evidencing employment
authorization.--The following documents may be accepted
as evidence of employment authorization--
``(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; or
``(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.
``(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.
``(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).
``(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.
``(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 a period beginning on the date of
the hiring, recruiting, or referral of the individual and ending--
``(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; and
``(B) in the case of the hiring of an individual--
``(i) seven years after the date of such
hiring; or
``(ii) two years after the date the
individual's employment is terminated,
whichever is earlier.
``(4) Copying of documentation and recordkeeping required.
``(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.
``(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.
``(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.
``(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.
``(5) Penalties.-- An employer that fails to comply with any
requirement of this subsection shall be penalized under
subsection (e)(4)(B).
``(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.
``(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.
``(d) Employment Eligibility Verification System.--
``(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).
``(2) Implementation schedule.--
``(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.
``(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.
``(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.
``(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.
``(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.
``(3) Participation in EEVS.--The Secretary has the following
discretionary authority to require or to permit participation
in the EEVS--
``(A) To permit any employer that is not required
to participate in the EEVS to do so on a voluntary
basis;
``(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.
``(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--
``(A) such failure shall be treated as a violation
of subsection (a)(1)(B) of this section with respect to
that individual, and
``(B) a rebuttable presumption is created that the
employer has violated subsection (a)(1)(A) or (a)(2) of
this section.
``Subparagraph (B) shall not apply in any prosecution under
subsection 274A(f)(1).
``(5) Procedures for participants in the EEVS.--
``(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:
``(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:
``(I) employer's name;
``(II) employer's Employment
Identification Number (EIN);
``(III) company address;
``(IV) name, position and social
security number of the employer's
employees accessing the EEVS; and
``(V) such other information as the
Secretary deems necessary to ensure
proper use and security of the EEVS.
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.
``(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--
``(I) an individual's social
security account number,
``(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, and
``(III) such other information as
the Secretary may require to determine
the identity and work authorization of
an employee.
``(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.
``(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.''
``(B) Seeking confirmation.--
``(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.
``(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.
``(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).
``(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.
``(C) Confirmation or nonconfirmation.--
``(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.
``(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.
``(iii) Further action notice upon initial
inquiry and secondary verification.--
``(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.
``(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.
``(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.
``(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.
``(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.
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.
``(D) Consequences of nonconfirmation.--
``(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.
``(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.
``(E) Obligation to respond to queries and
additional information.--
``(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).
``(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).
``(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.
``(F) Impermissible use of the EEVS.--
``(i) An employer may not use the EEVS to
verify an individual prior to extending to the
individual an offer of employment.
``(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).
``(iii) An employer may not terminate an
individual's employment solely because that
individual has been issued a further action
notice.
``(iv) An employer may not take the
following actions solely because an individual
has been issued a further action notice:
``(I) reduce salary, bonuses or
other compensation due to the employee;
``(II) suspend the employee without
pay;
``(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;
``(IV) deny the employee the
training necessary to perform the
employment duties for which the
employee has been hired.
``(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.
``(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.
``(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.
``(viii) Any employer found to have
violated subparagraphs (i)-(v) shall pay a
civil penalty of up to $10,000 for each
violation.
``(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.
``(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.
``(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.
``(II) There are authorized to be
appropriated to carry out this
paragraph $40,000,000 for each fiscal
year 2007 through 2009.
``(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.
``(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.
``(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.
``(7) Administrative review.--
``(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:
``(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.
``(ii) Aliens.--An individual claiming to
be an alien authorized to work in the United
States shall file the administrative appeal
with the Secretary.
``(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.
``(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.
``(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.
``(8) Judicial Review.--
``(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.
``(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:
``(i) Deadline.--The petition for review
must be filed no later than 30 days after the
date of the completion of the administrative
appeal.
``(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.
``(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.
``(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.
``(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.
``(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.
``(C) Exhaustion of administrative remedies.--A
court may review a final nonconfirmation order only
if--
``(1) the petitioner has exhausted all
administrative remedies available to the alien
as of right, and
``(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.
``(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.
``(9) Management of employment eligibility verification
system.--
``(A) In general.--The Secretary is authorized to
establish, manage and modify an EEVS that shall--
``(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;
``(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; and
``(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.
``(B) Design and operation of system.--The EEVS
shall be designed and operated--
``(i) to maximize its reliability and ease
of use by employers consistent with insulating
and protecting the privacy and security of the
underlying information;
``(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;
``(iii) to maintain appropriate
administrative, technical, and physical
safeguards to prevent unauthorized disclosure
of personal information;
``(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:
``(I) to develop and use algorithms
to detect potential identity theft,
such as multiple uses of the same
identifying information or documents;
``(II) to develop and use
algorithms to detect misuse of the
system by employers and employees;
``(III) to develop capabilities to
detect anomalies in the use of the
system that may indicate potential
fraud or misuse of the system;
``(IV) to audit documents and
information submitted by potential
employees to employers, including
authority to conduct interviews with
employers and employees;
``(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:
``(I) records maintained by the
Social Security Administration as
specified in (D);
``(II) Birth and death records
maintained by vital statistics agencies
of any state or other United States
jurisdiction;
``(III) Passport and visa records
(including photographs) maintained by
the United States Department of State;
``(IV) State driver's license or
identity card information (including
photographs) maintained by State
department of motor vehicles.
``(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.
``(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.
``(D) Access to information.--
``(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.
``(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).
``(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.
``(E) Responsibilities of the secretary of homeland
security.--
``(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.
``(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).
``(iii) The Secretary shall have authority
to prescribe when a confirmation,
nonconfirmation or further action notice shall
be issued.
``(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.
``(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.
``(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;
``(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.
``(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.
``(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.
``(12) Conforming amendment.--Public Law 104-208, div. C,
title IV, subtitle A, sections 401-05 are repealed, provided
that nothing in this subsection shall be construed to limit the
authority of the Secretary to allow or continue to allow the
participation of Basic Pilot employers in the EEVS established
by this subsection.
``(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).''
``(14) The employer shall use the procedures for EEVS
specified in this section for all employees without regard to
national origin or citizenship status.
``(e) Compliance.--
``(1) Complaints and investigations.--The Secretary of
Homeland Security shall establish procedures--
``(A) for individuals and entities to file
complaints respecting potential violations of
subsection (a) or (g)(1);
``(B) for the investigation of those complaints
which the Secretary deems it appropriate to
investigate; and
``(C) for the investigation of such other
violations of subsection (a) or (g)(1) as the Secretary
determines to be appropriate.
``(2) Authority in investigations.--In conducting
investigations and hearings under this subsection--
``(A) immigration officers shall have reasonable
access to examine evidence of any employer being
investigated; and
``(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).
``(3) Compliance procedures.--
``(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:
``(i) describe the violation;
``(ii) specify the laws and regulations
allegedly violated;
``(iii) disclose the material facts which
establish the alleged violation; and
``(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.
``(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.
``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.
``(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.
``(4) Civil penalties.--
``(A) Hiring or continuing to employ unauthorized
aliens. Any employer that violates any provision of
subsection (a)(1)(A) or (a)(2) shall:
``(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;
``(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; and
``(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.
``(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;
``(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.
``(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:
``(1) pay a civil penalty of $1,000 for
each violation;
``(2) if an employer has previously been
fined under subsection (e)(4)(B), pay a civil
penalty of $2,000 for each violation; and
``(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.
``(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.
``(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.
``(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.
``(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.
``(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.
``(6) Judicial review.--
``(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.
(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:
(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).
(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.
(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.
(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.
(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.
``(C) Exhaustion of administrative remedies.--A
court may review a final determination under
subparagraph (3)(C) only if--
(1) the petitioner has exhausted all
administrative remedies available to the
petitioner as of right, and
(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.
``(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.
``(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.
``(8) Liens.--
``(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.
``(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.
``(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.
``(f) Criminal Penalties and Injunctions for Pattern or Practice
Violations.--
``(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.
``(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.
``(g) Prohibition of Indemnity Bonds.--
``(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.
``(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.
``(h) Government Contracts.--
``(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.
``(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.
``(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.
``(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.
``(i) Miscellaneous provisions.--
``(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.
``(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.
``(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.
``(k) No Match Notice.--
``(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.
``(l) Challenges to Validity.--
``(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--
``(A) whether this section, or any regulation
issued to implement this section, violates the
Constitution of the United States; or
``(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.
``(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.
``(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.
``(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.
``(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).''
SEC. 303. EFFECTIVE DATE.
This title shall become effective on the date of enactment.
SEC. 304. DISCLOSURE OF CERTAIN TAXPAYER INFORMATION TO ASSIST IN
IMMIGRATION ENFORCEMENT.
(a) Disclosure of Certain Taxpayer Identity Information.--
(1) In general.--Section 6103(l) of the Internal Revenue
Code of 1986 is amended by adding at the end the following new
paragraph:
``(21) Disclosure of certain taxpayer identity information
by social security administration to department of homeland
security.--
``(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--
``(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--
``(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, or
``(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,
``and the taxpayer identity of each such
employee, and
``(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)--
``(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,
``(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,
``(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, or
``(IV) who is not authorized to work in the United
States, according to the records maintained by the
Commissioner of Social Security,
``and the taxpayer identity and date of
birth of each such employee.
``(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.''
(2) Compliance by dhs contractors with
confidentiality safeguards.--
(A) In general.--Section 6103(p) of such Code is
amended by adding at the end the following new
paragraph:
``(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--
``(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,
``(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,
``(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), and
``(D) certifies to the Secretary for the most
recent annual period that such contractor is in
compliance with all such requirements.
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.''.
(3) Conforming amendments.--
(A) Section 6103(a)(3) of such Code is amended by
striking ``or (20)'' and inserting ``(20), or (21)''.
(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).''.
(C) Section 6103(p)(4) of such Code is amended--
(i) by striking ``or (17)'' both places it
appears and inserting ``(17), or (21)''; and
(ii) by striking ``or (20)'' each place it
appears and inserting ``(20), or (21)''.
(D) Section 6103(p)(8)(B) of such Code is amended
by inserting ``or paragraph (9)'' after ``subparagraph
(A)''.
(E) Section 7213(a)(2) of such Code is amended by
striking ``or (20)'' and inserting
``(20), or (21)''.
(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.
(c) Repeal of Reporting Requirements.--
(1) Report on earnings of aliens not authorized to work.--
Subsection (c) of section 290 of the Immigration and
Nationality Act (8 U.S.C. 1360) is repealed.
(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 Public Law 104-208; 8 U.S.C. 1360 note) is
repealed.
(d) Effective Dates.--
(1) In general.--The amendments made by subsection (a)
shall apply to disclosures made after the date of the enactment
of this Act.
(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.
(3) Repeals.--The repeals made by subsection (c) shall take
effect on the date of the enactment of this Act.
SEC. 305. INCREASING SECURITY AND INTEGRITY OF SOCIAL SECURITY CARDS.
(a) Fraud-Resistant, Tamper-Resistant and Wear-Resistant Social
Security Cards.--
(1) Issuance.--
(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.
(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.
(2) Amendment.--Section 205(c)(2)(G) of the Social Security
Act (42 U.S.C. 405(c)(2)(G)) is amended to read--
``(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.''
(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.
(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.
(b) Multiple Cards.--Section 205(c)(2)(G) of the Social Security
Act (42 U.S.C. 405(c)(2)(G)) is further amended by adding at the end
the following:
``(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.''
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 Public Law 109-13; 49
U.S.C. 30301 note).
(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.
(c) Grants and Contracts Authorized.--
(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 Public Law 109-13; 49 U.S.C. 30301 note).
(2) Duration.--Grants may be awarded under this subsection
during fiscal years 2007 through 2011.
(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.
(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.
(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.
(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--
(1) upgrade and maintain technology;
(2) obtain equipment;
(3) hire additional personnel;
(4) cover operational costs, including overtime; and
(5) such other resources as are available to assist that
agency.
(e) Application.--
(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.
(2) Contents.--Each application submitted pursuant to
paragraph (1) shall--
(A) describe the activities for which assistance
under this section is sought; and
(B) provide such additional assurances as the
Secretary determines to be essential to ensure
compliance with the requirements of this section.
(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--
(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;
(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; and
(3) ensuring implementation and maintenance of such
safeguards for the security of the information contained on
these documents as the Secretary may prescribe.
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.
(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.
(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.
(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.
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.
(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.
(2) Voluntary participation.--The fingerprint verification
program is voluntary; employers are not required to participate
in it.
(b) Limited Retention Period for Fingerprints.--
(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.
(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.
(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.
(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.
SEC. 308. RESPONSIBILITIES OF THE SOCIAL SECURITY ADMINISTRATION.
Section 205(c)(12) of the Social Security Act, 42 U.S.C. 405(c)(2),
is amended by adding at the end the following new subparagraphs:
``(I) Responsibilities of the commissioner of
social security.--
``(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:
``(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;
``(II) the correspondence of the
name, number, and any other identifying
information;
``(III) whether the name and number
belong to an individual who is
deceased;
``(IV) whether an individual is a
national of the United States (when
available); and
``(V) whether the individual has
presented a social security account
number that is not valid for
employment.
The EEVS shall not disclose or release social
security information to employers through the
confirmation system (other than such
confirmation or nonconfirmation).
``(ii) Social security administration
database improvements.--For purposes of
preventing identity theft, protecting
employees, and reducing burden on employers,
and notwithstanding section 6103 of title 26,
United States Code, the Commissioner of Social
Security, in consultation with the Secretary,
shall review the Social Security Administration
databases and information technology to
identify any deficiencies and discrepancies
related to name, birth date, citizenship
status, or death records of the social security
accounts and social security account holders
likely to contribute to fraudulent use of
documents, or identity theft, or to affect the
proper functioning of the EEVS and shall
correct any identified errors. The Commissioner
shall ensure that a system for identifying and
correcting such deficiencies and discrepancies
is adopted to ensure the accuracy of the Social
Security Administration's databases.
``(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.''.
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:
``(f) Special rules with respect to social security numbers on
withholding exemption certificates.
``(l) Reasonable cause waiver not to apply.
Subsection (a) shall not apply with respect to the social security
account number of an employee furnished under section 6051(a)(2).
``(2) Exception.--
``(A) In general.--Except as provided in
subparagraph (B), [paragraph (1)] shall not apply in
any case in which the employer--
``(i) receives confirmation that the
discrepancy described in section 205(c)(2)(I)
of the Social Security Act has been resolved,
or
``(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.
``(B) Exception not applicable to frequent
offenders. Subparagraph (A) shall not apply--
``(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, or
``(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.''
(b) Enforcement.--
(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.
(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.
(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.
(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--
(1) in subsection (a)(1)--
(A) by striking ``$50'' and inserting ``$200'', and
(B) by striking ``$250,000'' and inserting
``$1,000,000'',
(2) in subsection (b)(1)(A), by striking ``$15 in lieu of
$50'' and inserting ``$60 in lieu of $200'',
(3) in subsection (b)(1)(B), by striking ``$75,000'' and
inserting ``$300,000'',
(4) in subsection (b)(2)(A), by striking ``$30 in lieu of
$50'' and inserting ``$120 in lieu of $200'',
(5) in subsection (b)(2)(B), by striking ``$150,000'' and
inserting ``$600,000'',
(6) in subsection (d)(A) in paragraph (1)--
(A) by striking ```$100,000' for `$250,000''' and
inserting ```$400,000' for `$1,000,000''' in
subparagraph (A),
(B) by striking ```$25,000' for `$75,000''' and
inserting ```$100,000' for `$300,000''' in subparagraph
(B), and
(C) by striking ```$50,000' for `$150,000''' and
inserting ```$200,000' for `$600,000''' in subparagraph
(C),
(D) in paragraph (2)(A), by striking ``$5,000,000''
and inserting ``$2,000,000'', and
(E) in the heading, by striking ``$5,000,000'' and
inserting ``$2,000,000'',
(7) in subsection (e)(2)--
(A) by striking ``$100'' and inserting ``$400'',
(B) by striking ``$25,000'' and inserting
``$100,000'' in subparagraph (C)(i), and
(C) by striking ``$100,000'' and inserting
``$400,000'' in subparagraph (C)(ii), and
(8) in subsection (e)(3)(A), by striking ``$250,000'' and
inserting ``$1,000,000''.
(d) Effective Date.--The amendments made by subsections (b) and (c)
shall apply to failures occurring after December 31, 2006.
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:
(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 (8 U.S.C. 1324a and 1324c),
including compliance with the requirements of the EEVS. These
personnel shall perform the following compliance and monitoring
activities:
(A) Verify Employment Identification Numbers of
employers participating in the EEVS.
(B) Verify compliance of employers participating in
the EEVS with the requirements for participation that
are prescribed by the Secretary.
(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.
(D) Monitor the EEVS to identify discriminatory
practices.
(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.
(F) Identify instances where employees allege that
an employer violated their privacy rights.
(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.
(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.
(I) Provide employers with additional training and
other information on the proper use of the EEVS.
(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.
(K) Any other compliance and monitoring activities
that, in the Secretary's judgment, are necessary to
ensure the functioning of the EEVS.
(L) Investigate identity theft and fraud detected
through the EEVS and undertake the necessary
enforcement actions.
(M) Investigate use of fraudulent documents or
access to fraudulent documents through local
facilitation and undertake the necessary enforcement
actions.
(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.
(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.
(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.
(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.
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 (8 U.S.C. 1101(a)(15)) is amended--
(1) in subparagraph (H)--
(A) by striking subclause (ii)(b);
(B) by striking ``or (iii)'' and inserting
``(iii)''; and
(C) by striking ``; and the alien spouse'' and
inserting ``; or (iv) the alien spouse'';
(2) by striking ``or'' at the end of subparagraph (U);
(3) by striking the period at the end of subparagraph (V)
and inserting a semi-colon; and
(4) by inserting at the end the following new
subparagraphs.--
``(W) [Reserved];
``(X) [Reserved]; or
``(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--
``(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);
``(ii) to perform seasonal non-agricultural
labor or services; or
``(iii) as the spouse or child of an alien
described in clause (i) or (ii) of this
subparagraph.''.
(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.
(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.
(d) Sunset of Y-1 Visa Program.--
(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.
(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.
SEC. 402. ADMISSION OF NONIMMIGRANT WORKERS.
(a) New Workers.--Chapter 2 of title II of the Act (8 U.S.C. 1181
et seq.) is amended by striking section 218 and inserting the
following:
``SEC. 218A. ADMISSION OF Y NONIMMIGRANTS.
``(a) Application Procedures.--
``(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.
``(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).
``(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).
``(4) Regulations.--The regulations referenced in
paragraphs (1), (2), and (3) shall describe, at a minimum--
``(A) the procedures for collection and
verification of biometric data from an alien seeking a
Y nonimmigrant visa or admission in Y nonimmigrant
status; and
``(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).
``(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.
``(c) Petition To Employ Y Nonimmigrant Workers.--
``(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--
``(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;
``(B) evidence that the job offer was and remains
valid;
``(C) the name and other biographical information
of the alien beneficiary and any accompanying spouse or
child; and
``(D) any biometrics from the beneficiary that the
Secretary of Homeland Security may require by
regulation.
``(2) Timing of filing.--
``(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.
``(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.
``(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.
``(4) Adjudication of petition.--
``(A) Post-adjudication action.--After review of
the petition, if the Secretary--
``(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--
``(I) transmit a copy of the notice
of action on the petition to the
petitioner; and
``(II) in the case of approved
petitions, transmit notice of the
approval to the Secretary of State;
``(ii) finds that the employer is not
eligible or that the petition is otherwise not
approvable, the Secretary may--
``(I) deny the petition without
seeking additional evidence and inform
the petitioner--
``(aa) that the petition
was denied and the reason for
the denial;
``(bb) of any available
process for administrative
appeal of the decision; and
``(cc) that the denial is
without prejudice to the filing
of any subsequent petitions,
except as provided in section
218B(e)(4);
``(II) issue a request for
documentation of the attestations or
any other information or evidence that
is material to the petition; or
``(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.
