Text: S.3932 — 111th Congress (2009-2010)All Information (Except Text)

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Introduced in Senate (09/29/2010)


111th CONGRESS
2d Session
S. 3932


To provide for comprehensive immigration reform, and for other purposes.


IN THE SENATE OF THE UNITED STATES

September 29, 2010

Mr. Menendez (for himself and Mr. Leahy) introduced the following bill; which was read twice and referred to the Committee on the Judiciary


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. Short title; table of contents.

(a) Short title.—This Act may be cited as the “Comprehensive Immigration Reform Act of 2010” or the “CIR Act of 2010”.

(b) Table of contents.—The table of contents for this Act is as follows:


Sec. 1. Short title; table of contents.

Sec. 2. References to Immigration and Nationality Act.

Sec. 3. Definitions.

Sec. 101. Effective date triggers.

Sec. 102. Customs and border protection personnel.

Sec. 103. Secure communication; equipment; and grants for border personnel.

Sec. 104. Infrastructure improvements and expansion of land ports of entry.

Sec. 105. Additional authorities for port of entry construction.

Sec. 106. Additional increases in immigration enforcement personnel.

Sec. 107. Additional immigration court personnel.

Sec. 108. Improved training for border security and immigration enforcement officers.

Sec. 109. Standards of professional conduct.

Sec. 110. Inventory of assets and personnel.

Sec. 111. Customs border patrol and border protection assets.

Sec. 112. Technological assets.

Sec. 113. Surveillance technologies programs.

Sec. 121. Annual report on improving North American security information exchange.

Sec. 122. Cooperation with the Government of Mexico.

Sec. 123. Enhanced international cooperation.

Sec. 124. Expansion of commerce security programs.

Sec. 125. Northern and Southern Border Drug Prosecution Initiative.

Sec. 126. Project Gunrunner Initiative.

Sec. 127. Operation Streamline Prosecution Initiative.

Sec. 128. Border Relief Grant Program.

Sec. 129. Report on deaths and strategy study.

Sec. 130. Immigration and United States-Mexico Border Enforcement Commission.

Sec. 131. Preemption.

Sec. 132. Inherent authority.

Sec. 133. Border protection strategy.

Sec. 134. Border communities liaison office.

Sec. 135. Authorization of appropriations.

Sec. 201. Enforcement of requirement to report lost or stolen passports.

Sec. 202. Enforcement of requirement for periodic evaluations of program countries.

Sec. 203. Arrival and departure verification.

Sec. 204. Visa overstay rates.

Sec. 205. US–VISIT system.

Sec. 211. Illegal entry and reentry.

Sec. 212. Deterring aliens ordered removed from remaining in the United States unlawfully.

Sec. 213. Biometric screening.

Sec. 214. Encouraging aliens to depart voluntarily.

Sec. 215. Cancellation of visas.

Sec. 216. Mandatory address reporting requirements.

Sec. 217. Penalties relating to vessels and aircraft.

Sec. 218. Sanctions for countries that delay or prevent repatriation of their citizens and nationals.

Sec. 219. State criminal alien assistance program.

Sec. 220. Procedures regarding aliens apprehended by State and local law enforcement officers.

Sec. 221. Reform of passport, visa, and immigration fraud offenses.

Sec. 222. Directives related to passport and document fraud.

Sec. 223. Expanding the definition of conveyances subject to forfeiture.

Sec. 224. Prohibition of the sale of firearms to, or the possession of firearms by, certain aliens.

Sec. 225. Criminal forfeiture.

Sec. 226. Advance delivery of information including passenger manifests.

Sec. 227. Unlawful flight from immigration or customs controls and disobeyance of lawful orders.

Sec. 228. Reducing illegal immigration and alien smuggling on tribal lands.

Sec. 229. Diplomatic security service.

Sec. 230. Increased penalties barring the admission of convicted sex offenders failing to register and requiring deportation of sex offenders failing to register.

Sec. 231. Aggravated felony.

Sec. 232. Increased criminal penalties related to gang violence.

Sec. 241. Definitions.

Sec. 242. Protections for vulnerable populations.

Sec. 243. Apprehension procedures for immigration enforcement-related activities relating to children.

Sec. 244. Detention of families.

Sec. 245. Access to children, local and State courts, child welfare agencies, and consular officials.

Sec. 246. Memoranda of understanding.

Sec. 247. Mandatory training.

Sec. 248. Alternatives to detention.

Sec. 249. Detention conditions.

Sec. 250. Access to counsel.

Sec. 251. Group legal orientation presentations.

Sec. 252. Protections for refugees.

Sec. 253. Immigration and customs enforcement ombudsman.

Sec. 254. Lawful permanent resident status of refugees and asylum seekers granted asylum.

Sec. 255. Elimination of time limits on asylum applications.

Sec. 256. Efficient asylum determination process and detention of asylum seekers.

Sec. 257. Protection of stateless persons in the United States.

Sec. 258. Authority to designate certain groups of refugees for consideration.

Sec. 259. Admission of refugees in the absence of the annual presidential determination.

Sec. 301. Unlawful employment of aliens.

Sec. 302. Disclosure of certain taxpayer information to assist in immigration enforcement.

Sec. 303. Compliance by department of homeland security contractors with confidentiality safeguards.

Sec. 304. Increasing security and integrity of Social Security cards.

Sec. 305. Increasing security and integrity of immigration documents.

Sec. 306. Responsibilities of the Social Security Administration.

Sec. 307. Antidiscrimination protections.

Sec. 308. Immigration enforcement support by the internal revenue service and the Social Security administration.

Sec. 309. Enhanced Verification System.

Sec. 310. Authorization of appropriations.

TITLE IV—REFORMING AMERICA’S LEGAL IMMIGRATION SYSTEM

Subtitle A—New worker program and the creation of a standing commission


Sec. 401. Standing Commission on Immigration, Labor Markets, and the National Interest.

Sec. 402. H–2C nonimmigrant worker program.

Sec. 403. Recruitment of United States workers.

Sec. 404. Adjustment to lawful permanent resident status.

Sec. 405. Employer compliance.

Sec. 406. Authorization of appropriations.

Subtitle B—Family and employment visa reforms

CHAPTER 1—FAMILY AND EMPLOYMENT BASED IMMIGRANT VISAS


Sec. 411. Recapture of immigrant visas lost to bureaucratic delay.

Sec. 412. Reclassification of spouses and minor children of legal permanent residents as immediate relatives.

Sec. 413. Promoting family unity.

Sec. 414. Discretionary authority with respect to removal or deportation of citizen and resident immediate family members.

Sec. 415. Military families.

Sec. 416. Equal treatment for all stepchildren.

Sec. 417. Widows, widowers, and orphans.

Sec. 418. Fiancé child status protection.

Sec. 419. Special humanitarian visas.

Sec. 420. Exemption from immigrant visa limit for certain veterans from the Philippines.

Sec. 420A. Determinations under the Haitian Refugee Immigration Fairness Act of 1998.

Sec. 420B. Affidavit of support.

Sec. 420C. Retaining workers subject to green card backlog.

Sec. 420D. Return of Talent Program.

CHAPTER 2—UNITING AMERICAN FAMILIES ACT


Sec. 421. Short title.

Sec. 422. Definitions.

Sec. 423. Availability of immigrant visas for permanent partners.

Sec. 423A. Procedure for granting immigrant status.

Sec. 424. Admission of refugees and asylees.

Sec. 425. Inadmissible and deportable aliens.

Sec. 426. Nonimmigrant and conditional permanent resident status.

Sec. 427. Removal, cancellation of removal, and adjustment of status.

Sec. 428. Application of criminal penalties for misrepresentation and concealment of facts regarding permanent partnerships.

Sec. 429. Naturalization requirements.

Sec. 430. Application of family unity provisions to other laws.

CHAPTER 3—REFORMS TO SPECIFIC EMPLOYMENT-BASED VISA CATEGORIES

SUBCHAPTER A—REFORMS TO THE EB–5 PROGRAM


Sec. 431. EB–5 Regional Center Program fees.

Sec. 432. Adjustment of status.

Sec. 433. Set-aside programs.

Sec. 434. Expansion of EB–5 Program.

SUBCHAPTER B—ADJUSTMENTS TO OTHER SELECT VISA PROGRAMS


Sec. 435. Elimination of sunset provisions.

Sec. 436. Permanent authorization of the nonimmigrant nurses in health professional shortage areas program.

Sec. 437. Incentives for physicians to practice in medically underserved communities.

Sec. 438. Student visa reform.

Sec. 439. Temporary visas for individuals from Ireland.

Sec. 440. S visas.

CHAPTER 4—PROTECTION OF H–2B NONIMMIGRANTS AND WORKERS RECRUITED ABROAD


Sec. 441. Definitions.

Sec. 442. Protections for workers recruited abroad.

Sec. 443. Enforcement provisions.

Sec. 444. Transfer of forest, conservation, nursery, and logging workers to the H–2A agricultural worker program.

Sec. 445. H–2B nonimmigrant labor certification application fees.

Sec. 446. Labor agreement provisions.

Sec. 447. Enforcement of Federal labor laws.

CHAPTER 5—H–2B AND L–1 VISA REFORMS

SUBCHAPTER A—H–1B EMPLOYER APPLICATION REQUIREMENTS


Sec. 451. Application requirements.

SUBCHAPTER B—INVESTIGATION AND DISPOSITION OF COMPLAINTS AGAINST H–1B EMPLOYERS


Sec. 452. Investigation procedures.

SUBCHAPTER C—OTHER PROTECTIONS


Sec. 453. H–1B government authority and requirements.

Sec. 454. H–1B and L–1 visa requirements.

Sec. 455. Additional department of labor employees.

SUBCHAPTER D—L–1 VISA FRAUD AND ABUSE PROTECTIONS


Sec. 456. L–1 employer petition requirements.

Sec. 457. Application.

Sec. 458. Report on L–1 blanket petition process.

CHAPTER 6—MISCELLANEOUS EMPLOYMENT VISA REFORMS


Sec. 461. Providing premium processing of employment-based visa petitions.

Sec. 462. Visa revalidation.

Sec. 463. Application fees for intending immigrants.

Sec. 464. E–1, E–2, and L–1 visas.

Sec. 465. Time limits for nonimmigrants to depart the United States.

CHAPTER 7—POWER ACT


Sec. 471. Short title.

Sec. 472. Victims of serious labor and employment violations or crime.

Sec. 473. Labor enforcement actions.

Sec. 474. Authorization of appropriations.

CHAPTER 8—AGRICULTURAL JOB OPPORTUNITIES, BENEFITS, AND SECURITY


Sec. 475. Short title.

SUBCHAPTER A—BLUE CARD STATUS


Sec. 476. Requirements for blue card status.

Sec. 477. Application for blue card status.

Sec. 478. Adjustment to permanent residence.

Sec. 479. Other provisions.

Sec. 480. Correction of Social Security records.

SUBCHAPTER B—REFORM OF H–2A WORKER PROGRAM


Sec. 481. Amendments to the Immigration and Nationality Act.

SUBCHAPTER C—MISCELLANEOUS PROVISIONS


Sec. 482. Determination and use of user fees.

Sec. 483. Rulemaking.

Sec. 484. Reports to Congress.

Sec. 485. Effective date.

TITLE V—REGISTRATION OF UNDOCUMENTED INDIVIDUALS

Subtitle A—Lawful Prospective Immigrant status


Sec. 501. Lawful Prospective Immigrant Status.

Sec. 502. Adjustment of status for Lawful Prospective Immigrants.

Sec. 503. Administrative review, removal proceedings, and judicial review for aliens who have applied for Lawful Prospective Immigrant status.

Sec. 504. Confidentiality of information.

Sec. 505. Aliens not subject to direct numerical limitations.

Sec. 506. Employer protections.

Sec. 507. Assignment of Social Security number.

Subtitle B—Implementation


Sec. 508. Rulemaking.

Sec. 509. Exemption from government contracting and hiring rules.

Sec. 510. Authority to acquire leaseholds.

Sec. 511. Privacy and civil liberties.

Sec. 512. Statutory construction.

Subtitle C—Miscellaneous


Sec. 513. Correction of Social Security records.

Sec. 514. Fraud prevention program.

Sec. 515. Data collection requirements.

Subtitle D—Dream Act


Sec. 520. Short title.

Sec. 521. Definitions.

Sec. 522. Restoration of State option to determine residency for purposes of higher education benefits.

Sec. 523. Cancellation of removal and adjustment of status of certain long-term residents who entered the United States as children.

Sec. 524. Conditional permanent resident status.

Sec. 525. Retroactive benefits under this subtitle.

Sec. 526. Exclusive jurisdiction.

Sec. 527. Penalties for false statements in application.

Sec. 528. Confidentiality of information.

Sec. 529. Expedited processing of applications; prohibition on fees.

Sec. 530. Higher education assistance.

Sec. 531. GAO report.

Subtitle E—Funding for the Department of Homeland Security


Sec. 540. Effective funding.

TITLE VI—IMMIGRANT INTEGRATION AND OTHER REFORMS

Subtitle A—Strengthen and unite communities with civics education and English skills

CHAPTER 1—EXPANDING ENGLISH LITERACY, UNITED STATES HISTORY, AND CIVICS EDUCATION


Sec. 601. Increased investment in English literacy, United States history, and civics education under the Adult Education and Family Literacy Act.

Sec. 602. Definitions of English language learner.

Sec. 603. Credits for teachers of English language learners.

Sec. 604. Research in adult education.

CHAPTER 2—SUPPORTING ENGLISH LANGUAGE ACQUISITION AND ADULT EDUCATION IN THE WORKFORCE


Sec. 611. Credit for employer-provided adult English literacy and basic education programs.

Sec. 612. Presidential award for business leadership in promoting United States citizenship.

CHAPTER 3—BUILDING STRONGER COMMUNITIES


Sec. 621. Office of Citizenship and New Americans.

Sec. 622. Grants to States.

Sec. 623. Authorized activities.

Sec. 624. Reporting and evaluation.

Sec. 625. New citizens award program.

Sec. 626. Rule of construction.

Sec. 627. Authorization of appropriations.

CHAPTER 4—GRANTS


Sec. 631. Grants to support public education and community training.

Sec. 632. Grant program to assist applicants for naturalization.

Subtitle B—Emergency relief for certain populations


Sec. 641. Adjustment of status for certain Haitian orphans.

Sec. 642. Adjustment of status for certain Liberian nationals.

Subtitle C—Wartime treatment studies

PART I—COMMISSION ON WARTIME TREATMENT OF EUROPEAN AMERICANS


Sec. 651. Findings.

Sec. 652. Definitions.

Sec. 653. Establishment of commission on wartime treatment of european americans.

Sec. 654. Duties of the European American Commission.

Sec. 655. Powers of the European American Commission.

Sec. 656. Administrative provisions.

Sec. 657. Authorization of appropriations.

Sec. 658. Sunset.

PART II—COMMISSION ON WARTIME TREATMENT OF JEWISH REFUGEES


Sec. 661. Establishment of Commission on Wartime Treatment of Jewish Refugees.

Sec. 662. Duties of the Jewish Refugee Commission.

Sec. 663. Powers of the Jewish Refugee Commission.

Sec. 664. Administrative provisions.

Sec. 665. Authorization of appropriations.

Sec. 666. Sunset.

PART III—FUNDING SOURCE FOR THE WARTIME STUDIES


Sec. 671. Funding source.

Subtitle D—State court interpreter grant program


Sec. 681. Findings.

Sec. 682. State court interpreter program.

Sec. 683. Authorization of appropriations.

Subtitle E—Other matters


Sec. 691. Adjustment of status for certain victims of terrorism.

Sec. 692. Development of assessment and strategy addressing factors driving migration.

Sec. 693. Sense of Congress on increased United States foreign policy coherency in the Western Hemisphere.

SEC. 2. References to Immigration and Nationality Act.

Except as otherwise expressly provided, whenever in this Act an amendment or repeal is expressed in terms as an amendment to, or repeal of, a section or other provision, the reference shall be considered to be made to a section or other provision of the Immigration and Nationality Act.

SEC. 3. Definitions.

In this Act:

(1) DEPARTMENT.—The term “Department” means the Department of Homeland Security.

(2) NORTHERN BORDER.—The term “Northern border” means the international land border between the United States and Canada.

(3) SECRETARY.—The term “Secretary” means the Secretary of Homeland Security.

(4) SOUTHERN BORDER.—The term “Southern border” means the international land border between the United States and Mexico.

SEC. 101. Effective date triggers.

(a) In general.—Notwithstanding any effective date provision or any other law, an alien in lawful prospective immigrant status may not adjust status to the status of an alien lawfully admitted for permanent residence under section 502 until—

(1) the Secretary submits a written certification to the President and Congress that the measures described in subsection (b) are established, funded, and operational; and

(2) the Attorney General submits a written certification to the President and Congress that each of the measures described in subsection (c) are established, funded, and operational.

(b) Measures by Department of Homeland Security.—The measures described in this subsection are established, funded, and operational if—

(1) United States Immigration and Customs Enforcement (ICE) has—

(A) a total force of 6,410 agents to investigate violations of criminal law, including document and benefit fraud and the cross-border smuggling of aliens, firearms, narcotics, and other contraband;

(B) a total force of 185 worksite enforcement auditors to support a worksite enforcement strategy that prioritizes developing cases against employers committing serious violations;

(C) created and staffed an Immigration Benefit and Document Fraud Task Force in each field office headed by a Special Agent in Charge;

(D) a nationwide plan with benchmarks to dramatically increase the nationwide enrollment of an alternatives to detention program that utilizes community-based nonprofit organizations; and

(E) implemented civil detention standards with which each facility detaining immigrants is required to comply;

(2) United States Customs and Border Protection (CBP) has—

(A) a total force of 21,000 United States Border Patrol agents who have been hired, trained, and have reported for duty, including increased numbers of personnel who conduct inspections for drugs, contraband, and immigrants who are unlawfully present at ports of entry in the United States;

(B) a total force of 21,500 officers who have been hired, trained, and have reported for duty at the Office of Field Operations;

(C) 7 unmanned aircraft systems deployed and operational;

(D) remote video surveillance systems deployed and operational at 300 sites;

(E) 200 scope trucks; and

(F) 56 mobile surveillance systems.

(3) the employment verification system established under title III is fully operational and mandatory for all employers; and

(4) the Secretary has received, and is processing and adjudicating in a timely manner, applications under title 5, including conducting all necessary background and security checks required under such title.

(c) Measures by Department of Justice.—The measures described in this subsection are established, funded, and operational if the Department of Justice has—

(1) 300 Assistant United States Attorneys in place who prosecute criminal violations at the border; and

(2) 275 Immigration Judges in place with appropriate support staff.

SEC. 102. Customs and border protection personnel.

(a) Staff enhancements.—

(1) REVISIONS TO FISCAL YEAR ALLOCATIONS AND FUNDING.—Title II of the Department of Homeland Security Appropriations Act, 2010 (Public Law 111–83), is amended by inserting “Provided further, That of the total amount provided, $40,000,000 shall be used to pay the salaries and related compensation for 250 additional Customs and Border Protection officers and 25 associated support staff personnel, who shall be devoted to new inspection lanes at new land ports of entry on the Southwest border” before the period at the end of the first paragraph.

(2) NEW PERSONNEL.—In addition to positions authorized before the date of the enactment of this Act and any officer vacancies within United States Customs and Border Protection on such date, the Secretary shall hire, train, and assign to duty, not later than September 30, 2013—

(A) 2,500 full-time Customs and Border Protection officers to serve on all primary, secondary, incoming, and outgoing inspection lanes and enforcement teams at United States land ports of entry on the Northern border;

(B) 2,500 full-time Customs and Border Protection officers to serve on all primary, secondary, incoming, and outgoing inspection lanes and enforcement teams at United States land ports of entry on the Southern border; and

(C) 350 full-time support staff for all United States ports of entry.

(b) Waiver of FTE Limitation.—The Secretary may waive any limitation on the number of full-time equivalent personnel assigned to the Department in order to fulfill the requirements under subsection (a).

(c) Report to Congress.—

(1) OUTBOUND INSPECTIONS.—Not later than 90 days after the date of the enactment of this Act, the Secretary shall submit a report containing the Department’s plans for ensuring the placement of sufficient United States Customs and Border Protection officers on outbound inspections at all Southern border land ports of entry to—

(A) the Committee on the Judiciary of the Senate;

(B) the Committee on the Judiciary of the House of Representatives;

(C) the Committee on Homeland Security and Governmental Affairs of the Senate; and

(D) the Committee on Homeland Security of the House of Representatives.

(2) AGRICULTURAL SPECIALISTS.—Not later than 90 days after the date of the enactment of this Act, the Secretary, in consultation with the Secretary of Agriculture, shall submit a report to the committees set forth in paragraph (1) that contains plans for ensuring the placement of sufficient agriculture specialists at all Southern border land ports of entry.

(d) Retention incentives and salaries.—

(1) RETENTION PAYMENTS.—During the 6-year period beginning on October 1, 2010, the Secretary may make incentive payments in an amount equal to between $5,000 and $10,000 to qualified United States Customs and Border Protection port of entry officers, to the extent necessary to retain such officers. Not more than $55,000,000 in retention payments may be paid under this paragraph.

(2) SPECIAL RULES FOR INCENTIVE PAYMENTS.—

(A) RETENTION INCENTIVES.—Each payment made under paragraph (1)—

(i) shall be paid to each qualified employee, in a lump sum, at the end of the fiscal year in which the employee is selected by the Secretary, or a delegate of the Secretary, to receive such payment;

(ii) may not be limited solely to work performance, but may be based on criteria such as—

(I) comparative salaries for law enforcement officers in other Federal agencies;

(II) costs for replacement and training of a new employee; and

(III) volume of work at the port of entry;

(iii) shall be contingent upon the selected employee signing an agreement, under penalty of perjury, to continue serving as a United States Customs and Border Protection officer at a land port of entry for at least 3 additional years; and

(iv) shall be subject to reimbursement if the employee fails to complete the 3-year service requirement described in clause (iii) due to voluntary or involuntary separation from service.

(B) LIMITATIONS.—

(i) FISCAL YEARS 2011 THROUGH 2015.—In each of the fiscal years 2011 through 2015, the Secretary may not make more than 500 incentive payments under this subsection.

(ii) ELIGIBILITY.—Any employee who receives a retention incentive payment under this subsection in a fiscal year shall not be eligible to receive another such payment until the employee completes at least 2 years of service with the Department after receiving such payment.

SEC. 103. Secure communication; equipment; and grants for border personnel.

(a) Secure communication.—The Secretary shall ensure that each United States Customs and Border Protection officer is equipped with a secure 2-way communication and satellite-enabled device, supported by system interoperability, which allows such officers to communicate—

(1) between ports of entry and inspection stations; and

(2) with other Federal, State, local, and tribal law enforcement entities.

(b) Border area security initiative grant program.—

(1) IN GENERAL.—The Secretary shall establish a program for awarding grants for the purchase of detection equipment at land ports of entry and mobile, hand-held, 2-way communication devices for State and local law enforcement officers serving on the Southern border.

(2) AUTHORIZATION OF APPROPRIATIONS.—There is authorized to be appropriated, for the 6-year period beginning on October 1, 2011, $30,000,000, which shall be used for grants authorized under paragraph (1).

SEC. 104. Infrastructure improvements and expansion of land ports of entry.

(a) Amendments to American Recovery and Reinvestment Act of 2009.—Title VI of the American Recovery and Reinvestment Act of 2009 (Public Law 111–5), under the heading entitled “Construction” is amended—

(1) by striking “U.S. Customs and Border Protection owned”; and

(2) by inserting “Provided further, That $300,000,000 shall be used for infrastructure improvements, expansion, and new construction (or reimbursement for new construction costs incurred during fiscal years 2007 through 2012) of high-volume ports of entry along the Northern border and the Southern border, regardless of port ownership” before the period at the end.

(b) Effective date.—The amendments made under subsection (a) shall take effect as if included in the American Recovery and Reinvestment Act of 2009, as of the date of the enactment of such Act.

SEC. 105. Additional authorities for port of entry construction.

(a) In general.—In order to aid in the enforcement of Federal customs, immigration, and agriculture laws, the Commissioner of U.S. Customs and Border Protection Commissioner may—

(1) design, construct, and modify land ports of entry and other structures and facilities, including living quarters for officers, agents, and personnel;

(2) acquire, by purchase, donation, exchange, or otherwise, land or any interest in land determined to be necessary to carry out the Commissioner’s duties under this section; and

(3) construct additional ports of entry along the Southern border and the Northern border.

(b) Consultation.—

(1) LOCATIONS FOR NEW PORTS OF ENTRY.—The Secretary shall consult with the Secretary of the Interior, the Secretary of Agriculture, the Secretary of State, the International Boundary and Water Commission, the International Joint Commission, and appropriate representatives of States, local governments, Indian tribes (as defined in section 4 of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 450b)), and property owners to—

(A) determine locations for new ports of entry; and

(B) minimize adverse impacts from such ports on the environment, historic and cultural resources, commerce, and quality of life for the communities and residents located near such ports.

(2) SAVINGS PROVISION.—Nothing in this subsection may be construed—

(A) to create any right or liability of the parties described in paragraph (1);

(B) to affect the legality and validity of any determination under this Act by the Secretary; or

(C) to affect any consultation requirement under any other law.

SEC. 106. Additional increases in immigration enforcement 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 paragraph (1), during each of the fiscal years 2011 through 2015, the Secretary shall, subject to the availability of appropriations, increase by not less than 50 the number of positions for personnel within the Department assigned to investigate alien smuggling.

(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 2011 through 2015 to carry out this section.

SEC. 107. Additional immigration court personnel.

(a) Department of justice.—

(1) LITIGATION ATTORNEYS.—In each of fiscal years 2011 through 2015, the Attorney General shall, subject to the availability of appropriations for such purpose, increase by not less than 50 the number of positions for attorneys in the Office of Immigration Litigation of the Department of Justice.

(2) IMMIGRATION JUDGES.—In each of fiscal years 2011 through 2015, the Attorney General shall, subject to the availability of appropriations for such purpose—

(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.

(3) STAFF ATTORNEYS.—In each of fiscal years 2011 through 2015, the Attorney General shall, subject to the availability of appropriations for such purpose—

(A) increase by not less than 10 the number of positions for full-time staff attorneys in the Board of Immigration Appeals 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 10 the number of positions for personnel to support the staff attorneys described in subparagraph (A) compared to the number of such positions for which funds were made available during the preceding fiscal year.

(4) AUTHORIZATION OF APPROPRIATIONS.—There are authorized to be appropriated to the Attorney General for each of the fiscal years 2011 through 2015 such sums as may be necessary to carry out this subsection, including the hiring of necessary support staff.

SEC. 108. Improved training for border security and immigration enforcement officers.

The Secretary shall ensure that Customs and Border Protection agents, U.S. Border Patrol agents, Immigration and Customs Enforcement agents, and Agricultural Inspectors stationed within 100 miles of any land or marine border of the United States or at any United States port of entry receive appropriate training, prepared in collaboration with the Office for Civil Rights and Civil Liberties, in—

(1) identifying and detecting fraudulent travel documents;

(2) civil, constitutional, and privacy rights of individuals;

(3) limitations on the use of force, including lethal force, against individuals apprehended or encountered while on duty; and

(4) screening, identifying, and addressing vulnerable populations, including children, victims of crime and human trafficking, and individuals fleeing persecution or torture.