``(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--
``(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; or
``(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.
``(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.
``(d) Authorization To Grant Y Nonimmigrant Visa.--
``(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).
``(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--
``(I) a valid Y nonimmigrant visa; or
``(II) documentation of Y nonimmigrant status, as
described in subsection (m).
``(e) Requirements for Admission.--An alien shall be eligible for Y
nonimmigrant status if the alien meets the following requirements:
``(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).
``(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.
``(3) Fees.--
``(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).
``(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.
``(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).
``(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).
``(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.
``(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.
``(5) Application content and waiver.--
``(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.
``(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--
``(i) physical and mental health;
``(ii) criminal history, including all
arrests and dispositions, and gang membership;
``(iii) immigration history; and
``(iv) involvement with groups or
individuals that have engaged in terrorism,
genocide, persecution, or who seek the
overthrow of the United States Government.
``(C) Knowledge.--The alien shall include with the
application submitted under this paragraph a signed
certification in which the alien certifies that--
``(i) the alien has read and understands
all of the questions and statements on the
application form;
``(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;
and
``(iii) the applicant authorizes the
release of any information contained in the
application and any attached evidence for law
enforcement purposes.
``(6) Must not be ineligible.--The alien must not fall
within a class of aliens ineligible for Y nonimmigrant status
listed under subsection (h).
``(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).
``(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)--
``(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; and
``(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.
``(f) Grounds of Inadmissibility.--
``(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).
``(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.
``(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).
``(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.
``(h) Grounds of Ineligibility.--
``(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].
``(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).
``(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.
``(i) Period of Authorized Admission.--
``(1) In general.--Aliens admitted to the United States as
Y nonimmigrants shall be granted the following periods of
admission:
``(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.
``(B) Y-2b nonimmigrants.--Aliens granted admission
as Y-2B nonimmigrants shall be granted an authorized
period of admission of 10 months.
``(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.
``(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--
``(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; and
``(B) the total period of employment, including
such 14-day period, may not exceed the maximum
applicable period of admission under paragraph (1).
``(4) Extensions of the period of admission.--
``(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.
``(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.
``(5) Limitation on admission.--
``(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.
``(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.
``(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.
``(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.
``(j) Termination.--
``(1) In general.--The period of authorized admission of a
Y nonimmigrant shall terminate immediately if:
``(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;
``(B)(i) the alien commits an act that makes the
alien removable from the United States under section
237;
``(ii) the alien becomes inadmissible under section
212 (except as provided in subsection (f)); or
``(iii) the alien becomes ineligible under
subsection (h);
``(C) the alien uses the documentation of his or
her Y nonimmigrant status issued under subsection (m)
for unlawful or fraudulent purposes;
``(D) subject to paragraph (2), the alien is
unemployed within the United States for--
``(i) 60 or more consecutive days;
``(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; or
``(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;
``(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).
``(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--
``(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 (29 U.S.C. 2611)) of the alien;
``(B) a period of vacation, medical leave,
maternity leave, or similar leave from employment
authorized by employer policy, State law, or Federal
law; or
``(C) any other period of temporary unemployment
that is the direct result of a force majeure event.
``(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.
``(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.
``(k) Visits Outside the United States.--
``(A) In general.--Under regulations established by the
Secretary of Homeland Security, a Y nonimmigrant--
``(i) may travel outside of the United States; and
``(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:
``(A) the period of authorized admission
has not expired or been terminated;
``(B) the alien is the bearer of valid
documentary evidence of Y nonimmigrant status
that satisfies the conditions set forth in
subsection (m); and
``(C) the alien is not subject to the bars
on extension or admission described in
subsection (l).
``(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.
``(l) Bars to Extension or Admission.--An alien may not be granted
Y nonimmigrant status if--
``(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;
``(2) the alien is inadmissible as a nonimmigrant, except
for those grounds previously waived under subsection (f); or
``(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).
``(m) Evidence of Nonimmigrant Status.--Each Y nonimmigrant shall
be issued documentary evidence of nonimmigrant status, which--
``(1) shall be machine-readable, tamper-resistant, and
shall contain a digitized photograph and other biometric
identifiers that can be authenticated;
``(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--
``(A) instead of a passport and visa if the alien--
``(i) is a national of a foreign territory
contiguous to the United States; and
``(ii) is applying for admission at a land
border port of entry; and
``(B) in conjunction with a valid passport, if the
alien is applying for admission at an air or sea port
of entry;
``(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); and
``(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.
``(n) Permanent Bars for Overstays.--
``(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--
``(A) asylum under section 208(a);
``(B) withholding of removal under section
241(b)(3); or
``(C) protection under the Convention Against
Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment, done at New York December 10, 1984.
``(2) Exception.--Overstay of the authorized period of
admission may be excused in the discretion of the Secretary
where it is demonstrated that:
``(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; and
``(B) the alien has not otherwise violated his Y
nonimmigrant status.
``(o) Penalty for Illegal Entry or Overstay.--
``(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).
``(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).
``(3) Relief.--Notwithstanding the bar in paragraph (1) or
(2), an alien may apply for--
``(A) asylum under section 208(a);
``(B) withholding of removal under section
241(b)(3); or
``(C) protection under the Convention Against
Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment, done at New York December 10, 1984.
``(4) Exception.--Overstay of the authorized period of
admission may be excused in the discretion of the Secretary
where it is demonstrated that:
``(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; and
``(B) the alien has not otherwise violated his
nonimmigrant status.
``(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--
``(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;
``(2) the alien, after lawful admission to the United
States, did not work without authorization; and
``(3) the subsequent employer has notified the Secretary of
Homeland Security under subsection (q) of the Y nonimmigrant's
change of employment.
``(q) Reporting of Start and Termination of Employment.--
``(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.
``(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:
``(A) a Y nonimmigrant worker has reported for work
pursuant to paragraph (1) after admission in Y
nonimmigrant status;
``(B) a Y nonimmigrant worker has changed jobs
under subsection (r) and started employment with the
employer;
``(C) the employment of a Y nonimmigrant worker has
terminated; or
``(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.
``(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.
``(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.
``(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.
``(s) Change of Status.--
``(1) In general.--
``(A) A Y nonimmigrant may apply to change status
to another nonimmigrant status, subject to section 248
and if otherwise eligible.
``(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.
``(C) An alien in Y nonimmigrant status may not
change status to any other Y nonimmigrant status.
``(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.
``(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.
``(u) Change of Address.--A Y nonimmigrant shall comply with the
change of address reporting requirements under section 265 through
electronic or paper notification.''
(b) Conforming Amendment Regarding Creation of Treasury Accounts.--
Section 286 of the Immigration and Nationality Act (8 U.S.C. 1356) is
amended by inserting at the end the following new subsections--
``(w) Temporary Worker Program Account.--
``(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.
``(2) Use of funds.--Amounts deposited into the Temporary
Worker Program Account shall remain available until expended as
follows:
``(A) for the administration of the Standing
Commission on Immigration and Labor Markets,
established under section 409 of the [Insert title of
Act]; and
``(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:
``(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 (29 U.S.C.
201 et seq.) and the Occupational Safety and
Health Act of 1970 (29 U.S.C. 651 et seq.).
Such activities shall include random audits of
employers that participate in the Y visa
program; and
``(ii) two-thirds to the Secretary of
Homeland Security to improve immigration
services and enforcement.
``(x) State Impact Assistance Account.--
``(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'.
``(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].
``(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).
``(4) State impact assistance grant program.--
``(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.
``(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:
``(i) Noncitizen population.--Eighty
percent of such amounts shall be allocated so
that each State receives the greater of--
``(I) $5,000,000; or
``(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.
``(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--
``(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 by
``(II) the average growth rate in
noncitizen resident population for the
20 States during such 3-year period.
``(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.
``(C) Funding for local government.--
``(i) Distribution criteria.--Grant funds
received by States under this paragraph shall
be distributed to units of local government
based on need and function.
``(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.
``(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).
``(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.
``(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--
``(i) health care providers;
``(ii) local educational agencies; and
``(iii) charitable and religious
organizations.
``(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.
``(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).
``(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.''.
``(c) Clerical Amendment.--The table of contents Immigration and
Nationality Act (8 U.S.C. 1101 et seq.) is amended by inserting after
the item relating to section 218 the following:
``Sec.218A.Admission of Y nonimmigrants.''.
SEC. 403. GENERAL Y NONIMMIGRANT EMPLOYER OBLIGATIONS.
(a) In General.--Title II (8 U.S.C. 1201 et seq.) is amended by
inserting after section 218A of the Immigration and Nationality Act, as
added by section 402, the following:
``SEC. 218B. GENERAL Y NONIMMIGRANT EMPLOYER OBLIGATIONS.
``(a) General Requirements.--Each employer who seeks to employ a Y
nonimmigrant shall--
``(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--
``(A) the attestation described in subsection (c);
``(B) a description of the nature and location of
the work to be performed;
``(C) the anticipated period (expected beginning
and ending dates) for which the workers will be needed;
and
``(D) the number of job opportunities in which the
employer seeks to employ the workers;
``(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; and
``(3) be required to pay, with respect to an application to
employ a Y-1 worker--
``(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; and
``(B) a secondary fee, to be deposited in the
Treasury in accordance with section 286(x), of--
``(i) $500, in the case of an employer
employing 25 employees or less;
``(ii) $750, in the case of an employer
employing between 26 and 150 employees;
``(iii) $1,000, in the case of an employer
employing between 151 and 500 employees; or
``(iv) $1,250, in the case of an employer
employing more than 500 employees;
``provided that an employer who provides a Y
nonimmigrant health insurance coverage shall not be
required to pay the impact fee.
``(b) Required Procedure.--Each employer of Y nonimmigrants shall
comply with the following requirements:
``(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--
``(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--
``(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; and
``(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;
``(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;
``(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; and
``(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.
``(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.
``(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.
``(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:
``(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--
``(A) Protection of united states workers.--The
employment of a Y nonimmigrant--
``(i) will not adversely affect the wages
and working conditions of workers in the United
States similarly employed; and
``(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.
``(B) Wages.--
``(i) In general.--The Y nonimmigrant
worker will be paid not less than the greater
of--
``(I) the actual wage level paid by
the employer to all other individuals
with similar experience and
qualifications for the specific
employment in question; or
``(II) the prevailing competitive
wage level for the occupational
classification in the area of
employment, taking into account
experience and skill levels of
employees.
``(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.
``(iii) Prevailing competitive wage
level.--For purposes of subclause (i)(II), the
prevailing competitive wage level shall be
determined as follows:
``(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.
``(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 (41 U.S.C. 351 et
seq.), the prevailing competitive wage
level shall be the appropriate
statutory wage.
``(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 (41 U.S.C. 351 et
seq.), the prevailing competitive wage
level shall be based on published wage
data for the occupation from the Bureau
of Labor Statistics, including the
Occupational Employment Statistics
survey, Current Employment Statistics
data, National Compensation Survey, and
Occupational Employment Projections
program. If the Bureau of Labor
Statistics does not have wage data
applicable to such occupation, the
employer may base the prevailing
competitive wage level on data from
another wage survey approved by the
state workforce agency under
regulations promulgated by the
Secretary of Labor.
``(bb) Such regulations shall
require, among other things, that such
surveys are statistically valid and
recently conducted.
``(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.
``(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.
``(F) Notice to employees.--
``(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.
``(ii) No bargaining representative.--If
there is no such bargaining representative, the
employer has--
``(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; or
``(II) electronically disseminated
such a notice to the employer's
employees in the occupational
classification for which the Y
nonimmigrant is sought.
``(G) Recruitment.--That--
``(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; and
``(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--
``(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; and
``(II) the wages that the employer
would be required by law to provide for
the Y nonimmigrant were used in
conducting recruitment.
``(H) Ineligibility.--The employer is not currently
ineligible from using the Y nonimmigrant program
described in this section.
``(I) Bona fide offer of employment.--The job for
which the Y nonimmigrant is sought is a bona fide job--
``(i) for which the employer needs labor or
services;
``(ii) which has been and is clearly open
to any United States worker; and
``(iii) for which the employer will be able
to place the Y nonimmigrant on the payroll.
(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--
``(i) be provided to every Y nonimmigrant
employed under the petition;
``(ii) be made available for public
examination at the employer's place of business
or work site;
``(iii) be made available to the Secretary
of Labor during any audit; and
``(iv) remain available for examination for
5 years after the date on which the application
is filed.
``(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).
``(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.
``(d) Audit of Attestations.--
``(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.
(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.
``(e) Ineligible Employers.--
``(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--
``(A) has, with respect to the application required
under subsection (a), including attestations required
under subsection (b)--
``(i) misrepresented a material fact;
``(ii) made a fraudulent statement; or
``(iii) failed to comply with the terms of
such attestations; or
``(B) failed to cooperate in the audit process in
accordance with regulations promulgated by the
Secretary of Labor;
``(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;
``(D) has, within three years prior to the date of
application:
``(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;
``(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; or
``(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; or
``(E) has, within three years prior to the date of
application, received a citation for:
``(i) a willful violation; or
``(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.
``(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.
``(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.
``(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.
``(f) Prohibition of Independent Contractors.--
``(1) Coverage.--Notwithstanding any other provision of
law--
``(A) a Y nonimmigrant is prohibited from being
treated as an independent contractor under any federal
or state law;
``(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;
and
``(C) this provision shall not be construed to
prevent employers who operate as independent
contractors from employing Y nonimmigrants as
employees.
``(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.
``(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.
``(g) Whistleblower Protection.--
``(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--
``(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]; or
``(B) cooperates or seeks to cooperate in an
investigation or other proceeding concerning compliance
with the requirements of this Act or [title of bill].
``(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.
``(h) Labor Recruiters.--With respect to the employment of Y
nonimmigrant workers--
``(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--
``(A) the place of employment;
``(B) the compensation for the employment;
``(C) a description of employment activities;
``(D) the period of employment;
``(E) any other employee benefit to be provided and
any costs to be charged for each benefit;
``(F) any travel or transportation expenses to be
assessed;
``(G) the existence of any labor organizing effort,
strike, lockout, or other labor dispute at the place of
employment;
``(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;
``(I) the extent to which workers will be
compensated through workers' compensation, private
insurance, or otherwise for injuries or death,
including--
``(i) work related injuries and death
during the period of employment;
``(ii) the name of the State workers'
compensation insurance carrier or the name of
the policyholder of the private insurance;
``(iii) the name and the telephone number
of each person who must be notified of an
injury or death; and
``(iv) the time period within which such
notice must be given;
``(J) any education or training to be provided or
required, including--
``(i) the nature and cost of such training;
``(ii) the entity that will pay such costs;
and
``(iii) whether the training is a condition
of employment, continued employment, or future
employment; and
``(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.
``(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).
``(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.
``(4) Fees.--A person conducting a foreign labor
contracting activity shall not assess any fee to a worker for
such foreign labor contracting activity.
``(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.
``(6) Travel costs.--If the foreign labor contractor or
employer charges the employee for transportation, such
transportation costs shall be reasonable.
``(7) Other worker protections.--
``(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.
``(B) Registration of foreign labor contractors.--
``(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.
``(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--
``(I) requirements under paragraphs
(1), (4), and (5) of section 102 of the
Migrant and Seasonal Agricultural
Worker Protection Act (29 U.S.C. 1812);
``(II) an expeditious means to
update registrations and renew
certificates; and
``(III) any other requirements that
the Secretary may prescribe.
``(iii) Term.--Unless suspended or revoked,
a certificate under this subparagraph shall be
valid for 2 years.
``(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--
``(I) the application or holder of
the certification has knowingly made a
material misrepresentation in the
application for such certificate;
``(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--
``(aa) is a person who has
been refused issuance or
renewal of a certificate;
``(bb) has had a
certificate suspended or
revoked; or
``(cc) does not qualify for
a certificate under this
paragraph; or
``(III) the applicant for or holder
of the certification has failed to
comply with this Act.
``(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).
``(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.
``(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.
``(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.
``(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.
``(j) Enforcement.--With respect to violations of the provisions of
this section relating to the employment of Y nonimmigrant workers--
``(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.
``(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.
``(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.
``(4) Notice and hearing.--
``(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 section 556 of title 5, United States
Code.
``(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.
``(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).
``(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.
``(6) Power of the secretary.--The Secretary may bring an
action in any court of competent jurisdiction--
``(A) to seek remedial action, including injunctive
relief;
``(B) to recover the damages described in
subsection (k); or
``(C) to ensure compliance with terms and
conditions described in subsection (g).
``(7) Solicitor of labor.--Except as provided in section
518(a) of title 28, United States Code, the Solicitor of Labor
may appear for and represent the Secretary of Labor in any
civil litigation brought under this subsection. All such
litigation shall be subject to the direction and control of the
Attorney General.
``(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.
``(k) Penalties.--With respect to violations of the provisions of
this section relating to the employment of Y-1 or Y-2B nonimmigrants--
``(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--
``(A) back wages;
``(B) benefits; and
``(C) civil monetary penalties.
``(2) Civil penalties.--The Secretary of Labor may impose,
as a civil penalty--
``(A) for a violation of subsections (b) through
(g)--
``(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;
``(ii) if the violation was willful, a fine
in an amount not more than $5,000 per violation
per affected worker;
``(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;
and
``(B) for a violation of subsection (h)--
``(i) a fine in an amount not less than
$500 and not more than $4,000 per violation per
affected worker;
``(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;
and
``(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.
``(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)--
``(1) a fine in an amount not more than $4,000 per affected
worker; and
``(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.
``(3) Use of civil penalties.--All penalties collected
under this subsection shall be deposited in the Treasury in
accordance with section 286(w).
``(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.
``(l) Definitions.--Unless otherwise provided, in this section and
section 218A:
``(1) Aggrieved person.--The term `aggrieved person' means
a person adversely affected by an alleged violation of this
section, including--
``(A) a worker whose job, wages, or working
conditions are adversely affected by the violation; and
``(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.
``(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.
``(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 (Public Law 105-277, 112 Stat. 2681,
2681-821).
``(4) Derivative y nonimmigrant.--The term `derivative' Y
nonimmigrant means an alien described at paragraph (Y)(iii) of
subsection 101(a)(15).
``(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.
``(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 (29 U.S.C.
203).
``(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.
``(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.
``(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.
``(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).
``(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.
``(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.
``(B) Statutory construction.--Nothing in this
paragraph is intended to limit an employee's rights
under a collective bargaining agreement or other
employment contract.
``(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.
``(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.
``(16) Seasonal.--Labor is performed on a `seasonal' basis
if--
``(A) ordinarily, it pertains to or is of the kind
exclusively performed at certain seasons or periods of
the year; and
``(B) from its nature, it may not be continuous or
carried on throughout the year.
``(17) Secretary.--Except as otherwise provided, the term
`Secretary' means the Secretary of Homeland Security.
``(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.
``(19) United states worker.--The term `United States
worker' means an employee who is--
``(A) a citizen or national of the United States;
or
``(B) an alien who is--
``(i) lawfully admitted for permanent
residence;
``(ii) admitted as a refugee under section
207;
``(iii) granted asylum under section 208;
or
``(iv) otherwise authorized, under this Act
or by the Secretary of Homeland Security, to be
employed in the United States.'.
``(20) Y nonimmigrant; y nonimmigrant worker.--
``(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); and
``(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).
``(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).
``(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).
``(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).''.
``(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:
``Sec. 218B. Employer obligations.''.
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 (8
U.S.C. 1151 et seq.) is amended inserting the following after section
218B:
``SEC. 218C. H-2A EMPLOYER APPLICATIONS.
``(a) Applications to the Secretary of Labor.--
``(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--
``(A) the assurances described in subsection (b);
``(B) a description of the nature and location of
the work to be performed;
``(C) the anticipated period (expected beginning
and ending dates) for which the workers will be needed;
and
``(D) the number of job opportunities in which the
employer seeks to employ the workers.
``(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.
``(b) Assurances for Inclusion in Applications.--The assurances
referred to in subsection (a)(1) are the following:
``(1) Job opportunities covered by collective bargaining
agreements.--With respect to a job opportunity that is covered
under a collective bargaining agreement:
``(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.
``(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.
``(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.
``(D) Temporary or seasonal job opportunities.--The
job opportunity is temporary or seasonal.
``(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.
``(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.
``(2) Job opportunities not covered by collective
bargaining agreements.--With respect to a job opportunity that
is not covered under a collective bargaining agreement:
``(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.
``(B) Temporary or seasonal job opportunities.--The
job opportunity is temporary or seasonal.
``(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.
``(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.
``(E) Requirements for placement of the
nonimmigrant with other employers.--The employer will
not place the nonimmigrant with another employer
unless--
``(i) the nonimmigrant performs duties in
whole or in part at 1 or more worksites owned,
operated, or controlled by such other employer;
``(ii) there are indicia of an employment
relationship between the nonimmigrant and such
other employer; and
``(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.
``(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.
``(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.
``(H) Employment of united states workers.--
``(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:
(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.
(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.
``(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.
``(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.
``(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.
``(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:
``(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.
``(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.
``(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.
``(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.
``(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).
``(c) Applications by Associations on Behalf of Employer Members.--
``(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.
``(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.
``(d) Withdrawal of Applications.--
``(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.
``(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.
``(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.
``(e) Review and Approval of Applications.--
``(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).
``(2) Responsibility of the secretary of labor.--
``(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.
``(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.''
``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.
``(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:
``(1) Requirement to provide housing or a housing
allowance.--
``(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.
``(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.
``(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.
``(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.
``(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.
``(F) Charges for housing.--
``(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.
``(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.
``(G) Housing allowance as alternative.--
``(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 (29 U.S.C. 1823) solely
by virtue of providing such housing allowance.
No housing allowance may be used for housing
which is owned or controlled by the employer.
``(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.
``(iii) Amount of allowance.--
``(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 (42 U.S.C.
1437f(c)), based on a 2-bedroom
dwelling unit and an assumption of 2
persons per bedroom.
``(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 (42 U.S.C.
1437f(c)), based on a 2-bedroom
dwelling unit and an assumption of 2
persons per bedroom.
``(2) Reimbursement of transportation.--
``(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.
``(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.
``(C) Limitation.--
``(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--
``(I) the actual cost to the worker
or alien of the transportation and
subsistence involved; or
``(II) the most economical and
reasonable common carrier
transportation charges and subsistence
costs for the distance involved.
``(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).
``(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).
``(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.
``(3) Required wages.--
``(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 (29 U.S.C. 206(a)(1))
or the applicable State minimum wage.
``(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.
``(C) Required wages after 3-year freeze.--
``(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--
``(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; and
``(II) 4 percent.
``(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--
``(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; and
``(II) 4 percent.
``(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.
``(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.
(F) Hours and earnings statements.--The employer
shall furnish to the worker, on or before each payday,
in 1 or more written statements--
``(i) the worker's total earnings for the
pay period;
``(ii) the worker's hourly rate of pay,
piece rate of pay, or both;
``(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);
``(iv) the hours actually worked by the
worker;
``(v) an itemization of the deductions made
from the worker's wages; and
``(vi) if piece rates of pay are used, the
units produced daily.
(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--
``(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;
``(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;
``(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;
``(iv) whether any changes are warranted in
the current methodologies for calculating the
adverse effect wage rate and the prevailing
wage; and
``(v) recommendations for future wage
protection under this section.
``(H) Commission on wage standards.--
``(i) Establishment.--There is established
the Commission on Agricultural Wage Standards
under the H-2A program (in this subparagraph
referred to as the `Commission').
``(ii) Composition.--The Commission shall
consist of 10 members as follows:
``(I) Four representatives of
agricultural employers and 1
representative of the Department of
Agriculture, each appointed by the
Secretary of Agriculture.
``(II) Four representatives of
agricultural workers and 1
representative of the Department of
Labor, each appointed by the Secretary
of Labor.
``(iii) Functions.--The Commission shall
conduct a study that shall address--
``(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;
``(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;
``(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;
``(IV) whether any changes are
warranted in the current methodologies
for calculating the adverse effect wage
rate and the prevailing wage rate; and
``(V) recommendations for future
wage protection under this section.
``(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.
``(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.
``(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.
``(vii) Termination date.--The Commission
shall terminate upon submitting its final
report.
``(4) Guarantee of employment.--
``(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.
``(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.
``(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).
``(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).
``(5) Motor vehicle safety.--
``(A) Mode of transportation subject to coverage.--
``(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.
``(ii) Defined term.--In this paragraph,
the term `uses or causes to be used'--
``(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; and
``(II) does not apply to--
``(aa) transportation
provided, or transportation
arrangements made, by an H-2A
worker, unless the employer
specifically requested or
arranged such transportation;
or
``(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.
``(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.
``(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.
``(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.
``(B) Applicability of standards, licensing, and
insurance requirements.--
``(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--
``(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 (29
U.S.C. 1841(b)) and other applicable
Federal and State safety standards;
``(II) ensure that each driver has
a valid and appropriate license, as
provided by State law, to operate the
vehicle; and
``(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.
``(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.
``(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:
``(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.
``(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.
``(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 (29 U.S.C. 1801 et seq.).
``(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.
``(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.
``(f) Evidence of Nonimmigrant Status.--Each H-2A nonimmigrant
shall be issued documentary evidence of nonimmigrant status, which--
``(1) shall be machine-readable, tamper-resistant, and
shall contain a digitized photograph and other biometric
identifiers that can be authenticated;
``(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--
``(A) instead of a passport and visa if the alien--
``(i) is a national of a foreign territory
contiguous to the United States; and
``(ii) is applying for admission at a land
border port of entry; or
``(B) in conjunction with a valid passport, if the
alien is applying for admission at an air or sea port
of entry;
``(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); and
``(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.
``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.
``(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.
``(c) Criteria for Admissibility.--
``(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).
``(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--
``(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; or
``(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.
``(3) Waiver of ineligibility for unlawful presence.--
``(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.
``(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).
``(d) Period of Admission.--
``(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--
``(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; and
``(B) the total period of employment, including
such 14-day period, may not exceed 10 months.
``(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.
``(e) Abandonment of Employment.--
``(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).
``(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.
``(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.
``(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.
``(f) Replacement of Alien.--
``(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--
``(A) who abandons or prematurely terminates
employment; or
``(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.
``(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.
``(g) Identification Document.--
``(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.
``(2) Requirements.--No identification and employment
eligibility document may be issued which does not meet the
following requirements:
``(A) The document shall be capable of reliably
determining whether--
``(i) the individual with the
identification and employment eligibility
document whose eligibility is being verified is
in fact eligible for employment;
``(ii) the individual whose eligibility is
being verified is claiming the identity of
another person; and
``(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.
``(B) The document shall be in a form that is
resistant to counterfeiting and to tampering.
``(C) The document shall--
``(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; and
``(ii) be compatible with law enforcement
databases to determine if the alien has been
convicted of criminal offenses.
``(h) Extension of Stay of H-2A Aliens in the United States.--
``(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.
``(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.
``(3) Work authorization upon filing a petition for
extension of stay.--
``(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.
``(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.
``(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.
``(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.
``(4) Limitation on an individual's stay in status.--
``(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.
``(B) Requirement to remain outside the united
states.--
``(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).
``(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.
``(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--
``(1) may be admitted for a period of up to 3 years;
``(2) may not be extended beyond 3 years; and
``(3) shall not be subject to the requirements of
subsection (h)(4).
``SEC. 218F. WORKER PROTECTIONS AND LABOR STANDARDS ENFORCEMENT.
``(a) Enforcement Authority.--
``(1) Investigation of complaints.--
``(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.
``(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 section 556 of
title 5, United States Code, within 60 days after the
date of the determination. If such a hearing is
requested, the Secretary of Labor shall make a finding
concerning the matter not later than 60 days after the
date of the hearing. In the case of similar complaints
respecting the same applicant, the Secretary of Labor
may consolidate the hearings under this subparagraph on
such complaints.
``(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)--
``(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; and
``(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.
``(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)--
``(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;
``(ii) the Secretary of Labor may seek
appropriate legal or equitable relief to
effectuate the purposes of subsection (d)(1);
and
``(iii) the Secretary may disqualify the
employer from the employment of H-2A workers
for a period of 2 years.
``(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--
``(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; and
``(ii) the Secretary may disqualify the
employer from the employment of H-2A workers
for a period of 3 years.
``(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.
``(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.
``(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.
``(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:
``(1) The providing of housing or a housing allowance as
required under section 218D(b)(1).
``(2) The reimbursement of transportation as required under
section 218D(b)(2).
``(3) The payment of wages required under section
218D(b)(3) when due.
``(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.
``(5) The guarantee of employment required under section
218D(b)(4).
``(6) The motor vehicle safety requirements under section
218D(b)(5).
``(7) The prohibition of discrimination under subsection
(d)(2).
``(c) Private Right of Action.--
``(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).
``(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.
``(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.
``(C) Authorization.--
``(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.
``(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.
``(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.
``(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.
``(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.
``(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.
``(6) Award of damages or other equitable relief.--
``(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.
``(B) Any civil action brought under this section
shall be subject to appeal as provided in chapter 83 of
title 28, United States Code.
``(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.
``(7) Workers' compensation benefits.--
``(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.
``(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--
``(i) a recovery under a State workers'
compensation law; or
``(ii) rights conferred under a State
workers' compensation law.
``(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.
``(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.
``(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.
``(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.
``(d) Discrimination Prohibited.--
``(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.
``(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).
``(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.
``(f) Role of Associations.--
``(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.
``(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.
``SEC. 218G. DEFINITIONS.
``For purposes of this section and section 218C, 218D, 218E, and
218F:
``(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 (29 U.S.C. 203(f)) or agricultural labor under
section 3121(g) of the Internal Revenue Code of 1986 or the
performance of agricultural labor or services described in
section 101(a)(15)(H)(ii)(a).
``(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.
``(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.
``(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).
``(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.
``(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).
``(7) H-2A worker.--The term `H-2A worker' means a
nonimmigrant described in section 101(a)(15)(H)(ii)(a).
``(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.
``(9) Laying off.--
``(A) In general.--The term `laying off', with
respect to a worker--
``(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; but
``(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.
``(B) Statutory construction.--Nothing in this
paragraph is intended to limit an employee's rights
under a collective bargaining agreement or other
employment contract.
``(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.
``(11) Seasonal.--
``(A) In general.--The term `seasonal', with
respect to the performance of labor, means that the
labor--
``(i) ordinarily pertains to or is of the
kind exclusively performed at certain seasons
or periods of the year; and
``(ii) because of the nature of the labor,
cannot be continuous or carried on throughout
the year.
``(B) Exception.--Labor performed on a dairy farm
shall be considered to be seasonal labor.
``(12) Secretary.--Except as otherwise provided, the term
`Secretary' means the Secretary of Homeland Security.
``(13) Temporary.--A worker is employed on a `temporary'
basis where the employment is intended not to exceed 10 months.
``(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).''.
(b) Table of Contents.--The table of contents of the Immigration
and Nationality Act (8 U.S.C. 1101 et seq.) is amended by striking the
item relating to section 218 and inserting the following:
``Sec.218C.H-2A employer applications.
``Sec.218D.H-2A employment requirements.
``Sec.218E.Procedure for admission and extension of stay of H-2A
workers.
``Sec.218F.Worker protections and labor standards enforcement.
``Sec.218G.Definitions.''.
(c) Conforming Amendment.--Section 101(a)(15)(H)(ii)(a) of the
Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(H)(ii)(a)) is
amended by inserting ``or work on a dairy farm,'' after ``seasonal
nature,''.
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.
(b) Determination of Schedule.--
(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.
(2) Procedure.--
(A) In general.--In establishing and adjusting such
a schedule, the Secretary shall comply with Federal
cost accounting and fee setting standards.
(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.
(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.
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.
(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.
(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.
(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.
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--
(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 (8 U.S.C.
1101(a)(15)(H)(ii)(a)), and the number of workers actually
admitted, disaggregated by State and by occupation;
(2) the number of such aliens reported to have abandoned
employment pursuant to subsection 218E(e)(2) of such Act;
(3) the number of such aliens who departed the United
States within the period specified in subsection 218E(d) of
such Act;
(4) the number of aliens who applied for adjustment of
status pursuant to section 623;
(5) the number of such aliens whose status was adjusted
under section 623;
(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); and
(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).
(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.
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.
SEC. 409. NUMERICAL LIMITATIONS.
Section 214(g) of the Act (8 U.S.C. 1184(g)) is amended--
(1) in paragraph (1)--
(A) by striking ``(beginning with fiscal year
1992)'';
(B) by striking subparagraph (B) and inserting the
following:
``(B) under section 101(a)(15)(Y)(i), may not
exceed 200,000 for each fiscal year; or
``(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; or
``(D) under section 101(a)(15)(Y)(ii)(II), may not
exceed--
``(i) 100,000 for the first fiscal year in
which the program is implemented;
``(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); and
``(iii) 200,000 for any fiscal year.'';
and
(2) by renumbering paragraph (2) as paragraph (3), and
renumbering all subsequent paragraphs accordingly, and
inserting the following as paragraph (2):
``(2) Market-based adjustment.--With respect to the
numerical limitation set in subparagraph (A)(ii) or (D)(ii) of
paragraph (1)--
``(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;
``(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;
and
``(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.''
(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.''
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).
(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--
(1) accept the return of nationals who are ordered removed
from the United States within 3 days of such removal;
(2) cooperate with the United States Government to--
(A) identify, track, and reduce gang membership,
violence, and human trafficking and smuggling; and
(B) control illegal immigration;
(3) provide the United States Government with--
(A) passport information and criminal records of
aliens who are seeking admission to, or are present in,
the United States; and
(B) admission and entry data to facilitate United
States entry-exit data systems;
(4) educate nationals of the home country regarding United
States temporary worker programs to ensure that such nationals
are not exploited; and
(5) evaluate means to provide housing incentives in the
alien's home country for returning workers; and
(6) agree to such other terms as the Secretary of State
considers appropriate and necessary.
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 (29 U.S.C. 201 et seq.) and the
Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq.) in
geographic and occupational areas in which a high percentage of workers
are Y nonimmigrants.
SEC. 412. STANDING COMMISSION ON IMMIGRATION AND LABOR MARKETS.
(a) Establishment of Commission.--
(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'').
(2) Purposes.--The purposes of the Commission are--
(A) to study nonimmigrant programs and the
numerical limits imposed by law on admission of
nonimmigrants;
(B) to study the numerical limits imposed by law on
immigrant visas;
(C) to study the allocation of immigrant visas
through the merit-based system;
(D) to make recommendations to the President and
Congress with respect to such programs.
(3) Membership.--The Commission shall be composed of--
(A) 6 voting members--
(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;
(ii) who shall serve for 3-year staggered
terms, which can be extended for 1 additional
3-year term;
(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;
(iv) who shall have expertise in economics,
demography, labor, business, or immigration or
other pertinent qualifications or experience;
(v) who may not be an employee of the
Federal Government or of any State or local
government; and
(vi) not more than 3 of whom may be members
of the same political party.
(B) 7 ex-officio members, including--
(i) the Secretary;
(ii) the Secretary of State;
(iii) the Attorney General;
(iv) the Secretary of Labor;
(v) the Secretary of Commerce;
(vi) the Secretary of Health and Human
Services; and
(vii) the Secretary of Agriculture.
(4) Vacancies.--Any vacancy in the Commission shall be
filled in the same manner as the original appointment.
(5) Meetings.--
(A) Initial meeting.--The Commission shall meet and
begin carrying out the duties described in subsection
(b) as soon as practicable.
(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.
(C) Quorum.--Four voting members of the Commission
shall constitute a quorum.
(b) Duties of the Commission.--The Commission shall--
(1) examine and analyze--
(A) the development and implementation of the
programs;
(B) the criteria for the admission of nonimmigrant
workers;
(C) the formula for determining the annual
numerical limitations of nonimmigrant workers;
(D) the impact of nonimmigrant workers on
immigration;
(E) the impact of nonimmigrant workers on the
economy, unemployment rate, wages, workforce, and
businesses of the United States;
(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;
(G) the allocation of immigrant visas through the
evaluation system established by title V of this Act;
and
(H) any other matters regarding the programs that
the Commission considers appropriate;
(2) not later than 18 months after the date of enactment,
and every year thereafter, submit a report to the President and
Congress that--
(A) contains the findings of the analysis conducted
under paragraph (1);
(B) makes recommendations regarding the necessary
adjustments to the programs studied to meet the labor
market needs of the United States; and
(C) makes other recommendations regarding the
programs, including legislative or administrative
action, that the Commission determines to be in the
national interest.
(c) Information and Assistance From Federal Agencies.--
(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.
(2) Assistance.--
(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.
(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.
(d) Personnel Matters.--
(1) Staff.--
(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.
(B) Federal employees.--
(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
section 2105 of title 5, United States Code,
for purposes of chapters 63, 81, 83, 84, 85,
87, 89, and 90 of such title.
(ii) Commission members.--Clause (i) shall
not apply to members of the Commission.
(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.
(3) Consultant services.--The Commission may procure the
services of experts and consultants in accordance with section
3109 of title 5, United States Code, at rates not to exceed the
daily rate paid a person occupying a position at level IV of
the Executive Schedule under section 5315 of such title 5.
(e) Compensation and Travel Expenses.--
(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 section 5315 of title 5,
United States Code, for each day during which that member is
engaged in the actual performance of the duties of the
Commission.
(2) Travel expenses.--Members of the Commission shall be
allowed travel expenses, including per diem in lieu of
subsistence, under section 5703(b) of title 5, United States
Code, while away from their homes or regular places of business
in the performance of services for the Commission.
(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.
SEC. 412. AGENCY REPRESENTATION AND COORDINATION.
Section 274A(e) (8 U.S.C. 1324a(e)) is amended--
(1) in paragraph (2)--
(A) in subparagraph (A), by striking the comma at
the end and inserting a semicolon;
(B) in subparagraph (B), by striking ``, and'' and
inserting a semicolon;
(C) in subparagraph (C), by striking ``paragraph
(2).'' and inserting ``paragraph (1); and''; and
(D) by inserting after subparagraph (C) the
following:
``(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.''.
SEC. 413. BILATERAL EFFORTS WITH MEXICO TO REDUCE MIGRATION PRESSURES
AND COSTS.
(a) Findings.--Congress makes the following findings:
(1) Migration from Mexico to the United States is directly
linked to the degree of economic opportunity and the standard
of living in Mexico.
(2) Mexico comprises a prime source of migration to the
United States.
(3) Remittances from Mexican citizens working in the United
States reached a record high of nearly $17,000,000,000 in 2004.
(4) Migration patterns may be reduced from Mexico to the
United States by addressing the degree of economic opportunity
available to Mexican citizens.
(5) Many Mexican assets are held extra-legally and cannot
be readily used as collateral for loans.
(6) A majority of Mexican businesses are small or medium
size with limited access to financial capital.
(7) These factors constitute a major impediment to broad-
based economic growth in Mexico.
(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.
(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.
(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.
(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--
(1) increasing access for poor and under served populations
in Mexico to the financial services sector, including credit
unions;
(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;
(3) facilitating Mexican efforts to establish an effective
rural lending system for small- and medium-sized farmers that
will--
(A) provide long term credit to borrowers;
(B) develop a viable network of regional and local
intermediary lending institutions; and
(C) extend financing for alternative rural economic
activities beyond direct agricultural production;
(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;
(5) encouraging Mexican corporations to adopt
internationally recognized corporate governance practices,
including anti-corruption and transparency principles;
(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;
(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;
(8) helping the Government of Mexico to strengthen
education and training opportunities throughout the country,
with a particular emphasis on improving rural education; and
(9) encouraging the Government of Mexico to create
incentives for persons who have migrated to the United States
to return to Mexico.