SEC. 109. Standards of professional conduct.

(a) Establishment of standards.—Not more than 90 days after the date of the enactment of this Act, the Secretary shall establish clear standards of professional conduct for interaction with the public, for all United States Customs and Border Protection agents, United States Border Patrol agents, United States Immigration and Customs Enforcement agents, and Agricultural Inspectors stationed within 100 miles of any land or marine border of the United States or at a United States port of entry.

(b) Standards.—Agents of the Department who are stationed within 100 miles of any land or marine border of the United States or at a United States port of entry—

(1) may not violate any law or any agency policy, rule, or procedure;

(2) shall obey all lawful orders;

(3) may not engage in any on-duty or off-duty conduct or activities that discredit on the agents, bring the agency into disrepute, or impair its efficient and effective operation;

(4) shall conduct themselves toward the public in a civil and professional manner that demonstrates a service orientation and fosters public respect and cooperation;

(5) shall treat violators and perceived violators with respect and courtesy;

(6) shall refrain from an officious or overbearing attitude or language that belittles, ridicules, or intimidates individuals;

(7) may not unnecessarily delay the performance of their duty;

(8) shall respect the civil rights and protect the well-being of those in their charge, while adhering to their agency’s use-of-force policy and recognizing the need to demonstrate authority and control over suspects and detainees;

(9) may not use their authority as Federal agents to resolve personal grievances, including those involving the officer, family members, relatives, or friends; and

(10) shall summon other on-duty personnel and a supervisor if the agent’s personal involvement with a member of the public would reasonably require law enforcement intervention.

(c) Oversight and evaluation.—The Secretary shall develop and implement an officer evaluation and supervisor evaluation plan that applies the standards described in subsection (b), ensures agent responsibility, and protects civil rights by—

(1) making adherence to the standards of professional conduct a requirement for promotion from probationary to journeyman status and as a central criterion in periodic evaluations and further promotions of officers;

(2) holding managers and senior officers responsible for—

(A) performance according to these standards;

(B) assessments of subordinates according to these standards; and

(C) performance of their subordinates on these standards, with meaningful penalties to supervisors for failures of subordinates to adhere to such standards;

(3) establishing strong penalties for failures to follow the standards of professional conduct; and

(4) not indemnifying agents that violate the civil rights standards to which they are required to comply.

(d) Limitation.—The standards of conduct set forth in this section are not an exhaustive treatment of requirements, limitations, or prohibitions on agent conduct and activities established by the Secretary.

(e) Notice.—The standards of conduct established under this section shall be posted at all ports of entry in locations easily viewed by members of the public.

(f) Complaints.—Not more than 180 days after the date of the enactment of this Act, the Secretary, in consultation with the Office for Civil Rights and Civil Liberties, shall establish a uniform and standardized procedure for the public regarding complaints against U.S. Customs and Border Protection agents, U.S. Border Patrol agents, and Agricultural Inspectors for violations of standards of professional conduct that—

(1) requires such agents and inspectors to quickly review, effectively investigate, and meaningfully resolve complaints;

(2) identifies patterns of abuse or malfeasance;

(3) is accessible, transparent, consistent, effective, and fair;

(4) is uniformly applied to all Border Patrol Sectors and Ports of Entry;

(5) specifies to whom, how, and where complaints are to be filed;

(6) is posted in a publicly visible place at all ports of entry and interior checkpoints and is accessible in multiple languages;

(7) allocates a sufficient percentage of the funding appropriated to the Department for enforcement initiatives to provide staff and resources commensurate with the quantity of complaints submitted;

(8) includes a publicly accessible national, standardized database capable of tracking and analyzing complaints and their resolution; and

(9) makes copies of complaints and their resolutions publicly accessible and permanently preserved and available for inspection, while maintaining the confidentiality of complainants’ identities.

(g) Complainants.—

(1) ELIGIBLE COMPLAINANTS.—Any interested party or legal representative may file a complaint against the Department for violation of standards of professional conduct through the complaint procedure established under subsection (f).

(2) RETALIATION.—Law enforcement officers may not engage in any action against a complainant in retaliation for filing a complaint under paragraph (1).

(3) LIMITATION ON USE OF INFORMATION.—A United States employee may not—

(A) use any information received from a complaint filed under this section to initiate removal proceedings or removals against any person filing the complaint or identified in the complaint; or

(B) remove any individual involved in a complaint filed under this section while the complaint is pending.

(4) PUBLICATION.—Information from the complaint that relates to a specific individual involved in a complaint may not be published if it would result in the identification of the individual.

(5) DEPARTMENT ASSISTANCE.—The Department shall provide assistance to complainants seeking to file complaints under this subsection, including language assistance, accommodations for disabilities, and accurate and complete responses to their questions.

(h) Annual report.—

(1) IN GENERAL.—The Secretary shall submit an annual report to the congressional committees set forth in paragraph (2) that describes—

(A) the number and type of complaints received in each sector;

(B) demographic information about the complainants;

(C) the results of the investigations conducted to determine whether the alleged violations of professional standards occurred, including—

(i) which standards were violations of standards;

(ii) any disciplinary actions taken; and

(iii) any complaint patterns that could be prevented or reduced by policy or practice changes.

(2) CONGRESSIONAL COMMITTEES.—The congressional committees set forth in this paragraph are—

(A) the Committee on Homeland Security and Governmental Affairs of the Senate;

(B) the Committee on the Judiciary of the Senate;

(C) the Committee on Homeland Security of the House of Representatives;

(D) the Committee on the Judiciary of the House of Representatives; and

(E) the Committee on Oversight and Government Reform of the House of Representatives.

SEC. 110. Inventory of assets and personnel.

(a) Inventory.—The Secretary shall identify and inventory—

(1) the assets, equipment, supplies, and other physical resources dedicated to border security and enforcement before any of the increases authorized under this Act; and

(2) the personnel and other human resources dedicated to border security and enforcement before any of the increases in personnel and other human resources authorized under this Act.

(b) Report.—Not later than 90 days after the date of the enactment of this Act, the Secretary shall submit the inventory required under subsection (a) to the congressional committees set forth in section 108(h)(2).

SEC. 111. Customs border patrol and border protection assets.

(a) Personal equipment.—

(1) BODY ARMOR.—The Secretary shall ensure that each border patrol agent—

(A) is issued high-quality body armor that is appropriate for the climate and risks faced by the agent;

(B) is permitted to select body armor from among a variety of approved brands and styles;

(C) is strongly encouraged, but not required, to wear such body armor whenever practicable; and

(D) is issued replacement body armor not less frequently than once every 5 years.

(2) WEAPONS.—The Secretary shall ensure that—

(A) border patrol agents are equipped with weapons that are reliable and effective to protect themselves, their fellow agents, and innocent third parties from the threats posed by armed criminals; and

(B) ensure that the policies of the Department authorize all agents to carry weapons that are suited to the potential threats that they face.

(3) UNIFORMS.—The Secretary shall ensure that all agents are provided, at no cost to such agents—

(A) all necessary uniform items, including outerwear suited to the climate, footwear, belts, holsters, and personal protective equipment; and

(B) replacement uniform items as such items become worn or unserviceable or no longer fit properly.

(b) Helicopters and power boats.—

(1) HELICOPTERS.—The Secretary shall—

(A) conduct a review of the helicopters needed by the Border Patrol;

(B) if the Secretary determines that the number of helicopters is insufficient, increase the number of helicopters under the control of the Border Patrol; and

(C) ensure that appropriate types of helicopters are procured for the various missions being performed.

(2) POWER BOATS.—The Secretary shall—

(A) conduct a review of the power boats needed by the Border Patrol;

(B) if the Secretary determines that the number of power boats is insufficient, increase the number of power boats under the control of the Border Patrol; and

(C) ensure that the types of power boats that are procured are appropriate for the waterways in which they are used and the mission requirements.

(3) USE AND TRAINING.—The Secretary shall—

(A) establish a standard policy on the use of the helicopters and power boats procured under this subsection; and

(B) implement training programs for the Border Patrol agents who use such assets, including safe operating procedures and rescue operations.

(c) Motor vehicles.—

(1) QUANTITY.—The Secretary shall—

(A) conduct a review of the motor vehicles needed by the Border Patrol;

(B) if the Secretary determines that the number of motor vehicles is insufficient, establish a fleet of motor vehicles appropriate for use by the Border Patrol; and

(C) ensure that there are sufficient numbers and types of other motor vehicles to support the mission of the Border Patrol.

(2) FEATURES.—All motor vehicles purchased for the Border Patrol shall—

(A) be appropriate for the mission of the Border Patrol; and

(B) have a panic button and a global positioning system device that is activated solely in emergency situations to track the location of agents in distress.

(d) Electronic equipment.—

(1) PORTABLE COMPUTERS.—The Secretary shall ensure that each police-type motor vehicle in the fleet of the Border Patrol—

(A) is equipped with a portable computer with access to all necessary law enforcement databases; and

(B) is otherwise suited to the unique operational requirements of the Border Patrol.

(2) RADIO EQUIPMENT.—The Secretary shall augment the radio communications system of the Border Patrol so that—

(A) all law enforcement personnel working in each area where Border Patrol operations are conducted have clear and encrypted 2-way radio communication capabilities at all times; and

(B) each portable communications device is equipped with a panic button and a global positioning system device that is activated solely in emergency situations to track the location of agents in distress.

(3) HANDHELD GLOBAL POSITIONING SYSTEM DEVICES.—If the Secretary determines that a class of Border Patrol agents each need a handheld global positioning system device to effectively and safely carry out his or her duties, the Secretary shall ensure that each such agent is issued a state-of-the-art handheld global positioning system device for navigational purposes.

(4) NIGHT VISION EQUIPMENT.—The Secretary shall ensure that sufficient quantities of state-of-the-art night vision equipment are procured and maintained to enable each Border Patrol agent working during the hours of darkness to be equipped with a portable night vision device.

(e) Appropriations.—There are authorized to be appropriated to the Secretary such sums as may be necessary for each of fiscal years 2011 through 2015 to carry out this section.

SEC. 112. Technological assets.

(a) Acquisition.—Subject to the availability of appropriations for such purpose, the Secretary shall procure additional unmanned aerial systems, aircrafts, cameras, poles, ground sensors, and other technologies necessary to achieve effective control of the land and maritime borders of the United States.

(b) Unmanned aircraft and associated infrastructure.—The Secretary shall acquire and maintain unmanned aerial 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.

(c) Privacy and civil liberties assessments.—The Secretary, in consultation with the Attorney General, shall conduct a privacy impact assessment and a civil liberties impact assessment before the deployment of new technologies under this section.

(d) Authorization of appropriations.—

(1) There are authorized to be appropriated to the Secretary such sums as may be necessary for each of the fiscal years 2011 through 2015 to carry out subsections (a) and (b).

(2) AVAILABILITY OF FUNDS.—Amounts appropriated pursuant to paragraph (1) shall remain available until expended.

SEC. 113. 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 (8 U.S.C. 1701 note) and subject to the availability of appropriations for such purpose, the Secretary shall continue to fully integrate and utilize aerial surveillance technologies, including unmanned aerial systems, that the Secretary determines to be necessary to enhance the security of the border between the United States and Canada and the border between the United States and Mexico.

(2) ASSESSMENT AND CONSULTATION REQUIREMENTS.—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 a border of the United States;

(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;

(E) consult with the Secretary of State with respect to any foreign policy or international law implications relating to the implementation or conduct of the program; and

(F) conduct a privacy impact assessment and civil liberties impact assessment before the deployment of the new technologies under this subsection.

(3) EVALUATION OF TECHNOLOGIES.—The aerial surveillance program authorized 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 the international border of the United States, to evaluate, for a range of circumstances—

(A) the significance of previous experiences with such technologies in border security or critical infrastructure protection;

(B) the cost and effectiveness of various technologies for border security, including varying levels of technical complexity; and

(C) liability, safety, civil liberties, and privacy concerns relating to the utilization of such technologies for border security.

(4) ADDITIONAL REVIEWS.—In accordance with sections 222 and 705 of the Homeland Security Act of 2002 (6 U.S.C. 142 and 345), the Chief Privacy Officer and the Officer for Civil Rights and Civil Liberties shall conduct additional reviews, as necessary.

(5) CONTINUED USE OF AERIAL SURVEILLANCE TECHNOLOGIES.—The Secretary may continue the operation of aerial surveillance technologies in use as of the date of the enactment of this Act while assessing the effectiveness of the utilization of such technologies.

(6) AUTHORIZATION OF APPROPRIATIONS.—There are authorized to be appropriated such sums as may be necessary for each of the fiscal years 2011 through 2015 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 systems, cameras, poles, sensors, satellites, radar coverage, and other technologies necessary—

(A) to achieve effective control of the Northern border and the Southern border; and

(B) to establish a security perimeter known as a “virtual fence” along such international borders to provide a barrier to unauthorized immigration.

(2) PROGRAM COMPONENTS.—In carrying out the program under this subsection, the Secretary, to the maximum extent feasible, shall—

(A) utilize integrated technologies that function cohesively in an automated fashion;

(B) use a standard process to collect, catalog, and report intrusion and response data collected under the program;

(C) ensure that future surveillance technology investments and upgrades for the program can be integrated with existing systems;

(D) develop and apply performance measures to evaluate whether the program is providing desired results by increasing response effectiveness in monitoring and detecting unauthorized intrusions along the Northern border and the Southern border;

(E) develop plans, in accordance with relevant environmental laws, to streamline site selection, site validation, and environmental assessment processes to minimize delays of installing surveillance technology infrastructure;

(F) develop standards to expand the shared use of existing private and governmental structures to install remote surveillance technology infrastructure to the extent possible; and

(G) develop standards to identify and deploy the use of nonpermanent or mobile surveillance platforms that will increase the Secretary’s mobility and ability to identify unauthorized border intrusions.

(3) AUTHORIZATION OF APPROPRIATIONS.—There are authorized to be appropriated such sums as may be necessary for each of the fiscal years 2011 through 2015 to carry out this subsection.

SEC. 121. Annual report on improving North American security information exchange.

(a) Requirement for reports.—Not later than 1 year after the date of the enactment of this Act, and annually thereafter, the Secretary of State, in coordination with the Secretary and the heads of other appropriate Federal agencies, shall submit a report to Congress that describes the progress made during the most recent 12-month period in improving the effectiveness with which information relating to North American security is exchanged between the Governments of the United States, of Canada, and of Mexico.

(b) Contents.—

(1) SECURITY CLEARANCES AND DOCUMENT INTEGRITY.—Each report submitted under subsection (a) shall describe the development of common enrollment, security, technical, and biometric standards for the issuance, authentication, validation, and repudiation of secure documents, including—

(A) technical and biometric standards based on best practices and consistent with international standards for the issuance, authentication, validation, and repudiation of travel documents, including—

(i) passports;

(ii) visas; and

(iii) permanent resident cards;

(B) the joint efforts of the United States, Canada, and Mexico to encourage foreign governments to enact laws that—

(i) combat alien smuggling and trafficking; and

(ii) forbid the use and manufacture of fraudulent travel documents; and

(C) efforts made to ensure that other countries meet proper travel document standards and are committed to travel document verification before the nationals of such countries travel internationally, including travel to the United States.

(2) IMMIGRATION AND VISA MANAGEMENT.—Each report submitted under subsection (a) shall describe the progress made in sharing information regarding high-risk individuals who attempt to enter Canada, Mexico, or the United States, including—

(A) implementing the Statement of Mutual Understanding on Information Sharing, signed by Canada and the United States in February 2003; and

(B) identifying and analyzing trends related to immigration fraud, including asylum and document fraud.

(3) VISA POLICY COORDINATION AND IMMIGRATION SECURITY.—Each report submitted under subsection (a) shall describe the progress made by Canada, Mexico, and the United States to enhance North American security by cooperating on visa policy and identifying best practices regarding immigration security, including—

(A) enhancing consultation among officials who issue visas at the consulates or embassies of Canada, Mexico, or the United States throughout the world to share information, trends, and best practices on visa flows;

(B) comparing the procedures and policies of Canada and the United States related to visitor visa processing, including—

(i) application process;

(ii) interview policy;

(iii) general screening procedures;

(iv) visa validity;

(v) quality control measures; and

(vi) access to appeal or review;

(C) exploring methods for Canada, Mexico, and the United States to waive visa requirements for nationals and citizens of the same foreign countries;

(D) developing and implementing an immigration security strategy for North America that utilizes a common security perimeter by enhancing technical assistance for programs and systems to support advance automated reporting and risk targeting of international passengers;

(E) real-time sharing of information on lost and stolen passports among immigration or law enforcement officials of Canada, Mexico, and the United States; and

(F) collecting 10 fingerprints from each individual who applies for a visa.

(4) NORTH AMERICAN VISITOR OVERSTAY PROGRAM.—Each report submitted under subsection (a) shall describe the progress made by Canada and the United States in implementing parallel entry-exit tracking systems that—

(A) respect the privacy laws of both countries; and

(B) share information regarding third country nationals who have overstayed their period of authorized admission in Canada or the United States.

(5) TERRORIST WATCH LISTS.—Each report submitted under subsection (a) shall describe the capacity of the United States to combat terrorism through the coordination of counterterrorism efforts, including—

(A) developing and implementing bilateral agreements between Canada and the United States and between Mexico and the United States—

(i) to govern the sharing of terrorist watch list data; and

(ii) to comprehensively enumerate the uses of such data by the governments of each country;

(B) establishing appropriate linkages among Canada, Mexico, and the United States Terrorist Screening Center;

(C) establishing a multilateral watch list mechanism that would facilitate direct coordination between the country that identifies individuals on a watch list and the country that owns such list, including procedures that satisfy security concerns, comply with privacy laws, and are consistent with the other laws of each participating country; and

(D) establishing transparent standards and processes that enable innocent individuals to remove their names from a watch list.

(6) MONEY LAUNDERING, CURRENCY SMUGGLING, AND ALIEN SMUGGLING.—Each report submitted under subsection (a) shall describe improvements made in information sharing and law enforcement cooperation in combating organized crime, including—

(A) combating currency smuggling, money laundering, alien smuggling, and trafficking in alcohol, firearms, and explosives;

(B) determining the feasibility of formulating a firearms trafficking action plan between Mexico and the United States;

(C) developing a joint threat assessment on organized crime between Canada and the United States;

(D) determining the feasibility of formulating a joint threat assessment on organized crime between Mexico and the United States;

(E) developing mechanisms to exchange information on findings, seizures, and capture of individuals transporting undeclared currency; and

(F) developing and implementing a plan to combat the transnational threat of illegal drug trafficking.

(7) LAW ENFORCEMENT COOPERATION.—Each report submitted under subsection (a) shall describe enhancements in law enforcement cooperation among Canada, Mexico, and the United States, including—

(A) enhanced technical assistance for the development and maintenance of a national database built upon identified best practices to identify suspected criminals or terrorists;

(B) the feasibility of establishing law enforcement teams that include personnel from the United States and Mexico; and

(C) the appropriate procedures for such multinational teams.

SEC. 122. Cooperation with the Government of Mexico.

(a) Cooperation regarding border security.—The Secretary of State, in cooperation with the Secretary and representatives of Federal, State, and local law enforcement agencies that are involved in border security and immigration enforcement efforts, shall work with appropriate officials of the Government of Mexico to improve coordination between the United States and Mexico to—

(1) improve border security along the international border between the United States and Mexico;

(2) reduce human trafficking and smuggling between the United States and Mexico;

(3) reduce drug trafficking and smuggling between the United States and Mexico;

(4) reduce gang membership in the United States and Mexico;

(5) reduce violence against women in the United States and Mexico; and

(6) reduce other violence and criminal activity.

(b) Cooperation regarding education on immigration laws.—The Secretary of State, in cooperation with other appropriate Federal officials, shall work with appropriate officials of the Government of Mexico to educate citizens and nationals of Mexico regarding their eligibility for nonimmigrant status in the United States to ensure that such citizens and nationals are not exploited while working in the United States.

(c) Cooperation regarding circular migration.—The Secretary of State, in cooperation with the Secretary of Labor and other appropriate Federal officials, shall work with appropriate officials of the Government of Mexico to encourage circular migration of citizens and nationals of Mexico, including assisting in the development of economic opportunities and the provision of job training for such citizens and nationals.

(d) Consultation requirement.—The Secretary, in cooperation with State and local government officials in the United States, shall cooperate with their counterparts in Mexico to enhance border security structures along the international border between the United States and Mexico, as authorized by this title, by—

(1) soliciting the views of affected communities;

(2) lessening tensions; and

(3) fostering greater understanding and stronger cooperation on border security structures and other important security issues of mutual concern.

(e) Annual report.—Not later than 180 days after the date of the enactment of this Act, and annually thereafter, the Secretary of State shall submit a report to Congress that describes the actions taken by the United States and Mexico under this section.

SEC. 123. Enhanced international cooperation.

The Attorney General, in cooperation with the Secretary of State, shall—

(1) assign agents of the Bureau of Alcohol, Tobacco, Firearms, and Explosives to the United States mission in Mexico to work with Mexican law enforcement agencies in conducting investigations relating to firearms trafficking and other criminal enterprises;

(2) provide the equipment and technological resources necessary to support such investigations and to trace firearms recovered in Mexico; and

(3) support the training of Mexican law enforcement officers in serial number restoration techniques, canine explosive detection, and anti-trafficking tactics.

SEC. 124. Expansion of commerce security programs.

(a) Customs-trade partnership against terrorism.—

(1) IN GENERAL.—Not later than 180 days after the date of enactment of this Act, the Commissioner, in consultation with the Secretary, shall develop a plan to expand the programs of the Customs-Trade Partnership Against Terrorism established pursuant to section 211 of the SAFE Port Act (6 U.S.C. 961), including adding additional personnel for such programs along the Northern border and the Southern border.

(2) C–TPAT PROGRAMS.—The programs referred to in paragraph (1) include—

(A) the Business Anti-Smuggling Coalition;

(B) the Carrier Initiative Program;

(C) the Americas Counter Smuggling Initiative;

(D) the Container Security Initiative established pursuant to section 205 of the SAFE Port Act (6 U.S.C. 945);

(E) the Free and Secure Trade Initiative; and

(F) other industry partnership programs administered by the Commissioner.

(b) Demonstration programs.—Not later than 180 days after the date of enactment of this Act, the Commissioner shall—

(1) implement, on a demonstration basis, a Customs-Trade Partnership Against Terrorism program, which has been successfully implemented along the Northern border and along the Southern border; and

(2) establish a demonstration program to develop a cooperative trade security system to improve supply chain security.

SEC. 125. Northern and Southern Border Drug Prosecution Initiative.

(a) Reimbursement to State and local prosecutors for prosecuting federally initiated drug cases.—Subject to the availability of appropriations, the Attorney General shall reimburse State and county prosecutors located in States along the Northern border or the Southern border of the United States for prosecuting federally initiated and referred drug cases.

(b) Authorization of appropriations.—There are authorized to be appropriated such sums as may be necessary for each of the fiscal years 2011 through 2015 to carry out subsection (a).

SEC. 126. Project Gunrunner Initiative.

(a) In general.—The Attorney General shall dedicate and expand the resources provided for the Project Gunrunner Initiative of the Bureau of Alcohol, Tobacco, Firearms, and Explosives (referred to in this section as “ATF”) to identify, investigate, and prosecute individuals involved in the trafficking of firearms across the Southern border.

(b) Activities.—In carrying out this section, the Attorney General shall—

(1) assign additional ATF agents to the area of the United States adjacent to the Southern border to support the expansion of Project Gunrunner teams;

(2) establish not fewer than 1 Project Gunrunner team in each State along the Southern border; and

(3) coordinate with the heads of other relevant Federal law enforcement agencies and State and local law enforcement agencies to address firearms trafficking in a comprehensive manner.

(c) Additional staff.—The Attorney General may—

(1) hire additional ATF agents for Project Gunrunner; and

(2) utilize whatever additional resources are needed to adequately support Project Gunrunner.

(d) Authorization of appropriations.—There are authorized to be appropriated $15,000,000 for each of the fiscal years 2011 and 2012 to carry out this section.

SEC. 127. Operation Streamline Prosecution Initiative.

(a) Reporting requirement.—Not later than 180 days after the date of the enactment of this Act, the Secretary, in coordination with the Attorney General, shall submit a report to the congressional committees set forth in subsection (b) that describes—

(1) the operational goals and oversight mechanisms of Operation Streamline and similar programs;

(2) the estimated costs of seeking Federal court prosecution and jail time for all unauthorized entrants—

(A) before their referral to immigration court removal proceedings; and

(B) who are initially referred to immigration courts upon apprehension;

(3) the estimated costs for Federal resources to effectively implement Operation Streamline in each Border Patrol sector, including—

(A) sufficient judicial resources;

(B) Federal Public Defenders;

(C) United States Marshals;

(D) detention facilities;

(E) United States Attorneys; and

(F) other costs incurred in active areas;

(4) the impact of Operation Streamline on Federal prosecutorial initiatives focused on curbing border violence, including enhanced use of investigations and prosecutions for money laundering or other financial offenses to disrupt—

(A) the illicit firearms trade;

(B) human smuggling; and

(C) cross-border drug and currency trafficking;

(5) the impact of Operation Streamline on discretionary prosecutorial decisions;

(6) during the 3-year period ending on the date of the enactment of this Act—

(A) the costs incurred for detentions, prosecutions, and incarcerations for immigrant offenses under Operation Streamline;

(B) the number of Federal prosecutions for drug trafficking, human smuggling, white-collar crimes, civil rights violations, environmental crimes, and other criminal cases in areas utilizing Operation Streamline initiatives; and

(C) the length of imprisonment, names, convictions, and locations of prisons used to incarcerate individuals arrested under Operation Streamline;

(7) the number of Federal convictions obtained under Operation Streamline, including the number of convictions for nonviolent immigration offenses;

(8) the rates of Federal prosecutions and convictions in districts along the Southern border compared to such rates in other districts; and

(9) interviews with criminal defense attorneys who have represented defendants charged under Operation Streamline, including—

(A) a review of the opportunity for arrestees to consult with immigration attorneys before they are convicted for immigration offenses; and

(B) the ratio of defendants to defense attorneys.

(b) Congressional committees.—The congressional committees set forth in the subsection are—

(1) the Committee on Appropriations of the Senate;

(2) the Committee on the Judiciary of the Senate;

(3) the Committee on Homeland Security and Governmental Affairs of the Senate;

(4) the Committee on Appropriations of the House of Representatives;

(5) the Committee on the Judiciary of the House of Representatives; and

(6) the Committee on Homeland Security of the House of Representatives.

(c) Evaluation.—Not later than 180 days after the submission of the report under subsection (a), the Secretary, in coordination with the Attorney General, shall—

(1) evaluate the future viability of Operation Streamline; and

(2) determine whether to continue or terminate Operation Streamline.