(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--
(1) increasing health care access for poor and under served
populations in Mexico;
(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;
(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; and
(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.
SEC. 414. WILLING WORKER-WILLING EMPLOYER ELECTRONIC DATABASE.
(a) Electronic Job Registry Link.--
(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.
(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.
(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--
(A) by the State workforce agencies, which may
further disseminate job opportunity information to
interested parties; and
(B) through the internet, for access by workers,
employers, labor organizations and other interested
parties.
(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).
(b) Electronic Registry of Certified Applications.--
(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.
(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.
(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.
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.
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.
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.
(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.
Subtitle C--Nonimmigrant Visa Reform
SEC. 418. STUDENT VISAS.
(a) In General.--Section 101(a)(15)(F) of the Immigration and
Nationality Act (8 U.S.C. 1101(a)(15)(F)) is amended--
(1) in clause (i)--
(A) by striking ``who is'' and inserting, ``who
is--
``(I)'';
(B) by striking ``consistent with section 214(l)''
and inserting ``consistent with section 214(m)'';
(C) by striking the comma at the end and inserting
the following: ``; or
``(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:
``(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;
``(bb) while school is in
session, provided that
practical training does not
exceed 20 hours a week while
school is in session; or
``(cc) within a 26-month
period after completion of all
course requirements for the
degree (excluding thesis or
equivalent);''; and
(D) by striking ``Attorney General'' the two times
that phrase appears and inserting ``Secretary of
Homeland Security''.
(2) in clause (ii)--
(A) by inserting ``or (iv)'' after ``clause (i)'';
and
(B) by striking ``, and'' and inserting a
semicolon; and
(3) by adding at the end the following:
``(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; and
``(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;''.
(b) Off Campus Work Authorization for Foreign Students.--
(1) In general.--An alien admitted as a nonimmigrant
student described in section 101(a)(15)(F) of the Immigration
and Nationality Act (8 U.S.C. 1101(a)(15)(F)) may be employed
in an off-campus position unrelated to the alien's field of
study if--
(A) the alien has enrolled full-time at the
educational institution and is maintaining good
academic standing;
(B) the employer provides the educational
institution and the Secretary of Labor with an
attestation that the employer--
(i) has spent at least 21 days recruiting
United States workers to fill the position; and
(ii) will pay the alien and other similarly
situated workers at a rate equal to not less
than the greater of--
(I) the actual wage level for the
occupation at the place of employment;
or
(II) the prevailing wage level for
the occupation in the area of
employment; and
(C) the alien will not be employed more than--
(i) 20 hours per week during the academic
term; or
(ii) 40 hours per week during vacation
periods and between academic terms.
(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).
(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.
(c) Clarifying the Immigrant Intent Provision.--Subsection (b) of
section 214 of the Immigration and Nationality Act (8 U.S.C. 1184(b))
is amended--
(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; and
(2) by striking ``under section 101(a)(15)'' and inserting
in its place ``under the immigration laws.''.
(d) Granting Dual Intent to Certain Nonimmigrant Students.--
Subsection (h) of section 214 of the Immigration and Nationality Act (8
U.S.C. 1184(h)) is amended--
(1) by inserting ``(F)(iv),'' following ``(H)(i)(b) or
(c),''; and
(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''.
SEC. 419. H-1B STREAMLINING AND SIMPLIFICATION.
(a) H-1B Amendments.--Section 214(g) of the Immigration and
Nationality Act (8 U.S.C. 1184(g)) is amended--
(1) in paragraph (1) by deleting clauses (i) through (vii)
of subparagraph (A) and inserting in their place--
``(i) 115,000 in fiscal year 2008;
``(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); and
``(iii) 180,000 for any fiscal year; or''.
(2) in paragraph (9), as renumbered by Section 405--
(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:'';
(B) by striking subparagraph (B)(iv); and
(C) by striking subparagraph (D).
(b) Requiring a Degree.--Paragraph (2) of section 214(i) of the
Immigration and Nationality Act (8 U.S.C. 1184(i)) is amended--
(1) by deleting the comma at the end of subparagraph (A)
and inserting in its place ``; and''; and
(2) by striking subparagraphs (B) and (C) and inserting the
following:
``(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.''.
(c) Provision of W-2 Forms.--Section 214(g)(5) of the Immigration
and Nationality Act (8 U.S.C. 1184(g)(5)), as renumbered by Section
405, is amended to read as follows:
``(5) In the case of a nonimmigrant described in section
1101(a)(15)(H)(i)(b) of this title--
``(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].
``(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.
``(C) Notwithstanding section 6103 of title 26,
United States Code, or any other law, the Commissioner
of Internal Revenue or the Commissioner of the Social
Security Administration shall upon request of the
Secretary confirm whether the Form W-2 Wage and Tax
Statement filed by the employer under clause (i)
matches a Form W-2 Wage and Tax Statement filed with
the Internal Revenue Service or the Social Security
Administration, as the case may be.''
(d) Extension of H-1B Status for Merit-Based Adjustment
Applicants.--
(1) Section 214(g)(4) of the Immigration and Nationality
Act (8 U.S.C. 1184(g)(4)) is amended by inserting before the
period: ``; Provided that, this provision shall not apply to
such a nonimmigrant who has filed a petition for an immigrant
visa accompanied by a qualifying employer recommendation 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.''
(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, Public Law 106-313, are hereby repealed.
SEC. 420. H-1B EMPLOYER REQUIREMENTS.
(a) Application of Nondisplacement and Good Faith Recruitment
Requirements to All H-1B Employers.--
(1) Amendments.--Section 212(n) of the Immigration and
Nationality Act (8 U.S.C. 1182(n)) is amended--
(A) in paragraph (1)--
(i) in subparagraph (E);
(I) in clause (i), by striking
``(E)(i) In the case of an application
described in clause (ii), the'' and
inserting ``(E) The''; and
(II) by striking clause (ii);
(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--''; and
(iii) in subparagraph (G), by striking ``In
the case of an application described in
subparagraph (E)(ii), subject'' and inserting
``Subject'';
(B) in paragraph (2)--
(i) in subparagraph (E), by striking ``If
an H-1B-dependent employer'' and inserting ``If
an employer that employs H-1B nonimmigrants'';
and
(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.''; and
(C) by striking paragraph (3).
(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.
(b) Nondisplacement Requirement.--
(1) Extending time period for nondisplacement.--Section
212(n) of such Act, as amended by subsection (a), is further
amended--
(A) in paragraph (1)--
(i) in subparagraph (E), by striking ``90
days'' each place it appears and inserting
``180 days'';
(ii) in subparagraph (F)(ii), by striking
``90 days'' each place it appears and inserting
``180 days''; and
(B) in paragraph (2)(C)(iii), by striking ``90
days'' each place it appears and inserting ``180
days''.
(2) Effective date.--The amendments made by paragraph (1)--
(A) shall apply to applications filed on or after
the date of the enactment of this Act; and
(B) shall not apply to displacements for periods
occurring more than 90 days before such date.
(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--
(1) by inserting after subparagraph (G) the following:
``(H)(i) The employer has not advertised the
available jobs specified in the application in an
advertisement that states or indicates that--
``(I) the job or jobs are only available to
persons who are or who may become H-1B
nonimmigrants; or
``(II) persons who are or who may become H-
1B nonimmigrants shall receive priority or a
preference in the hiring process.
``(ii) The employer has not only recruited persons
who are, or who may become, H-1B nonimmigrants to fill
the job or jobs.''; and
(2) in the undesignated paragraph at the end, by striking
``The employer'' and inserting the following:
``(K) The employer''.
(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:
``(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.''.
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--
(1) by inserting ``and through the Department of Labor's
website, without charge.'' after ``D.C.'';
(2) by inserting ``, clear indicators of fraud,
misrepresentation of material fact,'' after ``completeness'';
(3) by striking ``or obviously inaccurate'' and inserting
``, presents clear indicators of fraud or misrepresentation of
material fact, or is obviously inaccurate'';
(4) by striking ``within 7 days of'' and inserting ``not
later than 14 days after''; and
(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).''
(b) Investigations by Department of Labor.--Section 212(n)(2) of
such Act is amended--
(1) in subparagraph (A)--
(A) by striking ``12 months'' and inserting ``24
months''; and
(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.'';
(2) in subparagraph (C)(i)--
(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)''; and
(B) by striking ``(1)(C)'' and inserting
``(1)(C)(ii)'';
(3) in subparagraph (G)--
(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.'';
(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.'';
(C) in clause (iii), by striking the last sentence;
(D) by striking clauses (iv) and (v);
(E) by redesignating clauses (vi), (vii), and
(viii) as clauses (iv), (v), and (vi), respectively;
(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'';
(G) by amending clause (v), as redesignated, to
read as follows:
``(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.''.
(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 section 556 of title 5, United States
Code, not later than 120 days after the date of such
determination.''; and
(I) by adding at the end the following:
``(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).''; and
(4) by striking subparagraph (H).
(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:
``(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.''.
(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.''
(e) Penalties.--Section 212(n)(2)(C) of such Act, as amended by
this section, is further amended--
(1) in clause (i)(I), by striking ``$1,000'' and inserting
``$2,000'';
(2) in clause (ii)(I), by striking ``$5,000'' and inserting
``$10,000''; and
(3) in clause (vi)(III), by striking ``$1,000'' and
inserting ``$2,000''.
(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:
``(3)(A) Upon issuing an H-1B visa to an applicant outside
the United States, the issuing office shall provide the
applicant with--
``(i) a brochure outlining the employer's
obligations and the employee's rights under Federal
law, including labor and wage protections; and
``(ii) the contact information for Federal agencies
that can offer more information or assistance in
clarifying employer obligations and workers' rights.''.
``(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--
``(i) a brochure outlining the employer's
obligations and the employee's rights under Federal
law, including labor and wage protections; and
``(ii) the contact information for Federal agencies
that can offer more information or assistance in
clarifying employer's obligations and workers'
rights.''.
SEC. 422. L-1 VISA FRAUD AND ABUSE PROTECTIONS.
(a) In General.--Section 214(c)(2) of the Immigration and
Nationality Act (8 U.S.C. 1184(c)(2)) is amended--
(1) by striking ``Attorney General'' each place it appears
and inserting ``Secretary of Homeland Security'';
(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)''; and
(3) by adding at the end the following:
``(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--
``(I) a business plan;
``(II) sufficient physical premises to
carry out the proposed business activities; and
``(III) the financial ability to commence
doing business immediately upon the approval of
the petition.
``(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--
``(I) evidence that the importing employer
meets the requirements of this subsection;
``(II) evidence that the beneficiary meets
the requirements under section 101(a)(15)(L);
``(III) a statement summarizing the
original petition;
``(IV) evidence that the importing employer
has fully complied with the business plan
submitted under clause (i)(I);
``(V) evidence of the truthfulness of any
representations made in connection with the
filing of the original petition;
``(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;
``(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;
``(VIII) a statement describing the
staffing at the new facility, including
the number of employees and the types
of positions held by such employees;
``(IX) evidence of wages paid to
employees;
``(X) evidence of the financial
status of the new facility; and
``(XI) any other evidence or data
prescribed by the Secretary.
``(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.
``(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.''.
(b) Investigations and Audits by Department of Homeland Security.--
(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:
``(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.
``(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.
``(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.
``(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.
``(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.
``(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
section 556 of title 5, United States Code, not later
than 120 days after the date of such determination. If
such a hearing is requested, the Secretary shall make a
finding concerning the matter by not later than 120
days after the date of the hearing.
``(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).''.
(2) Audits.--Section 214(c)(2)(I) of such Act, as added by
paragraph (1), is amended by adding at the end the following:
``(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.''.
(3) Reporting requirement.--Section 214(c)(8) of such Act
is amended by inserting ``(L),'' after ``(H),''.
(c) Penalties.--Section 214(c)(2) of such Act, as amended by this
section, is further amended by adding at the end the following:
``(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)--
``(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; and
``(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.
``(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)--
``(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; and
``(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.
``(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)--
``(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; and
``(II) the employer shall be liable to
employees harmed for lost wages and
benefits.''.
SEC. 423. WHISTLEBLOWER PROTECTIONS.
(a) H-1B Whistleblower Protections.--Section 212(n)(2)(C)(iv) of
the Immigration and Nationality Act (8 U.S.C. 1182(n)(2)(C)(iv)) is
amended--
(1) by inserting ``take, fail to take, or threaten to take
or fail to take, a personnel action, or'' before ``to
intimidate''; and
(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.''.
(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:
``(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--
``(I) has disclosed information that the
employee reasonably believes evidences a
violation of this subsection, or any rule or
regulation pertaining to this subsection; or
``(II) cooperates or seeks to cooperate
with the requirements of this subsection, or
any rule or regulation pertaining to this
subsection.
``(ii) An employer that violates this subparagraph
shall be liable to the employees harmed by such
violation for lost wages and benefits.
``(iii) In this subparagraph, the term ``employee''
includes--
``(I) a current employee;
``(II) a former employee; and
``(III) an applicant for employment.''.
SEC. 424. LIMITATIONS ON APPROVAL OF L-1 PETITIONS FOR START-UP
COMPANIES.
Section 214(c)(2) of the Immigration and Nationality Act (8 U.S.C.
1184(c)(2)) is amended--
(a) by striking ``Attorney General'' each place it appears and
inserting ``Secretary of Homeland Security'';
(b) in subparagraph (E), by striking ``In the case'' and inserting
``Except as provided in subparagraph (H), in the case''; and
(c) by adding at the end the following:
(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--
``(I) an adequate business plan;
``(II) sufficient physical premises to
carry out the proposed business activities; and
``(III) the financial ability to commence
doing business immediately upon the approval of
the petition.
``(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--
``(I) evidence that the importing employer
meets the requirements of this subsection;
``(II) evidence that the beneficiary meets
the requirements of section 101(a)(15)(L);
``(III) a statement summarizing the
original petition;
``(IV) evidence that the importing employer
has substantially complied with the business
plan submitted under clause (i);
``(V) evidence of the truthfulness of any
representations made in connection with the
filing of the original petition if requested by
the Secretary;
``(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;
``(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;
``(VIII) a statement describing the
staffing at the new office, including the
number of employees and the types of positions
held by such employees;
``(IX) evidence of wages paid to employees
if the beneficiary will be employed in a
managerial or executive capacity;
``(X) evidence of the financial
status of the new office; and
``(XI) any other evidence or data
prescribed by the Secretary.
``(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.
``(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.
``(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).
``(ii) A spouse described in clause (i) may be
provided employment authorization upon the approval of
an extension under subparagraph (G)(ii).
``(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.''
SEC. 425. MEDICAL SERVICES IN UNDERSERVED AREAS.
(a) Permanent Authorization of the Conrad Program.--
(1) In general.--Section 220(c) of the Immigration and
Nationality Technical Corrections Act of 1994 (8 U.S.C. 1182
note) (as amended by section 1(a) of Public Law 108-441 and
section 2 of Public Law 109-477) is amended by striking ``and
before June 1, 2008.''.
(2) Effective date.--The amendment made by paragraph (1)
shall take effect as if enacted on June 1, 2007.
(b) Pilot Program Requirements.--Section 214(l) of the Immigration
and Nationality Act (8 U.S.C. 1184(l)) is amended--
(1) by adding at the end the following:
``(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--
``(i) an interested State agency requests a waiver;
and
``(ii) the requirements under subparagraph (B) are
met.
``(B) The requirements under this subparagraph are met if--
``(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;
``(ii) all of the waivers allotted for the State
under paragraph (1)(B) were used in the most recent
fiscal year; and
``(iii) all underserved highly rural States--
``(I) used the minimum guaranteed number of
waivers under section 212(e) in health
professional shortage areas in the most recent
fiscal year; or
``(II) all agreed to waive the right to
receive the minimum guaranteed number of such
waivers.
``(C) In this paragraph:
``(i) The term `health professional shortage area'
has the meaning given the term in section 332(a)(1) of
the Public Health Service Act (42 U.S.C. 254e(a)(1));
``(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.
``(iii) The term `minimum guaranteed number'
means--
``(I) for the first fiscal year of the
pilot program, 15;
``(II) for each subsequent fiscal year, the
sum of--
``(aa) the minimum guaranteed
number for the second fiscal year; and
``(bb) 3, if any State received
additional waivers under this paragraph
in the first fiscal year.
``(III) for the third fiscal year, the sum
of--
``(aa) the minimum guaranteed
number for the second fiscal year; and
``(bb) 3, if any State received
additional waivers under this paragraph
in the first fiscal year.''.
(c) Termination Date.--The authority provided by the amendments
made by subsection (b) shall expire on September 30, 2011.
(d) Section 212(j) of the Immigration and Nationality Act (8 U.S.C.
1182(j)) is amended by--
(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--''
(2) redesignating paragraph (2) as paragraph (3);
(3) adding new paragraph (2) to read--
``(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).
``(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).''
(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''.
(f) Section 214(h) of the Immigration and Nationality Act (8 U.S.C.
1184(h)) is amended by inserting ``(E), (J) who is coming to the United
States to receive graduate medical education or training,'' after
``subparagraph'' where that term first appears.
(g) Medical Residents Ineligible for H-1B Nonimmigrant Status.--
Section 214(i) of the Immigration and Nationality Act (8 U.S.C.
1184(i)) is amended to read--
``(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''--
``(A) means an occupation that requires--
``(i) theoretical and practical application
of a body of highly specialized knowledge, and
``(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; and
``(B) shall not include graduate medical education
or training.''
(h) Section 214(l) of the Immigration and Nationality Act (8 U.S.C.
1184(l)) is amended--
(1) in paragraph (1)(C)(i) by striking ``Attorney General''
and inserting ``Secretary of Homeland Security'';
(2) in paragraph (1)(C) by striking subclause (ii) and
inserting the following:
``(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; and
``(iii) the alien begins employment within
90 days of:
``(I) receiving such waiver; or
``(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));
``whichever is latest.''
(3) by striking at the end ``.'', inserting ``; or'' and
adding new paragraph (1)(E) to read--
``(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:
``(i) a geographic area which is designated
by the Secretary of Health and Human Services
as having a shortage of health care
professionals; and
``(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.''
(4) in paragraph (2), by amending subparagraph (A) to read
as follows:
``(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.]''
(5) in paragraph (3)(A) amended by inserting ``requirement
of or'' before ``agreement entered into''.
(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:
``(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.''
SEC. 426. B-1 VISITOR VISA GUIDELINES AND DATA TRACKING SYSTEMS.
(a) Guidelines.--
(1) In general.--Not later than 6 months after the date of
enactment of this Act--
(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; and
(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.
(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.
(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.
(b) Data Tracking Systems.--
(1) In general.--Not later than 18 months after the date of
enactment of this Act--
(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); and
(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).
(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.
(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.
(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.
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.
TITLE V--IMMIGRATION BENEFITS
SEC. 501. REBALANCING OF IMMIGRANT VISA ALLOCATION.
(a) Family-Sponsored Immigrants.--Section 201(c) of the Immigration
and Nationality Act (8 U.S.C. 1151(c)) is amended to read as follows:
``(c) Worldwide Level of Family-Sponsored Immigrants.--
``(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).
``(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).''.
(b) Merit-Based Immigrants.--Section 201(d) of the Immigration and
Nationality Act (8 U.S.C. 1151(d)) is amended to read as follows:
``(d) Worldwide Level of Merit-Based, Special, and Employment
Creation Immigrants.--
``(1) In general.--The worldwide level of merit-based,
special, and employment creation immigrants under this
subsection for a fiscal year--
``(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:
``(i) at least 10,000 will be for
exceptional aliens in nonimmigrant status under
section 101(a)(15)(Y); and
``(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].