SEC. 128. Border Relief Grant Program.

(a) Grants authorized.—

(1) IN GENERAL.—The Attorney General may award grants, on a competitive basis, to—

(A) eligible law enforcement agencies or a coalition of such agencies, including sheriff’s offices, police departments, and tribal police departments; and

(B) institutions of higher education that provide assistance to law enforcement agencies in counties described in subparagraph (A) or (B) of subsection (e)(1) to provide the resources described in subsection (b)(4).

(2) PRIORITY.—In awarding grants for the uses described in paragraphs (1) through (3) of subsection (b), the Attorney General shall give priority to law enforcement agencies—

(A) located in a county that is within 100 miles from the Northern border or the Southern border; and

(B) that are in compliance with Federal and State racial profiling laws and guidelines.

(3) DURATION.—Grants awarded under this section may not exceed 2 years.

(4) SUBSEQUENT GRANTS.—A grantee desiring continued grant funding after the expiration of the initial grant shall reapply for such funding.

(5) PROHIBITION.—The Attorney General may not award a grant under this section to any applicant that is under investigation for a violation of Federal or State racial profiling laws or guidelines.

(b) Use of funds.—Grants awarded under this section may only be used to provide—

(1) additional resources for eligible law enforcement agencies to address drug-related criminal activity;

(2) training and technical assistance related to—

(A) narcotics-related kidnaping negotiation and rescue tactics;

(B) intelligence and information sharing on drug trafficking organizations; and

(C) the interdiction of narcotics, weapons, and illegal drug proceeds;

(3) resources to combat criminal activities along the Northern border and the Southern border by—

(A) obtaining, upgrading, or maintaining equipment;

(B) hiring additional personnel;

(C) reimbursing operational expenditures, including overtime and transportation costs; and

(D) providing other assistance necessary to address drug-related criminal activity;

(4) resources to facilitate information sharing and collaboration by—

(A) establishing, maintaining, or enhancing multi-jurisdictional intelligence gathering and sharing activities;

(B) facilitating regional crime prevention and reduction efforts; and

(C) strengthening partnerships between Federal, State, tribal, and local law enforcement agencies; and

(5) resources to enhance jails, community corrections, and detention operations by—

(A) improving the administration and operations of correction functions related to reducing and preventing criminal narcotics activity;

(B) improving access to intelligence and collaboration between law enforcement and correctional system personnel;

(C) reducing the recidivism rates of drug offenders; and

(D) hiring detention, probation, parole, and other corrections personnel for implementation of the efforts described in this paragraph.

(c) Application.—

(1) IN GENERAL.—Each eligible law enforcement agency or coalition of such agencies seeking a grant under this section shall submit an application to the Attorney General at such time, in such manner, and accompanied by such information as the Attorney General may reasonably require.

(2) CONTENTS.—Each application submitted under paragraph (1) shall—

(A) describe the activities for which assistance under this section is sought;

(B) disclose whether the applicant has been investigated for, or convicted of, a violation of Federal or State racial profiling laws; and

(C) provide such additional assurances as the Attorney General determines to be essential to ensure compliance with the requirements under this section.

(d) Monitoring and oversight.—

(1) IN GENERAL.—Each grantee under this section shall submit a report to the Attorney General that documents the use of grant funds received under this section, including an assessment of their utility in—

(A) protecting border community safety;

(B) preventing smuggling activities; and

(C) apprehending persons involved in violence and organized crime.

(2) USE OF INFORMATION.—The Attorney General shall analyze the information contained in the reports submitted under paragraph (1) to determine whether the grantee—

(A) used grant funds appropriately; and

(B) should be considered for a renewal grant.

(e) Definitions.—In this section:

(1) ELIGIBLE LAW ENFORCEMENT AGENCY.—The term “eligible law enforcement agency” means a State, tribal, or local law enforcement agency, including a community corrections agency and any agency that employs prosecutors, probation officers, or parole officers, which is located or performs duties in—

(A) a county that is not more than 100 miles from a United States border with Mexico;

(B) a county that is not more than 100 miles from a United States border with Canada; or

(C) a jurisdiction that has been designated by the Director of the Office of Drug Control Policy as a High Intensity Drug Trafficking Area.

(2) HIGH INTENSITY DRUG TRAFFICKING AREA.—The term “High Intensity Drug Trafficking Area” means any jurisdiction designated as a “High Intensity Drug Trafficking Area” by the National Drug Control Program under section 707 of the Office of National Drug Control Policy Reauthorization Act of 1998 (21 U.S.C. 1706).

(f) Assessment and report.—The Attorney General shall submit a biannual report to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives that assesses—

(1) the success of the Border Relief Grant Program in combating and reducing drug-trafficking and drug-related criminal activity;

(2) the cost-effectiveness of the Program; and

(3) the future value and viability of the Program.

(g) Authorization of appropriations.—

(1) IN GENERAL.—There are authorized to be appropriated $100,000,000 for each of the fiscal years 2011 through 2015 to carry out this section.

(2) ALLOCATION OF AUTHORIZED FUNDS.—Of the amounts appropriated pursuant to paragraph (1)—

(A) not more than 33 percent may be set aside for High Intensity Drug Trafficking Areas; and

(B) not more than 30 percent may be used for activities described in paragraphs (2) and (5) of subsection (b).

(3) SUPPLEMENT NOT SUPPLANT.—Amounts appropriated for grants pursuant to paragraph (1) shall be used to supplement and not to supplant other State, tribal, and local public funds obligated for the purposes described in subsection (b).

SEC. 129. Report on deaths and strategy study.

(a) In general.—The Commissioner of the United States Customs and Border Protection shall—

(1) collect statistics relating to deaths occurring at the border between the United States and Mexico, including—

(A) the causes of the deaths; and

(B) the total number of deaths;

(2) publish the statistics collected under paragraph (1) on a quarterly basis; and

(3) not later than 1 year after the date of the enactment of this Act, and annually thereafter, submit a report to the Secretary that—

(A) analyzes trends with respect to the statistics collected under paragraph (1) during the preceding year; and

(B) recommends actions to reduce and prevent the deaths described in paragraph (1)(B).

(b) Southwest border strategy study and analysis.—

(1) IN GENERAL.—The Secretary shall conduct a study of Southwest Border Enforcement operations since 1994 and its relationship to death rates on the border between the United States and Mexico, including—

(A) an analysis of the relationship of border enforcement and deaths on the border;

(B) an analysis of whether physical barriers, technology, and enforcement programs have contributed to the rate of migrant deaths;

(C) an analysis of the effectiveness of geographical terrain as a natural barrier for entry into the United States in achieving Department goals and its role in contributing to rates of migrant deaths;

(D) consultation with nongovernmental organizations and other community stakeholders involved in recovering and identifying migrant deaths; and

(E) an assessment of existing protocol related to reporting, tracking, and inter-agency communications between United States Customs and Border Protection and local first responders and consular services.

(2) REPORT.—The study conducted under paragraph (1) shall be submitted to—

(A) the United States-Mexico Border Enforcement Commission established under section 129;

(B) the Committee on Homeland Security and Governmental Affairs of the Senate;

(C) the Committee on the Judiciary of the Senate;

(D) the Committee on Homeland Security of the House of Representatives;

(E) the Committee on the Judiciary of the House of Representatives; and

(F) the Committee on Oversight and Government Reform of the House of Representatives.

(c) Authorization of appropriations.—There are authorized to be appropriated such sums as may be necessary for each of the fiscal years 2011 through 2015 to carry out this section.

SEC. 130. Immigration and United States-Mexico Border Enforcement Commission.

(a) Establishment of commission.—

(1) IN GENERAL.—There is established an independent commission to be known as the Immigration and United States-Mexico Border Enforcement 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 Southern border, including the Department, the Department of Justice, and other relevant agencies;

(B) to strengthen relations and collaboration between communities in the border regions and the Department, the Department of Justice, and other Federal agencies that carry out such strategies, programs, and policies;

(C) to ensure that the strategies, programs, and policies of Federal agencies along the Southern border and the agents and employees charged to implement such strategies, programs, and policies protect the due process, civil, and human rights of all individuals and communities at and near the Southern border; and

(D) to make recommendations to the President and Congress with respect to such strategies, programs, and policies.

(3) MEMBERSHIP.—

(A) IN GENERAL.—The Commission shall be composed of 16 voting members and 2 nonvoting members.

(B) APPOINTMENT OF VOTING MEMBERS.—The Governors of the States of California, New Mexico, Arizona, and Texas shall each appoint 4 voting members to the Commission, 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.

(C) APPOINTMENT OF NONVOTING MEMBERS.—The Secretary and the Attorney General shall each appoint 1 nonvoting member to the Commission.

(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, cross-border trade and commerce, or other pertinent qualifications or experience; and

(ii) representative of a broad cross section of perspectives from the region along the Southern border.

(B) POLITICAL AFFILIATION.—Not more than 2 members of the Commission appointed by each Governor under paragraph (3)(B) 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 date of 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.—Members of the Commission shall be appointed for 3-year terms or for the life of the Commission, whichever is shorter.

(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.

(C) OUTREACH.—The Commission shall formulate and implement an effective outreach strategy to border communities.

(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, who shall serve in such capacities for the life of the Commission or until removed by the majority vote of a quorum.

(11) STRUCTURE.—The Commission shall have a Federal, regional, and local review structure, divided into 2 subcommittees, of which—

(A) 1 shall focus on border technology, equipment, and infrastructure; and

(B) 1 shall focus on border and immigration enforcement policies and programs.

(b) Duties.—The Commission shall review, examine, and make recommendations regarding immigration and border enforcement policies, strategies, and programs, including recommendations regarding—

(1) the compliance of the Department and other immigration and border-related agencies with existing laws and regulations;

(2) the extent to which agency policies and practices protect the civil rights of migrants and border community residents, including policies and practices in the contexts of engagement, detention, apprehension, use of force, definition and use of reasonable suspicion and probable cause, and racial profiling;

(3) the frequency, adequacy, and effectiveness of human and civil rights training of border enforcement personnel and others from Federal agencies who have contact with the public near the Southern border;

(4) the extent to which—

(A) the complaint process is transparent and accessible to the public;

(B) investigations are opened as necessary and are effectively pursued; and

(C) complaints are resolved in a timely and transparent manner;

(5) the effectiveness and capacity of agency oversight, accountability, and management, including prevention and disciplinary policies involving use of force, abuse, malfeasance, corruption, and illegal activity;

(6) the effect of operations, technology, and enforcement infrastructure along the Southern border on the—

(A) environment;

(B) cross border traffic and commerce;

(C) privacy rights and other civil liberties; and

(D) the quality of life of border communities;

(7) the extent to which State and local law enforcement engage in the enforcement of Federal immigration law;

(8) the extent of compliance with due process standards and equal protection of the law for immigrants and other individuals at and near the Southern border;

(9) whether border policies and agencies are accomplishing their stated goals; and

(10) any other matters regarding immigration and border enforcement policies, strategies, and programs that the Commission determines to be appropriate.

(c) Powers of commission.—

(1) IN GENERAL.—

(A) HEARINGS AND EVIDENCE.—The Commission and any subcommittee or member of the Commission authorized by the Commission may, for the purpose of carrying out this title—

(i) hold hearings, sit and act, take testimony, receive evidence, and administer oaths; and

(ii) subject to subparagraph (B), require, by subpoena or otherwise, the attendance and testimony of such witnesses and the production of such books, records, correspondence, memoranda, papers, and documents, as the Commission or such authorized subcommittee or member determines to be advisable.

(B) SUBPOENAS.—

(i) ISSUANCE.—A subpoena may be issued under this subsection only—

(I) by the agreement of the Chairman and the Vice Chairman; or

(II) by the affirmative vote of 6 members of the Commission.

(ii) SIGNATURE.—Subpoenas issued under this subparagraph may be—

(I) issued under the signature of the Chairman or any member designated by a majority of the Commission; and

(II) served by any person designated by the Chairman or by a member designated by a majority of the Commission.

(iii) ENFORCEMENT.—In the case of contumacy or failure to obey a subpoena issued under this subparagraph, the United States district court for the judicial district in which the subpoenaed person resides, is served, or may be found, or where the subpoena is returnable, may issue an order requiring such person to appear at any designated place to testify or to produce documentary or other evidence. Any failure to obey the order of the court may be punished by the court as a contempt of that court.

(2) RECOMMENDATIONS.—

(A) IN GENERAL.—The Commission may make recommendations to the Secretary on the disposition of cases and the discipline of personnel under the Immigration and Nationality Act (8 U.S.C. 1101 et seq.).

(B) RESPONSE.—Not later than 180 days after receipt a report from the Commission, the Secretary shall issue a response that describes how the Department, the Department of Justice, and the Department of Defense have addressed the recommendations included in such report.

(3) CONTRACTING.—The Commission may enter into contracts to enable the Commission to discharge its duties under this title.

(4) INFORMATION FROM FEDERAL AGENCIES.—

(A) IN GENERAL.—Upon request made by the Chairman, the chairman of any subcommittee created by a majority of the Commission, or any member designated by a majority of the Commission, the Commission may secure information, suggestions, estimates, and statistics for the purposes of this title directly from any executive department, bureau, agency, board, commission, office, independent establishment, or instrumentality of the Federal Government, which shall, to the extent authorized by law, furnish such information, suggestions, estimates, and statistics directly to the Commission.

(B) RECEIPT, HANDLING, STORAGE, AND DISSEMINATION.—Information may only be received, handled, stored, and disseminated by members of the Commission and its staff consistent with all applicable statutes, regulations, and Executive orders.

(5) ASSISTANCE FROM FEDERAL AGENCIES.—

(A) GENERAL SERVICES ADMINISTRATION.—The Administrator of General Services shall provide, on a reimbursable basis, administrative support to the Commission and other services required for the performance of the Commission’s functions.

(B) OTHER DEPARTMENTS AND AGENCIES.—In addition to the assistance described in paragraph (1), Federal departments and agencies may provide the Commission with such services, funds, facilities, staff, and other support services as may be authorized by law.

(6) POSTAL SERVICES.—The Commission may use the United States mails in the same manner and under the same conditions as departments and agencies of the United States.

(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) Training.—The Commission shall establish a process and criteria by which Commission members receive orientation and training on human, constitutional, and civil rights.

(f) Report.—Not later than 2 years after the date of the first meeting called pursuant to subsection (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 and immigration enforcement policies, strategies, and programs;

(3) suggestions for the implementation of the Commission’s recommendations;

(4) a recommendation as to whether the Commission should continue to operate after the date of termination described in subsection (h); and

(5) if continued operations are recommended under paragraph (4), a description of the purposes and duties recommended to be carried out by the Commission after the date of termination described in subsection (h).

(g) Authorization of appropriations.—There are authorized to be appropriated such sums as may be necessary for each of the fiscal years 2011 through 2013 to carry out this section.

(h) Sunset.—Unless the Commission is authorized by Congress to continue operations after such date, the Commission shall terminate on the date that is 60 days after the date on which the Commission submits the report described in subsection (f).

SEC. 131. Preemption.

(a) In general.—Except as provided in subsections (b) and (c), this Act preempts any State or local law, licensing requirement, or other standard, requirement, action or instrument that—

(1) discriminates among persons on the basis of immigration status; or

(2) imposes any sanction or liability—

(A) on any person based on his or her immigration status;

(B) on any person or entity based on the immigration status of its clients, employees, tenants, or other associates; or

(C) based on a violation or alleged violation of immigration law.

(b) Effect of conviction.—Notwithstanding subsection (a)(2)(C), a State or political subdivision of a State may take account of a Federal conviction for an immigration-related crime in the same manner as any other Federal criminal conviction.

(c) Limitation.—Nothing in this Act may be construed to preempt—

(1) State or local discrimination based on immigration status if such discrimination is explicitly authorized by Federal law; or

(2) State or local citizenship requirements for voting, jury service, elective office, or other important governmental positions, to the extent such requirements comply with the Constitution of the United States.

(d) Defined term.—In this section, the term “immigration status” refers to a person’s present or previous visa classification, refugee status, temporary protected status, status as an immigrant lawfully admitted for permanent residence, lawful presence, work authorization, or other classification or category authorized under this Act.

SEC. 132. Inherent authority.

Section 287(g)(10) (8 U.S.C. 1357(g)(10)) is amended to read as follows:

“(10) Except as provided in sections 103(a)(10), 103(a)(11), 242(c), and 274(c), or an agreement under this subsection, the authority to investigate, identify, apprehend, arrest, or detain persons for any violation of this Act or any regulation issued pursuant to this Act—

“(A) is restricted to immigration officers and employees of the Department; and

“(B) is subject to the specific limitations set forth in this Act.”.

SEC. 133. Border protection strategy.

(a) In general.—Not later than September 30, 2011, the Secretary, the Secretary of the Interior, the Secretary of Agriculture, the Secretary of Defense, and the Secretary of Commerce, in consultation with State, tribal, and local government officials, shall jointly develop and submit to Congress a border protection strategy for the international land borders of the United States.

(b) Elements of the strategy.—The strategy developed under subsection (a) shall include—

(1) a comparative analysis of the levels of operational control, based on auditable and verifiable data, achievable through alternative tactical infrastructure and other security measures, including an assessment of—

(A) pedestrian fencing;

(B) vehicle barriers, especially in the vicinity of existing or planned roads;

(C) additional Border Patrol agents;

(D) efficacy of natural barriers and open space in response to unauthorized or unlawful border crossing;

(E) fielding of advanced remote sensing and information integration technology, including the use of—

(i) unmanned aerial vehicles;

(ii) other advanced technologies and systems developed and employed, or under development, for tactical surveillance, multisource information integration, and response analysis in difficult terrain and under adverse environmental conditions;

(F) regional, urban, and rural variation in border security methodologies, including the incorporation of natural barriers;

(G) enhanced cooperation with, and assistance to, intelligence, security, and law enforcement agencies in Mexico and Canada in detecting, reporting, analyzing, and successfully responding to unauthorized or unlawful border crossings from or into Mexico or Canada; and

(H) removal of obstructive nonnative vegetation;

(2) a comprehensive analysis of cost and other impacts of security measures assessed in paragraph (1), including an assessment of—

(A) land acquisition costs, including related litigation and other costs;

(B) construction costs, including labor and material costs;

(C) maintenance costs for the next 25 years;

(D) contractor costs;

(E) management and overhead costs;

(F) the impacts on wildlife, wildlife habitat, natural communities, and functioning cross-border wildlife migration corridors and hydrology (including water quantity, quality, and natural hydrologic flows) on Federal, State, tribal, local government, and private lands along the Northern border and the Southern border; and

(G) the costs of fully mitigating the adverse impacts to Federal, State, tribal, local, and private lands, waters (including water quality, quantity, and hydrological flows), wildlife, and wildlife habitats, including, if such action is possible, the full costs of the replacement or restoration of severed wildlife migration corridors with protected corridors of equivalent biological functionality, as determined by each Secretary concerned, in consultation with appropriate authorities of State, tribal, and local governments and appropriate authorities of the Government of Mexico and the Government of Canada;

(3) a comprehensive compilation of the fiscal investments in acquiring or managing Federal, State, tribal, local, and private lands and waters in the vicinity of, or ecologically related to, the land borders of the United States that have been acquired or managed in whole or in part for conservation purposes (including the creation or management of protected wildlife migration corridors) in—

(A) units of the National Park System;

(B) National Forest System land;

(C) land under the jurisdiction of the Bureau of Land Management;

(D) land under the jurisdiction of the United States Fish and Wildlife Service;

(E) other relevant land under the jurisdiction of the Department of the Interior or the Department of Agriculture;

(F) land under the jurisdiction of the Department of Defense or any military department;

(G) land under the jurisdiction of the Department of Commerce;

(H) tribal lands;

(I) State and private lands; and

(J) lands within Mexico or Canada; and

(4) recommendations for strategic border security management based on—

(A) comparative security described in paragraph (1);

(B) the cost-benefit analysis described in paragraph (2); and

(C) the protection of investments in the lands specified in paragraph (3).

(c) Training.—

(1) REQUIRED TRAINING.—The Secretary, in cooperation with the Secretary concerned, shall provide—

(A) natural resource protection training for Customs and Border Protection agents or other Federal personnel assigned to plan or oversee the construction or operation of border security tactical infrastructure or to patrol land along or in the vicinity of a land border of the United States; and

(B) cultural resource training for Customs and Border Protection agents and other Federal personnel assigned to plan or oversee the construction or operation of border security tactical infrastructure or to patrol tribal lands.

(2) ADDITIONAL CONSIDERATIONS.—In developing and providing training under subparagraph (A) of paragraph (1), the Secretary shall coordinate with the Secretary concerned and the relevant tribal government to ensure that such training is appropriate to the mission of the relevant agency and is focused on achieving border security objectives while avoiding or minimizing the adverse impact on natural and cultural resources resulting from border security tactical infrastructure, operations, or other activities.

(d) Defined term.—In this section, the term “Secretary concerned” means—

(1) the Secretary of Agriculture, with respect to land under the jurisdiction of the Secretary of Agriculture;

(2) the Secretary of the Interior, with respect to land under the jurisdiction of the Secretary of the Interior;

(3) the Secretary of Defense, with respect to land under the jurisdiction of the Secretary of Defense or the secretary of a military department; and

(4) the Secretary of Commerce, with respect to land under the jurisdiction of the Secretary of Commerce.

SEC. 134. Border communities liaison office.

(a) Establishment.—The Secretary shall establish, in consultation with the Office of Civil Rights and Civil Liberties, a Border Communities Liaison Office in every Border Patrol sector on the Southern border or the Northern border.

(b) Purpose.—The purpose of the Border Communities Liaison Office shall be—

(1) to foster and institutionalize consultation with border communities;

(2) to consult with border communities on agency policies, directives, and laws;

(3) to consult with border communities on agency strategies and strategy development;

(4) to consult with border communities on agency services and operational issues;

(5) to receive assessments on agency performance from border communities; and

(6) to receive complaints regarding agency performance and agent conduct.

(c) Authorization of appropriations.—There are authorized to be appropriated such sums as may be necessary in each of the fiscal years 2011 through 2015 to carry out this section.

SEC. 135. Authorization of appropriations.

(a) In general.—In addition to any funds otherwise available, there are authorized to be appropriated such sums as may be necessary for the fiscal years 2011 through 2015 to carry out this subtitle.

(b) International agreements.—Amounts appropriated pursuant to subsection (a) may be used to implement projects that are authorized under this subtitle and are described in—

(1) the Declaration on Embracing Technology and Cooperation to Promote the Secure and Efficient Flow of People and Commerce across our Shared Border between the United States and Mexico, agreed to March 22, 2002, Monterrey, Mexico; or

(2) the Smart Border Declaration between the United States and Canada, agreed to December 12, 2001, Ottawa, Canada.

SEC. 201. Enforcement of requirement to report lost or stolen passports.

If any country designated as a Visa Waiver Program under paragraph (1) of section 217(c) of the Immigration and Nationality Act (8 U.S.C. 1187(c)) does not have in effect an agreement with the United States in compliance with paragraph (2)(C) of such section on or after the date that is 180 days after the date of the enactment of this Act, the Secretary, in consultation with the Secretary of State, shall immediately suspend such country’s participation in the Visa Waiver Program until the country is in compliance with such paragraph.

SEC. 202. Enforcement of requirement for periodic evaluations of program countries.

(a) Reevaluations.—The Secretary, in consultation with the Secretary of State, shall reevaluate all countries designated as Visa Waiver Program before November 17, 2008 to determine—

(1) whether such countries are in compliance with the requirements set forth in section 217(c) of the Immigration and Nationality Act (8 U.S.C. 1187(c)); and

(2) the current number of overstays in the United States for each country.

(b) Report.—Not later than 1 year after the date of the enactment of this Act, the Secretary shall submit a report to the appropriate congressional committees that contains the results of the reevaluation conducted under subsection (a).

SEC. 203. Arrival and departure verification.

(a) In general.—The Secretary shall compare foreign national arrival data to available immigration and law enforcement records and databases and exit data to determine whether these foreign nationals are still in the United States.

(b) Effect of failure to track.—If, 6 months after the date of the enactment of this Act, the Secretary is not tracking at least 97 percent of the foreign nationals exiting the United States, the Secretary may not designate any new countries as Visa Waiver Program countries.

(c) Audit.—The Secretary shall conduct an audit of the data collected by the electronic travel system, including—

(1) the number of individuals in each country that the system has discovered to have overstayed their visas;

(2) any implementation problems encountered during the early stages to better identify the high-risk travelers and their countries of origin.

(d) Report.—Not later than 6 months after the date of the enactment of this Act, the Secretary shall submit a report to Congress that contains—

(1) the visa overstay rates of each country; and

(2) an explanation of the implementation problems identified pursuant to subsection (c)(2).

SEC. 204. Visa overstay rates.

(a) Maximum visa overstay rate.—Section 217(c)(8)(C) (8 U.S.C. 1187(c)(8)(C)) is amended—

(1) by redesignating clauses (ii) and (iii) as clauses (iii) and (iv), respectively; and

(2) by striking clause (i) and inserting the following:

“(i) ESTABLISHMENT.—The maximum visa overstay rate for countries participating in the program shall be 2 percent.

“(ii) EFFECT OF FAILURE TO COMPLY.—If the visa overstay rate of a country is more than 2 percent, the Secretary shall temporarily suspend such country’s participation in the Visa Waiver Program until the country can demonstrate that the overstay rate for that country is below 2 percent.”.

(b) Data sharing.—If, 3 months after the date of the enactment of this Act, a country designated as a Visa Waiver Program under section 217(c) of the Immigration and Nationality Act (8 U.S.C. 1187(c)) has not entered into a data sharing agreement in accordance with paragraph (2)(F) of such section, the Secretary shall temporarily suspend such country’s participation in the Visa Waiver Program until the country is in compliance with such paragraph.

SEC. 205. US–VISIT system.

(a) In general.—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 ports of entry of the United States with the United States-Visitor and Immigrant Status Indicator Technology system (referred to in this section as “US–VISIT”) implemented under section 110 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1365a), including all necessary changes to infrastructure at the ports of entry to fully deploy US–VISIT;

(2) developing and deploying the exit component of US–VISIT at such ports of entry; and

(3) making interoperable all immigration screening systems operated by the Secretary.

(b) Visa exit tracking system.—Not later than 18 months after the date of the enactment of this Act, the Secretary shall establish and deploy a system capable of recording the departure of aliens admitted on temporary nonimmigrant visas under the Immigration and Nationality Act (8 U.S.C. 1101 et seq.)—

(1) at designated ports of entry; and

(2) in coordination with the Secretary of State, at designated United States consulates.

SEC. 211. Illegal entry and reentry.

(a) Illegal entry.—Section 275(b) (8 U.S.C. 1325(b)) is amended to read as follows:

“(b) Improper time or place; civil penalties.—Any alien older than 18 years of age who is apprehended while entering or attempting to enter, or knowingly crossing or attempting to cross the border to, the United States at a time or place that has not been designated as a lawful entry 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 $250 or more than $500 for each such entry or attempted entry; or

“(2) twice the amount specified in paragraph (1), if the alien had previously been subject to a civil penalty under this subsection.”.