``(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:
``(i) at least 10,000 will be for
exceptional aliens in nonimmigrant status under
section 101(a)(15)(Y); and
``(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].
``(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); plus
``(ii) the temporary supplemental allocation of
additional visas described in paragraph (2) for
nonimmigrants described in section 101(a)(15)(Z).
``(2) Temporary supplemental allocation.--The temporary
supplemental allocation of visas described in this paragraph is
as follows:
``(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];
``(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];
and
``(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;
``(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.
``(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).
(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.
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.
(b) Creation of Merit-Based Evaluation System for Immigrants and
Reallocation of Visas.--Section 203(b) of the Immigration and
Nationality Act (8 U.S.C. 1153(b)) is amended by--
(1) striking paragraphs (1), (2), and (3) and inserting the
following:
``(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.
``(A) The merit-based evaluation system shall
initially consist of the following criteria and
weights:
------------------------------------------------------------------------
Category Description Max pts
------------------------------------------------------------------------
Employment ......................... 47
Occupation U.S. employment in
Specialty Occupation
(DoL definition)--20 pts
U.S. employment in High
Demand Occupation (BLS
largest 10-yr job
growth, top 30)
National interest/ 16 pts
critical
infrastructure--
U.S. employment in STEM
or health occupation,
current for at least 1
year--8 pts
(extraordinary or
ordinary)
Employer endorsement A U.S. employer willing
to pay 50% of LPR
application fee either
1) offers a job, or 2)
attests for a current
employee--6 pts
Experience Years of work for U.S.
firm--2 pts/year (max 10
pts)
Age of worker Worker's age: 25-39--3
pts
Education M.D., M.B.A., Graduate 28
degree, etc.--20 pts
(terminal degree) Bachelor's degree--16 pts
Associate's degree--10
pts
High School diploma or
GED--6 pts
Completed certified
Perkins Vocational
Education program--5 pts
Completed DoL Registered
Apprenticeship--8 pts
STEM, assoc & above--8
pts
English & civics Native speaker of English 15
or TOEFL score of 75 or
higher--15 pts
TOEFL score of 60-74--10
pts
Pass USCIS Citizenship
Tests in English &
Civics--6 pts
Extended family (Applied
if threshold of 55 in
above categories.)
Adult (21 or older) son 10
or daughter of USC--8
pts
Adult (21 or older) son
or daughter of LPR--6
pts
Sibling of USC or LPR--4
pts
If had applied for a
family visa in any of
the above categories
after May 1, 2005--2 pts
......................... 100
Supplemental schedule for
Zs
Agriculture National Worked in agriculture for 25
Interest 3 years, 150 days per
year--21 pts
Worked in agriculture for
4 years (150 days for 3
years, 100 days for 1
year)--23 pts
Worked in agriculture for
5 years, 100 days per
year--25 pts
U.S. employment exp. Year of lawful 15
employment--1 pt
Home ownership Own place of residence--1 5
pt/year owned
Medical Insurance Current medical insurance 5
for entire family
------------------------------------------------------------------------
``(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.
``(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.
``(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.
``(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.
``(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).''.
(2) redesignating paragraph (4) as paragraph (2), by
striking ``7.1 percent'' and inserting ``4,200'', and striking
``5,000'' and inserting ``2,500'';
(3) redesignating paragraph (5) as paragraph (3), by
striking ``7.1 percent'' and inserting ``2,800'', and striking
``3,000'' and inserting ``1,500'';
(4) redesignating paragraph (6) as paragraph (4).
(c) Procedure for Granting Immigrant Status.--Section 204(a)(1) of
the Immigration and Nationality Act (8 U.S.C. 1154(a)(1)) is amended by
striking subparagraphs (E) and (F).
(d) Effective Date.--
(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.
(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.
(e) Conforming Amendments.--
(1) Section 201 of the Immigration and Nationality Act (8
U.S.C. 1151) is amended by striking ``employment-based'' each
place it appears and inserting ``merit-based''.
(2) Section 202 of the Immigration and Nationality Act (8
U.S.C. 1152) is amended by striking ``employment-based'' each
place it appears and inserting ``merit-based''.
(3) Section 203(b) of the Immigration and Nationality Act
(8 U.S.C. 1153(b)) is amended by:
(A) striking the heading and first sentence and
inserting the following:
``(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:'';
(B) striking ``employment based'' and inserting
``merit-based'' and striking ``paragraphs (1), (2), and
(3)'' and inserting ``paragraph (1)'' in subparagraph
(6)(B)(i); and
(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).
(4) Section 212(a)(4) of the Immigration and Nationality
Act (8 U.S.C. 1182(a)(4)) is amended by striking subparagraph
(D).
(5) Section 213A(f) of the Immigration and Nationality Act
(8 U.S.C. 1183a(f)) is amended by:
(A) striking subparagraph (4);
(B) striking subparagraph (5) and inserting the
following:
``(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--
``(A) the individual petitioning under section 204
for the classification of such alien died after the
approval of such petition; and
``(B) the Secretary of Homeland Security has
determined for humanitarian reasons that revocation of
such petition under section 205 would be
inappropriate.'';
(C) redesignating subparagraph (6) as subparagraph
(5); and
(D) striking ``(6)'' and inserting ``(5)'' in
subparagraph (1)(E).
(6) Section 212(a) of the Immigration and Nationality Act
(8 U.S.C. 1182(a)) is amended by striking paragraph (5).
(7) Section 218(g)(3) of the Immigration and Nationality
Act (8 U.S.C. 1188) is amended by striking paragraph (3) and
redesignating paragraph (4) as paragraph (3).
(8)(A) Section 207(c)(3) of the Immigration and Nationality
Act (8 U.S.C. 1157(c)(3)) is amended by striking ``(5),'' in
the first sentence.
(B) Section 209(c) of the Immigration and Nationality Act
(8 U.S.C. 1159(c)) is amended by striking ``(5),'' in the
second sentence.
(C) Section 210(c)(2)(A) of the Immigration and Nationality
Act (8 U.S.C. 1160(c)(2)(A)) is amended by striking
``paragraphs (5) and,'' and inserting ``paragraph''.
(D) Section 237(a)(1)(H)(i)(II) of the Immigration and
Nationality Act (8 U.S.C. 1227(a)(1)(H)(i)(II)) is amended by
striking ``paragraphs (5) and,'' and inserting ``paragraph''.
(E) Section 245(h)(2)(A) of the Immigration and Nationality
Act (8 U.S.C. 1255(h)(2)(A)) is amended by striking
``(5)(a),''.
(F) Section 245A(d)(2)(A) of the Immigration and
Nationality Act (8 U.S.C. 1255a(d)(2)(A)) is amended by
striking ``paragraphs (5) and,'' and inserting ``paragraph''.
(G) Section 286(s)(6) of the Immigration and Nationality
Act (8 U.S.C. 1356(s)(6) is amended by striking ``and section
212(a)(5)(A)''.
(f) References to Secretary of Homeland Security.--
(1) Section 203 of the Immigration and Nationality Act (8
U.S.C. 1153) is amended by striking ``Attorney General'' each
place it appears and inserting ``Secretary of Homeland
Security''.
(2) Section 204 of the Immigration and Nationality Act (8
U.S.C. 1154) is amended by striking ``Attorney General'' each
place it appears, except for section 204(f)(4)(B), and
inserting ``Secretary of Homeland Security''.
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 (8 U.S.C. 1151(b)) is amended by adding
the following two new subparagraphs at the end:
``(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.
``(G) Aliens born to an alien lawfully admitted for
permanent residence during a temporary visit abroad.''.
(b) Immediate Relatives.--
(1) Immediate relative redefined.--Paragraph (2) of section
201(b) of the Immigration and Nationality Act (8 U.S.C.
1151(b)) is amended to read as follows:
``(2) Immediate relatives.--
``(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).
``(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--
``(i) 2 years after such date; or
``(ii) the date on which the spouse
remarries.
``(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.''.
(2) Petition.--Section 204(a)(1)(A)(ii) of the Immigration
and Nationality Act (8 U.S.C. 1154(a)(1)(A)(ii)) is amended by
striking ``in the second sentence of section 201(b)(2)(A)(i)''
and inserting ``in section 201(b)(2)(B)''.
(c) Preference Categories.--Section 203(a) of the Immigration and
Nationality Act (8 U.S.C. 1153(a)) is amended:
(1) By striking paragraph (1) and inserting the following:
``(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''.
(2) By striking paragraph (2) and inserting the following:
``(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)''
(3) By striking paragraph (3) and inserting the following:
``(3) Family-based visa petitions filed before january 1,
2007, for which visas will be available before january 1,
2027.--
``(A) In general.--The allocation of immigrant
visas described in paragraph (4) shall apply to an
alien for whom--
``(i) a family-based visa petition was
filed on or before January 1, 2007; and
``(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.
``(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--
``(i) the number of visas allocated
annually for the family preference class under
which the alien's petition was filed;
``(ii) the effect of any per country
ceilings applicable to the alien's petition;
``(iii) the number of petitions filed
before the alien's petition was filed that were
filed under the same family preference class;
and
``(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.
``(4) Allocation of family-based immigrant visas.--
Immigrant visas totaling 440,000 shall be allotted visas as
follows:
``(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).
``(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).
``(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).
``(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).''.
(4) By striking paragraph (4).
(d) Petition.--Section 204(a)(1)(A)(i) of the Immigration and
Nationality Act (8 U.S.C. 1154(a)(1)(A)(i)) is amended by striking ``,
(3), or (4)'' after ``paragraph (1)''.
(e) Effective Date.--
(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.
(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).
(f) Determinations of Number of Intending Lawful Permanent
Residents.--
(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.
(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.
(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:
(A) the number of qualified applicants, as
determined by the Secretary pursuant to this paragraph;
and
(B) the number calculated pursuant to paragraph
(2).
(g) Conforming Amendments.--
(1) Section 212(d)(12)(B) of the Immigration and
Nationality Act (8 U.S.C. 1182(d)(12)(B)) is amended by
striking ``201(b)(2)(A)'' and inserting ``201(b)(2)'';
(2) Section 101(a)(15)(K) of the Immigration and
Nationality Act (8 U.S.C. 1101(a)(15)(K)) is amended by
striking ``201(b)(2)(A)(i)'' and inserting ``201(b)(2)'';
(3) Section 204(a) of the Immigration and Nationality Act
(8 U.S.C. 1154(a)) is amended by striking ``201(b)(2)(A)(i)''
each place it appears and inserting ``201(b)(2)'';
(4) Section 214(r)(3)(A) of the Immigration and Nationality
Act (8 U.S.C. 1184(r)(3)(A)) is amended by striking
``201(b)(2)(A)(i)'' and inserting ``201(b)(2)''.
SEC. 504. CREATION OF PROCESS FOR IMMIGRATION OF FAMILY MEMBERS IN
HARDSHIP CASES.
(a) In General.--The Immigration and Nationality Act (8 U.S.C. 1101
et seq.) is amended by adding a new section 203A reading:
``SEC. 203A. IMMIGRANT VISAS FOR HARDSHIP CASES.
``(a) In General.--Immigrant visas under this section may not
exceed 5,000 per fiscal year.
``(b) Determination of Eligibility.--The Secretary of Homeland
Security may grant an immigrant visa to an applicant who satisfies the
following qualifications:
``(1) Family relationship.--Visas under this section will
be given to aliens who are:
``(A) the unmarried sons or daughters of citizens
of the United States;
``(B) the unmarried sons or the unmarried daughters
of aliens lawfully admitted for permanent residence;
``(C) the married sons or married daughters of
citizens of the United States; or
``(D) the brothers or sisters of citizens of the
United States, if such citizens are at least 21 years
of age,
``(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.
``(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.
``(c) Processing of Applications.--
``(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.
``(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.
``(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.
``(d) Decisions whether an alien qualifies for an immigrant visa
under this section are in the unreviewable discretion of the
Secretary.''.
SEC. 505. ELIMINATION OF DIVERSITY VISA PROGRAM.
(a) Section 201 of the Immigration and Nationality Act (8 U.S.C.
1151) is amended--
(1) in subsection (a)--
(A) by inserting ``and'' at the end of paragraph
(1);
(B) by striking ``; and'' at the end of paragraph
(2) and inserting a period; and
(C) by striking paragraph (3); and
(2) by striking subsection (e).
(b) Section 203 of the Immigration and Nationality Act (8 U.S.C.
1153) is amended--
(1) by striking subsection (c);
(2) in subsection (d), by striking ``(a), (b), or (c),''
and inserting ``(a) or (b),'';
(3) in subsection (e), by striking paragraph (2) and
redesignating paragraph (3) as paragraph (2);
(4) in subsection (f), by striking ``(a), (b), or (c)'' and
inserting ``(a) or (b)''; and
(5) in subsection (g), by striking ``(a), (b), and (c)''
and inserting ``(a) and (b)''.
(c) Section 204 of the Immigration and Nationality Act (8 U.S.C.
1154) is amended--
(1) by striking subsection (a)(1)(I);
(2) by redesignating subparagraphs (J), (K), and (L) of
subsection (a)(1) as subparagraphs (I), (J), and (K),
respectively; and
(3) in subsection (e), by striking ``(a), (b), or (c)'' and
inserting ``(a) or (b)''.
(d) Repeal of Temporary Reduction in Visas for Other Workers.--
Section 203(e) of the Nicaraguan Adjustment and Central American Relief
Act, as amended (Public Law 105-100; 8 U.S.C. 1153 note), is repealed.
(e) Effective Date.--
(1) The amendments made by this section shall take effect
on October 1, 2008;
(2) No alien may receive lawful permanent resident status
based on the diversity visa program on or after the effective
date of this section.
(g) Conforming Amendments.--Section 203 of the Immigration and
Nationality Act (8 U.S.C. 1153(a)) is amended by redesignating
paragraphs (d), (e), (f), (g), and (h) as paragraphs (c), (d), (e),
(f), and (g), respectively.
SEC. 506. FAMILY VISITOR VISAS.
(a) Section 101(a)(15)(B) of the Immigration and Nationality Act (8
U.S.C. 1101(a)(15)(B)) is amended to read as follows:
``(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;''.
(b) Section 214 of the Immigration and Nationality Act (8 U.S.C.
1184) is amended by adding at the end the following new subsection:
``(s) Parent Visitor Visas.--
``(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.
``(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--
``(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;
``(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; and
``(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.
``(3) Terms and conditions.--An alien admitted as a visitor
for pleasure under the provisions of this subsection--
``(A) may not stay in the United States for an
aggregate period in excess of 30 days within any
calendar year;
``(B) must, according to such procedures as the
Secretary may by regulations prescribe, register with
the Secretary upon departure from the United States;
and
``(C) may not be issued employment authorization by
the Secretary or be employed.
``(4) Certification.--
``(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.
``(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.
``(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.
``(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.
``(5) Permanent bars for overstays.--
``(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--
``(i) asylum under section 208(a);
``(ii) withholding of removal under section
241(b)(3); or
``(iii) protection under the Convention
Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, done at New
York December 10, 1984.
``(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--
``(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; and
``(ii) the alien has not otherwise violated
his or her nonimmigrant status.
``(6) Bar on sponsor of overstay.--The United States
citizen or Y-1 nonimmigrant sponsor of an alien--
``(A) admitted as a visitor for pleasure under the
terms and conditions of this subsection, and
``(B) who remains in the United States beyond his
or her authorized period of admission,
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.
``(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).''.
SEC. 507. PREVENTION OF VISA FRAUD.
(a) Section 204 of the Immigration and Nationality Act (8 U.S.C.
1154) is amended by adding a paragraph at the end:
``(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.''.
(b) Sections 286(v)(2)(B) and (C) of the Immigration and
Nationality Act (8 U.S.C. 1356(v)(2)(B), (C)) are amended to read as
follows:
``(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).
``(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.''.
SEC. 508. INCREASING PER-COUNTRY LIMITS FOR FAMILY-BASED AND
EMPLOYMENT-BASED IMMIGRANTS.
(a) Section 202(a) of the Immigration and Nationality Act (8 U.S.C.
1152(a)) is amended by amending paragraph (2) to read as follows:
``(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;''.
(b) Section 202(a) of the Immigration and Nationality Act (8 U.S.C.
1152(a)) is amended by adding at the end the following:
``(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.
``(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.''.
SEC. 509. EXEMPTION FROM IMMIGRANT VISA LIMIT.
Section 201(b)(1) (8 U.S.C. 1151(b)(1)) is amended by inserting
after subparagraph (G), as added by section 503 of this Act, the
following:
``(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 (8 U.S.C. 1440 note).''.
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'') (8 U.S.C. 1254a(h)), the Secretary may permit
an alien, or dependent of such alien, described in this section, to
remain lawfully in the United States under the conditions set forth in
this title.
(b) Definition of Z Nonimmigrants.--Section 101(a)(15) of the Act
(8 U.S.C. 1101(a)(15)) is amended by inserting at the end the following
new subparagraph--
``(Z) subject to Title VI of the [Insert title of
Act], an alien who--
``(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; or
``(ii) is physically present in the United
States, has maintained continuous physical
presence in the United States since January 1,
2007, and--
``(I) is the spouse or parent (65
years of age or older) of an alien
described in (i); or
``(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--
``(aa) the termination of
the relationship with such
spouse was connected to
domestic violence; and
``(bb) the spouse has been
battered or subjected to
extreme cruelty by the spouse
or parent who is a Z
nonimmigrant.
``(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).''
(c) Presence in the United States.--
(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 (8 U.S.C. 1101(a)(15)) or any other
immigration status made available under a treaty or other
multinational agreement that has been ratified by the Senate.
(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.
(d) Other Criteria.--
(1) Grounds of ineligibility.--An alien is ineligible for Z
nonimmigrant status if the Secretary determines that the
alien--
(A)(1) is inadmissible to the United States under
section 212(a) of the Act (8 U.S.C. 1182(a)), except as
provided in paragraph (2);
(2) Nothing in this paragraph shall require the
Secretary to commence removal proceedings against an
alien.
(B) is subject to the execution of an outstanding
administratively final order of removal, deportation,
or exclusion;
(C) is described in or is subject to section
241(a)(5) of the Act;
(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;
(E) is an alien--
(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; or
(ii) for whom there are reasonable grounds
for regarding the alien as a danger to the
security of the United States; or
(F) has been convicted of--
(i) a felony;
(ii) an aggravated felony as defined at
section 101(a)(43) of the Act;
(iii) 3 or more misdemeanors under Federal
or State law; or
(iv) a serious criminal offense as
described in section 101(h) of the Act;
(G) has entered or attempted to enter the United
States illegally on or after January 1, 2007; and
(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.
(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.
(2) Grounds of inadmissibility.--
(A) In general.--In determining an alien's
admissibility under paragraph (1)(A)--
(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;
(ii) the Secretary may not waive--
(I) subparagraph (A), (B), (C),
(D)(ii), (E), (F), (G), (H), or (I) of
section 212(a)(2) of the Act (relating
to criminals);
(II) section 212(a)(3) of the Act
(relating to security and related
grounds);
(III) with respect to an
application for Z nonimmigrant status,
section 212(a)(6)(C)(i) of the Act;
(IV) paragraph (6)(A)(i) of section
212(a) of the Act (with respect to any
entries occurring on or after January
1, 2007);
(V) section 212(a)(9)(C)(i)(II);
(VI) subparagraph (A), (C), or (D)
of section 212(a)(10) of the Act
(relating to polygamists, child
abductors, and unlawful voters);
(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; and
(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.
(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:
(1) Eligibility.--The alien must not fall within a class of
aliens ineligible for Z nonimmigrant status listed under
subsection (d)(1).
(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.