(b) Illegal reentry.—Section 276 (8 U.S.C. 1326) is amended to read as follows:

“SEC. 276. Reentry of removed aliens.

“(a) Reentry after removal.—Any alien who has been denied admission, excluded, deported, or removed, or who has departed the United States while an order of exclusion, deportation, or removal is outstanding, and subsequently enters, attempts to enter, crosses the border to, attempts to cross the border to, or is at any time found in the United States, shall be fined under title 18, United States Code, imprisoned not more than 2 years, or both.

“(b) Reentry of criminal offenders.—In addition to the penalty provided in subsection (a), any alien described in that subsection—

“(1) whose removal was subsequent to a conviction for 3 or more misdemeanors involving drugs or crimes against the person, or a felony for which the alien was sentenced to a term of imprisonment of more than 12 months before such removal or departure, shall be fined under title 18, United States Code, imprisoned not more than 10 years, or both;

“(2) whose removal was subsequent to a conviction for a felony involving drugs or crimes against the person before such removal or departure for which the alien was sentenced to a term of imprisonment of not less than 30 months, shall be fined under such title 18, imprisoned not more than 10 years, or both;

“(3) who has been excluded from the United States pursuant to section 235(c) because the alien was excludable under section 212(a)(3)(B) or has been removed from the United States pursuant to title V of the CIR Act of 2010, and who thereafter, without the permission of the Attorney General, enters the United States, or attempts to do so, shall be fined under title 18, United States Code, and imprisoned for a period of 10 years, which sentence shall not run concurrently with any other sentence;

“(4) who was removed from the United States pursuant to section 241(a)(4)(B) and who thereafter, without the permission of the Attorney General, enters, attempts to enter, or is at any time found in, the United States (unless the Attorney General has expressly consented to such alien’s reentry) shall be fined under title 18, United States Code, imprisoned for not more than 10 years, or both;

“(5) whose removal was subsequent to a conviction for an aggravated felony before such removal or departure for which the alien was sentenced to a term of imprisonment of not less than 60 months, shall be fined under such title 18, imprisoned not more than 20 years, or both; or

“(6) was convicted for 3 felonies before such removal or departure, shall be fined under such title 18, imprisoned not more than 25 years, or both.

“(c) Proof of prior convictions.—The prior convictions described in subsection (b) are elements of the crimes described in that subsection, and the penalties set forth in subsection (b) 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.

“(d) Affirmative defenses.—It shall be an affirmative defense to a violation of this section if—

“(1) the alien sought and received the express consent of the Secretary of Homeland Security to reapply for admission into the United States before the alleged violation occurred;

“(2) with respect to an alien previously denied admission and removed, the alien—

“(A) was not required to obtain such advance consent under this 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) the prior order of removal was based on charges filed against the alien before the alien reached 18 years of age.

“(e) Limitation on collateral attack on underlying removal order.—In a criminal proceeding under this section, an alien may not challenge the validity of the order described in subsection (a)(1) or (b) unless the alien demonstrates that—

“(1) the alien exhausted any 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.

“(f) 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—

“(1) 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 or the alien is prima facie eligible for protection from removal; and

“(2) 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.

“(g) Limitation.—An individual, acting without compensation or the expectation of compensation, is not aiding and abetting a violation of this section by—

“(1) providing, or attempting to provide, an alien with humanitarian assistance, including emergency medical care or food; or

“(2) transporting the alien to a location where such humanitarian assistance can be rendered without compensation or the expectation of compensation.”.

SEC. 212. Deterring aliens ordered removed from remaining in the United States unlawfully.

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”.

SEC. 213. Biometric screening.

Section 212 (8 U.S.C. 1182) is amended—

(1) in subsection (a)(7), by adding at the end the following:

“(C) WITHHOLDING INFORMATION.—Except as provided in subsection (d)(2), any alien who, through his or her own fault, fails or has failed to comply with a lawful request for biometric information 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 a class of aliens. A decision by the Secretary to grant or deny a waiver under this paragraph shall not be subject to review.”.

SEC. 214. 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) IN GENERAL.—If an alien is not removable under paragraph (2)(A)(iii) or (4) of section 237(a)—

“(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; or

“(B) the Attorney General may permit the alien to voluntarily depart the United States at the alien’s own expense under this subsection after the initiation of removal proceedings under section 240 and before the conclusion of such proceedings before an immigration judge.”;

(B) in paragraph (2), by amending subparagraph (A) to read as follows:

“(A) IN GENERAL.—

“(i) INSTEAD OF REMOVAL.—Subject to subparagraph (B), the Secretary of Homeland Security—

“(I) may not grant an alien permission to voluntarily depart under paragraph (1)(A) for a period longer than 180 days; and

“(II) may require such alien to post a voluntary departure bond, which will be surrendered upon proof that the alien has departed the United States within the time specified in such bond.

“(ii) BEFORE THE CONCLUSION OF REMOVAL PROCEEDINGS.—

“(I) LIMITATION.—The Attorney General—

“(aa) may not grant an alien permission to voluntarily depart under paragraph (1)(B) for a period longer than 90 days; and

“(bb) may only grant such permission after determining that the alien has the means to depart the United States and intends to do so.

“(II) VOLUNTARY DEPARTURE BOND.—An immigration judge may—

“(aa) require an alien permitted to voluntarily depart under paragraph (1)(B) to post a voluntary departure bond, in an amount necessary to ensure that the alien will depart, which will be surrendered upon proof that the alien has departed the United States within the time specified in such bond; and

“(bb) may waive the requirement to post a voluntary departure bond in individual cases after determining 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.”;

(C) by striking paragraph (3); and

(D) by redesignating paragraph (4) as paragraph (3);

(2) by amending subsection (c) to read as follows:

“(c) Conditions on voluntary departure.—

“(1) VOLUNTARY DEPARTURE AGREEMENT.—Voluntary departure under this section 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)(A), the Secretary of Homeland Security may reduce 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, who shall advise the alien of the consequences of a voluntary departure agreement, including the consequences of failing to comply with the 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), unless such noncompliance is through no fault of the alien, 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)(1)(B) or (b).

“(5) VOLUNTARY DEPARTURE PERIOD NOT AFFECTED.—Except as expressly agreed to by the Secretary of Homeland Security in writing before the expiration of the period allowed for voluntary departure, no motion, appeal, application, petition, or petition for review shall affect, reinstate, enjoin, delay, stay, or toll the alien’s obligation to depart from the United States during the period agreed to by the alien and the Secretary.”;

(3) by amending subsection (d) to read as follows:

“(d) Penalties for failure to depart.—

“(1) CIVIL PENALTY.—An alien who is permitted to voluntarily depart under this section and fails to leave the United States during the period specified in the voluntary departure agreement or otherwise violates the terms of such agreement shall be liable for a civil penalty of $1,000. The voluntary departure order shall specify the amount of the penalty, which shall be acknowledged by the alien on the record.

“(2) COLLECTION OF PENALTY.—If the Secretary of Homeland Security establishes, by clear and convincing evidence, that the alien failed to leave the United States during the period specified in the voluntary departure agreement—

“(A) no further procedure will be necessary to establish the amount of the penalty;

“(B) the Secretary may collect the civil penalty at any time thereafter and by whatever means provided by law; and

“(C) the alien shall be ineligible for any benefits under this chapter until this civil penalty is paid.”; and

(4) by amending subsection (e) to read as follows:

“(e) Eligibility.—

“(1) PRIOR GRANT OF VOLUNTARY DEPARTURE.—An alien may not be permitted to voluntarily depart under this section if the Secretary of Homeland Security or the Attorney General previously permitted the alien to depart voluntarily under this section on or after the date of enactment of the CIR Act of 2010.

“(2) RULEMAKING.—The Secretary may promulgate regulations to limit eligibility or impose additional conditions for voluntary departure under subsection (a)(1)(A) for any class of aliens.”.

(b) Effective date.—The amendments made by this section shall apply with respect to all orders granting voluntary departure under section 240B of the Immigration and Nationality Act (8 U.S.C. 1229c) made on or after the date that is 180 days after the date of the enactment of this Act.

SEC. 215. Cancellation of visas.

Section 222(g) (8 U.S.C. 1202(g)) is amended—

(1) in paragraph (1), by striking “Attorney General, such visa” and inserting “Secretary of Homeland Security, such visa and any other nonimmigrant visa issued by the United States that is in the possession of the alien”; 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. 216. Mandatory address reporting requirements.

(a) Clarifying address reporting requirements.—Section 265 (8 U.S.C. 1305) is amended—

(1) in subsection (a)—

(A) by striking “notify the Attorney General in writing” and inserting “submit written or electronic notification to the Secretary of Homeland Security, in a manner approved by the Secretary,”;

(B) by striking “the Attorney General may require” and inserting “the Secretary may require”; and

(C) by adding at the end the following: “If the alien is involved in proceedings before an immigration judge or in an administrative appeal of such proceedings, the alien shall provide the Attorney General with the alien’s current address and a telephone number, if any, at which the alien may be contacted.”;

(2) in subsection (b)—

(A) by striking “Attorney General” the first place such term appears and inserting “Secretary of Homeland Security”; and

(B) by striking “Attorney General” each additional place such term appears and inserting “Secretary”;

(3) in subsection (c), by striking “given to such parent” and inserting “provided by such parent”; and

(4) by adding at the end the following:

“(d) Address to be provided.—

“(1) IN GENERAL.—Except as otherwise provided by the Secretary under paragraph (2), an address provided by an alien under this section—

“(A) shall be the mailing address of the alien’s residence at the time such address is provided; and

“(B) may not be—

“(i) a post office box;

“(ii) another nonresidential mailing address; or

“(iii) the address of an attorney, representative, labor organization, or employer.

“(2) SPECIFIC REQUIREMENTS.—The Secretary of Homeland Security may provide specific requirements with respect to—

“(A) designated classes of aliens and special circumstances, including aliens who are employed at a remote location; and

“(B) the reporting of address information by aliens who are incarcerated in a Federal, State, or local correctional facility.

“(3) DETENTION.—An alien who is being detained by the Secretary under this Act—

“(A) is not required to report the alien’s current address under this section during the time the alien remains in detention; and

“(B) shall notify the Secretary of the alien’s address under this section at the time of the alien’s release from such detention.

“(e) Use of most recent address provided by the alien.—

“(1) IN GENERAL.—Notwithstanding any other provision of law, the Secretary of Homeland Security may provide for the appropriate coordination and cross referencing of address information provided by an alien under this section with other information relating to the alien’s address under other Federal programs, including—

“(A) any information pertaining to the alien, which was submitted in any application, petition, or motion filed under this Act with the Secretary of Homeland Security, the Secretary of State, or the Secretary of Labor;

“(B) any information available to the Attorney General with respect to an alien in a proceeding before an immigration judge or an administrative appeal or judicial review of such proceeding;

“(C) any information collected with respect to nonimmigrant foreign students or exchange program participants under section 641 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1372); and

“(D) any information collected from State or local correctional agencies pursuant to the State Criminal Alien Assistance Program.

“(2) RELIANCE.—The Secretary may rely on the most recent address provided by the alien under this section or under section 264 to send the alien any notice, form, document, or other matter pertaining to Federal immigration laws, including service of a notice to appear. The Attorney General and the Secretary may rely on the most recent address provided by the alien under section 239(a)(1)(F) to contact the alien about pending removal proceedings.

“(3) OBLIGATION.—The alien’s provision of an address for any other purpose under this Act shall not excuse the alien’s obligation to submit timely notice of the alien’s address to the Secretary under this section (or to the Attorney General under section 239(a)(1)(F) with respect to an alien in a proceeding before an immigration judge or an administrative appeal of such proceeding).

“(f) Requirement for database.—The Secretary of Homeland Security shall establish an electronic database to timely record and preserve addresses provided under this section.”.

(b) Conforming changes with respect to registration requirements.—Chapter 7 of title II (8 U.S.C. 1301 et seq.) is amended—

(1) in section 262(c), by striking “Attorney General” and inserting “Secretary of Homeland Security”;

(2) in section 263(a), by striking “Attorney General” and inserting “Secretary of Homeland Security”; and

(3) in section 264—

(A) in subsections (a), (b), (c), and (d), by striking “Attorney General” each place it appears and inserting “Secretary of Homeland Security”; and

(B) in subsection (f)—

(i) by striking “Attorney General is authorized” and inserting “Secretary of Homeland Security and the Attorney General are authorized”; and

(ii) by striking “Attorney General or the Service” and inserting “Secretary or the Attorney General”.

(c) Effect on eligibility for immigration benefits.—If an alien fails to comply with any provision under section 262, 263, or 265 of the Immigration and Nationality Act (8 U.S.C. 1302, 1303, and 1305) or section 264.1 of title 8, Code of Federal Regulations, or removal orders or voluntary departure agreements based on any such section for acts committed before the date of the enactment of this Act, such noncompliance shall not affect the eligibility of the alien to apply for a benefit under the Immigration and Nationality Act (8 U.S.C. 1101 et seq.).

(d) Technical amendments.—Section 266 (8 U.S.C. 1306 ) is amended—

(1) by striking “Attorney General” the first place such term appears and inserting “Secretary of Homeland Security”; and

(2) by striking “Attorney General” each additional place such term appears and inserting “Secretary”.

SEC. 217. Penalties relating to vessels and aircraft.

Section 243(c) (8 U.S.C. 1253(c)) is amended—

(1) by striking “Attorney General” each place such term appears and inserting “Secretary of Homeland Security”; and

(2) by striking “Commissioner” each place such term appears and inserting “Secretary”; and

(3) in paragraph (1)—

(A) in subparagraph (A), by striking “$2,000” and inserting “$5,000”;

(B) in subparagraph (B), by striking “$5,000” and inserting “$10,000”; and

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

“(C) COMPROMISE.—The Secretary of Homeland Security, in the Secretary’s unreviewable discretion and upon the receipt of a written request, may mitigate the monetary penalties required under this subsection for each alien stowaway to an amount equal to not less than $500, upon such terms that the Secretary determines to be appropriate.”.

SEC. 218. Sanctions for countries that delay or prevent repatriation of their citizens and nationals.

Sec. 243(d) (8 U.S.C. 1253(d)) is amended—

(1) by striking “Attorney General” each place such term appears and inserting “Secretary of Homeland Security” ;

(2) by inserting “or subsets of such visas” after “both,”; and

(3) by inserting “of State” after “Secretary” the last place such term appears.

SEC. 219. State criminal alien assistance program.

(a) Authorization of appropriations.—Section 241(i)(5)(C) (8 U.S.C. 1231(i)(5)(C)) is amended by striking “to carry out this subsection” and all that follows and inserting “$950,000,000 for each of the fiscal years 2011 through 2015 to carry out this subsection.”.

(b) Reimbursement of States for indirect costs relating to the incarceration of unauthorized aliens.—Section 501 of the Immigration Reform and Control Act of 1986 (8 U.S.C. 1365) is amended—

(1) by amending subsection (a) to read as follows:

“(a) Reimbursement of States.—Subject to the amounts provided in advance in appropriation Acts, the Attorney General shall reimburse a State for—

“(1) the costs incurred by the State for the imprisonment of all unauthorized aliens convicted of a felony by such State; and

“(2) the indirect costs related to the imprisonments described in paragraph (1).”; and

(2) by amending subsections (c) through (e) to read as follows:

“(c) Allocation of reimbursements.—Reimbursements under this section shall be allocated in a manner that gives special consideration for any State that shares a border with Mexico or with Canada.

“(d) Definitions.—In this section:

“(1) INDIRECT COSTS.—The term ‘indirect costs’ includes—

“(A) court costs, county attorney costs, detention costs, and criminal proceedings expenditures that do not involve going to trial;

“(B) indigent defense costs; and

“(C) unsupervised probation costs.

“(2) STATE.—The term ‘State’ has the meaning given such term in section 101(a)(36) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(36)).

“(e) Authorization of appropriations.—There are authorized to be appropriated $200,000,000 for each of the fiscal years 2008 through 2012 to carry out subsection (a)(2).”.

SEC. 220. Procedures regarding aliens apprehended by State and local law enforcement officers.

(a) Issuance of detainers.—Section 287(d) (8 U.S.C. 1357(d)) is amended to read as follows:

(b)(1) An authorized officer or employee of the Department of Homeland Security shall promptly determine whether or not to issue a detainer to detain an alien who is arrested by a Federal, State, or local law enforcement official for a violation of any law relating to controlled substances if the law enforcement official—

(A) has reason to believe that the alien has not been lawfully admitted to the United States or is otherwise not lawfully present in the United States;

(B) expeditiously informs such officer or employee of the arrest and of facts concerning the status of the alien; and

(C) requests the Department of Homeland Security to determine whether or not to issue such detainer.

(2) If a detainer is issued pursuant to paragraph (1) and the alien is not otherwise detained by Federal, State, or local officials, the Secretary shall effectively and expeditiously take custody of the alien.

(3) The Secretary of Homeland Security shall collect data regarding detainers issued under this subsection, including—

(4) the criminal charge for which the individual was arrested or convicted;

(5) the date on which the detainer was issued;

(6) the basis for the issuance of the detainer;

(7) the date on which the detainer was lifted;

(8) the date on which a Federal or State criminal court or other government entity ordered the release of the individual;

(9) the date on which the Department of Homeland Security took custody of the individual;

(10) the race, ethnicity, and country of origin of the individual against whom the detainer was issued;

(11) the disposition of criminal case against the individual;

(12) the ultimate disposition of immigration case, including whether the individual was determined to be a United States citizen;

(13) the grounds of removal, if applicable, and any charges brought by the Secretary; and

(14) the number of individuals removed after the Secretary took custody while any criminal matter was pending.

(c) Rulemaking.—The Secretary shall issue regulations that require officers and employees of the Department of Homeland Security to confirm, before issuing a detainer—

(1) the alienage of the individual to be made subject to such detainer through lawfully obtained information, including—

(A) the name of the individual;

(B) the date of birth of the individual; or

(C) the fingerprints of the individual and

(2) whether the individual is removable from the United States.

SEC. 221. Reform of passport, visa, and immigration fraud offenses.

(a) Trafficking in passports.—Section 1541 of title 18, United States Code, is amended to read as follows:

§ 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.”.

(b) False statement in an application for a passport.—Section 1542 of title 18, United States Code, is amended to read as follows:

§ 1542. False statement in an application for a passport

“(a) In general.—Any person who knowingly—

“(1) makes any false statement or representation in an application for a United States passport; or

“(2) 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) IN GENERAL.—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) ACTS OCCURRING OUTSIDE THE UNITED STATES.—An offense under subsection (a) involving an application for a United States passport prepared and adjudicated outside the United States may be prosecuted in the district in which the resultant passport was or would have been produced.

“(c) Savings clause.—Nothing in this section may be construed to limit the venue otherwise available under sections 3237 and 3238 of this title.”.

(c) Forgery and unlawful production of a passport.—Section 1543 of title 18, United States Code, is amended to read as follows:

§ 1543. Forgery and unlawful production of a passport

“(a) Forgery.—Any person who knowingly—

“(1) forges, counterfeits, alters, or falsely makes any passport; or

“(2) 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.”.

(d) Misuse of a passport.—Section 1544 of title 18, United States Code, is amended to read as follows:

§ 1544. Misuse of a passport

“Any person who knowingly—

“(1) uses any passport issued or designed for the use of another person;

“(2) uses any passport in violation of the conditions or restrictions contained in the passport, 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.”.

(e) Schemes to defraud aliens.—Section 1545 of title 18, United States Code, is amended to read as follows:

“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 any Federal immigration law or any matter the offender claims or represents is authorized by or arises under any Federal immigration law, 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 an accredited representative (as that term is defined in section 1292.1 of title 8, Code of Federal Regulations (or any successor regulation)) in any matter arising under any Federal immigration law shall be fined under this title, imprisoned not more than 15 years, or both.”.

(f) Immigration and visa fraud.—Section 1546 of title 18, United States Code, is amended—

(1) by amending the section heading to read as follows:

§ 1546. Immigration and visa fraud”;

(2) by striking subsections (b) and (c) and inserting the following:

“(b) Trafficking.—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, possesses, or uses any official material (or counterfeit of any official material) used to make immigration documents, including any distinctive paper, seal, hologram, image, text, symbol, stamp, engraving, or plate, shall be fined under this title, imprisoned not more than 20 years, or both.

“(d) Employment documents.—Any person who uses—

“(1) an identification document, knowing or having reason to know that the document is false or was not issued lawfully for the use of the possessor; or

“(2) a false attestation, for the purpose of satisfying a requirement under 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 1 year, or both.”.

(g) Alternative imprisonment maximum for certain offenses.—Section 1547 of title 18, United States Code, is amended—

(1) in the matter preceding paragraph (1), by striking “(other than an offense under section 1545)”;

(2) in paragraph (1), by striking “15” and inserting “20”; and

(3) in paragraph (2), by striking “20” and inserting “25”.

(h) Attempts, conspiracies, jurisdiction, and definitions.—Chapter 75 of title 18, United States Code, is amended by adding after section 1547 the following:

§ 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 such section.

§ 1549. Additional jurisdiction

“(a) In general.—Any person who commits an offense under this chapter within the special maritime and territorial jurisdiction of the United States shall be punished as provided under this chapter.

“(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 any Federal immigration law;

“(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 (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.

§ 1550. Authorized law enforcement activities

“Nothing in this chapter may be construed to prohibit—

“(1) 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

“(2) any activity authorized under title V of the Organized Crime Control Act of 1970 (Public Law 91–452; 84 Stat. 933).”.

(i) Clerical amendment.—The table of sections for chapter 75 of title 18, United States Code, is amended to read as follows:


“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. Alternative imprisonment maximum for certain offenses.

“1548. Attempts and conspiracies.

“1549. Additional jurisdiction.

“1550. Authorized law enforcement activities.”.

(j) Uniform statute of limitations for certain immigration, naturalization, and peonage offenses.—

(1) IN GENERAL.—Section 3291 of title 18, United States Code, is amended to read as follows:

§ 3291. Immigration, naturalization, and peonage offenses

“A person may not be prosecuted, tried, or punished for any violation under chapter 69 (relating to nationality and citizenship offenses), 75 (relating to passport, visa, and immigration offenses), or 77 (relating to peonage, slavery, and trafficking in persons), for an attempt or conspiracy to commit such a violation, 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 commit any such violation, unless the indictment is returned or the information filed not later than 10 years after the commission of the offense.”.

(2) 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, naturalization, and peonage offenses.”.

SEC. 222. Directives related to passport and document fraud.

(a) Directive to the United States sentencing commission.—

(1) 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 209, to reflect the serious nature of such offenses.

(2) REPORT.—Not later than 1 year after the date of the enactment of this Act, the United States Sentencing Commission shall submit a report on the implementation of this subsection to—

(A) the Committee on the Judiciary of the Senate; and

(B) the Committee on the Judiciary of the House of Representatives.

(b) Protection for legitimate refugees and asylum seekers.—

(1) IN GENERAL.—

(A) REQUIREMENT FOR GUIDELINES.—The Attorney General, in consultation with the Secretary, shall develop binding prosecution guidelines for Federal prosecutors to ensure that each prosecution of an alien seeking entry into the United States by fraud is consistent with the United States treaty obligations under Article 31(1) of the Convention Relating to the Status of Refugees, done at Geneva July 28, 1951 (as made applicable by the Protocol Relating to the Status of Refugees, done at New York January 31, 1967 (19 UST 6223)).

(B) NO PRIVATE RIGHT OF ACTION.—The guidelines developed pursuant to subparagraph (A), and any internal office procedures related to such guidelines—

(i) are intended solely for the guidance of attorneys of the United States; and

(ii) 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.

(2) PROTECTION OF VULNERABLE PERSONS.—A person described in paragraph (3) may not be prosecuted under chapter 75 of title 18, United States Code, or under section 275 or 276 of the Immigration and Nationality Act (8 U.S.C. 1325 and 1326), in connection with the person’s entry or attempted entry into the United States until after the date on which the person’s application for such protection, classification, or status has been adjudicated and denied in accordance with the Immigration and Nationality Act (8 U.S.C. 1101 et seq.).

(3) PERSONS SEEKING PROTECTION, CLASSIFICATION, OR STATUS.—A person described in this paragraph is a person who—

(A) is seeking protection, classification, or status; and

(B)(i) has filed an application for asylum under section 208 of the Immigration and Nationality Act (8 U.S.C. 1158), withholding of removal under section 241(b)(3) of such Act (8 U.S.C. 1231), or relief under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, done at New York, December 10, 1994, pursuant to title 8, Code of Federal Regulations;

(ii) indicates immediately after apprehension, that he or she intends to apply for such asylum, withholding of removal, or relief and promptly files the appropriate application;

(iii) has been referred for a credible fear interview, a reasonable fear interview, or an asylum-only hearing under section 235 of the Immigration and Nationality Act (8 U.S.C. 1225) or title 8, Code of Federal Regulations; or

(iv) has filed an application for classification or status under—

(I) paragraph (15)(T), (15) (U), (27)(J), or (51) of section 101(a) of the Immigration and Nationality Act (8 U.S.C. 1101(a)); or

(II) section 216(c)(4)(C), 240A(b)(2), or 244(a)(3) of such Act (8 U.S.C. 1186a(c)(4)(C), 1229b(b)(2), and 1254a(a)(3)).

SEC. 223. Expanding the definition of conveyances subject to forfeiture.

(a) In general.—Section 1703 of title 19, United States Code, is amended—

(1) by amending the section heading to read as follows:

§ 1703. Seizure and forfeiture of vessels, vehicles, other conveyances, and instruments of international traffic”;

(2) in subsection (a), by amending the subsection heading to read as follows:

“(a) Vessels, vehicles, other conveyances, and instruments of international traffic subject to seizure and forfeiture.—”;

(3) in subsection (b), by amending the subsection heading to read as follows:

“(b) Vessels, vehicles, other conveyances, and instruments of international traffic defined.—”;

(4) in subsections (a) and (b), by inserting “, vehicle, other conveyance, or instrument of international traffic” after “vessel” each place such term appears; and

(5) by amending subsection (c) to read as follows:

“(c) Acts constituting prima facie evidence of smuggling.—For purposes of this section, prima facie evidence that a conveyance is being, has been, or is attempting to be employed in smuggling or to defraud the revenue of the United States shall be—

“(1) in the case of a vessel, the vessel—

“(A) has become subject to pursuit, as described in section 1581;

“(B) is a hovering vessel; or

“(C) fails, at any place within the customs waters of the United States or within a customs-enforcement area, to display lights as required by law;

“(2) in the case of a vehicle, other conveyance, or instrument of international traffic, the 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 of title 19, United States Code, is amended by striking the item relating to section 1703 and inserting the following:


“1703. Seizure and forfeiture of vessels, vehicles, other conveyances, or instruments of international traffic.”.

SEC. 224. 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), by amending subparagraph (B) to read as follows:

“(B) except as provided in subsection (y), is in the United States and has not been lawfully admitted for permanent residence;”;

(2) in subsection (g)(5), by amending subparagraph (B) to read as follows:

“(B) except as provided in subsection (y), is in the United States and has not been lawfully admitted for permanent residence;”; and

(3) in subsection (y)—

(A) in the subsection heading, by striking “Admitted Under Nonimmigrant Visas” and inserting “Not Lawfully Admitted for Permanent Residence”;

(B) by amending paragraph (1)(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 “and has not been 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 and has not been lawfully admitted for permanent residence”.