(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--
(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;
(B) be physically present in the United States on
the date of application for Z nonimmigrant status; and
(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 (8 U.S.C. 1101(a)(15))
or any other immigration status made available under a
treaty or other multinational agreement that has been
ratified by the Senate.
(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.
(5) Fees and penalties.--
(A) Processing fees.--
(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.
(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.
(B) Penalties.--
(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.
(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.
(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.
(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.
(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).
(E) Deposit, allocation, and spending of
penalties.--
(i) Deposit of penalties.--The penalty
under subparagraph (B) shall be deposited and
remain available as provided by section 286(w).
(ii) Deposit of state impact assistance
funds.--The funds under subparagraph (C) shall
be deposited and remain available as provided
by section 286(x).
(6) Interview.--An applicant for Z nonimmigrant status must
appear to be interviewed.
(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.
(f) Application Procedures.--
(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.
(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.
(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.
(g) Content of Application Filed by Alien.--
(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.
(2) Application information.--
(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.
(3) Security and law enforcement background checks.--
(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.
(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.
(h) Treatment of Applicants.--
(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--
(A) be granted probationary benefits in the form of
employment authorization pending final adjudication of
the alien's application;
(B) may in the Secretary's discretion receive
advance permission to re-enter the United States
pursuant to existing regulations governing advance
parole;
(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; and
(D) may not be considered an unauthorized alien (as
defined in section 274A(h)(3) of the Immigration and
Nationality Act (8 U.S.C. 1324a(h)(3))) unless
employment authorization under subparagraph (A) is
denied.
(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.
(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).
(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.
(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.
(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.
(i) Adjudication of Application Filed by Alien.--
(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.
(2) Evidence of continuous physical presence, employment,
or education.--
(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.
(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--
(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; or
(ii) notwithstanding any other provision of
law, including section 6103 of title 26, United
States Code, provide verification to the
Secretary of documentation offered by an alien
as evidence of--
(I) presence or employment required
under this section, or
(II) a requirement for any other
benefit under the immigration laws.
(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--
(i) bank records;
(ii) business records;
(iii) employer records;
(iv) records of a labor union or day labor
center; and
(v) remittance records.
(D) Additional documents.--The Secretary may--
(i) designate additional documents to
evidence the required period of presence,
employment, or study; and
(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.
(3) Payment of income taxes.--
(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--
(i) no such tax liability exists;
(ii) all outstanding liabilities have been
paid; or
(iii) the alien has entered into an
agreement for payment of all outstanding
liabilities with the Internal Revenue Service.
(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.
(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.
(D) In general.--The alien may satisfy such
requirement by establishing that--
(i) no such tax liability exists;
(ii) all outstanding liabilities have been
met; or
(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.
(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.
(5) Denial of application.--
(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.
(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.
(j) Evidence of Nonimmigrant Status.--
(1) In general.--Documentary evidence of nonimmigrant
status shall be issued to each Z nonimmigrant.
(2) Features of documentation.--Documentary evidence of Z
nonimmigrant status:
(A) shall be machine-readable, tamper-resistant,
and shall contain a digitized photograph and other
biometric identifiers that can be authenticated;
(B) shall be designed in consultation with U.S.
Immigration and Customs Enforcement's Forensic Document
Laboratory;
(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.
(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);
and
(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.
(k) Period of Authorized Admission.--
(1) Initial period.--The initial period of authorized
admission as a Z nonimmigrant shall be four years.
(2) Extensions.--
(A) In general.--Z nonimmigrants may seek an
indefinite number of four-year extensions of the
initial period of authorized admission.
(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:
(i) Eligibility.--The alien must
demonstrate continuing eligibility for Z
nonimmigrant status;
(ii) English language and civics.--
(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.
(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.
(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--
(aa) is unable because of
physical or developmental
disability or mental impairment
to comply therewith;
(bb) is over 50 years of
age and has been living in the
United States for periods
totaling at least 20 years; or
(cc) is over 55 years of
age and has been living in the
United States for periods
totaling at least fifteen
years.
(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; and
(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.
(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.
(D) Timely filing and maintenance of status.--
(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.
(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:
(I) the delay was due to
extraordinary circumstances beyond the
control of the applicant, and the
Secretary finds the delay commensurate
with the circumstances; and
(II) the alien has not otherwise
violated his Z nonimmigrant status.
(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--
(I) the requirements under
subsection (m) for a period of up to
180 days; and
(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.
(E) Bars to extension.--Except as provided in
subparagraph (D), a Z nonimmigrant shall not be
eligible to extend such nonimmigrant status if:
(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;
(ii) the period of authorized admission of
the Z nonimmigrant has been terminated for any
reason; or
(iii) with respect to a Z-2 or Z-3
nonimmigrant, the principal alien's Z-1
nonimmigrant status has been terminated.
(l) Change of Status.--
(1) Change from z nonimmigrant status.--
(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).
(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.
(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.
(2) No change to z nonimmigrant status.--A nonimmigrant
under the immigration laws may not change status under section
248 to Z nonimmigrant status.
(m) Employment.--
(1) Z-1 and z-3 nonimmigrants.--
(A) In general.--Z-1 and Z-3 nonimmigrants shall be
authorized to work in the United States.
(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--
(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;
(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;
(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 (42
U.S.C. 12102(2)) or as a result of pregnancy if
such condition is evidenced by the submission
of documentation prescribed by the Secretary;
or
(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.
(2) Z-2 nonimmigrants.--Z-2 nonimmigrants shall be
authorized to work in the United States.
(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.
(n) Travel Outside the United States.--
(1) In general.--A Z nonimmigrant--
(A) may travel outside of the United States; and
(B) may be readmitted (if otherwise admissible)
without having to obtain a visa if--
(i) the alien's most recent period of
authorized admission has not expired;
(ii) the alien is the bearer of valid
documentary evidence of Z nonimmigrant status
that satisfies the conditions set forth in
section (j); and
(iii) the alien is not subject to the bars
on extension described in subsection (k)(2)(E).
(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).
(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).
(o) Termination of Benefits.--
(1) In general.--Any benefit provided to a Z nonimmigrant
or an applicant for Z nonimmigrant status under this section
shall terminate if--
(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;
(B)(i) the alien is found removable from the United
States under section 237 of the Immigration and
Nationality Act (8 U.S.C. 1227);
(ii) the alien becomes inadmissible under section
212 (except as provided in subsection (d)(2), or
(iii) the alien becomes ineligible under subsection
(d)(1);
(C) the alien has used documentation issued under
this section for unlawful or fraudulent purposes;
(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;
(E) with respect to a Z-1 or Z-3 nonimmigrant, the
employment or study requirements under subsection (m)
have been violated; or
(F) with respect to probationary benefits, the
alien's application for Z nonimmigrant status is
denied.
(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.
(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.
(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.
(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.
(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.
(r) Definitions.--In this title and section 214A of the Immigration
and Nationality Act:
(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.
(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).
(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).
(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).
(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).
SEC. 602. EARNED ADJUSTMENT FOR Z STATUS ALIENS.
(a) Lawful Permanent Residence.--
(1) Z-1 nonimmigrants.--
(A) Prohibition on immigrant visa.--A Z-1
nonimmigrant may not be issued an immigrant visa
pursuant to sections 221 and 222.
(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.
(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:
(i) Status.--The alien must be in valid Z-1
nonimmigrant status.
(ii) Consular application.--
(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.
(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.
(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.
(iv) Admissibility.--The alien must not be
inadmissible under section 212(a), except for
those grounds previously waived under
subsection (d)(2).
(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.
(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).
(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.
(2) Z-2 and z-3 nonimmigrants.--
(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.
(B) Adjustment of status.--
(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.
(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:
(I) Status.--The alien must be in
valid Z-2 or Z-3 nonimmigrant status.
(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.
(III) Admissibility.--The alien
must not be inadmissible under section
212(a), except for those grounds
previously waived under subsection
(d)(2).
(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.
(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.
(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--
(A) the provisions under section 204(a)(1)(J) of
the Immigration and Nationality Act (8 U.S.C.
1154(a)(1)(J)); and
(B) the protections, prohibitions, and penalties
under section 384 of the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (8 U.S.C. 1367).
(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.
(6) Ineligibility for public benefits.--For purposes of
section 403 of the Personal Responsibility and Work Opportunity
Reconciliation Act of 1996 (8 U.S.C. 1613), an alien whose
status has been adjusted under this section shall not be
eligible for any Federal means-tested public benefit unless the
alien meets the alien eligibility criteria for such benefit
under title IV of such Act (8 U.S.C. 1601 et seq.).
(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.
(8) Payment of income taxes.--
(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--
(i) no such tax liability exists;
(ii) all outstanding liabilities have been
paid; or
(iii) the applicant has entered into, and
is in compliance with, an agreement for payment
of all outstanding liabilities with the
Internal Revenue Service.
(B) IRS cooperation.--The Secretary of the Treasury
shall establish rules and procedures under which the
Commissioner of Internal Revenue shall provide
documentation to--
(i) the applicant, upon request, to
establish the payment of all taxes required
under this subsection; or
(ii) the Secretary, upon request, regarding
the payment of Federal taxes by an alien
applying for a benefit under this section.
(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
(8 U.S.C. 1356).
(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.
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.--
(1) Exclusive review.--Administrative review of a
determination respecting nonimmigrant status under this title
shall be conducted solely in accordance with this subsection.
(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].
(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.
(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.
(b) Removal of Aliens Who Have Been Denied Status Under This
Title.--
(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.
(2) Aliens who are determined to be ineligible due to
criminal convictions.--
(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.
(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.
(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.
(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.
(c) Judicial Review.--Section 242 of the Immigration and
Nationality Act is amended by adding at the end the following
subsection (h):
``(h) Judicial Review of Eligibility Determinations Relating to
Status Under Title VI of [this Act].--
``(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.
``(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.
``(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:
``(A) the venue provision set forth in (b)(2) shall
govern;
``(B) the deadline for filing the petition for
review in (b)(1) shall control;
``(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];
``(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;
``(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; and
``(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.
``(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.
``(5) Challenges on validity of the system.--
``(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.
``(B) Deadlines for bringing actions.--Any action
instituted under this paragraph,
(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; and
(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.
``(C) Class actions.--Any claim described in
subparagraph (A) that is brought as a class action
shall be brought in conformity with Public Law 109-2
and the Federal Rules of Civil Procedure.''
``(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].
``(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.''
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--
(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;
(2) make any publication through which the information
furnished by any particular applicant can be identified; or
(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.
(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--
(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;
(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; or
(3) an official coroner for purposes of affirmatively
identifying a deceased individual, whether or not the death of
such individual resulted from a crime.
(c) Inapplicability After Denial.--The limitations under subsection
(a)--
(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; and
(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.
(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.
(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.
(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.
(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.
(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.
(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.
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 (8 U.S.C. 1324a) or the tax laws of the United States for
the prior unlawful employment of that alien, regardless of the
adjudication of such application or reconsideration by the Secretary of
such alien's prima facie eligibility determination.
(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 (8 U.S.C. 1324b) or any other labor or
employment law.
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.
SEC. 607. PRECLUSION OF SOCIAL SECURITY CREDITS FOR PERIODS WITHOUT
WORK AUTHORIZATION.
(a) Insured Status.--Section 214 of the Social Security Act (42
U.S.C. 414) is amended by striking subsection (c) and inserting the
following new subsections:
``(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.
``(2) Paragraph (1) shall not apply to an individual who
was assigned a social security account number prior to January
1, 2004.
``(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).''.
(b) Benefit Computation.--Section 215(e) of the Social Security Act
(42 U.S.C. 415(e)) is amended--
(1) by striking ``and'' at the end of paragraph (1);
(2) by striking the period at the end of paragraph (2) and
inserting ``; and''; and
(3) by adding at the end the following new paragraph:
``(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).''.
(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 (42 U.S.C. 401 et seq.) before such date.
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.
(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:
(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; and
(2) shall be deposited and remain available as otherwise
provided under this title.
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.
(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.
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.
(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.
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.
(b) Penalties in excess of $4,400,000,000 shall be deposited and
remain available as otherwise provided under this Act.
(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.
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''.
SEC. 613. DEFINITIONS.
In this subtitle:
(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 (20
U.S.C. 1001).
(2) Uniformed services.--The term ``uniformed services''
has the meaning given that term in section 101(a) of title 10,
United States Code.
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.--
(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--
(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;
(B) the alien has earned a high school diploma or
obtained a general education development certificate in
the United States;
(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.
(D) The alien has--
(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; or
(ii) The alien has served in the uniformed
services for at least 2 years and, if
discharged, has received an honorable
discharge.
(E) The alien has provided a list of all of the
secondary educational institutions that the alien
attended in the United States; and
(F) The alien is in compliance with the eligibility
and admissibility criteria set forth in section 601(d).
(b) Treatment of Period for Purposes of Naturalization.--Solely for
purposes of title III of the Immigration and Nationality Act (8 U.S.C.
1401 et seq.), an alien who has been granted probationary benefits
under section 601(h) or Z nonimmigrant status and has satisfied the
requirements of subparagraphs (a)(1)(A) through (F) shall beginning on
the date that is eight years after the date of enactment be considered
to have satisfied the requirements of Section 316(a)(1) of the Act (8
U.S.C. 1427(a)(1)).
(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.
(d) Regulations.--
(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.
(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.
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.
SEC. 616. HIGHER EDUCATION ASSISTANCE.
(a) Section 505 of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (8 U.S.C. 1623) shall have no force or
effect with respect to an alien who is a probationary Z or Z
nonimmigrant.
(b) Notwithstanding any provision of the Higher Education Act of
1965 (20 U.S.C. 1001 et seq.), with respect to assistance provided
under title IV of the Higher Education Act of 1965 (20 U.S.C. 1070 et
seq.), an alien who adjusts status to that of a lawful permanent
resident under this title, or who is a probationary Z or Z nonimmigrant
under this title and who meets the eligibility criteria set forth in
section 614(a)(1)(A), (B), and (F), shall be eligible for the following
assistance under such title IV:
(1) Student loans under parts B, D, and E of such title IV
(20 U.S.C. 1071 et seq., 1087a et seq., 1087aa et seq.),
subject to the requirements of such parts.
(2) Federal work-study programs under part C of such title
IV (42 U.S.C. 2751 et seq.), subject to the requirements of
such part.
(3) Services under such title IV (20 U.S.C. 1070 et seq.),
subject to the requirements for such services.
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.
(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).
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--
(1) the number of aliens who were eligible for adjustment
of status under section 623(a);
(2) the number of aliens who applied for adjustment of
status under section 623(a); and
(3) the number of aliens who were granted adjustment of
status under section 623(a).
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.
(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.
(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.
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 (42
U.S.C. 408(e)(1)) is amended--
(1) in subparagraph (B)(ii), by striking ``or'' at the end;
(2) in subparagraph (C), by inserting ``or'' at the end;
(3) by inserting after subparagraph (C) the following:
``(D) who is granted nonimmigrant status pursuant
to section 101(a)(15)(Z-A) of the Immigration and
Nationality Act,''; and
(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.''.
(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.
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''.
PART I--ADMISSION OF AGRICULTURAL WORKERS
SEC. 622. ADMISSION OF AGRICULTURAL WORKERS.
(a) Z-A Nonimmigrant Visa Category.--
(1) Establishment.--Paragraph (15) of section 101(a) of the
Immigration and Nationality Act (8 U.S.C. 1101(a)), as amended
by section 601(b), is further amended by adding at the end the
following new subparagraph:
``(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 (29 U.S.C. 203(f)),
agricultural labor under section 3121(g) of the
Internal Revenue Code of 1986, or the performance of
agricultural labor or services described in
subparagraph (H)(ii)(a), who meets the requirements of
section 214A of this Act; or
``(ii) the spouse or minor child of an
alien described in clause (i) who is residing
in the United States.''.
(b) Requirements for Issuance of Nonimmigrant Visa.--Chapter 2 of
title II of the Immigration and Nationality Act (8 U.S.C. 1181 et seq.)
is amended by inserting after section 214 the following new section:
``SEC. 214A. ADMISSION OF AGRICULTURAL WORKERS.
``(a) Definitions.--In this section:
``(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 (29 U.S.C. 203(f)) or agricultural labor under
section 3121(g) of the Internal Revenue Code of 1986 or the
performance of agricultural labor or services described in
section 101(a)(15)(H)(ii)(a).
``(2) Department.--The term `Department' means the
Department of Homeland Security.
``(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.
``(4) Qualified designated entity.--The term `qualified
designated entity' means--
``(A) a qualified farm labor organization or an
association of employers designated by the Secretary;
or
``(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 (Public Law 89-732; 8 U.S.C. 1255
note), Public Law 95-145 (8 U.S.C. 1255 note), or the
Immigration Reform and Control Act of 1986 (Public Law
99-603; 100 Stat. 3359) or any amendment made by that
Act.
``(5) Secretary.--Except as otherwise provided, the term
`Secretary' means the Secretary of Homeland Security.
``(6) Temporary.--A worker is employed on a `temporary'
basis when the employment is intended not to exceed 10 months.
``(7) Work day.--The term `work day' means any day in which
the individual is employed 5.75 or more hours in agricultural
employment.
``(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).
``(9) Z-A visa.--The term `Z-A visa' means a nonimmigrant
visa issued pursuant to section 101(a)(15)(Z-A)(i).
``(b) Authorization for Presence, Employment, and Travel in the
United States.--
``(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.
``(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.
``(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.
``(c) Qualifications.--
``(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--
(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;
(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;
(C) is admissible to the United States under
section 212, except as otherwise provided in paragraph
(4);
(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; and
``(E) meets the requirements of paragraph (3).
``(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--
(A) described in section 101(a)(15)(Z-A)(ii);
(B) meets the requirements of paragraph (3); and
(C) is admissible to the United States under
section 212, except as otherwise provided in paragraph
(4).
``(3) Security and law enforcement background checks.--
(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.
(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.
``(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:
(A) Grounds of exclusion not applicable.--The
provisions of paragraphs (5), (6)(A), (7), and (9) of
section 212(a) shall not apply.
(B) Waiver of other grounds.--
``(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.
``(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).
``(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).
``(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.
``(d) Application.--
``(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.
``(2) Submission.--Applications for a Z-A visa under may be
submitted--
``(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); or
``(B) to a qualified designated entity if the
applicant consents to the forwarding of the application
to the Secretary.
``(3) Proof of eligibility.--
``(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.
``(B) Documentation of work history.--
``(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.
``(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.
``(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.
``(4) Applications submitted to qualified designated
entities.--
``(A) Requirements.--Each qualified designated
entity shall agree--
``(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;
``(ii) not to forward to the Secretary any
such application if such an alien has not
consented to such forwarding; and
``(iii) to assist an alien in obtaining
documentation of the alien's work history, if
the alien requests such assistance.
``(B) No authority to make determinations.--No
qualified designated entity may make a determination
required by this section to be made by the Secretary.
``(5) Application fees.--
``(A) Fee schedule.--The Secretary shall provide
for a schedule of fees that--
``(i) shall be charged for applying for a
Z-A visa under this section or for an
adjustment of status described in subsection
(j); and
``(ii) may be charged by qualified
designated entities to help defray the costs of
services provided to such aliens making such an
application.
``(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.
``(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 [_].
``(7) Treatment of applicants.--
(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)--
``(i) shall be granted probationary
benefits in the form of employment
authorization pending final adjudication of the
alien's application;
``(ii) may in the Secretary's discretion
receive advance permission to re-enter the
United States pursuant to existing regulations
governing advance parole;
``(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; and
``(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.
``(B) Timing of probationary benefits.--
``(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--
``(I) the date and time that the
alien has passed all appropriate
background checks, including name and
fingerprint checks; or
``(II) the end of the next business
day after the date that the Secretary
receives the alien's application for Z-
A visa.
``(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).
``(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.
``(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.