SEC. 225. Criminal forfeiture.

Section 982 of title 18, United States Code, is amended—

(1) in subsection (a)(2)(B) by inserting “1028A” between “1028” and “1029;”

(2) in subsection (a)(6)(A)—

(A) by striking “ or 274A(a)(2)” and inserting “274A(a)(2) or 274A(i)”; and

(B) by inserting “and 1028A” after “1028” and

(3) in subsection (a)(8) by inserting “and 1028A” after “1028”.

SEC. 226. Advance delivery of information including passenger manifests.

(a) In general.—Section 231 (8 U.S.C. 1221) is amended as follows:

(1) by striking “commercial vessel or aircraft” each place it appears and inserting “commercial vessel, commercial vehicle, or aircraft”;

(2) in subsection (a), by striking “such vessel or aircraft” and inserting “such vessel, vehicle, or aircraft”;

(3) in subsection (g), by striking “$1,000” and inserting “$5,000”;

(4) in subsection (j), by striking “The Attorney General” and inserting the following:

“(j) Information to be recorded.—The Secretary of Homeland Security”; and

(5) by inserting at the end the following:

“(k) Sharing of manifest and passenger name record information with other government agencies.—The Secretary of Homeland Security may provide information contained in passenger and crew manifests and passenger name record information received under this section to other Federal, State, tribal, local, and foreign government authorities in order to protect the national security of the United States or as otherwise authorized by law.

“(l) Savings provision.—Nothing in this section may be construed to abrogate, diminish, or weaken the provisions of any Federal law that prevents or protects against unauthorized collection or release of personal records.”.

(b) Assessments.—Not later than 1 year after the date of the enactment of this Act, the Secretary shall assess the privacy and civil liberties impacts of the amendments made by subsection (a).

SEC. 227. Unlawful flight from immigration or customs controls and disobeyance of lawful orders.

Section 758 of title 18, United States Code, is amended to read as follows:

§ 758. Unlawful flight from Federal checkpoints and disobeyance of lawful orders

“(a) Evading a checkpoint.—Any person who, while operating a motor vehicle or vessel—

“(1) knowingly flees or evades a checkpoint operated by the Department of Homeland Security or any other Federal law enforcement agency; and

“(2) knowingly or recklessly disregards or disobeys the lawful command of a Federal law enforcement officer engaged in the enforcement of Federal law, or the lawful command of any law enforcement officer assisting such Federal officer,

shall be fined under this title, imprisoned not more than 5 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 a Federal law enforcement officer engaged in the enforcement of Federal law, or the lawful command of any law enforcement officer assisting such Federal officer, shall be fined under this title, imprisoned not more than 2 years, or both.”.

SEC. 228. Reducing illegal immigration and alien smuggling on tribal lands.

(a) Grants authorized.—The Secretary may award grants to any Indian tribe that—

(1) owns land that is adjacent to an international border of the United States; and

(2) has 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 that Border Patrol agents have on tribal lands;

(2) describes the extent to which the enforcement of Federal immigration laws and rescue operations by Border Patrol officers may be improved by enhanced access to tribal lands;

(3) contains a strategy for improving access to tribal lands through increased cooperation with tribal authorities; and

(4) identifies grants provided by the Department to Indian tribes, either directly or through grants provided to State or local governments, for 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 2011 through 2015 to carry out this section.

SEC. 229. Diplomatic security service.

(a) Section 37(a)(1) of the State Department Basic Authorities Act of 1956 (22 U.S.C. 2709(a)(1)) 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, or 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 section 7(9) of title 18, United States Code, except as that jurisdiction relates to the premises of United States military missions and related residences;”.

(b) Rule of construction.—Nothing in this section may be construed to limit the investigative authority of any Federal department or agency.

SEC. 230. Increased penalties barring the admission of convicted sex offenders failing to register and requiring deportation of sex offenders failing to register.

(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;

(2) in subclause (II), by striking the comma at the end and inserting a semicolon; and

(3) by inserting after subclause (II) the following:

“(III) a conviction under section 2250 of title 18, United States Code (relating to failure to register as a sex offender),”.

(b) Deportability.—Section 237(a)(2)(A)(i) (8 U.S.C. 1227(a)(2)(A)(i)) is amended—

(1) in subclause (I), by striking “, and” 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 conviction under section 2250 of title 18, United States Code (relating to failure to register as a sex offender),”.

SEC. 231. Aggravated felony.

(a) Definition of aggravated felony.—Section 101(a)(43) (8 U.S.C. 1101(a)(43)) is amended—

(1) in the matter preceding subparagraph (A), by striking “The term ‘aggravated felony’ means—” and inserting “Notwithstanding any other provision of law, the term ‘aggravated felony’ applies to any offense which is a felony described in this paragraph, whether in violation of Federal or State law, for which the individual served at least 1 year of imprisonment and to such a felony offense in violation of the law of a foreign country, for which the term of imprisonment was completed during the previous 15 years, regardless of whether the conviction was entered before, on, or after September 30, 1996, and means—”;

(2) in subparagraph (N), by striking “paragraph (1)(A) or (2) of” and inserting “paragraph (1)(A), (2), or (4) of”; and

(3) 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 act that occurred on or after such date.

(2) APPLICATION OF 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 to actions taken on or after September 30, 1996, regardless of when the conviction for such actions occurred.

SEC. 232. Increased criminal penalties related to gang violence.

(a) Criminal street gangs.—

(1) INADMISSIBILITY.—Section 212(a)(2) (8 U.S.C. 1182(a)(2)) is amended by adding at the end the following:

“(J) MEMBERS OF CRIMINAL STREET GANGS.—Unless the Secretary of Homeland Security or the Attorney General waives the application of this subparagraph, any alien who has been convicted of a crime under section 521 of title 18, United States Code, 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) MEMBERS OF CRIMINAL STREET GANGS.—Unless the Secretary of Homeland Security or the Attorney General waives the application of this subparagraph, any alien who has been convicted of a crime under section 521 of title 18, United States Code, is deportable.”.

(3) TEMPORARY PROTECTED STATUS.—Section 244 (8 U.S.C. 1254a) is amended—

(A) by striking “Attorney General” each place it appears and inserting “Secretary of Homeland Security”;

(B) in subsection (c)(2)(B)—

(i) in clause (i), by striking “, or” at the end and inserting a semicolon;

(ii) in clause (ii), by striking the period at the end and inserting “; or”; and

(iii) by adding at the end the following:

“(iii) the alien has been convicted of a crime under section 521 of title 18, United States Code.”.

(C) in subsection (d)—

(i) by striking paragraph (3);

(ii) by redesignating paragraph (4) as paragraph (3); and

(iii) in paragraph (3), as redesignated, by adding at the end the following: “The Secretary of Homeland Security shall detain an alien provided temporary protected status under this section if the alien has been found by an immigration judge to be subject to detention under section 236(c)(1).”.

(b) Penalties related to removal.—Section 243 (8 U.S.C. 1253) is amended—

(1) in subsection (a)(1), in the matter following subparagraph (D)—

(A) by striking “or imprisoned not more than four years” and inserting “and imprisoned for not more than 5 years”; and

(B) by striking “, or both”; and

(2) in subsection (b), by striking “not more than $1,000 or imprisoned for not more than one year, or both” and inserting “under title 18, United States Code, and imprisoned for not more than 3 years (or for not more than 10 years if the alien is removable under paragraph (1)(E), (2), or (4) of section 237(a)).”.

SEC. 241. Definitions.

In this subtitle:

(1) APPREHENSION.—The term “apprehension” means the detention, arrest, or custody, or any significant deprivation of an individual’s freedom of action by government officials or entities acting under agreement with the Department for suspicion of violations under the Immigration and Nationality Act (8 U.S.C. 1101 et seq.).

(2) CHILD.—The term “child” has the meaning given to the term in section 101(b)(1) of the Immigration and Nationality Act (8 U.S.C. 1101(b)(1)).

(3) CHILD WELFARE AGENCY.—The term “child welfare agency” means the State or local agency responsible for child welfare services under subtitles B and E of title IV of the Social Security Act (42 U.S.C. 601 et seq.).

(4) COOPERATING ENTITY.—The term “cooperating entity” means a State or local entity acting under agreement with, or at the request of, the Department.

(5) DETAINEE.—The term “detainee” means an individual who is subject to detention under the Immigration and Nationality Act.

(6) DETENTION.—The term “detention” means government custody or any other deprivation of an individual's freedom of movement by government agents.

(7) DETENTION FACILITY.—The term “detention facility” means a Federal, State, or local government facility, or a privately owned and operated facility, that is used to hold individuals suspected or found to be in violation of the Immigration and Nationality Act (8 U.S.C. 1101 et seq.) for more than 72 hours.

(8) FAMILIES WITH CHILDREN.—The term “family with children” means any parent or legal guardian who is apprehended with 1 or more of their children.

(9) GROUP LEGAL ORIENTATION PRESENTATIONS.—The term “group legal orientation presentations” means live group presentations, supplemented by individual orientations, pro se workshops, and pro bono referrals, that—

(A) are carried out by private nongovernmental organizations;

(B) are presented to detainees;

(C) inform detainees about Federal immigration law and procedures; and

(D) enable detainees to determine their eligibility for relief.

(10) IMMIGRATION ENFORCEMENT ACTION.—The term “immigration enforcement action” means the apprehension of, detention of, or request for or issuance of a detainer for, 1 or more individuals for suspected or confirmed violations of the Immigration and Nationality Act (8 U.S.C. 1101 et seq.) by the Department or cooperating entities.

(11) LOCAL EDUCATION AGENCY.—The term “local education agency” has the meaning given to the term in section 9101 of the Elementary and Secondary Education Act of 1965 (20 U.S.C. 7801).

(12) NGO.—The term “NGO” means a nongovernmental organization that provides social services or humanitarian assistance to the immigrant community.

(13) SECURE ALTERNATIVES.—The term “secure alternatives” means custodial or noncustodial programs under which aliens are screened and provided with appearance assistance services or placed in supervision programs as needed to ensure they appear at all immigration interviews, appointments and hearings.

(14) SHORT-TERM DETENTION FACILITY.—The term “detention facility” means a Federal, State, or local government facility, or a privately owned and operated facility, that is used to hold individuals suspected or found to be in violation of the Immigration and Nationality Act (8 U.S.C. 1101 et seq.) for 72 hours or less.

(15) UNACCOMPANIED ALIEN CHILDREN.—The term “unaccompanied alien children” has the meaning given the term in section 462(g) of the Homeland Security Act of 2002 (6 U.S.C. 279(g)).

SEC. 242. Protections for vulnerable populations.

(a) Protection of vulnerable populations.—

(1) IN GENERAL.—Not later than 72 hours after the commencement of an immigration-related enforcement activity, the Department shall screen each detainee to determine if the individual is a member of a vulnerable population.

(2) ELIGIBILITY FOR RELEASE.—An individual is a member of a vulnerable population and eligible for release under paragraph (3) if the Department determines that he or she—

(A) has a nonfrivolous claim to United States citizenship;

(B) has been deemed by a medically trained professional to have medical or mental health needs, or a disability;

(C) is pregnant or nursing;

(D) is being detained with 1 or more of his or her children, or is 1 of such children;

(E) provides financial, physical, and other direct support to his or her minor children, parents, or other dependents;

(F) is older than 65 years of age;

(G) is a child (as defined in section 101(b) of the Immigration and Nationality Act (8 U.S.C. 1101(b));

(H) is a victim of abuse, violence, crime, or human trafficking;

(I) has been referred for a credible fear interview, a reasonable fear interview, or an asylum hearing, or is a stateless individual;

(J) has applied or intends to apply for asylum, withholding of removal, or protection under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, done at New York December 10, 1984;

(K) is prima facie eligible for relief under any provision of the Immigration and Nationality Act (8 U.S.C. 1101 et seq.) including returning lawful permanent residents; or

(L) is a member of any other group that has been designated as a vulnerable population in regulations or guidance promulgated by the Secretary.

(b) Options regarding detention decisions for vulnerable populations.—Section 236 (8 U.S.C. 1226), as amended by this Act, is further amended—

(1) in subsection (a)—

(A) in the matter preceding paragraph (1) by striking “(c)” and inserting “(g)”; and

(B) in paragraph (2)—

(i) in subparagraph (A), 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;”; and.

(C) by redesignating paragraph (3) as paragraph (4); and

(D) by inserting after paragraph (2) the following:

“(3) may enroll the alien in a secure alternatives program; and”;

(2) by inserting after subsection (a) the following:

“(b) Custody decisions.—

“(1) CRITERIA TO BE CONSIDERED.—For any alien who is not charged with inadmissibility or removability under a ground specified in subsection (g) or section 236A, the criteria that the Secretary of Homeland Security or the Attorney General shall use to demonstrate that detention is necessary are—

“(A) whether the alien poses a risk to public safety, including a risk to national security; and

“(B) whether alien poses a flight risk and there are no conditions of release that will reasonably ensure that the alien will appear for immigration proceedings, including bond or other conditions that reduce the risk of flight.

“(2) EXCEPTION.—A decision to detain an alien shall not be subject to the criteria under paragraph (1) if the Secretary demonstrates, by a preponderance of the evidence, that the alien falls is described in subsection (g)(1).

“(3) REVIEW.—Decisions by the Secretary or the Attorney General under this section shall be subject to review.

“(c) Custody decisions for vulnerable populations.—

“(1) IN GENERAL.—Not later than 72 hours after an individual is detained under this section (unless the 72-hour requirement is waived in writing by the individual), an individual who is a member of a vulnerable population (as defined by subsection (a)) shall be released from the custody of the Department of Homeland Security and shall not be subject to electronic monitoring unless the Department demonstrates by a preponderance of evidence that the individual—

“(A) is subject to mandatory detention under subsection (g) or section 236A;

“(B) poses a risk to public safety, including a risk to national security; or

“(C) is a flight risk and the risk cannot be mitigated through other conditions of release, such as bond or secure alternatives, which will reasonably ensure the alien will appear for immigration proceedings.

“(2) RELEASE.—An individual shall be released from custody under this subsection—

“(A) on the individual’s own recognizance;

“(B) by posting a minimum bond under subsection (a)(2)(a);

“(C) on parole, in accordance with section 212(d)(5)(A); or

“(D) into a noncustodial secure alternatives program.

“(d) Decision to remove or release an alien.—

“(1) IN GENERAL.—All decisions to detain an individual under this Act—

“(A) shall be made in writing by the Department of Homeland Security or the Attorney General;

“(B) shall specify the reasons for such decision if the decision is made to continue detention without bond, parole, release on recognizance, or release into a noncustodial secure alternatives program; and

“(C) shall be served upon the individual in the language spoken by the individual—

“(i) not later than 72 hours after the commencement of the alien’s detention; or

“(ii) in the case of an alien subject to section 235 or 241(a)(5) who must establish a credible fear of persecution or torture, not later than 72 hours after a positive credible fear of persecution or reasonable fear of persecution or torture determination.

“(2) REDETERMINATION.—

“(A) IN GENERAL.—Any alien detained by the Department of Homeland Security under this Act may, at any time after being served with the Secretary’s decision under paragraph (1), request a redetermination of that decision by an immigration judge.

“(B) OTHER DECISIONS.—The Attorney General may review and conduct custody redeterminations for any custody decision by the Secretary.

“(C) SAVINGS PROVISION.—Nothing in this subparagraph may be construed to prevent an individual from requesting a bond redetermination.

“(e) Timely notice upon apprehension and service of charging documents.—

“(1) NOTICE.—The Secretary, for each individual detained by the Department under this section, shall file the notice to appear or other relevant charging document with the closest immigration court to where the individual was apprehended and serve such notice on the individual not later than 48 hours after the commencement of the individual’s detention.

“(2) CUSTODY DETERMINATION.—Any individual who is detained under this section for more than 48 hours shall be brought before an immigration judge for a custody determination not later than 72 hours after the commencement of such detention unless the individual waives such right in accordance with paragraph (3).

“(3) WAIVER.—The requirements under this subsection may be waived for 7 days if the individual—

“(A) enters into a written agreement with the Department of Homeland Security to waive such requirement; and

“(B) is eligible for immigration benefits or demonstrates eligibility for a defense against removal.

“(4) APPLICABILITY OF OTHER LAW.—Nothing in this section may be construed to repeal section 236A.”;

(3) in subsection (e)(2), as redesignated, by inserting “or for humanitarian reasons,” after “such an investigation,”; and

(4) by redesignating subsections (b), (c), and (d), as subsections (f), (g), and (h), respectively.

SEC. 243. Apprehension procedures for immigration enforcement-related activities relating to children.

(a) Notification.—

(1) ADVANCE NOTIFICATION.—Subject to paragraph (2), when conducting any immigration enforcement action, the Department and cooperating entities shall notify the Governor of the State, the local child welfare agency, and relevant State and local law enforcement before commencing the action, or, if advance notification is not possible, immediately after commencing such action, of—

(A) the approximate number of individuals to be targeted in the immigration enforcement action; and

(B) the primary language or languages believed to be spoken by individuals at the targeted site.

(2) HOURS OF NOTIFICATION.—To the extent possible, advance notification should occur during business hours and allow the notified entities sufficient time to identify resources to conduct the interviews described in subsection (b)(1).

(3) OTHER NOTIFICATION.—When conducting any immigration action, the Department and cooperating entities shall notify the relevant local education agency and local NGOs of the information described in paragraph (1) immediately after commencing the action.

(b) Apprehension procedures.—In any immigration enforcement action, the Department and cooperating entities shall—

(1) as soon as possible and not later than 6 hours after an immigration enforcement action, provide licensed social workers or case managers employed or contracted by the child welfare agency or local NGOs with confidential access to screen and interview individuals apprehended in such immigration enforcement action to assist the Department or cooperating entity in determining if such individuals are parents, legal guardians, or primary caregivers of a child in the United States;

(2) as soon as possible and not later than 8 hours after an immigration enforcement action, provide any apprehended individual believed to be a parent, legal guardian, or primary caregiver of a child in the United States with—

(A) free, confidential telephone calls, including calls to child welfare agencies, attorneys, and legal services providers, to arrange for the care of children or wards, unless the Department has reasonable grounds to believe that providing confidential phone calls to the individual would endanger public safety or national security; and

(B) contact information for—

(i) child welfare agencies in all 50 States, the District of Columbia, all United States territories, counties, and local jurisdictions; and

(ii) attorneys and legal service providers capable of providing free legal advice or free legal representation regarding child welfare, child custody determinations, and immigration matters;

(3) ensure that personnel of the Department and cooperating entities do not—

(A) interview individuals in the immediate presence of children; or

(B) compel or request children to translate for interviews of other individuals who are encountered as part of an immigration enforcement action; and

(4) ensure that any parent, legal guardian, or primary caregiver of a child in the United States—

(A) receives due consideration of the best interests of his or her children or wards in any decision or action relating to his or her detention, release, or transfer between detention facilities; and

(B) is not transferred from his or her initial detention facility or to the custody of the Department until the individual—

(i) has made arrangements for the care of his or her children or wards; or

(ii) if such arrangements are impossible, is informed of the care arrangements made for the children and of a means to maintain communication with the children.

(c) Nondisclosure and retention of information about apprehended individuals and their children.—

(1) IN GENERAL.—Information collected by child welfare agencies and NGOs in the course of the screenings and interviews described in subsection (b)(1) about an individual apprehended in an immigration enforcement action may not be disclosed to Federal, State, or local government entities or to any person, except pursuant to written authorization from the individual or his or her legal counsel.

(2) CHILD WELFARE AGENCY OR NGO RECOMMENDATION.—Notwithstanding paragraph (1), a child welfare agency or NGO may—

(A) submit a recommendation to the Department of Homeland Security or cooperating entities regarding whether an apprehended individual is a parent, legal guardian, or primary caregiver who is eligible for the protections provided under this Act; and

(B) disclose information that is necessary to protect the safety of the child, to allow for the application of subsection (b)(4)(A), or to prevent reasonably certain death or substantial bodily harm.

SEC. 244. Detention of families.

(a) Placement in removal proceedings.—Any family with children sought to be removed by the Department shall be placed in removal proceedings under section 240 of the Immigration and Nationality Act (8 U.S.C. 1229a).

(b) Custody of families with children.—

(1) SEPARATION.—Families with children shall not be separated or taken into custody except when justified by exceptional circumstances, or when required by law.

(2) EXCEPTIONAL CIRCUMSTANCES.—In exceptional circumstances, if release or a secure alternatives program is not an option for families with children, the Secretary shall ensure that—

(A) special nonpenal, residential, home-like facilities that enable families to live as a family unit are designed to house families with children, taking into account the particular needs and vulnerabilities of the children;

(B) procedures and conditions of custody are appropriate for families with children;

(C) entities with demonstrated experience and expertise in child welfare staff and are responsible for the management of facilities housing families with children;

(D) unless such restrictions are necessary to prevent flight or to ensure the safety of residents, families with children are are not subject restrictions—

(i) on freedom of movement;

(ii) involving access to visitations, telephones, internet, a library, and a law library;

(iii) regarding possession of personal property, including personal clothing;

(iv) on the availability of age appropriate education; or

(v) religious practices;

(E) individualized reviews by an immigration judge of each family’s well being, custody status and the need for continued detention are conducted every 30 days for any family held in such a facility for more than 3 weeks;

(F) all families are notified in writing of the decisions resulting from such reviews and of the individualized reasons for the decision; and

(G) parents retain fundamental parental rights and responsibilities, including the discipline of children, in accordance with applicable State laws.

(c) Discretionary waiver authority for families with children.—Section 235(b)(1)(B)(iii) (8 U.S.C. 1225(b)(1)(B)(iii)) is amended—

(1) in subclause (IV), by striking “Any alien” and inserting “Except as provided in subclause (V), any alien”; and

(2) by adding at the end the following:

“(V) DISCRETIONARY WAIVER AUTHORITY FOR FAMILIES WITH CHILDREN.—The Secretary of Homeland Security may decide for humanitarian reasons or significant public benefit not to detain families with children who are otherwise subject to mandatory detention under subclause (IV).”.

SEC. 245. Access to children, local and State courts, child welfare agencies, and consular officials.

(a) In general.—The Secretary shall ensure that all detention facilities operated by or under agreement with the Department implement procedures to ensure that the best interest of the child, including the best outcome for the family of the child, is considered in any decision or action relating to the custody of children whose parent, legal guardian, or primary caregiver is detained as the result of an immigration enforcement action.

(b) Access to children, State and local courts, child welfare agencies, and consular officials.—At all detention facilities operated by, or under agreement with, the Department, the Secretary shall—

(1) ensure that individuals who are detained by reason of their immigration status may receive the screenings and interviews described in section 243(b)(1) not later than 6 hours after their arrival at the detention facility;

(2) ensure that individuals who are detained by reason of their immigration status and are believed to be parents, legal guardians, or primary caregivers of children in the United States are—

(A) permitted daily phone calls and regular contact visits with their children or wards;

(B) able to participate fully, and to the extent possible in-person, in all family court proceedings and any other proceeding impacting upon custody of their children or wards;

(C) able to fully comply with all family court or child welfare agency orders impacting upon custody of their children or wards;

(D) provided with contact information for family courts in all 50 States, the District of Columbia, all United States territories, counties, and local jurisdictions;

(E) granted free and confidential telephone calls to child welfare agencies and family courts;

(F) granted free and confidential telephone calls and confidential in-person visits with attorneys, legal representatives, and consular officials;

(G) provided United States passport applications for the purpose of obtaining travel documents for their children or wards;

(H) granted adequate time before removal to obtain passports and other necessary travel documents on behalf of their children or wards if such children or wards will accompany them on their return to their country of origin or join them in their country of origin; and

(I) provided with the access necessary to obtain birth records or other documents required to obtain passports for their children or wards; and

(3) facilitate the ability of detained parents, legal guardians, and primary caregivers to share information regarding travel arrangements with their children or wards, child welfare agencies, or other caregivers well in advance of the detained individual's departure from the United States.

SEC. 246. Memoranda of understanding.

The Secretary shall develop and implement memoranda of understanding or protocols with child welfare agencies and NGOs regarding the best ways to cooperate and facilitate ongoing communication between all relevant entities in cases involving a child whose parent, legal guardian, or primary caregiver has been apprehended or detained in an immigration enforcement action to protect the best interests of the child and the best outcome for the family of the child.

SEC. 247. Mandatory training.

The Secretary, in consultation with the Secretary of Health and Human Services and independent child welfare experts, shall require and provide in-person training on the protections required to all personnel of the Department and of States and local entities acting under agreement with the Department who regularly come into contact with children or parents in the course of conducting immigration enforcement actions.

SEC. 248. Alternatives to detention.

(a) Secure alternatives.—The Secretary shall establish secure alternatives programs to ensure public safety and appearances at immigration proceedings. The Secretary shall contract with nongovernmental organizations to conduct screening of detainees, provide appearance assistance services, and operate community-based supervision programs. If an individual is not eligible for release from custody, the Secretary shall consider the alien for placement in secure alternatives that maintain custody over the alien, including but not limited to the use of electronic ankle devices. When deciding whether to use custodial secure alternatives, the Secretary shall make an individualized determination and review each case on a monthly basis. The Secretary may use secure alternatives programs to maintain custody over any alien detained under the Immigration and Nationality Act, except aliens detained under section 236A of such Act (8 U.S.C. 1226a).

SEC. 249. Detention conditions.

(a) Detention requirements.—The Secretary shall ensure that all persons detained pursuant to the Immigration and Nationality Act are treated humanely and granted the protections set forth in this section. The Secretary shall comply with and enforce the following minimum requirements:

(1) QUALITY OF MEDICAL CARE.—Each detainee has the right to prompt and adequate medical care, designed to ensure continuity of care, at no cost to the detainee, including care to address medical needs that existed prior to detention. Such care shall include primary care, emergency care, chronic care, reproductive health care, prenatal care, dental care, eye care, mental health care, medical dietary needs, and other medically necessary specialized care. The Secretary shall cease use of any short term facility or detention facility that fails to maintain accreditation for more than 1 year.

(A) Each detainee shall receive a comprehensive medical, dental, and mental health intake screening by a licensed health care professional upon arrival at the detention facility and each detainee shall receive a comprehensive medical and mental health examination by a licensed health care professional not later than 14 days after arrival.

(B) All prescribed medications and medically necessary treatment shall be provided to detainees on schedule and without interruption. Medically necessary treatment shall include prenatal care, prenatal vitamins, and hormonal therapies including birth control. Female detainees shall be provided with adequate access to sanitary products. Each detainee taking prescribed medications prior to detention shall be allowed to continue taking such medications, on schedule and without interruption, until and unless a licensed health care professional examines the immigration detainee and decides upon an alternative course of treatment. Detainees who arrive at a detention facility with prescription medications shall be permitted to continue taking their medications, on schedule and without interruption, until such time as a qualified health care professional examines the detainee and decides upon an alternative course of treatment. Detainees who arrive at a detention facility without prescription medications but who report being on such medications shall be evaluated by a qualified health care professional as soon as possible, but not later than 24 hours after arrival. All decisions to discontinue or modify a detainee’s reported prescription medication regimen shall be conveyed to the detainee in a language that the detainee understands and shall be recorded in writing in the detainee’s medical records.