``(8) Temporary stay of removal and work authorization for
certain applicants.--
``(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--
``(i) may not be removed; and
``(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.
``(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--
``(i) may not be removed; and
``(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.
``(e) Numerical Limitations.--
``(1) Z-A visa.--The Secretary may not issue more than
1,500,000 Z-A visas.
``(2) Z-A dependent visa.--The Secretary may not count any
Z-A dependent visa issued against the numerical limitation
described in paragraph (1).
``(f) Evidence of Nonimmigrant Status.--
``(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.
``(2) Features of documentation.--Documentary evidence of a
Z-A visa or a Z-A dependent visa--
``(A) shall be machine-readable, tamper-resistant,
and shall contain a digitized photograph and other
biometric identifiers that can be authenticated;
``(B) shall be designed in consultation with U.S.
Immigration and Customs Enforcement's Forensic Document
Laboratory;
``(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;
``(D) may be accepted during the period of its
validity by an employer as evidence of employment
authorization and identity under section 274A; and
``(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.
``(g) Fine.--An alien granted a Z-A visa shall pay a fine of $100
to the Secretary.
``(h) Treatment of Aliens Granted a Z-A Visa.--
``(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.
``(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 (8 U.S.C. 1613(a))
until 5 years after the date on which the alien is granted an
adjustment of status under subsection (d).
``(3) Terms of employment.--
``(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.
``(B) Treatment of complaints.--
``(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.
``(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.
``(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.
``(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).
``(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.
``(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.
``(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).
``(4) Record of employment.--
``(A) In general.--Each employer of an alien who is
granted a Z-A visa shall annually--
``(i) provide a written record of
employment to the alien; and
``(ii) provide a copy of such record to the
Secretary.
``(B) Civil penalties.--
``(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.
``(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.
``(i) Termination of a Grant of Z-A Visa.--
``(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.
``(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--
``(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)); or
``(B) the alien--
``(i) commits an act that makes the alien
inadmissible to the United States as an
immigrant, except as provided under subsection
(c)(4);
``(ii) is convicted of a felony or 3 or
more misdemeanors committed in the United
States;
``(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; or
``(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).
``(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.
``(j) Adjustment to Permanent Residence.--
``(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:
``(A) Qualifying employment.--
``(i) In general.--Subject to clauses (ii)
and (iii), the alien has performed at least--
``(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;
or
``(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.
``(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.
``(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--
``(I) pregnancy, injury, or
disease, if the alien can establish
such pregnancy, disabling injury, or
disease through medical records;
``(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; or
``(III) severe weather conditions
that prevented the alien from engaging
in agricultural employment for a
significant period of time.
``(B) Proof.--An alien may demonstrate compliance
with the requirements of subparagraph (A) by
submitting--
``(i) the record of employment described in
subsection (h)(4); or
``(ii) such documentation as may be
submitted under subsection (d)(3).
``(C) Application period.--Not later than 8 years
after the date of the enactment of the AgJOBS Act of
2007, the alien must--
``(i) apply for adjustment of status; or
``(ii) renew the alien's Z visa status as
described in section 601(k)(2).
``(D) Fine.--The alien pays to the Secretary a fine
of $400; or
``(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.
``(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--
``(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)); or
``(B) the alien--
``(i) commits an act that makes the alien
inadmissible to the United States under section
212, except as provided under subsection
(c)(4);
``(ii) is convicted of a felony or 3 or
more misdemeanors committed in the United
States; or
``(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.
``(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.
``(5) Payment of taxes.--
``(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--
``(i) no such tax liability exists;
``(ii) all such outstanding tax liabilities
have been paid; or
``(iii) the alien has entered into an
agreement for payment of all outstanding
liabilities with the Internal Revenue Service.
``(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.
``(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.
``(6) English language.--
``(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).
``(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--
(i) is unable because of physical or
developmental disability or mental impairment
to comply therewith;
(ii) is over fifty years of age and has
been living in the United States for periods
totaling at least twenty years, or
(iii) is over fifty-five years of age and
has been living in the United States for
periods totaling at least fifteen years.
``(7) Priority of applications.--
``(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').
``(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.
``(C) Consular application.--
(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.
(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.
``(k) Confidentiality of Information.--Applicants for Z-A
nonimmigrant status under this subtitle shall be afforded
confidentiality as provided under section 604.
``(l) Penalties for False Statements in Applications.--
``(1) Criminal penalty.--Any person who--
``(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; or
``(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.
``(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).
``(m) Eligibility for Legal Services.--Section 504(a)(11) of Public
Law 104-134 (110 Stat. 1321-53 et seq.) shall not be construed to
prevent a recipient of funds under the Legal Services Corporation Act
(42 U.S.C. 2996 et seq.) from providing legal assistance directly
related to an application for a Z-A visa under subsection (b) or an
adjustment of status under subsection (j).
``(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.
``(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.''.
(c) Numerical Limitations.--
(1) Worldwide level of immigration.--Section 201(b)(1) of
the Immigration and Nationality Act (8 U.S.C. 1151(b)(1)), as
amended by [__], is further amended--
(A) in subparagraph (A), by striking ``subparagraph
(A) or (B)'' and inserting ``subparagraph (A), (B), or
(N)''; and
(B) by adding at the end, the following new
subparagraph:
``(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.''.
(2) Numerical limitations on individual foreign states.--
Section 202(a) of the Immigration and Nationality Act (8 U.S.C.
1152) is amended by adding at the end the following new
paragraph:
``(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.''.
(d) Clerical Amendment.--The table of contents of the Immigration
and Nationality Act (8 U.S.C. 1101 et seq.) is amended by inserting
after the item relating to section 214 the following:
``Sec. 214A. Admission of agricultural worker.''.
SEC. 623. AGRICULTURAL WORKER IMMIGRATION STATUS ADJUSTMENT ACCOUNT.
Section 286 of the Immigration and Nationality Act (8 U.S.C. 1356)
is amended by adding at the end the following new subsection:
``(y) Agricultural Worker Immigration Status Adjustment Account.--
``(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.
``(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.
``(3) Availability of funds.--All amounts deposited in the
Agricultural Worker Immigration Status Adjustment Account under
this subsection shall remain available until expended.''.
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.
(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.
(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.
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.
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.
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 (42
U.S.C. 408(e)(1)) is amended--
(1) in subparagraph (B)(ii), by striking ``or'' at the end;
(2) in subparagraph (C), by inserting ``or'' at the end;
(3) by inserting after subparagraph (C) the following:
``(D) who is granted nonimmigrant status pursuant
to section 101(a)(15)(Z-A) of the Immigration and
Nationality Act,''; and
(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.''.
(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.
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--
(a) may be naturalized pursuant to section 328 or 329 of the
Immigration and Nationality Act (8 U.S.C. 1439 or 1440);
(b) was fingerprinted in accordance with the requirements of the
Secretary of Defense at the time the individual enlisted in the Armed
Forces; and
(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.
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''.
(b) In General.--Title 4, United States Code, is amended by adding
at the end the following new chapter:
``CHAPTER 6--LANGUAGE OF THE GOVERNMENT
``Sec.
``161. Declaration of national language.
``162. Preserving and enhancing the role of the national language.
``163. Use of language other than English.
``SEC. 161. DECLARATION OF NATIONAL LANGUAGE.
``English shall be the national language of the Government of the
United States.
``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.
``(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.
``(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.
``SEC. 163. USE OF LANGUAGE OTHER THAN ENGLISH.
``Nothing in this chapter shall prohibit the use of a language
other than English.''.
(c) Conforming Amendment.--The table of chapters for title 4,
United States Code, is amended by adding at the end the following new
item:
``6. Language of the Government............................ 161''.
SEC. 703. DECLARATION OF ENGLISH AS LANGUAGE.
(a) In General.--English is the common language of the United
States.
(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.
(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.
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--
(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;
(2) Cooperate with Federal, State, and local law
enforcement officials who are responsible for investigating and
prosecuting such crimes; and
(3) Increase public awareness regarding the problem of
immigration practitioner fraud.
(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--
(1) the number of individuals who file practitioner fraud
complaints via the pilot program;
(2) the demographic characteristics, nationality, and
immigration status of the complainants;
(3) the number of indictments that result from the pilot;
and
(4) the number of successful fraud prosecutions that result
from the pilot.
Subtitle B--Assimilation and Naturalization
SEC. 705. THE OFFICE OF CITIZENSHIP AND INTEGRATION.
Section 451(f) of the Homeland Security Act of 2002, Public Law
107-296 (6 U.S.C. 271(f)), is amended by--
(1) inserting ``and Integration'' after ``Office of
Citizenship'' the two times that phrase appears; and
(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''.
SEC. 706. SPECIAL PROVISIONS FOR ELDERLY IMMIGRANTS.
Section 312(b) of the Immigration and Nationality Act (8 U.S.C.
1423(b)) is amended by adding at the end the following: ``(4) The
requirements of subsection (a) of this section shall not apply to a
person who is over 75 years of age on the date of filing an application
for naturalization; Provided that, the person expresses, in English or
in the applicant's native language, at the time of examination for
naturalization that the person understands and agrees to the elements
of the oath required by section 337 of this 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--
(1) American common values and traditions, including an
understanding of American history and the principles of the
Constitution of the United States; and
(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.
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.
(b) Use of Funds.--
(1) In general.--Grants awarded under this section shall be
used--
(A) To report on the status of new immigrants,
lawful permanent residents, and citizens within the
State or municipality;
(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;
(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; and
(D) To develop a comprehensive plan to integrate
new immigrants, lawful permanent residents, Z non-
immigrants, and citizens into States and
municipalities.
(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:
(A) State and local government;
(B) Business;
(C) Faith-based organizations;
(D) Civic organizations;
(E) Philanthropic leaders; and
(F) Nonprofit organizations with experience working
with immigrant communities.
(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--
(1) To determine and improve upon the program's
effectiveness;
(2) To develop recommended best practices for states and
municipalities who receive grant awards; and
(3) To further define the program's goals and objectives.
(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.
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.
(b) Selection and Presentation of Award.--
(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).
(2) Presentation.--The presentation of the award shall be
made by the President, or designee of the President, in
conjunction with an appropriate ceremony.
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 (8
U.S.C. 1448) into the history and government test given to applicants
for citizenship. Nothing in this Act, other than the amendment made by
this subsection, shall be construed to influence the naturalization
test redesign process currently underway under the direction of U.S.
Citizenship and Immigration Services.
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.
(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.
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.
(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--
(1) consolidating all such appeals into an existing circuit
court, such as the United States Court of Appeals for the
Federal Circuit;
(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; or
(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.
(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--
(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;
(2) the impact of each plan on various circuits, including
their caseload in general and caseload per panel;
(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;
(4) the effect of reforms in this Act on the ability of the
circuit courts to adjudicate such appeals;
(5) potential impact, if any, on litigants; and
(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.
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.
(b) Eligibility.--
(1) In general.--To be eligible to receive a scholarship
under this section, an individual shall--
(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 (8 U.S.C. 1101(a)),
an alien admitted as a refugee under section 207 of
such Act (8 U.S.C. 1157), or an alien lawfully admitted
to the United States for permanent residence;
(B) prepare and submit to the Director an
application at such time, in such manner, and
containing such information as the Director may
require; and
(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 (20 U.S.C. 1001(a)) in
order to pursue an associate, undergraduate, or
graduate level degree in mathematics, engineering,
computer science, nursing, medicine, or other clinical
medical program, or technology, or science program
designated by the Director.
(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.
(c) Amount of Scholarship; Renewal.--
(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.
(2) Renewal.--The Director may renew a scholarship under
this section for an eligible individual for not more than 4
years.
(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) (8 U.S.C. 1356).
(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.
SEC. 714. SUPPLEMENTAL H-1B NONIMMIGRANT PETITIONER ACCOUNT.
Section 286 of the Immigration and Nationality Act (8 U.S.C. 1356)
(as amended by this Act) is further amended by inserting after
subsection (w) the following:
``(x) Supplemental H-1B Nonimmigrant Petitioner Account.--
``(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).
``(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.''.
SEC. 715. SUPPLEMENTAL FEES.
Section 214(c) of the Immigration and Nationality Act (8 U.S.C.
1184(c)) is amended by adding at the end the following:
``(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).
``(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).
``(C) Fees collected under this paragraph shall be
deposited in the Treasury in accordance with section
286(x).''.
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''.
(b) Table of Contents.--The table of contents for this Act is as
follows:
Sec. 1. Short title; table of contents.
Sec. 2. Definitions.
TITLE I--CUSTODY, RELEASE, FAMILY REUNIFICATION, AND DETENTION
Sec. 101. Procedures when encountering unaccompanied alien children.
Sec. 102. Family reunification for unaccompanied alien children with
relatives in the United States.
Sec. 103. Appropriate conditions for detention of unaccompanied alien
children.
Sec. 104. Repatriated unaccompanied alien children.
Sec. 105. Establishing the age of an unaccompanied alien child.
Sec. 106. Effective date.
TITLE II--ACCESS BY UNACCOMPANIED ALIEN CHILDREN TO CHILD ADVOCATES AND
COUNSEL
Sec. 201. Child advocates.
Sec. 202. Counsel.
Sec. 203. Effective date; applicability.
TITLE III--STRENGTHENING POLICIES FOR PERMANENT PROTECTION OF ALIEN
CHILDREN
Sec. 301. Special immigrant juvenile classification.
Sec. 302. Training for officials and certain private parties who come
into contact with unaccompanied alien
children.
Sec. 303. Report.
TITLE IV--CHILDREN REFUGEE AND ASYLUM SEEKERS
Sec. 401. Guidelines for children's asylum claims.
Sec. 402. Unaccompanied refugee children.
Sec. 403. Exceptions for unaccompanied alien children in asylum and
refugee-like circumstances.
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.
Sec. 502. Technical corrections.
Sec. 503. Effective date.
TITLE VI--AUTHORIZATION OF APPROPRIATIONS
Sec. 601. Authorization of appropriations.
SEC. 2. DEFINITIONS.
(a) In General.--In this Act:
(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--
(A) complies with the duties set forth in this Act;
(B) is--
(i) properly qualified to handle matters
involving unaccompanied alien children; or
(ii) working under the auspices of a
qualified nonprofit organization that is
experienced in handling such matters; and
(C) if an attorney--
(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; and
(ii) is not under any order of any court
suspending, enjoining, restraining, disbarring,
or otherwise restricting the attorney in the
practice of law.
(2) Department.--The term ``Department'' means the
Department of Homeland Security.
(3) Director.--The term ``Director'' means the Director of
the Office.
(4) Office.--The term ``Office'' means the Office of
Refugee Resettlement established by section 411 of the
Immigration and Nationality Act (8 U.S.C. 1521).
(5) Secretary.--The term ``Secretary'' means the Secretary
of Homeland Security.
(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).
(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.
(b) Amendments to the Immigration and Nationality Act.--Section
101(a) of the Immigration and Nationality Act (8 U.S.C. 1101(a)) is
amended by adding at the end the following:
``(51) The term `unaccompanied alien child' means a child
who--
``(A) has no lawful immigration status in the
United States;
``(B) has not attained 18 years of age; and
``(C) with respect to whom--
``(i) there is no parent or legal guardian
in the United States; or
``(ii) no parent or legal guardian in the
United States is available to provide care and
physical custody.
``(52) The term `unaccompanied refugee children' means
persons described in paragraph (42) who--
``(A) have not attained 18 years of age; and
``(B) with respect to whom there are no parents or
legal guardians available to provide care and physical
custody.''.
(c) Rule of Construction.--
``(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 (6 U.S.C. 279) or this Act.
(2) Clarification of the definition of unaccompanied alien
child.--For the purposes of section 462(g)(2) of the Homeland
Security Act of 2002 (6 U.S.C. 279(g)(2)) and this Act, a
parent or legal guardian shall not be considered to be
available to provide care and physical custody of an alien
child unless such parent is in the physical presence of, and
able to exercise parental responsibilities over, such child at
the time of such child's apprehension and during the child's
detention.
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.--
(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 (8 U.S.C. 1101 et seq.) shall--
(A) permit such child to withdraw the child's
application for admission pursuant to section 235(a)(4)
of the Immigration and Nationality Act (8 U.S.C.
1225(a)(4)); and
(B) return such child to the child's country of
nationality or country of last habitual residence.
(2) Special rule for contiguous countries.--
(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--
(i) such child is a national or habitual
resident of a country described in this
subparagraph;
(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;
(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; and
(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.
(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--
(i) to consult with a consular officer from
the child's country of nationality or country
of last habitual residence prior to
repatriation; and
(ii) to consult, telephonically, with the
Office.
(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).
(b) Care and Custody of Unaccompanied Alien Children Found in the
Interior of the United States.--
(1) Establishment of jurisdiction.--
(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.
(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--
(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; or
(ii) serving a sentence pursuant to a
conviction for a Federal crime.
(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.
(2) Notification.--
(A) In general.--Each department or agency of the
Federal Government shall promptly notify the Office
upon--
(i) the apprehension of an unaccompanied
alien child;
(ii) the discovery that an alien in the
custody of such department or agency is an
unaccompanied alien child;
(iii) any claim by an alien in the custody
of such department or agency that such alien is
younger than 18 years of age; or
(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.
(B) Special rule.--The Director shall--
(i) make an age determination for an alien
described in clause (iii) or (iv) of
subparagraph (A) in accordance with section
105; and
(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 (6 U.S.C. 279) or
under this Act.
(3) Transfer of unaccompanied alien children.--
(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--
(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);
(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; or
(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.
(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).
(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.
(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 (6 U.S.C. 279) or this Act, a determination of
whether or not such alien meets such age requirements shall be made in
accordance with section 105, unless otherwise specified in subsection
(b)(2)(B).
(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).
SEC. 102. FAMILY REUNIFICATION FOR UNACCOMPANIED ALIEN CHILDREN WITH
RELATIVES IN THE UNITED STATES.
(a) Placement of Released Children.--
(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 (6 U.S.C.
279(b)(2)), an unaccompanied alien child in the custody of the
Office shall be promptly placed with 1 of the following
individuals or entities in the following order of preference:
(A) A parent who seeks to establish custody under
paragraph (3)(A).
(B) A legal guardian who seeks to establish custody
under paragraph (3)(A).
(C) An adult relative.
(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.
(E) A State-licensed family foster home, small
group home, or juvenile shelter willing to accept
custody of the child.
(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.
(2) Suitability assessment.--
(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--
(i) with respect to an individual
custodian--
(I) verification of such
individual's identity and employment;
(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);
(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;
(IV) verification that such
individual has a plan for the provision
of care for the child;
(V) verification of familial
relationship of such individual, if any
relationship is claimed; and
(VI) verification of nature and
extent of previous relationship;
(ii) with respect to a custodial entity,
verification of such entity's appropriate
licensure by the State, county, or other
applicable unit of government; and
(iii) such other information as the
Director determines appropriate.
(B) Home study.--
(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.
(ii) Special needs children.--A home study
shall be conducted to determine if the
custodian can properly meet the needs of--
(I) a special needs child with a
disability (as defined in section 3 of
the Americans with Disabilities Act of
1990 (42 U.S.C. 12102(2)); or
(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.
(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.
(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--
(i) an agency of the State of the child's
proposed residence;
(ii) an agency authorized by such State to
conduct such activities; or
(iii) an appropriate voluntary or nonprofit
agency.
(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.
(3) Right of parent or legal guardian to custody of
unaccompanied alien child.--
(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--
(i) assess the suitability of placing the
child with the parent or legal guardian; and
(ii) make a written determination regarding
the child's placement within 30 days.
(B) Rule of construction.--Nothing in this Act
shall be construed to--
(i) supersede obligations under any treaty
or other international agreement to which the
United States is a party, including--
(I) the Convention on the Civil
Aspects of International Child
Abduction, done at The Hague, October
25, 1980 (TIAS 11670);
(II) the Vienna Declaration and
Program of Action, adopted at Vienna,
June 25, 1993; and
(III) the Declaration of the Rights
of the Child, adopted at New York,
November 20, 1959; or
(ii) limit any right or remedy under such
international agreement.