(C) Involuntary psychotropic medication may be used only if allowed by applicable law and then only in emergency situations when a physician has determined, after personally examining the patient, that a detainee is imminently dangerous to self or others due to a mental illness and that involuntary psychotropic medication is medically appropriate to treat the mental illness and necessary to prevent harm. Medication shall not be forcibly administered to a detainee to facilitate transport, removal or otherwise to control the detainee’s behavior.

(D) On-Site Medical Providers. Detention facilities, in conjunction with the Department, shall provide for an administrative process for handling appeals of denials of medical or mental health treatment or care. Any decision regarding requested medical care for a detainee shall be made in writing by an on-site licensed health care professional within 72 hours. The decision of the on-site provider shall be communicated without delay to the detainee.

(E) Administrative Appeals Process. Detention facilities, in conjunction with the Department, shall ensure that detainees, medical providers, and legally-appointed advocates have the opportunity to appeal a denial of requested health care services by an on-site provider to an independent appeals board. The appeals board shall include health care professionals in the fields relevant to the request for medical or mental health care. Any such appeal shall be resolved in writing within 7 days by the appeals board or earlier if medically necessary.

(F) Review of on-site medical provider requests. The Secretary shall respond within 72 hours to any request by an on-site medical provider for authorization to provide medical or mental health care to an immigration detainee. In each case in which the Secretary denies or fails to grant such a request by the onsite medical provider, a written explanation of the reasons for the decision shall be conveyed without delay to the on-site medical provider and the immigration detainee. The on-site medical provider and immigration detainee (or legally appointed advocate) shall be permitted to appeal the denial of or failure to grant the requested health care service. Such appeal shall be resolved in writing within 7 days by an impartial appeals board or earlier if medically necessary and communicated without delay to the on-site medical provider and the immigration detainee.

(G) Any detainee deemed by a licensed health care professional to have a medical or mental health care condition shall be considered for release on parole, on bond, or into a secure alternatives program, with periodic reevaluations for such detainees not initially released.

(H) Upon removal or release, all detainees with medical or mental health conditions and women who are pregnant, post-natal, and nursing mothers shall receive discharge planning to ensure continuity of care for a reasonable period of time.

(I) The Department shall maintain complete, confidential medical records for every detainee, which shall be made available within 72 hours upon request to a detainee or individuals authorized by the detainee. Immediately upon an immigration detainee’s transfer from one detention facility to another, the immigration detainee’s complete medical records, including any transfer summary, shall be provided to the receiving facility.

(2) TRANSFERS OF DETAINEES.—

(A) NOTICE.—Absent exigent circumstances, such as a natural disaster or comparable emergency, the Secretary shall provide not less than 72 hours written notice to any detainee before such detainee is transferred to another detention facility. Not later than 24 hours after transfer, the Secretary shall notify by telephone and in writing the detainee’s legal representative or other person designated by the detainee of the transfer.

(B) PROCEDURES.—Absent exigent circumstances, such as a natural disaster or comparable emergency, the Secretary shall not transfer a detainee to another detention facility if such transfer would impair an existing attorney-client relationship; prejudice the rights of the detainee in any legal proceeding, including any federal, state or administrative proceeding; or negatively affect the detainee’s health including by interrupting the continuity of medical care or provision of prescription medication.

(C) TRANSPORTATION.—The Secretary shall ensure the safe transport and deportation of each individual detained under the Immigration and Nationality Act, including appropriate use of safety harnesses and occupancy limitations of vehicles.

(3) ACCESS TO TELEPHONES.—Detention facilities shall provide detainees with reasonable access to telephones not later than 6 hours after the commencement of a detention of an individual that shall include at a minimum one working phone for every 25 detainees. Each detainee has the right to contact, free of charge, legal representatives, designated nongovernmental organizations, consular officials, Federal and State courts where the detainee is or may become involved in a legal proceeding, and all government immigration agencies and adjudicatory bodies including the DHS Office of the Inspector General and the DHS Office for Civil Rights and Civil Liberties through confidential toll-free numbers. Confidential calls at no charge shall be provided to detainees who are subject to expedited removal or who are experiencing personal or family emergencies, including the need to arrange care for dependents. Each detainee has the right to privacy of telephone conversations made for the purpose of obtaining legal representation or related to legal matters. The Secretary shall ensure that rates charged in detention facilities for telephone calls are reasonable and do not significantly impair the detainee’s right to access telephones.

(4) PHYSICAL AND SEXUAL ABUSE.—No detainee, whether in a detention facility or short term detention facility, shall be subject to degrading or inhumane treatment such as physical abuse, sexual abuse or harassment, or arbitrary punishment. Detention facilities shall take all necessary measures to prevent sexual abuse and sexual assaults of detainees, to provide medical and mental health treatment to victims of sexual abuse and sexual assaults and shall comply fully with the standards under the Prison Rape Elimination Act of 2003 (42 U.S.C. 15601 et seq.)

(5) LIMITATIONS ON SOLITARY CONFINEMENT AND STRIP SEARCHES.—The use of solitary confinement, shackling, and strip searches of detainees shall be limited to situations where the use of such techniques is necessitated by extraordinary circumstances when the safety of other persons is at imminent risk. These techniques shall in no event be used for the purpose of humiliating detainees either within or outside the detention facility. Detention facilities shall adopt written policies pertaining to the use of force and the use of restraints and shall train all staff on the proper use of such devices. Solitary confinement, shackling and strip searches shall not be used on pregnant women, nursing mothers, women in labor or delivery or children who are younger than 18 years of age. Strip searches shall not be conducted in front of children who are younger than 21 years of age.

(6) LOCATION OF DETENTION FACILITIES.—All new detention facilities used by the Department shall be located within 50 miles of a city or municipality in which there is a demonstrated capacity to provide free or low-cost legal representation by non-profit legal aid organizations or pro bono attorneys with expertise in asylum or immigration law. By January 1, 2012, all detention facilities used by the Department shall meet this requirement, and if the Secretary is unable to comply, the Secretary shall submit a report to Congress on that date and annually each year thereafter, explaining the reasons for the failure and the specific plans to meet the requirement.

(7) TRANSLATION CAPABILITIES.—Detention facilities and short term detention facilities shall employ facility staff who are professionally qualified in any language spoken by more than 10 percent of its immigration detainee population. All short term detention facilities and detention facilities shall provide alternative translation services in the exceptional circumstances when trained bilingual staff members are unavailable to translate. All such facilities shall provide notices and written materials to detainees translated in any language spoken by more than 5 percent of its immigration detainee population.

(8) LEGAL ACCESS.—Detainees in detention facilities have the right to access legal information, including an on-site law library with up-to-date legal materials and law databases. Each detainee has the right to access free of charge the necessary equipment and materials for legal research and correspondence, such as computers, printers, copiers, and typewriters. The Secretary shall ensure each detainee is provided with information regarding the availability of legal information and services to assist those with limited English proficiency or disabilities. Detention facilities shall also provide access for each detainee to meet confidentially with legal counsel and shall provide services to send confidential legal documents to legal counsel, government offices and legal organizations.

(9) VISITATIONS.—Detainees in detention facilities have the right to meet privately with his or her current or prospective legal representative, interpreters, and other legal support staff a minimum of 8 hours per day on regular business days and 4 hours per day on weekends and holidays, subject to appropriate security procedures. Legal visits shall not be restricted absent narrowly defined exceptional circumstances, such as a natural disaster or comparable emergency. Detention facilities shall prominently post official lists, updated semi-annually by the Secretary of Homeland Security, of pro bono legal organizations and their contact information in detainee housing units and other appropriate areas. Each detainee has the right to reasonable access to religious or other qualified individuals to address religious, cultural, or spiritual considerations. Detainees have the right to regular, private contact visits with children who are younger 18 years of age.

(10) RECREATIONAL PROGRAMS AND ACTIVITIES.—Detainees in detention facilities shall be afforded access to at least one hour each day of indoor and outdoor recreational programs and activities for detainees.

(11) TRAINING OF PERSONNEL.—All personnel in detention facilities and short term detention facilities shall be given a comprehensive specialized training and regular, periodic updates that shall include at a minimum an overview of immigration detention and all detention standards; the characteristics of the non-citizen detainee population including special characteristics of vulnerable groups; and the due process and grievance procedures to protect the rights of detainees.

(12) SPECIFIC DETENTION REQUIREMENTS FOR SHORT TERM DETENTION FACILITIES.—All detainees in short term detention facilities shall receive potable water; food if detained for more than 5 hours; basic toiletries, diapers, sanitary products and blankets; and access to bathroom facilities and telephones. The Secretary or his designates shall provide consular officials with access to detainees held at such facilities. Detainees shall be afforded reasonable access to a licensed health care professional. The Secretary shall ensure that nursing mothers in such facilities have access to their children. Any property the Department confiscates from detainees shall be returned upon repatriation or transfer.

(A) PROTECTIONS FOR CHILDREN IN SHORT-TERM FACILITIES.—For purposes of this section, the Secretaryshall provide adequately trained and qualified staff resources at each major port of entry (as defined by the U.S. Customs and Border Protection station assigned to that port having in its custody over the past two fiscal years an average per year of 50 or more unaccompanied alien children (as defined in section 462 of the Homeland Security Act of 2002 (6 U.S.C. 279))), including U.S. Customs and Border Protection agents charged primarily with the safe, swift, and humane transportation of unaccompanied alien children to Office of Refugee Resettlement custody and independent licensed social workers dedicated to ensuring the proper temporary care for the children while in Department custody prior to their transfer to the Office of Refugee Resettlement, who will ensure that each child—

(i) receives emergency medical care;

(ii) receives mental health care in case of trauma and has access to psychosocial health services;

(iii) is provided with a pillow, linens, and sufficient blankets to rest at a comfortable temperature, a bed, and a mattress placed in an area specifically designated for residential use;

(iv) receives adequate nutrition;

(v) enjoys a safe and sanitary living environment;

(vi) receives educational materials; and

(vii) has access to at least three hours per day of indoor and outdoor recreational programs and activities.

(B) CONFIDENTIALITY.—The Secretary of Health and Human Services shall maintain the privacy and confidentiality of all information gathered in the course of providing care, custody, placement and follow-up services to unaccompanied alien children, consistent with the best interest of the unaccompanied alien child, by not disclosing such information to other government agencies or nonparental third parties. The Secretary may share information when authorized to do so by the child and when consistent with the child's best interest. The Secretary may provide information to a duly recognized law enforcement entity, if such disclosure would prevent imminent and serious harm to another individual. All disclosures shall be duly recorded in writing and placed in the child's files.

(13) VULNERABLE POPULATIONS.—Detention facility conditions and minimum requirements for detention facilities shall recognize and accommodate the unique needs of vulnerable populations as defined by this Act.

(14) CHILDREN.—The Secretary shall ensure that unaccompanied alien children (as defined in section 462 of the Homeland Security Act of 2002 (6 U.S.C. 279)) are physically separated from any adult who is not an immediate family member and are separated by sight and sound from immigration detainees and inmates with criminal convictions, pretrial inmates facing criminal prosecution, children who have been adjudicated delinquents or convicted of adult offenses or are pending delinquency or criminal proceedings, and those inmates exhibiting violent behavior while in detention as is consistent with the Juvenile Justice and Delinquency Prevention Act of 1974 (42 U.S.C. 5601 et seq.)

(b) Rulemaking and enforcement.—

(1) IN GENERAL.—

(A) NOTICE OF PROPOSED RULEMAKING.—Not later than 60 days after the date of the enactment of this Act, the Secretary shall issue a notice of proposed rulemaking regarding the enforcement of this section.

(B) FINAL REGULATIONS.—Not later than 180 days after the date of the enactment of this Act, the Secretary shall promulgate regulations, binding upon all short term detention facilities and detention facilities, to ensure that the detention requirements under subsection (a) are fully implemented and enforced, and that all facilities comply with the regulations.

(2) ENFORCEMENT.—The Secretary shall enforce all regulations promulgated under paragraph (1). Not later than 180 days after the date of the enactment of this Act, the Secretary shall issue guidance for ensuring compliance with all detention requirements, and all regulations and standards promulgated under paragraph (1), by short term detention facilities and detention facilities. Such mechanisms may include the imposition of financial penalties upon noncompliant facilities and, in cases of persistent noncompliance, may include the termination of facilities contract with the Department.

(A) Such procedures shall include mechanisms for review by the Secretary of any evidence of non-compliance with the provisions of this section. Evidence pertaining to violations of these provisions, including detainee complaints, shall be investigated and determined by the Secretary within 30 days and, if a violation is found, such violations shall be remedied within an additional 30 days. A decision by the Secretary not to pursue such an enforcement action shall constitute final agency action.

(B) Each detainee has the right to file grievances with the staff of short term detention facilities, detention facilities, and the Department and shall be protected from retaliation.

(C) Each short term detention facility and detention facility shall designate an officer to ensure compliance with the provisions of this section. Such officer shall investigate all evidence pertaining to a violation of this section and, if a violation is identified, shall remedy the violation within 30 days. A detainee may not seek review in district court until after the passage of the afore-described 30-day period.

(D) Nothing in the Act may be construed to preclude review of noncompliance with this section under section 1983 of title 42, United States Code.

(E) No individual shall seek remedy in district court without first having complied with the procedures promulgated under paragraph 1 or paragraph 2 of this subsection. No individual may seek punitive damages for violations under this section.

(c) Detention commission.—

(1) APPOINTMENT.—The Secretary shall appoint and convene a detention commission comprised of experts from U.S. Immigration and Customs Enforcement, U.S. Customs and Border Protection, the Office of Refugee Resettlement, and Division of Immigration Health Services in the Department of Health and Human Services, and an equal number of independent experts from nongovernmental organizations and intergovernmental organizations with expertise in working on behalf of aliens detained under immigration laws and vulnerable populations.

(2) DUTIES.—The commission shall conduct independent investigations, evaluate, and report on the compliance of short term detention facilities, detention facilities and the Department with the requirements set forth in this Act.

(3) REPORT.—Not later than 60 days after the first September 30 after the date of the enactment of this Act, and biennially thereafter, the commission shall submit a report on the duties set forth in paragraph (2) to—

(A) the Committee on the Judiciary of the Senate;

(B) the Committee on Homeland Security and Governmental Affairs of the Senate;

(C) the Committee on the Judiciary of the House of Representatives; and

(D) the Committee on Homeland Security of the House of Representatives.

(d) Death in custody reporting requirement.—

(1) IN GENERAL.—If an individual dies while in the custody of the Department or en route to or from custody, the supervising official at a short term detention facility or detention facility shall immediately report such death to the Secretary. Not later than 48 hours after receiving the report of such death, the Secretary shall report the death to the Office of the Inspector General of the Department and the Department of Justice.

(2) INVESTIGATIONS.—The Department shall complete an investigation of each detainee death that shall be conducted consistent with established medical practice for morbidity and mortality reviews and examine both individual and systemic contributors to the death. The investigation shall be conducted by a panel of physicians with experience in morbidity and mortality reviews and shall include the medical staff of the facility or facilities that cared for the deceased detainee, physicians from within the Department, and independent physicians not affiliated with the Department or facility. The panel shall complete a report and corrective action plan in each case.

(3) REPORTS.—

(A) IN GENERAL.—Not later than 60 days after the end of each fiscal year, the Secretary shall submit to 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 a report containing detailed information regarding all such deaths during the preceding fiscal year, including each mortality and morbidity report, corrective action plan, and corrective actions taken.

(B) CONTENTS.—The reports to the Office of the Inspector General and to Congress referenced in paragraph (1) shall, at a minimum, include the name, gender, race, ethnicity, and age of the deceased; the date, time, and location of death; the law enforcement agency that detained, arrested, or was in the process of arresting the deceased; a description of the circumstances surrounding the death; the status and results of any investigation that has been conducted into the circumstances surrounding the death; and all medical records of the deceased.

SEC. 250. Access to counsel.

Section 240(b)(4) (8 U.S.C. 1229a(b)(4)) is amended—

(1) in the matter preceding subparagraph (A), by striking “In proceedings under this section, under regulations of the Attorney General” and inserting “The Attorney General shall promulgate regulations for proceedings under this section, under which—”

(2) in subparagraph (B), by striking “, and” at the end and inserting a semicolon;

(3) by redesignating subparagraph (C) as subparagraph (D); and

(4) by inserting after subparagraph (B) the following:

“(C) the Attorney General, or the designee of the Attorney General, may appoint counsel to represent an alien if the fair resolution or effective adjudication of the proceedings would be served by appointment of counsel; and”.

SEC. 251. Group legal orientation presentations.

(a) Establishment of a national legal orientation support and training center.—The Attorney General, in consultation with the Secretary, shall establish a National Legal Orientation Support and Training Center (referred to in this section as the “Center”) to ensure quality and consistent implementation of group legal orientation programs nationwide.

(b) Duties.—The Center shall—

(1) offer training to nonprofit agencies that will offer group legal orientation programs;

(2) consult with nonprofit agencies offering group legal orientation programs regarding program development and substantive legal issues;

(3) develop standards for group legal orientation programs; and

(4) ensure that all detained aliens in immigration and asylum proceedings under sections 235, 238, 240, and 241(b)(5) of the Immigration and Nationality Act (8 U.S.C. 1225, 1228, 1229a, and 1231(b)(5)) receive group legal orientation programs.

(c) Procedures.—The Secretary shall establish procedures for regularly scheduled, group legal orientation presentations.

(d) Grants authorized.—The Attorney General shall establish a program to award grants to nongovernmental agencies to develop, implement, or expand legal orientation programs for all detainees at a detention facility that offers such programs.

SEC. 252. Protections for refugees.

(a) Protection of refugees prior to adjustment.—Section 209 (8 U.S.C. 1159) is amended—

(1) in subsection (a)(1), by striking “return or be returned to the custody of the Department of Homeland Security for inspection and examination for admission to the United States as an immigrant in accordance with the provisions of sections 235, 240, and 241” and inserting “be eligible for adjustment of status as an immigrant to the United States”;

(2) in subsection (a)(2), by striking “upon inspection and examination”; and

(3) in subsection (c), by adding at the end the following: “An application for adjustment under this section may be filed up to 3 months before the date the applicant would first otherwise be eligible for adjustment under this section.”.

(b) Procedures for ensuring accuracy and verifiability of sworn statements taken pursuant to expedited removal authority.—

(1) IN GENERAL.—The Secretary shall establish quality assurance procedures to ensure the accuracy and verifiability of signed or sworn statements taken by employees of the Department exercising expedited removal authority under section 235(b) of the Immigration and Nationality Act (8 U.S.C. 1225(b)).

(2) RECORDING OF INTERVIEWS.—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.

(3) RECORDINGS.—

(A) IN GENERAL.—The recording of the interview shall include the written statement, in its entirety, being read back to the alien in a language that the alien claims to understand, and the alien affirming the accuracy of the statement or making any corrections thereto.

(B) FORMAT.—The recording shall be made in video, audio, or other equally reliable format.

(4) EXEMPTION AUTHORITY.—

(A) Subsections (b) and (c) shall not apply to interviews that occur at facilities exempted by the Secretary pursuant to this subsection.

(B) The Secretary or the Secretary’s designee may exempt any facility based on a determination by the Secretary or the Secretary’s designee that compliance with subsections (b) and (c) at that facility would impair operations or impose undue burdens or costs.

(C) The Secretary or the Secretary’s designee shall report annually to Congress on the facilities that have been exempted pursuant to this subsection.

(D) The exercise of the exemption authority shall not give rise to a private cause of action.

(c) Interpreters.—The Secretary shall ensure that a professional fluent interpreter is used when the interviewing officer does not speak a language understood by the alien and there is no other Federal, State or local government employee available who is able to interpret effectively, accurately and impartially.

(d) Recordings in immigration proceedings.—Recordings of interviews of aliens described in section (b) shall be included in the record of a proceeding and may be considered as evidence in any further proceedings involving the alien.

(e) Study on the effect of expedited removal provisions, practices and procedures on asylum claims.—

(1) IN GENERAL.—The United States Commission on International Religious Freedom (referred to in this section as the “Commission”) is authorized to conduct a study to determine whether immigration officers described in paragraph (2) are engaging in conduct described in paragraph (3).

(2) IMMIGRATION OFFICERS DESCRIBED.—An immigration officer described in this paragraph is an immigration officer performing duties under section 235(b) of the Immigration and Nationality Act (8 U.S.C. 1225(b)) with respect to aliens who are apprehended after entering the United States and who may be eligible to apply for asylum under such section or section 208 of such Act (8 U.S.C. 1158).

(3) CONDUCT DESCRIBED.—Conduct described in this paragraph is the following:

(A) Improperly encouraging an alien referred to in paragraph (2) to withdraw or retract claims for asylum.

(B) Incorrectly failing to refer such an alien for an interview by an asylum officer for a determination of whether the alien has a credible fear of persecution (within the meaning of section 235(b)(1)(B)(v) of the Immigration and Nationality Act (8 U.S.C. 1225(b)(1)(B)(v))).

(C) Incorrectly removing such an alien to a country where the alien may be persecuted.

(D) Detaining such an alien improperly or in inappropriate conditions.

(f) Report.—Not later than 24 months after the date on which the Commission initiates the study conducted under subsection (a), the Commission shall submit a report containing the results of the study to—

(1) the Committee on Homeland Security and Governmental Affairs of the Senate;

(2) the Committee on the Judiciary of the Senate;

(3) the Committee on Foreign Relations of the Senate;

(4) the Committee on Homeland Security of the House of Representatives;

(5) the Committee on the Judiciary of the House of Representatives; and

(6) the Committee on Foreign Affairs of the House of Representatives.

(g) Staff.—

(1) FROM OTHER AGENCIES.—At the request of the Commission, the Secretary, the Attorney General, and the Comptroller General of the United States shall authorize staff designated by the Commission who are recognized for their expertise and knowledge of refugee and asylum issues to assist the Commission in conducting the study under subsection (a).

(2) HIRING OF STAFF.—The Commission may hire additional staff and consultants to conduct the study under subsection (a).

(3) ACCESS TO PROCEEDINGS.—

(A) IN GENERAL.—Except as provided in subparagraph (B), the Secretary and the Attorney General shall permit staff designated under paragraph (1) or hired under paragraph (2) to have unrestricted access to all stages of all proceedings conducted under section 235(b) of the Immigration and Nationality Act (8 U.S.C. 1225(b)).

(B) EXCEPTIONS.—The Secretary and the Attorney General shall not permit unrestricted access pursuant to subparagraph (A) in any case in which—

(i) an alien that is subject to a proceeding conducted under section 235(b) of the Immigration and Nationality Act objects to such access; or

(ii) the Secretary or Attorney General determines that the security of a particular proceeding would be threatened by such access.

SEC. 253. Immigration and customs enforcement ombudsman.

(a) Establishment.—Subtitle D of title III of the Homeland Security Act of 2002 (6 U.S.C. 251 et seq.) is amended by adding at the end the following:

“SEC. 447. Immigration and customs enforcement ombudsman.

“(a) In general.—There established in the Department of Homeland Security a position of Immigration and Customs Enforcement Ombudsman (referred to in this section as the ‘Ombudsman’).

“(b) Requirements.—The Ombudsman shall—

“(1) report directly to the Assistant Secretary for Immigration and Customs Enforcement (referred to in this section as the ‘Assistant Secretary’); and

“(2) have a background in immigration law.

“(c) Functions.—The Ombudsman shall—

“(1) undertake regular and unannounced inspections of detention facilities and local offices of United States Immigration and Customs Enforcement to determine whether the facilities and offices comply with relevant policies, procedures, standards, laws, and regulations;

“(2) report all findings of compliance or noncompliance of the facilities and local offices described in paragraph (1) to the Secretary and the Assistant Secretary;

“(3) develop procedures for detainees or their representatives to submit confidential written complaints directly to the Ombudsman;

“(4) investigate and resolve all complaints, including confidential and anonymous complaints, related to decisions, recommendations, acts, or omissions made by the Assistant Secretary or the Commissioner of United States Customs and Border Protection in the course of custody and detention operations;

“(5) initiate investigations into allegations of systemic problems at detention facilities;

“(6) conduct any review or audit relating to detention, as directed by the Secretary or Assistant Secretary;

“(7) refer matters, as appropriate, to the Office of Inspector General of the Department of Justice, the Office of Civil Rights and Civil Liberties of the Department, or any other relevant office or agency;

“(8) propose changes in the policies or practices of United States Immigration and Customs Enforcement to improve the treatment of United States citizens and residents, immigrants, detainees, and others subject to immigration-related enforcement operations;

“(9) establish a public advisory group consisting of nongovernmental organization representatives and Federal, State, and local government officials with expertise in detention and vulnerable populations to provide the Ombudsman with input on—

“(A) the priorities of the Ombudsman; and

“(B) current practices of United States Immigration and Customs Enforcement; and

“(10) recommend to the Assistant Secretary personnel action based on any finding of noncompliance.

“(d) Annual report.—

“(1) OBJECTIVES.—Not later than June 30 of each year, the Ombudsman shall prepare and submit a report to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives on the objectives of the Office of the Ombudsman for the next fiscal year.

“(2) CONTENTS.—Each report submitted under paragraph (1) shall include—

“(A) full and substantive analysis of the objectives of the Office of the Ombudsman;

“(B) statistical information regarding such objectives;

“(C) a description of each detention facility found to be in noncompliance with the detention standards of the Department of Homeland Security or other applicable regulations;

“(D) a description of the actions taken by the Department of Homeland Security to remedy any findings of noncompliance or other identified problems;

“(E) information regarding whether the actions described in subparagraph (D) resulted in compliance with detention standards;

“(F) a summary of the most pervasive and serious problems encountered by individuals subject to the enforcement operations of the Department of Homeland Security, including a description of the nature of such problems; and

“(G) such other information as the Ombudsman may consider advisable.”.

(b) Amendment.—The table of contents in section 1(b) of the Homeland Security Act of 2002 (6 U.S.C. 101 et seq.) is amended by inserting after the item relating to section 446 the following:


“Sec. 447. Immigration and Customs Enforcement Ombudsman.”

SEC. 254. Lawful permanent resident status of refugees and asylum seekers granted asylum.