(4) Protection from smugglers and traffickers.--
(A) Policies and programs.--
(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.
(ii) Witness protection programs
included.--Programs established pursuant to
clause (i) may include witness protection
programs.
(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.
(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.
(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 (6 U.S.C. 279).
(b) Confidentiality.--
(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).
(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.
(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--
(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 (8 U.S.C. 1182(a)), when such information is
requested in writing by such entity; or
(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).
(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.
SEC. 103. APPROPRIATE CONDITIONS FOR DETENTION OF UNACCOMPANIED ALIEN
CHILDREN.
(a) Standards for Placement.--
(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:
(A) Licensed family foster home.
(B) Small group home.
(C) Juvenile shelter.
(D) Residential treatment center.
(E) Secure detention.
(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.
(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.
(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.
(5) Conditions of detention.--
(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--
(i) educational services appropriate to the
child;
(ii) medical care;
(iii) mental health care, including
treatment of trauma, physical and sexual
violence, and abuse;
(iv) access to telephones;
(v) access to legal services;
(vi) access to interpreters;
(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;
(viii) recreational programs and
activities;
(ix) spiritual and religious needs; and
(x) dietary needs.
(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.
(b) Prohibition of Certain Practices.--The Director and the
Secretary shall develop procedures prohibiting the unreasonable use
of--
(1) shackling, handcuffing, or other restraints on
children;
(2) solitary confinement; or
(3) pat or strip searches.
(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.
SEC. 104. REPATRIATED UNACCOMPANIED ALIEN CHILDREN.
(a) Country Conditions.--
(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.
(2) Assessment of conditions.--
(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.
(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.
(b) Report on Repatriation of Unaccompanied Alien Children.--
(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.
(2) Contents.--The report submitted under paragraph (1)
shall include--
(A) the number of unaccompanied alien children
ordered removed and the number of such children
actually removed from the United States;
(B) a description of the type of immigration relief
sought and denied to such children;
(C) a statement of the nationalities, ages, and
gender of such children;
(D) a description of the procedures used to effect
the removal of such children from the United States;
(E) a description of steps taken to ensure that
such children were safely and humanely repatriated to
their country of origin; and
(F) any information gathered in assessments of
country and local conditions pursuant to subsection
(a)(2).
SEC. 105. ESTABLISHING THE AGE OF AN UNACCOMPANIED ALIEN CHILD.
(a) Procedures.--
(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--
(A) by the Secretary, with respect to aliens in the
custody of the Department;
(B) by the Director, with respect to aliens in the
custody of the Office; and
(C) by the Attorney General, with respect to aliens
in the custody of the Department of Justice.
(2) Evidence.--The procedures developed under paragraph (1)
shall--
(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;
and
(B) allow the appeal of a determination to an
immigration judge.
(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 (6 U.S.C. 279).
(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.
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.
TITLE II--ACCESS BY UNACCOMPANIED ALIEN CHILDREN TO CHILD ADVOCATES AND
COUNSEL
SEC. 201. CHILD ADVOCATES.
(a) Establishment of Child Advocate Program.--
(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.
(2) Qualifications of child advocate.--
(A) In general.--A person may not serve as a child
advocate unless such person--
(i) is a child welfare professional or
other individual who has received training in
child welfare matters;
(ii) possesses special training on the
nature of problems encountered by unaccompanied
alien children; and
(iii) is not an employee of the Department,
the Department of Justice, or the Department of
Health and Human Services.
(B) Independence of child advocate.--
(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.
(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.
(3) Duties.--The child advocate of a child shall--
(A) conduct interviews with the child in a manner
that is appropriate, taking into account the child's
age;
(B) investigate the facts and circumstances
relevant to the child's presence in the United States,
including facts and circumstances--
(i) arising in the country of the child's
nationality or last habitual residence; and
(ii) arising subsequent to the child's
departure from such country;
(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);
(D) develop recommendations on issues relative to
the child's custody, detention, release, and
repatriation;
(E) take reasonable steps to ensure that--
(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 (8 U.S.C. 1101
et seq.);
(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;
(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;
(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; and
(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.
(4) Termination of appointment.--The child advocate shall
carry out the duties described in paragraph (3) until the
earliest of the date on which--
(A) those duties are completed;
(B) the child departs from the United States;
(C) the child is granted permanent resident status
in the United States;
(D) the child reaches 18 years of age; or
(E) the child is placed in the custody of a parent
or legal guardian.
(5) Powers.--The child advocate--
(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;
(B) shall be permitted to review all records and
information relating to such proceedings that are not
deemed privileged or classified;
(C) may seek independent evaluations of the child;
(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 (8 U.S.C. 1101 et
seq.), and shall be given a reasonable opportunity to
be present at such hearings or interviews;
(E) shall be permitted to accompany and consult
with the child during any hearing or interview
involving such child; and
(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.
(b) Training.--
(1) In general.--The Director shall provide professional
training for all persons serving as child advocates under this
section.
(2) Training topics.--The training provided under paragraph
(1) shall include training in--
(A) the circumstances and conditions faced by
unaccompanied alien children; and
(B) various immigration benefits for which such
alien child might be eligible.
(c) Pilot Program.--
(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.
(2) Purpose.--The purpose of the pilot program established
pursuant to paragraph (1) is to--
(A) study and assess the benefits of providing
child advocates to assist unaccompanied alien children
involved in immigration proceedings or matters;
(B) assess the most efficient and cost-effective
means of implementing the child advocate provisions
under this section; and
(C) assess the feasibility of implementing such
provisions on a nationwide basis for all unaccompanied
alien children in the care of the Office.
(3) Scope of program.--
(A) Selection of site.--The Director shall select 3
sites at which to operate the pilot program established
under paragraph (1).
(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.
(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.
(5) Authorization of appropriations.--There are authorized
to be appropriated such sums as may be necessary to carry out
this section.
SEC. 202. COUNSEL.
(a) Access to Counsel.--
(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.
(2) Pro bono representation.--To the greatest extent
practicable, the Director shall--
(A) make every effort to utilize the services of
competent pro bono counsel who agree to provide
representation to such children without charge; and
(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.
(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.
(4) Contracting and grant making authority.--
(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.
(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.
(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.
(5) Model guidelines on legal representation of children.--
(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.
(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.
(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--
(i) adopt the guidelines developed under
subparagraph (A); and
(ii) submit the guidelines for adoption by
national, State, and local bar associations.
(b) Duties.--Counsel under this section shall--
(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;
(2) appear in person for all individual merits hearings
before the Executive Office for Immigration Review and
interviews involving the Department; and
(3) owe the same duties of undivided loyalty,
confidentiality, and competent representation to the child as
is due to an adult client.
(c) Access to Child.--
(1) In general.--Counsel under this section shall have
reasonable access to the unaccompanied alien child, including
access while the child is--
(A) held in detention;
(B) in the care of a foster family; or
(C) in any other setting that has been determined
by the Office.
(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.
(d) Notice to Counsel During Immigration Proceedings.--
(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.
(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.
(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.
(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.
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.
(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.
TITLE III--STRENGTHENING POLICIES FOR PERMANENT PROTECTION OF ALIEN
CHILDREN
SEC. 301. SPECIAL IMMIGRANT JUVENILE CLASSIFICATION.
(a) J Classification.--
(1) In general.--Section 101(a)(27)(J) of the Immigration
and Nationality Act (8 U.S.C. 1101(a)(27)(J)) is amended to
read as follows:
``(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--
``(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--
``(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; and
``(II) should not be reunified with
his or her parents due to abuse,
neglect, abandonment, or a similar
basis found under State law;
``(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; and
``(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.''.
(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.
(b) Adjustment of Status.--Section 245(h)(2)(A) of the Immigration
and Nationality Act (8 U.S.C. 1255(h)(2)(A)) is amended to read as
follows:
``(A) paragraphs (4), (5)(A), (6)(A), (7)(A), 9(B),
and 9(C)(i)(I) of section 212(a) shall not apply; and'.
(c) Eligibility for Assistance.--
(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 (8 U.S.C. 1522(d)) until the earlier
of--
(A) the date on which the child reaches the age
designated in section 412(d)(2)(B) of such Act (8
U.S.C. 1522(d)(2)(B)); or
(B) the date on which the child is placed in a
permanent adoptive home.
(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.
(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--
(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; or
(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.
(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.
(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.
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.--
(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.
(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.
(3) Video conferencing.--Direct training requested under
paragraph (1) may be conducted through video conferencing.
(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--
(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; and
(2) children for whom asylum or special immigrant relief
may be appropriate, including children described in section
101(a)(2)(A).
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--
(1) data related to the implementation of section 462 of
the Homeland Security Act (6 U.S.C. 279);
(2) data regarding the care and placement of children under
this Act;
(3) data regarding the provision of child advocate and
counsel services under this Act; and
(4) any other information that the Director or the
Secretary of Health and Human Services determines to be
appropriate.
TITLE IV--CHILDREN REFUGEE AND ASYLUM SEEKERS
SEC. 401. GUIDELINES FOR CHILDREN'S ASYLUM CLAIMS.
(a) Sense of Congress.--Congress--
(1) commends the former Immigration and Naturalization
Service for its ``Guidelines for Children's Asylum Claims'',
issued in December 1998;
(2) encourages and supports the Department to implement
such guidelines to facilitate the handling of children's
affirmative asylum claims;
(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;
(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; and
(5) understands that the guidelines described in paragraph
(3)--
(A) do not specifically address the issue of asylum
claims; and
(B) address the broader issue of unaccompanied
alien children.
(b) Training.--
(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.
(2) Immigration judges.--The Director of the Executive
Office for Immigration Review shall--
(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; and
(B) redistribute the ``Guidelines for Children's
Asylum Claims'' to all immigration courts as part of
its training of immigration judges.
(3) Use of voluntary agencies.--Voluntary agencies shall be
allowed to assist in the training described in this subsection.
(c) Statistics and Reporting.--
(1) Statistics.--
(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--
(i) the age;
(ii) the gender;
(iii) the country of nationality;
(iv) representation by counsel;
(v) the relief sought; and
(vi) the outcome of such cases.
(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--
(i) the age;
(ii) the gender;
(iii) the country of nationality; and
(iv) the length of detention.
(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--
(A) age;
(B) gender;
(C) country of nationality;
(D) length of time in custody;
(E) the department or agency with custody; and
(F) treatment as an unaccompanied alien child.
SEC. 402. UNACCOMPANIED REFUGEE CHILDREN.
(a) Identifying Unaccompanied Refugee Children.--Section 207(e) of
the Immigration and Nationality Act (8 U.S.C. 1157(e)) is amended--
(1) by redesignating paragraphs (3), (4), (5), (6), and (7)
as paragraphs (4), (5), (6), (7), and (8), respectively; and
(2) by inserting after paragraph (2) the following:
``(3) An analysis of the worldwide situation faced by
unaccompanied refugee children, categorized by region, which
shall include an assessment of--
``(A) the number of unaccompanied refugee children;
``(B) the capacity of the Department of State to
identify such refugees;
``(C) the capacity of the international community
to care for and protect such refugees;
``(D) the capacity of the voluntary agency
community to resettle such refugees in the United
States;
``(E) the degree to which the United States plans
to resettle such refugees in the United States in the
following fiscal year; and
``(F) the fate that will befall such unaccompanied
refugee children for whom resettlement in the United
States is not possible.''.
(b) Training on the Needs of Unaccompanied Refugee Children.--
Section 207(f)(2) of the Immigration and Nationality Act (8 U.S.C.
1157(f)(2)) is amended--
(1) by striking ``and'' after ``countries,''; and
(2) by inserting ``, and instruction on the needs of
unaccompanied refugee children'' before the period at the end.
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 (8 U.S.C. 1229a).
(b) Exception From Time Limit for Filing Asylum Application.--
Section 208 of the Immigration and Nationality Act (8 U.S.C.
1158(a)(2)) is amended--
(1) in subsection (a)(2), by adding at the end the
following:
``(E) Applicability.--Subparagraphs (A) and (B)
shall not apply to an unaccompanied alien child.''; and
(2) in subsection (b)(3), by adding at the end the
following:
``(C) Initial jurisdiction.--United States
Citizenship and Immigration Services shall have initial
jurisdiction over any asylum application filed by an
unaccompanied alien child.''.
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 (6 U.S.C. 279(b)(1)) is amended--
(1) in subparagraph (K), by striking ``and'' at the end;
(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''; and
(3) by adding at the end the following:
``(M) ensuring minimum standards of care for all
unaccompanied alien children--
``(i) for whom detention is necessary; and
``(ii) who reside in settings that are
alternative to detention.''.
(b) Additional Authority of the Director.--Section 462(b) of the
Homeland Security Act of 2002 (6 U.S.C. 279(b)) is amended by adding at
the end the following:
``(4) Authority.--In carrying out the duties under
paragraph (3), the Director may--
``(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; and
``(B) compel compliance with the terms and
conditions set forth in section 103 of such Act, by--
``(i) declaring providers to be in breach
and seek damages for noncompliance;
``(ii) terminating the contracts of
providers that are not in compliance with such
conditions; or
``(iii) reassigning any unaccompanied alien
child to a similar facility that is in
compliance with such section.''.
SEC. 502. TECHNICAL CORRECTIONS.
Section 462(b) of the Homeland Security Act of 2002 (6 U.S.C.
279(b)), as amended by section 501, is further amended--
(1) in paragraph (3), by striking ``paragraph (1)(G)'' and
inserting ``paragraph (1)''; and
(2) by adding at the end the following:
``(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.''.
SEC. 503. EFFECTIVE DATE.
The amendments made by this title shall take effect as if included
in the Homeland Security Act of 2002 (6 U.S.C. 101 et seq.).
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--
(1) the provisions of section 462 of the Homeland Security
Act of 2002 (6 U.S.C. 279); and
(2) the provisions of this Act.
(b) Availability of Funds.--Amounts appropriated pursuant to
subsection (a) shall remain available until expended.
TITLE IX--STUDY OF WARTIME TREATMENT OF CERTAIN PEOPLE
SEC. 901. SHORT TITLE.
This title may be cited as the ``Wartime Treatment Study Act''.
SEC. 902. FINDINGS.
Congress makes the following findings:
(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.
(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.
(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.
(4) Millions of European Americans served in the armed
forces and thousands sacrificed their lives in defense of the
United States.
(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.
(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.
(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.
(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.
SEC. 903. DEFINITIONS.
In this title:
(1) During world war ii.--The term ``during World War II''
refers to the period between September 1, 1939, through
December 31, 1948.
(2) European americans.--
(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.
(B) Italian americans.--The term ``Italian
Americans'' refers to United States citizens and
resident aliens of Italian ancestry.
(C) German americans.--The term ``German
Americans'' refers to United States citizens and
resident aliens of German ancestry.
(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.
(4) Latin american nation.--The term ``Latin American
nation'' refers to any nation in Central America, South
America, or the Carribean.
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'').
(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:
(1) Three members shall be appointed by the President.
(2) Two members shall be appointed by the Speaker of the
House of Representatives, in consultation with the minority
leader.
(3) Two members shall be appointed by the majority leader
of the Senate, in consultation with the minority leader.
(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.
(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.
(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.
(f) Quorum.--Four members of the European American Commission shall
constitute a quorum, but a lesser number may hold hearings.
(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.
(h) Compensation.--
(1) In general.--Members of the European American
Commission shall serve without pay.
(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.
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).
(b) Scope of Review.--The European American Commission's review
shall include the following:
(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 (50 U.S.C. 21 et
seq.), Presidential Proclamations 2526, 2527, 2655, 2662, and
2685, Executive Orders 9066 and 9095, and any directive of the
United States Government pursuant to such law, proclamations,
or executive orders respecting the registration, arrest,
exclusion, internment, exchange, or deportation of European
Americans and European Latin Americans. This review shall
include an assessment of the underlying rationale of the United
States Government's decision to develop related programs and
policies, the information the United States Government received
or acquired suggesting the related programs and policies were
necessary, the perceived benefit of enacting such programs and
policies, and the immediate and long-term impact of such
programs and policies on European Americans and European Latin
Americans and their communities.
(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
(50 U.S.C. 21 et seq.), Presidential Proclamations 2526, 2527,
2655, 2662, and 2685, Executive Orders 9066 and 9095, and any
directive of the United States Government pursuant to such law,
proclamations, or executive orders, including registration
requirements, travel and property restrictions, establishment
of restricted areas, raids, arrests, internment, exclusion,
policies relating to the families and property that excludees
and internees were forced to abandon, internee employment by
American companies (including a list of such companies and the
terms and type of employment), exchange, repatriation, and
deportation, and the immediate and long-term effect of such
actions, particularly internment, on the lives of those
affected. This review shall include a list of--
(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'');
(B) the names of European Americans and European
Latin Americans who died while in World War II
detention facilities and where they were buried;
(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; and
(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.
(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.
(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 (50 U.S.C.
21 et seq.), and public education programs related to the
United States Government's wartime treatment of European
Americans and European Latin Americans during World War II.
(c) Field Hearings.--The European American Commission shall hold
public hearings in such cities of the United States as it deems
appropriate.
(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).
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.
(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 (Public Law 96-317; 50
U.S.C. App. 1981 note) and the Wartime Violation of Italian Americans
Civil Liberties Act (Public Law 106-451; 50 U.S.C. App. 1981 note). For
purposes of section 552a(b)(9) of title 5, United States Code (commonly
known as the ``Privacy Act of 1974''), the European American Commission
shall be deemed to be a committee of jurisdiction.
SEC. 914. ADMINISTRATIVE PROVISIONS.
The European American Commission is authorized to--
(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;
(2) obtain the services of experts and consultants in
accordance with the provisions of section 3109 of such title;
(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;
(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;
(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; and
(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.
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.
SEC. 916. SUNSET.
The European American Commission shall terminate 60 days after it
submits its report to Congress.
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'').
(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:
(1) Three members shall be appointed by the President.
(2) Two members shall be appointed by the Speaker of the
House of Representatives, in consultation with the minority
leader.
(3) Two members shall be appointed by the majority leader
of the Senate, in consultation with the minority leader.
(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.
(d) Representation.--The Jewish Refugee Commission shall include 2
members representing the interests of Jewish refugees.
(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.
(f) Quorum.--Four members of the Jewish Refugee Commission shall
constitute a quorum, but a lesser number may hold hearings.
(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.
(h) Compensation.--
(1) In general.--Members of the Jewish Refugee Commission
shall serve without pay.
(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.
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).
(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:
(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.
(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.
(c) Field Hearings.--The Jewish Refugee Commission shall hold
public hearings in such cities of the United States as it deems
appropriate.
(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 _021(e).
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.
(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 (Public Law 96-
317; 50 U.S.C. App. 1981 note) and the Wartime Violation of Italian
Americans Civil Liberties Act (Public Law 106-451; 50 U.S.C. App. 1981
note). For purposes of section 552a(b)(9) of title 5, United States
Code (commonly known as the ``Privacy Act of 1974''), the Jewish
Refugee Commission shall be deemed to be a committee of jurisdiction.
SEC. 924. ADMINISTRATIVE PROVISIONS.
The Jewish Refugee Commission is authorized to--
(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;
(2) obtain the services of experts and consultants in
accordance with the provisions of section 3109 of such title;
(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;
(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;
(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; and
(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.
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.
SEC. 926. SUNSET.
The Jewish Refugee Commission shall terminate 60 days after it
submits its report to Congress
Calendar No. 208
110th CONGRESS
1st Session
S. 1639
_______________________________________________________________________
A BILL
To provide for comprehensive immigration reform and for other purposes.
_______________________________________________________________________
June 19, 2007
Read the second time and placed on the calendar