(a) Admission of emergency situation refugees.—Section 207(c) (8 U.S.C. 1157(c)) is amended—

(1) in paragraph (1)—

(A) by striking “Attorney General the first time it appears and inserting `Secretary of Homeland Security”;

(B) by striking “Attorney General” each additional place it appears and inserting “Secretary”; and

(C) by striking “(except as otherwise provided under paragraph (3)) as an immigrant under this Act.” and inserting “(except as provided under subsection (b) and (c) of section 209) as an immigrant under this Act. Notwithstanding any numerical limitations specified in this Act, any alien admitted under this paragraph shall be regarded as lawfully admitted to the United States for permanent residence as of the date of such alien's admission to the United States.”;

(2) in paragraph (2)(A)—

(A) by striking “(except as otherwise provided under paragraph (3))” and inserting “(except as provided under subsection (b) and (c) of section 209)”; and

(B) by striking the last sentence and inserting the following: “An alien admitted to the United States as a refugee may petition for his or her spouse or child to follow to join him or her in the United States at any time after such alien's admission, notwithstanding his or her treatment as a lawful permanent resident as of the date of his or her admission to the United States.”;

(3) by striking paragraph (3);

(4) by redesignating paragraph (4) as paragraph (3); and

(5) in paragraph (3), as redesignated—

(A) by striking “Attorney General” the first time it appears and inserting “Secretary of Homeland Security”; and

(B) by striking “Attorney General” each additional place it appears and inserting “Secretary”.

(b) Treatment of spouse and children.—Section 208(b)(3) (8 U.S.C. 1158(b)(3)) is amended—

(1) by redesignating subparagraph (B) as subparagraph (E); and

(2) by inserting after subparagraph (A) the following:

“(B) PETITION.—An alien granted asylum under this subsection may petition for the same status to be conferred on his or her spouse or child at any time after such alien is granted asylum whether or not such alien has applied for, or been granted, adjustment to permanent resident status under section 209.

“(C) PERMANENT RESIDENT STATUS.—Notwithstanding any numerical limitations specified in this Act, a spouse or child admitted to the United States as an asylee following to join a spouse or parent previously granted asylum shall be regarded as lawfully admitted to the United States for permanent residence as of the date of such spouse's or child's admission to the United States.

“(D) APPLICATION FOR ADJUSTMENT OF STATUS.—A spouse or child who was not admitted to the United States pursuant to a grant of asylum, but who was granted asylum under this subparagraph after his or her arrival as the spouse or child of an alien granted asylum under section 208, may apply for adjustment of status to that of lawful permanent resident under section 209 at any time after being granted asylum.”.

(c) Refugees.—

(1) IN GENERAL.—Section 209 (8 U.S.C. 1159) is amended to read as follows:

“SEC. 209. Treatment of aliens admitted as refugees and of aliens granted asylum.

“(a) In general.—

“(1) TREATMENT OF REFUGEES.—Notwithstanding any numerical limitations specified in this Act, any alien who has been admitted to the United States under section 207 shall be regarded as lawfully admitted to the United States for permanent residence as of the date of such admission.

“(2) TREATMENT OF SPOUSE AND CHILDREN.—Notwithstanding any numerical limitations specified in this Act, any alien admitted to the United States under section 208(b)(3) as the spouse or child of an alien granted asylum under section 208(b)(1) shall be regarded as lawfully admitted to the United States for permanent residence as of the date of such admission.

“(3) ADJUSTMENT OF STATUS.—The Secretary of Homeland Security or the Attorney General, in the discretion of the Secretary or the Attorney General, and under such regulations as the Secretary or the Attorney General may prescribe, may adjust, to the status of an alien lawfully admitted to the United States for permanent residence, the status of any alien who, while in the United States—

“(A) is granted—

“(i) asylum under section 208(b) (as a principal alien or as the spouse or child of an alien granted asylum); or

“(ii) refugee status under section 207 as the spouse or child of a refugee;

“(B) applies for such adjustment of status at any time after being granted asylum or refugee status;

“(C) is not firmly resettled in any foreign country; and

“(D) is admissible (except as otherwise provided under subsections (b) and (c)) as an immigrant under this Act at the time of examination for adjustment of such alien.

“(4) RECORD.—Upon approval of an application under this subsection, the Secretary of Homeland Security or the Attorney General shall establish a record of the alien's admission for lawful permanent residence as of the date such alien was granted asylum or refugee status.

“(5) DOCUMENT ISSUANCE.—An alien who has been admitted to the United States under section 207 or 208 or who adjusts to the status of a lawful permanent resident as a refugee or asylee under this section shall be issued documentation indicating that such alien is a lawful permanent resident pursuant to a grant of refugee or asylum status.

“(b) Inapplicability of certain inadmissibility grounds to refugees, aliens granted asylum, and such aliens seeking adjustment of status to lawful permanent resident.—Paragraphs (4), (5), and (7)(A) of section 212(a) shall not apply to—

“(1) any refugee under section 207;

“(2) any alien granted asylum under section 208; or

“(3) any alien seeking admission as a lawful permanent resident pursuant to a grant of refugee or asylum status.

“(c) Waiver of inadmissibility or deportability for refugees, aliens granted asylum, and such aliens seeking adjustment of status to lawful permanent resident.—

“(1) IN GENERAL.—Except as provided in paragraph (2), the Secretary of Homeland Security or the Attorney General may waive any ground of inadmissibility under section 212 or any ground of deportability under section 237 for a refugee admitted under section 207, an alien granted asylum under section 208, or an alien seeking admission as a lawful permanent resident pursuant to a grant of refugee or asylum status if the Secretary or the Attorney General determines that such waiver is justified by humanitarian purposes, to ensure family unity, or is otherwise in the public interest.

“(2) INELIGIBILITY.—A refugee under section 207, an alien granted asylum under section 208, or an alien seeking admission as a lawful permanent resident pursuant to a grant of refugee or asylum status shall be ineligible for a waiver under paragraph (1) if it has been established that the alien is—

“(A) inadmissible under section 212(a)(2)(C) or subparagraph (A), (B), (C), or (E) of section 212(a)(3);

“(B) deportable under section 237(a)(2)(A)(iii) for an offense described in section 101(a)(43)(B); or

“(C) deportable under subparagraph (A), (B), (C), or (D) of section 237(a)(4).”.

(d) Technical amendments.—

(1) ALIENS NOT SUBJECT TO DIRECT NUMERICAL LIMITATIONS.—Section 201(b)(1)(B) (8 U.S.C. 1151(b)(1)(B)) is amended to read as follows:

“(B) Aliens who are admitted to the United States as permanent residents under section 207 or 208 or whose status is adjusted under section 209.”.

(2) TRAINING.—Section 207(f)(1) (8 U.S.C. 1157(f)(1)) is amended by striking “Attorney General” and inserting “Secretary of Homeland Security”.

(3) TABLE OF CONTENTS.—The table of contents is amended by striking the item relating to section 209 and inserting the following:


“Sec. 209. Treatment of aliens admitted as refugees and of aliens granted asylum.”.

(e) Savings provisions.—

(1) IN GENERAL.—Nothing in the amendments made by this section may be construed to limit access to the benefits described at chapter 2 of title IV of the Immigration and Nationality Act (8 U.S.C. 1521 et seq.).

(2) CLARIFICATION.—Aliens admitted for lawful permanent residence under section 207 or 208 of the Immigration and Nationality Act (8 U.S.C. 1157 and 1158) or who adjust status to lawful permanent resident under section 209 of such Act (8 U.S.C. 1159) shall be considered to be refugees and aliens granted asylum in accordance with sections 402, 403, 412, and 431 of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (8 U.S.C. 1612, 1613, 1622, and 1641).

(f) Effective date.—This section, and the amendments made by this section, shall become effective on the earlier of—

(1) the date that is 180 days after the date of the enactment of this Act; or

(2) the date on which a final rule is promulgated to implement this section.

SEC. 255. Elimination of time limits on asylum applications.

Section 208(a)(2) (8 U.S.C. 1158(a)(2)) is amended—

(1) in subparagraph (A), by striking “Attorney General” each place it appears and inserting “Attorney General or the Secretary of Homeland Security”;

(2) by striking subparagraph (B);

(3) by redesignating subparagraphs (C) and (D) as subparagraphs (B) and (C), respectively;

(4) in subparagraph (B), as redesignated, by striking “subparagraph (D)” and inserting “subparagraphs (C) and (D)”; and

(5) by striking subparagraph (C), as redesignated, and inserting the following:

“(C) CHANGED CIRCUMSTANCES.—Notwithstanding subparagraph (B), an application for asylum of an alien may be considered if the alien demonstrates, to the satisfaction of the Attorney General or the Secretary of Homeland Security, the existence of changed circumstances that materially affect the applicant’s eligibility for asylum.

“(D) MOTION TO REOPEN DENIED ASYLUM CLAIM.—Notwithstanding subparagraph (B) or section 240(c)(7), an alien may file a motion to reopen an asylum claim during the 2-year period beginning on the date of enactment of this subparagraph if the alien—

“(i) was denied asylum based solely upon a failure to meet the 1-year application filing deadline in effect on the date on which the application was filed;

“(ii) was granted withholding of removal to the alien’s country of nationality (or, if stateless, to the country of last habitual residence under section 241(b)(3));

“(iii) has not obtained lawful permanent residence in the United States pursuant to any other provision of law;

“(iv) is not subject to the safe third country exception in section 208(a)(2)(A) or a bar to asylum under section 208(b)(2) and should not be denied asylum as a matter of discretion; and

“(v) is physically present in the United States when the motion is filed.”; and

(6) in subparagraph (E), by striking “subparagraphs (A) and (B)” and inserting “subparagraph (A).”

SEC. 256. Efficient asylum determination process and detention of asylum seekers.

Section 235(b)(1)(B) (8 U.S.C. 1225(b)(1)(B)) is amended—

(1) in clause (ii), by striking “shall be detained for further consideration of the application for asylum” and inserting “may, in the Secretary's discretion, be detained for further consideration of the application for asylum by an asylum officer designated by the Director of United States Citizenship and Immigration Services. The asylum officer, after conducting a nonadversarial asylum interview, may grant asylum to the alien under section 208 or refer the case to a designee of the Attorney General, for a de novo asylum determination, for relief under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, done at New York December 10, 1984, or for withholding of removal under section 241(b)(3).”; and

(2) in clause (iii)(IV)—

(A) by amending the subclause heading to read as follows:

“(IV) DETENTION.—”; and

(B) by striking “shall” and inserting “may, in the Secretary’s discretion,”.

SEC. 257. Protection of stateless persons in the United States.

(a) In general.—Chapter 1 of title II (8 U.S.C. 1151 et seq.) is amended by adding at the end the following:

“SEC. 210A. Protection of stateless persons in the United States.

“(a) Defined term.—

“(1) IN GENERAL.—In this section, the term ‘de jure stateless person’ means an individual who is not considered a national under the laws of any country. Individuals who have lost their nationality as a result of their voluntary action or knowing inaction after arrival in the United States shall not be considered de jure stateless persons.

“(2) DESIGNATION OF SPECIFIC DE JURE GROUPS.—The Secretary of Homeland Security, in consultation with the Secretary of State, may, in the discretion of the Secretary, designate specific groups of individuals who are considered de jure stateless persons, for purposes of this section.

“(b) Mechanisms for regularizing the status of stateless persons.—

“(1) RELIEF FOR INDIVIDUALS DETERMINED TO BE DE JURE STATELESS PERSONS.—The Secretary of Homeland Security or the Attorney General may, in his or her discretion, provide conditional lawful status to an alien who is otherwise inadmissible or deportable from the United States if the alien—

“(A) is a de jure stateless person;

“(B) applies for such relief;

“(C) is not inadmissible under paragraph (2) or (3) of section 212(a); and

“(D) is not described in section 241(b)(3)(B)(i).

“(2) WAIVERS.—The provisions of paragraphs (4), (5), (6)(A), (7)(A), and (9) of section 212(a) shall not be applicable to any alien seeking relief under paragraph (1), and the Secretary of Homeland Security or the Attorney General may waive any other provision of such section (other than paragraph (2)(C) or subparagraph (A), (B), (C), or (E) of paragraph (3)) with respect to such an alien for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest.

“(3) SUBMISSION OF PASSPORT OR TRAVEL DOCUMENT.—Any alien who seeks benefits under this section must submit to the Secretary or the Attorney General—

“(A) any passport or travel document issued at any time to the alien (whether or not the passport or document has expired or been cancelled, rescinded, or revoked); or

“(B) an affidavit sworn under penalty of perjury stating that the alien has never been issued a passport or travel document, or identifying with particularity any such passport or travel document and explaining why the alien cannot submit it.

“(4) WORK AUTHORIZATION.—The Secretary may—

“(A) authorize an alien who has applied for relief under paragraph (1) to engage in employment in the United States while such application is being considered; and

“(B) provide such applicant with an employment authorized endorsement or other appropriate document signifying authorization of employment.

“(5) TREATMENT OF SPOUSES AND CHILDREN.—The spouse or child of an alien who has been granted conditional lawful status under paragraph (1) shall, if not otherwise eligible for admission under paragraph (1), be granted conditional lawful status under this section if accompanying, or following to join, such alien, provided that the spouse or child is admissible (except as otherwise provided in paragraph (2)), and provided further that the qualifying relationship to the principal beneficiary existed on the date on which such alien was granted conditional lawful status.

“(c) Adjustment of status.—

“(1) INSPECTION AND EXAMINATION.—At the end of the 5-year period beginning on the date on which an alien has been granted conditional lawful status under subsection (b), the alien may apply for lawful permanent residence in the United States if—

“(A) the alien has been physically present in the United States for at least 5 years;

“(B) the alien's conditional lawful status has not been terminated by the Secretary of Homeland Security or the Attorney General, pursuant to such regulations as the Secretary or the Attorney General may prescribe; and

“(C) the alien has not otherwise acquired permanent resident status.

“(2) REQUIREMENTS FOR ADJUSTMENT.—The Secretary or the Attorney General, under such regulations as the Secretary or the Attorney General may prescribe, may adjust the status of an alien granted conditional lawful status under subsection (b) to that of an alien lawfully admitted for permanent residence if such alien—

“(A) is a de jure stateless person;

“(B) properly applies for such adjustment of status;

“(C) has been physically present in the United States for at least 5 years after being granted conditional lawful status under subsection (b);

“(D) is not firmly resettled in any foreign country; and

“(E) is admissible (except as otherwise provided under subsection (b)(2)) as an immigrant under this chapter at the time of examination of such alien for adjustment of status.

“(3) RECORD.—Upon approval of an application under this subsection, the Secretary or the Attorney General shall establish a record of the alien's admission for lawful permanent residence as of the date that is 5 years before the date of such approval.

“(d) Proving the claim.—In determining an alien's eligibility for lawful conditional status or adjustment of status under this subsection, the Secretary or the Attorney General shall consider any credible evidence relevant to the application. The determination of what evidence is credible and the weight to be given that evidence shall be within the sole discretion of the Secretary or the Attorney General.

“(e) Review.—

“(1) ADMINISTRATIVE REVIEW.—No appeal shall lie from the denial of an application by the Secretary, but such denial will be without prejudice to the alien’s right to renew the application in proceedings under section 240 of this title.

“(2) MOTIONS TO REOPEN.—Notwithstanding any limitation imposed by law on motions to reopen removal, deportation, or exclusion proceedings, any individual who is eligible for relief under this section may file 1 motion to reopen removal or deportation proceedings in order to apply for relief under this section, except that any such motion must be filed within one year of the date of enactment of this section, or within 90 days of the date of entry of a final administrative order of removal, deportation, or exclusion, whichever is later.

“(f) Limitation.—The provisions of this section shall apply only to aliens present in the United States. Nothing in this section shall be construed to authorize or require (i) the admission of any alien to the United States, (ii) the parole of any alien into the United States, or (iii) the grant of any motion to reopen or reconsider filed by an alien after departure or removal from the United States.”.

(b) Judicial review.—Section 242(a)(2)(B)(ii) of the Immigration and Nationality Act (8 U.S.C. 1252(a)(2)(B)(ii)) is amended by inserting “or 210A” after “208(a)”.

(c) Clerical amendment.—The table of contents for the Immigration and Nationality Act is amended by inserting after the item relating to section 210 the following:


“210A. Protection of stateless persons in the United States.”.

SEC. 258. Authority to designate certain groups of refugees for consideration.

(a) In general.—Section 207(c)(1) (8 U.S.C. 1157(c)(1)) is amended—

(1) by inserting “(A)” before “Subject to the numerical limitations”; and

(2) by adding at the end the following:

“(B)(i) The President, upon a recommendation of the Secretary of State made in consultation with the Secretary of Homeland Security, and after appropriate consultation (as defined in paragraph (e)), may designate specifically defined groups of aliens whose resettlement in the United States is justified by humanitarian concerns or is otherwise in the national interest and who share common characteristics that identify them as targets of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion or of other serious harm, or who, having been identified as targets of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion or of other serious harm, share a common need for resettlement due to a specific vulnerability.

“(ii) An alien who establishes membership in a group designated under clause (i) to the satisfaction of the Secretary of Homeland Security shall be considered a refugee for purposes of admission as a refugee under this section, unless the Secretary determines that such alien 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.

“(iii) A designation under clause (i)—

“(I) may be revoked by the President at any time after notification to Congress; ‘(II) if not revoked, shall expire at the end of each fiscal year; and

“(II) may be renewed by the President after appropriate consultation (as defined in paragraph (e)).

“(iv) Categories of aliens established under section 599D of title V of Public Law 101-167 (8 U.S.C. 1157 note) shall be designated under clause (i) until the end of the first fiscal year commencing after the date of enactment of this subparagraph, and thereafter shall be eligible for designation at the discretion of the President.

“(v) An alien's admission under this subparagraph shall count against the refugee admissions goal under subsection (a).

“(vi) A designation under clause (i) shall not influence decisions to grant, to any alien, asylum under section 208, protection under section 241(b)(3), or protection under Article 3 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, done at New York December 10, 1984.”.

(b) Written reasons for denials of refugee status.—Each decision to deny an application for refugee status of an alien who is within a category established under this section shall be in writing and shall state, to the maximum extent feasible, the reason for the denial.

(c) Effective date.—The amendments made by subsection (a) shall take effect on the first day of the first fiscal year that begins after the date of the enactment of this Act.

SEC. 259. Admission of refugees in the absence of the annual presidential determination.

Section 207(a) (8 U.S.C. 1157(a)) is amended—

(1) by striking paragraph (1);

(2) by redesignating paragraphs (2), (3), (4), and (5) as paragraphs (1), (2), (3), and (4), respectively;

(3) in paragraph (1), as redesignated—

(A) by striking “after fiscal year 1982”; and

(B) by adding at the end the following: “If the President does not issue a determination under this paragraph before the beginning of a fiscal year, the number of refugees that may be admitted under this section in each quarter before the issuance of such determination shall be 25 percent of the number of refugees admissible under this section during the previous fiscal year.”; and

(4) in paragraph (3), as redesignated, by striking “(beginning with fiscal year 1992)”.

SEC. 301. Unlawful employment of aliens.

(a) Section 274A of the Immigration and Nationality Act (8 U.S.C. 1324a) is amended to read as follows:

“SEC. 274A. Unlawful employment of unauthorized aliens.

“(a) In general.—

“(1) IN GENERAL.—It is unlawful for an employer—

“(A) to hire 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 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. Nothing in this section shall prohibit or require employment of an authorized employee who was previously unauthorized.

“(3) USE OF LABOR THROUGH CONTRACT.—For purposes of this section, any person or entity who uses a contract, subcontract, or exchange to obtain the labor of an alien 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 performing such labor, shall be considered to have hired the alien for employment in the United States in violation of subparagraph (a)(1)(A).

“(A) For purposes of ensuring compliance with the immigration laws, the Secretary may require by regulation that a person or entity include in a written contract or subcontract an effective and enforceable requirement that the contractor or subcontractor adhere to the immigration laws, including the use of an employment verification system (referred to in this section as the ‘System’).

“(B) The Secretary may establish procedures by which a person or entity may obtain confirmation from the Secretary that the contractor or subcontractor has registered with the System and is utilizing the System to verify its employees.

“(C) The Secretary may establish such other requirements for persons or entities using contractors or subcontractors, including procedures adapted to different employment sectors, as the Secretary deems necessary to prevent knowing violations of this paragraph.

“(4) 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), pertaining to the use of the System, has established an affirmative defense that the employer has not violated subsection (a)(1)(A) with respect to such hiring; provided that—

“(A) until such time as the Secretary has required an employer to participate in the System, or that employer is participating 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) and (d).

“(5) PRESUMPTION.—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.

“(b) Definitions.—In this section:

“(1) EMPLOYER.—The term ‘employer’—

“(A) means any person or entity hiring an individual for employment in the United States, including—

“(i) any person or entity who is an agent acting on behalf of an employer; and

“(ii) entities in any branch of the Federal Government; and

“(B) does not include a person or entity with fewer than 5 full- or part-time employees, for purposes of any requirement to participate in the System under subsection (d), except as it relates to subsection (d)(2)(H).

“(2) UNAUTHORIZED ALIEN.—The term ‘unauthorized alien’ means, with respect to the employment of an alien at a particular time, that the alien is not—

“(A) an alien lawfully admitted for permanent residence; or

“(B) authorized to be so employed by this Act or by the Secretary.

“(c) Document verification requirements.—Any employer hiring an individual for employment in the United States shall take the following steps, and those provided in subsection (d), to verify that the individual is authorized to work in the United States:

“(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 employment 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).

The form prescribed by the Secretary may be electronic or on paper, and may be integrated electronically with the requirements under subsection (d), if the Secretary determines that combining the requirements in (c) and (d) would improve efficiency of the verification requirements. Such attestation may be manifested by either a handwritten or digital signature. An employer has complied with the requirements 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 relates to the individual presenting it, taking into account any information provided to the employer by the Secretary, including photographs and other biometric information.

“(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 section 211a of title 22, United States Code;

“(ii) permanent resident card or other document issued to aliens authorized to work in the United States, as designated by the Secretary, if the document—

“(I) contains a photograph of the individual, other 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;

“(iii) enhanced driver’s license, enhanced identification card, or enhanced tribal card issued to a citizen of the United States, provided that the Secretary has certified by notice published in the Federal Register that such enhanced document is suitable for use under this subparagraph based upon the accuracy and security of the issuance process, security features on the document, and such other factors as the Secretary may determine; or

“(iv) a passport issued by the Federated States of Micronesia (FSM) or the Republic of the Marshall Islands (RMI) with evidence of nonimmigrant admission to the United States under the Compact of Free Association between the United States and the FSM or the RMI.

“(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 or an outlying possession of the United States, a Federally recognized Indian tribe, or an agency (including military) of the Federal government if the driver’s license or identity card includes, at a minimum,—

“(I) the individual’s photograph, name, date of birth, gender, and driver’s license or identification card number, and

“(II) security features to make it resistant to tampering, counterfeiting, and fraudulent use, or

“(ii) for individuals under 18 years of age who are unable to present a document listed in clause (i), documentation of personal identity of such other type as the Secretary finds provides a reliable means of identification, which may include an attestation as to the individual’s identity by a person 21 years of age or older under penalty of perjury.

“(D) DOCUMENTS EVIDENCING EMPLOYMENT AUTHORIZATION.—All documents must be unexpired. 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 (referred to in this section as the ‘Commissioner’) other than a card which specifies on its face that the card is not valid for employment in the United States or has other similar words of limitation. The Secretary, in consultation with the Commissioner, may require by publication of a notice in the Federal Register that only a social security account number card described in section 304 of the CIR Act of 2010 be accepted for this purpose; or

“(ii) any other documentation evidencing authorization of employment in the United States which the Secretary determines, by notice published 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) does not reliably establish employment authorization or identity or is being used fraudulently to an unacceptable degree, the Secretary may prohibit or restrict the use of that document or class of documents for purposes of this subsection.

“(2) INDIVIDUAL ATTESTATION OF EMPLOYMENT AUTHORIZATION.—The individual must attest, under penalty of perjury in 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 for such employment. Such attestation may be manifested by either a hand-written or digital signature. The individual must also provide any Social Security Account Number issued to the individual on such form.

“(3) RETENTION OF VERIFICATION RECORD.—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, according to such standards as the Secretary may provide, and make it available for inspection by officers or employees 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 of the individual and ending 7 years after such date of hiring, or 2 years after the date the individual’s employment is terminated, whichever is later.

“(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, but only (except as otherwise permitted under law) for the purposes of complying with the requirements of this section and section 274B. Such copies may be required to reflect the signatures of the employer and the employee, as well as the date of receipt. The Secretary may authorize or require an alternative method of storing and authenticating the employee’s documentation information if the Secretary determines that such alternative method is more secure or efficient.

“(B) 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 as to the validity of the individual’s identity or employment authorization.

“(C) The employer shall maintain the records described in this paragraph for any employee for the period of time required by paragraph (3) for retention of that employee’s verification form. 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 in furtherance of an investigation based on reasonable suspicion of a violation of this act, may require that these documents be transmitted electronically for purposes of authorized inspections or other enforcement actions, and may develop automated capabilities to request such documents.

“(D) An employer shall safeguard any information retained under this paragraph and paragraph (3) and protect any means of access to such information to ensure that such information is not used for any purpose other than as authorized in this paragraph or paragraph (3) or to determine the identity and employment eligibility of the individual, and to protect the confidentiality of such information, including ensuring that such information is not provided to any person other than a person who carries out the employer’s responsibilities under this subsection, except as provided in paragraph (3).

“(5) PENALTIES.—An employer that fails to comply with any requirement of this subsection shall be penalized under subsection (e)(4)(B).

“(6) PROTECTION OF CIVIL RIGHTS.—

“(A) Nothing in this section shall be construed to prohibit any reasonable accommodation necessary to protect the religious freedom of any individual, or to ensure access to employment opportunities of any disabled individual.

“(B) The employer shall use the procedures for document verification set forth in this paragraph for all employees without regard to race, sex, national origin, or, unless specifically permitted in this section, to citizenship status.

“(7) RECEIPTS.—The Secretary must provide for the use of receipts for replacement documents, and temporary evidence of employment authorization by an individual to meet a documentation requirement of this subsection on a temporary basis not to exceed 1 year, pending satisfaction by the individual of such requirement.

“(d) The employment verification system.—

“(1) IN GENERAL.—

“(A) The Secretary, in consultation with the Commissioner, shall implement and specify the procedures for the System. The participating employers shall timely register with the System and shall use the System as described in subsection (d)(5).

“(B) The Secretary shall create the necessary processes to monitor the functioning of the System, including the volume of the workflow, the speed of processing of queries, the speed and accuracy of responses, misuse of the System, fraud or identity theft, whether use of the System results in wrongful adverse actions or discrimination based upon a prohibited factor against U.S. citizens or employment authorized aliens, and the security, integrity and privacy of the program.

“(2) IMPLEMENTATION SCHEDULE.—

“(A) FEDERAL GOVERNMENT.—All employers within the Executive, Legislative, or Judicial Branches of the Federal Government shall participate in the System on or after the date of enactment of this subsection as follows—

“(i) as of the date of enactment, to the extent required by section 402(e)(1) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 as already implemented by each Branch; or

“(ii) on or after the date that is 60 days after the date of enactment of this subsection;

whichever is earlier, with respect to all newly hired employees and employees with expiring employment authorization.

“(B) FEDERAL CONTRACTORS.—Federal contractors shall participate in the System as provided in the final rule published at 73 Federal Register 67,651 (Nov. 14, 2008), or any subsequent amendments to such rule, for which purpose references to E-Verify in the final rule shall be construed to apply to the System.

“(C) CRITICAL INFRASTRUCTURE.—As of the date that is 1 year after the date of enactment of this subsection, the Secretary, in the Secretary’s discretion, with notice to the public provided in the Federal Register, may require any employer or industry which the Secretary determines to be part of the critical infrastructure or directly related to the national security or homeland security of the United States to participate in the System with respect to all newly hired employees and employees with expiring employment authorization. The Secretary shall notify employers subject to this subparagraph no less than 60 days prior to such required participation.

“(D) EMPLOYERS WITH MORE THAN 1,000 EMPLOYEES.—Not later than 2 years after the date of enactment of this subsection, all employers with more than 1,000 employees shall participate in the System with respect to all newly hired employees and employees with expiring employment authorization.

“(E) EMPLOYERS WITH MORE THAN 500 EMPLOYEES.—Not later than 3 years after the date of enactment of this subsection, all employers with more than 500 employees shall participate in the System with respect to all newly hired employees and employees with expiring employment authorization.

“(F) EMPLOYERS WITH MORE THAN 100 EMPLOYEES.—Not later than 4 years after the date of enactment of this subsection, all employers with more than 100 employees shall participate in the System with respect to all newly hired employees and employees with expiring employment authorization.

“(G) ALL EMPLOYERS.—Not later than 5 years after the date of enactment of this subsection, all employers shall participate in the System with respect to all newly hired employees and employees with expiring employment authorization.

“(H) IMMIGRATION LAW VIOLATORS.—An order finding any employer to have violated section 274A, 274B, or 274C shall require the employer to participate in the System with respect to newly hired employees and employees with expiring employment authorization, if such employer is not otherwise required to participate in the System by this section. The Secretary shall monitor such employer’s compliance with System procedures.

“(3) PARTICIPATION IN THE SYSTEM.—The Secretary may—

“(A) permit any employer that is not required under this section to participate in the System to do so on a voluntary basis; and

“(B) require any employer that is required to participate in the System with respect to its newly hired employees also to do so with respect to its current workforce if the employer is determined by the Secretary or other appropriate authority to have 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 System 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, except in the case of any criminal prosecution.

“(5) PROCEDURES FOR PARTICIPANTS IN THE SYSTEM.—

“(A) IN GENERAL.—An employer participating in the System must register such participation with the Secretary and conform to the following procedures in the event of hiring 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 with the System. 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) and such other employer identification information as the Secretary may designate;

“(III) company address;

“(IV) name, date of birth, and position of the employer’s employees accessing the System;

“(V) the information described in subclauses (I) through (IV) of this clause with respect to any agent, contractor, or other service provider accessing the System on the employer’s behalf; and

“(VI) such other information as the Secretary deems necessary to ensure proper use and security of the System.

“(ii) UPDATING INFORMATION.—The employer is responsible for providing notice of any change to the information required under subclauses (I) through (V) of clause (i) before conducting any further inquiries within the System, or on such other schedule as the Secretary may provide.

“(iii) TRAINING.—The Secretary shall require employers to undergo such training to ensure proper use, protection of civil rights and civil liberties, privacy, integrity and security of the System. To the extent practicable, such training shall be made available electronically.

“(iv) NOTIFICATION TO EMPLOYEES.—The employer shall post notice or otherwise inform individuals hired for employment of the use of the System, that the System may be used for immigration enforcement purposes, and that the System cannot be used to discriminate or to take adverse action against U.S. citizens or employment authorized aliens.

“(v) 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) the individual's social security account number, or any other information relevant to determining citizenship as the Secretary of Homeland Security may specify,

“(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 employment authorization of an employee.

“(vi) 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.

“(B) SEEKING CONFIRMATION.—

“(i) The employer shall use the System to provide to the Secretary all required information in order to initiate confirmation of the identity and employment eligibility of any individual no earlier than the date upon which the individual has accepted an offer of employment, and no later than 3 business days, or such other reasonable period as the Secretary may provide, after the date when employment begins. An employer may not, however, make the starting date of an individual’s employment or training or any other term and condition of employment dependent on the receipt of a confirmation of identity and employment eligibility.

“(ii) For reverification of an individual with a limited period of employment authorization, all required System procedures must be initiated no later than 3 business days after the date the individual’s employment authorization expires.

“(iii) For those employers required by the Secretary to verify their entire workforce, the System can be used for initial verification of an individual hired before the employer is subject to the System, and the employer must initiate all required procedures on or before such date as the Secretary shall specify.

“(iv) The Secretary shall provide, and the employer shall utilize, as part of the System, a method of notifying employers of a confirmation or nonconfirmation of an individual’s identity and employment eligibility, or a notice that further action is required to verify such identity or employment eligibility (‘further action notice’). The Secretary and the Commissioner shall establish procedures to directly notify the individual, as well as the employer, of a confirmation, nonconfirmation, or further action notice, and provide information about filing an administrative appeal pursuant to paragraph (7). The Secretary and the Commissioner may provide for a phased-in implementation of the notification requirements of this clause as appropriate, but the notification system shall cover all inquiries not later than 5 years after the date of the enactment of the CIR Act of 2010.

“(C) CONFIRMATION OR NONCONFIRMATION.—

“(i) INITIAL RESPONSE.—The System shall provide a confirmation of an individual’s identity and employment eligibility or a further action notice at the time of the inquiry, unless for technological reasons or due to unforeseen circumstances, the System is unable to provide such confirmation or further action notice. In such situations, the System shall provide a confirmation or further action notice within 3 business days of the initial inquiry. If providing a confirmation or further action notice, the System 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 employment eligibility under the System, the employer shall record the confirmation in such manner as the Secretary may specify.

“(iii) FURTHER ACTION NOTICE AND LATER CONFIRMATION OR NONCONFIRMATION.—

“(I) NOTIFICATION AND ACKNOWLEDGMENT THAT FURTHER ACTION IS REQUIRED.—Within 3 business days of an employer’s receipt of a further action notice of an individual’s identity or employment eligibility under the System, the employer shall notify the individual for whom the confirmation is sought of the further action notice and any procedures specified by the Secretary for addressing such notice. The further action notice must be given to the individual in writing. The individual must affirmatively acknowledge in writing, or in such other manner as the Secretary may specify, the receipt of the further action notice from the employer. If the individual refuses to acknowledge the receipt of the further action notice, or acknowledges in writing that he or she will not contest the further action notice under subclause (II), the employer shall notify the Secretary in such manner as the Secretary may specify.

“(II) CONTEST.—Within 10 business days of receiving notification of a further action notice under subclause (I), the individual must contact the appropriate Federal agency and, if the Secretary so requires, appear in person for purposes of verifying the individual’s identity and employment eligibility. The employer shall provide the individual with time as needed during daytime hours to contest the further action notice. The Secretary, in consultation with the Commissioner and other appropriate Federal agencies, shall specify an available secondary verification procedure to confirm the validity of information provided and to provide a confirmation or nonconfirmation.

“(III) NO CONTEST.—If the individual refuses to acknowledge receipt of the further action notice, acknowledges that he or she will not contest the further action notice as provided in subclause (I), or does not contact the appropriate Federal agency within the period specified in subclause (II), a nonconfirmation shall issue. The employer shall record the nonconfirmation in such manner as the Secretary may specify and terminate the individual’s employment. 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.

“(IV) CONFIRMATION OR NONCONFIRMATION.—Unless the period is extended in accordance with this subclause, the System shall provide a confirmation or nonconfirmation within 15 business days from the date that the individual contests the further action notice under subclause (II). If the Secretary determines that good cause exists, including to permit the individual to obtain and provide needed evidence of identity or employment eligibility, the Secretary shall extend the period for providing confirmation or nonconfirmation for stated periods beyond 15 business days. When confirmation or nonconfirmation is provided, the confirmation system shall provide an appropriate code indicating such confirmation or nonconfirmation.

“(V) RE-EXAMINATION.—Nothing in this section shall prevent the Secretary from establishing procedures to reexamine a case where a confirmation or nonconfirmation has been provided if subsequently received information indicates that the confirmation or nonconfirmation may not have been correct.

“(VI) EMPLOYEE PROTECTIONS.—In no case shall an employer terminate employment or take any other adverse action against an individual solely because of a failure of the individual to have identity and employment eligibility confirmed under this subsection until a nonconfirmation has been issued, and if the further action notice was contested, the period to timely file an administrative appeal has expired without an appeal, or in the case where an administrative appeal has been filed, the appeal has been denied or a stay of the nonconfirmation has been terminated.

“(iv) NOTICE OF NONCONFIRMATION.—Within 3 business days of an employer’s receipt of a nonconfirmation, the employer shall notify the individual who is the subject of the nonconfirmation, and provide information about filing an administrative appeal pursuant to paragraph (7). The nonconfirmation notice must be given to the individual in writing. The individual must affirmatively acknowledge in writing, or in such other manner as the Secretary may specify, the receipt of the nonconfirmation notice from the employer. If the individual refuses or fails to acknowledge the receipt of the nonconfirmation notice, the employer shall notify the Secretary in such manner as the Secretary may specify.

“(D) CONSEQUENCES OF NONCONFIRMATION.—

“(i) TERMINATION OF CONTINUED EMPLOYMENT.—Except as provided in clause (iii), if the employer has received a nonconfirmation regarding an individual and has notified the individual as required by subparagraph (C)(iv), the employer shall terminate employment of the individual upon the expiration of the time period as specified in paragraph(7)(A) for filing an administrative appeal, or immediately if the further action notice was not contested.

“(ii) CONTINUED EMPLOYMENT AFTER NONCONFIRMATION.—If the employer, in violation of subclause (i), continues to employ an individual after receiving nonconfirmation, 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 (l)(1) of this section.

“(iii) EFFECT OF ADMINISTRATIVE APPEAL.—If an individual files an administrative appeal of the nonconfirmation within the time period specified in paragraph (7)(A), and provides a copy of such appeal to the employer, the employer shall not terminate the individual’s employment under this subparagraph prior to the resolution of the administrative appeal unless the Secretary or Commissioner terminates the stay under paragraph (7)(B).

“(E) OBLIGATION TO RESPOND TO QUERIES AND ADDITIONAL INFORMATION.—

“(i) Employers are required to comply with requests for information from the Secretary, including queries concerning current and former employees (within the time frame during which records are required to be maintained under this section regarding such former employees) that relate to the functioning of the System, the accuracy of the responses provided by the System, and any suspected misuse, discrimination, fraud, or identity theft in the use of the System. Failure to comply with such a request is a violation of section (a)(1)(B).

“(ii) Individuals being verified through the System may be required to take further action to address irregularities identified by the Secretary or the Commissioner in the documents relied upon for purposes of subsection (c). The employer shall communicate to the individual within 3 business days any such requirement for further actions and shall record the date and manner of such communication. The individual must acknowledge in writing, or in such other manner as the Secretary may specify, 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, accuracy, and fairness of the System or to prevent misuse, discrimination, fraud, or identity theft in the use of the System.

“(F) The Secretary may establish a process to certify, on an annual basis or such other time frame as the Secretary may provide, designated agents and other System service providers seeking access to the System to perform verification queries on behalf of employers, based upon training, usage, and security standards designated by the Secretary.

“(G) No later than 3 months after the date of enactment of this section, the Secretary of Homeland Security, in consultation with the Secretary of Labor, the Secretary of Agriculture, the Commissioner of Social Security, the Attorney General, the Equal Employment Opportunity Commission, Office of Special Counsel for Unfair Immigration Related Employment Practices, and the Administrator of the Small Business Administration, shall commence a campaign to disseminate information respecting the procedures, 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. The Secretary shall assess the success of the campaign in achieving its goals.

“(i) In order to carry out and assess 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 and assessment activities under the campaign.

“(ii) There are authorized to be appropriated to carry out this paragraph $40,000,000 for each fiscal year 2011 through 2013.

“(H) Based on a regular review of the System and the document verification procedures to identify misuse or fraudulent use and to assess the security of the documents and processes being used to establish identity or employment authorization, the Secretary, in consultation with the Commissioner, may modify the documents or information that must be presented to the employer, the information that must be provided to the System by the employer, and the procedures that must be followed by employers with respect to any aspect of the System if the Secretary, in the Secretary’s discretion, concludes that the modification is necessary to ensure that the System accurately and reliably determines the identity and employment authorization of employees while providing protection against misuse, discrimination, fraud, and identity theft.

“(I) Subject to appropriate safeguards to prevent misuse of the system, the Secretary, in consultation with the Commissioner, shall establish a secure self-verification procedure 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 System.

“(J) The Secretary may, upon notice provided in the Federal Register, adjust the time periods described in this paragraph.

“(6) PROTECTION FROM LIABILITY FOR ACTIONS TAKEN ON THE BASIS OF INFORMATION PROVIDED BY THE SYSTEM.—No employer participating in the System who complies with all System procedures as required in this Act shall be liable under this Act 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 is notified pursuant to paragraph (5)(C)(iv) of a nonconfirmation by the employer may, not later than 15 business days after the date that such notice is received, file an administrative appeal of such nonconfirmation. An individual subject to a nonconfirmation may file an appeal thereof after the 15-day period if the appeal is accompanied by evidence that the individual did not receive timely notice of a nonconfirmation, or that there was good cause for the failure to file an appeal within the 15-day period. All administrative appeals shall be filed as follows:

“(i) CITIZENS OR NATIONALS OF THE UNITED STATES.—An individual claiming to be a citizen or 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) ADMINISTRATIVE STAY OF NONCONFIRMATION.—The nonconfirmation shall be automatically stayed upon the timely filing of an administrative appeal, and the stay shall remain in effect until the resolution of the appeal, unless the Secretary or the Commissioner terminates the stay based on a determination that the administrative appeal is frivolous or filed for purposes of delay.

“(C) REVIEW FOR ERROR.—The Secretary and the Commissioner shall develop procedures for resolving administrative appeals regarding nonconfirmations based upon the information that the individual has provided, including any additional evidence or argument that was not previously considered. Any such additional evidence or argument shall be filed within 15 days of the date the appeal was originally filed. Appeals shall be resolved within 30 days after the individual has submitted all evidence and arguments he or she wishes to submit, or has stated in writing that there is no additional evidence that he or she wishes to submit. The Secretary and the Commissioner may, on a case by case basis for good cause, extend the filing and submission period in order to ensure accurate resolution of an appeal before him or her. Administrative review under this paragraph shall be limited to whether the nonconfirmation notice is supported by the weight of the evidence.

“(D) COMPENSATION FOR ERROR.—If the individual was denied a stay under subparagraph (B) and the Secretary makes a determination that the nonconfirmation issued for an individual was not caused by an act or omission of the individual or the employer, the Secretary shall compensate the individual for lost wages in an amount not exceeding $75,000 and reasonable costs and attorneys’ fees incurred during administrative and judicial review which shall not exceed $50,000. Amounts under this clause may be adjusted to account for inflation pursuant to the US Consumer Price Index - All Urban Consumers (CPI-U) compiled by the Bureau of Labor Statistics.

“(i) CALCULATION OF LOST WAGES.—Lost wages shall be calculated based on the wage rate and work schedule that prevailed prior to termination. The individual shall be compensated for wages lost beginning on the first scheduled work day after employment was terminated and ending 180 days after completion of the administrative review process described in this paragraph, or judicial review if any, or the day after the individual is reinstated or obtains employment elsewhere, whichever occurs first. If the individual obtains employment elsewhere at a lower wage rate, the individual shall be compensated for the difference in wages for the period ending 180 days after completion of the administrative review process or judicial review, if any.

“(ii) LIMITATION ON COMPENSATION.—For purposes of determining an individual's compensation for the loss of employment, such compensation shall not include any period in which the individual was ineligible for employment in the United States.

“(iii) SOURCE OF FUNDS.—Compensation or reimbursement provided under this paragraph shall not be provided from funds appropriated in annual appropriations Acts to the Secretary for the Department of Homeland Security.

“(8) JUDICIAL REVIEW.—

“(A) IN GENERAL.—After the Secretary or the Commissioner makes a final determination on an appeal filed by an individual under paragraph (7), the individual may obtain judicial review of such determination in a civil action commenced not later than 90 days after notice of such decision.

“(B) JURISDICTION.—A civil action for such judicial review shall be brought in the district court of the United States for the judicial district in which the plaintiff resides or, if the plaintiff does not reside within any such judicial district, in the District Court of the United States for the District of Columbia.

“(C) SERVICE.—The defendant is either the Secretary or the Commissioner, but not both, depending upon who issued the administrative order under paragraph (7). In addition to serving the defendant, the plaintiff must also serve the Attorney General.

“(D) ANSWER.—As part of the Secretary's or the Commissioner’s answer to a complaint for such judicial review, the Secretary or the Commissioner shall file a certified copy of the administrative record compiled during the administrative review under paragraph (7), including the evidence upon which the findings and decision complained of are based. The court shall have power to enter, upon the pleadings and the administrative record, a judgment affirming or reversing the result of that administrative review, with or without remanding the cause for a rehearing.

“(E) STANDARD OF REVIEW.—

“(i) The burden shall be on the plaintiff to show that the administrative order was erroneous. Administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary. The court, upon good cause shown, may in its discretion remand to the Secretary or the Commissioner for additional fact-finding or other proceedings.

“(ii) If the plaintiff meets his or her burden to show that the administrative order was erroneous, the court shall, upon request of the plaintiff, determine whether the plaintiff can establish by the preponderance of the evidence that the error was caused by the decision rules, processes, or procedures utilized by the System or erroneous system information that was not the result of acts or omissions of the individual.

“(F) COMPENSATION FOR ERROR.—

“(i) IN GENERAL.—In cases in which the judicial review reverses the final determination of the Secretary or the Commissioner made under paragraph (7), and the court finds that the final determination was erroneous by reason of the decision rules, processes, or procedures utilized by the System or erroneous system information that was not the result of acts or omissions of the individual, the court may award to the individual lost wages not exceeding $75,000, reasonable costs and attorneys’ fees incurred during administrative and judicial review which shall not exceed $50,000, and compensatory damages in an amount deemed necessary by the court. Amounts under this clause may be adjusted to account for inflation pursuant to the US Consumer Price Index - All Urban Consumers (CPI-U) compiled by the Bureau of Labor Statistics.

“(ii) CALCULATION OF LOST WAGES.—Lost wages shall be calculated based on the wage rate and work schedule that prevailed prior to termination. The individual shall be compensated for wages lost beginning on the first scheduled work day after employment was terminated and ending 180 days after completion of the judicial review described in this paragraph or the day after the individual is reinstated or obtains employment elsewhere, whichever occurs first. If the individual obtains employment elsewhere at a lower wage rate, the individual shall be compensated for the difference in wages for the period ending 180 days after completion of the judicial review process. No lost wages shall be awarded for any period of time during which the individual was not authorized to be employed in the United States.

“(iii) PAYMENT OF COMPENSATION.—Notwithstanding any other law, payment of compensation for lost wages, costs and attorneys’ fees under this paragraph, or compromise settlements of the same, shall be made as provided by section 1304 of title 31, United States Code. Appropriations made available to the Secretary or the Commissioner, accounts provided for under section 286 of the Immigration and Nationality Act (8 U.S.C. 1356), and funds from the Federal Old-Age and Survivors Insurance Trust Fund or the Federal Disability Insurance Trust Fund shall not be available to pay such compensation.

“(iv) EXCLUSIVE REMEDY.—Awards of compensation for lost wages, costs, and attorneys’ fees under this paragraph shall be the exclusive remedy for a finding under clause (i) that a final determination of the Secretary or the Commissioner made under paragraph (7) was erroneous by reason of the negligence or recklessness of the Secretary or the Commissioner.

“(9) PRIVATE RIGHT OF ACTION.—If the nonconfirmation issued for an individual was caused by negligence or other misconduct on the part of the employer, the individual may seek recovery of damages, reinstatement, back pay, and other appropriate remedies in a civil action against the employer. Such action must be commenced not later than 90 days after notice of the Secretary’s or the Commissioner’s decision on an administrative appeal as described in paragraph (7), or 90 days after termination of the individual as a result of the final nonconfirmation if no such administrative appeal is taken. The action shall be brought in the district court of the United States for the judicial district in which the plaintiff resides or, if the plaintiff does not reside within any such judicial district, in the District Court of the United States for the District of Columbia. In such action, no prior administrative or judicial finding relating to the employer in any proceeding to which the employer was not a party may be given any res judicata or collateral estoppel effect against the employer.

“(10) 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 plaintiff.

“(11) ANNUAL STUDY AND REPORT.—

“(A) REQUIREMENT FOR STUDY.—The Comptroller General of the United States shall conduct an annual study of the System as described in this paragraph.

“(B) PURPOSE OF THE STUDY.—The Comptroller General shall, for each year, undertake a study to determine whether the System meets the following requirements:

“(i) DEMONSTRATED ACCURACY OF THE DATABASES.—New information and information changes submitted by an individual to the System is updated in all of the relevant databases not later than 3 working days after submission in at least 99 percent of all cases.

“(ii) LOW ERROR RATES AND DELAYS IN VERIFICATION.—

“(I) RATES OF INCORRECT NONCONFIRMATION NOTICES.—

“(aa) That, during a year, the number of incorrect nonconfirmations provided through the System for individuals who are native-born U.S. citizens is not more than 1 percent.

“(bb) That, during a year, the number of incorrect nonconfirmations provided through the System for individuals who are foreign-born, work-authorized individuals is not more than 3 percent.

“(II) STABILITY OR IMPROVEMENT IN ERROR RATES.—That, during a year, the rate of incorrect nonconfirmations shall not have increased by more than 3 percent over the previous year.

“(iii) MEASURABLE EMPLOYER COMPLIANCE WITH SYSTEM REQUIREMENTS.—

“(I) NO DISCRIMINATION BASED ON SYSTEM OPERATIONS.—The System has not and will not result in increased discrimination or cause reasonable employers to conclude that individuals of certain races or ethnicities are more likely to have difficulties when offered employment caused by the operation of the System.

“(II) REQUIREMENT FOR INDEPENDENT STUDY.—The determination described in subclause (I) shall be based on an independent study commissioned by the Comptroller General in each phase of expansion of the System.

“(iv) PROTECTION OF WORKERS’ PRIVATE INFORMATION.—At least 97 percent of employers who participate in the System are in full compliance with the privacy requirements described in this subsection.

“(v) ADEQUATE AGENCY STAFFING AND FUNDING.—The Secretary and Commissioner of Social Security have sufficient funding to meet all of the deadlines and requirements of this subsection.

“(C) CONSULTATION.—In conducting a study under this paragraph, the Comptroller General shall consult with representatives of business, labor, immigrant communities, State governments, privacy advocates, and appropriate departments of the United States.

“(D) REQUIREMENT FOR REPORTS.—Not later than 21 months after the date of the enactment of the Act, and annually thereafter, the Comptroller General shall submit to the Secretary and to Congress a report containing the findings of the study carried out under this paragraph and shall include the following:

“(i) An assessment of the accuracy of the databases utilized by the System and of the timeliness and accuracy of the responses provided through the System to employers.

“(ii) An assessment of the privacy and confidentiality of the System and of the overall security of the System with respect to cybertheft and theft or misuse of private data.

“(iii) An assessment of whether the System is being implemented in a nondiscriminatory and nonretaliatory manner.

“(iv) An assessment of the most common causes for the erroneous issuance of nonconfirmations by the System and recommendations to correct such causes.

“(v) The recommendations of the Comptroller General regarding whether or not the System should be modified prior to further expansion.

“(E) CERTIFICATION.—If the Comptroller General determines that the System meets the requirements set out in clauses (i) through (v) of subparagraph (B) for a year, the Comptroller shall certify such determination and submit such certification to Congress with the report required by subparagraph (D).

“(12) ANNUAL AUDIT AND REPORT.—

“(A) PURPOSE OF THE AUDIT AND REPORT.—The Office for Civil Rights and Civil Liberties shall conduct annual audits of E–Verify described in section 403(a) of the Illegal Immigration Reform and Responsibility Act of 1996, Public Law No. 104–208, Div. C, 110 Stat. 3009–546, to assess employer compliance with System requirements, including civil rights and civil liberties protections, and compliance with the System rules and procedures set forth in the Memorandum of Understanding between employers and the Social Security Administration and the Department of Homeland Security.

“(B) REQUIREMENTS OF AUDIT.—Annual audits shall include, but are not limited to, the following activities:

“(i) Use of testers to check if employers’ are using E-Verify as outlined in the Memorandum of Understanding between employers and the Department of Homeland Security and the Social Security Administration, including if employers are misusing of the system to prescreen job applicants, if employers are giving proper notification to employees’ regarding nonconfirmations, and if employers are taking adverse actions against workers based upon nonconfirmations.

“(ii) Random audits of employers to confirm that employers are using the system as outlined in the Memorandum of Understanding and in a manner consistent with civil rights and civil liberties protections; and

“(iii) Periodic audits of employers for which the Special Counsel has received information or complaints and/or actual charges of citizenship/national origin discrimination or document abuse.

“(C) AUTHORITY OF OFFICE FOR CIVIL RIGHTS AND CIVIL LIBERTIES.—The Office shall have the authority to obtain from users of E-Verify relevant documents and testimony and answers to written interrogatories. The Office shall also have the authority to conduct site visits, and interview employees.

“(D) FAILURE OF EMPLOYERS TO COOPERATE.—Employers that fail to cooperate with the Office for Civil Rights and Civil Liberties shall be noted in the annual report set forth below in this subsection.

“(E) REQUIREMENT FOR REPORTS.—Not later than 18 months after the date of enactment of the Act, and annually thereafter, the Office for Civil Rights and Civil Liberties shall submit to the President of the Senate, the Speaker of the House of Representatives, and the appropriate committees and subcommittees of Congress a report containing the findings of the audit carried out under this paragraph.

“(13) MANAGEMENT OF THE SYSTEM.—

“(A) IN GENERAL.—The Secretary is authorized to establish, manage, and modify the System, which shall—

“(i) respond to inquiries made by participating employers at any time through the internet, or such other means as the Secretary may designate, 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 System; and

“(iii) provide information to, and require action by, employers and individuals using the System.

“(B) DESIGN AND OPERATION OF SYSTEM.—The System shall be designed and operated—

“(i) to maximize its reliability and ease of use by employers consistent with protecting the privacy and security of the underlying information, and ensuring full notice of such use to employees;

“(ii) to maximize its ease of use by employees, including notification of its use, of results, and ability to challenge results;

“(iii) 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;

“(iv) to maintain appropriate administrative, technical, and physical safeguards to prevent unauthorized disclosure of personal information, misuse by employers and employees, and discrimination;

“(v) to allow for auditing of the use of the System to detect misuse, discrimination, fraud, and identity theft, and to preserve the integrity and security of the information in all of the System, including but not limited to the following—

“(I) to develop and use tools and processes to detect or prevent fraud and identity theft, such as multiple uses of the same identifying information or documents to fraudulently gain employment;

“(II) to develop and use tools and processes to detect and prevent misuse of the system by employers and employees;

“(III) to develop tools and processes 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 employees to employers, including authority to conduct interviews with employers and employees, and obtain information concerning employment from the employer;

“(vi) to confirm identity and employment authorization through verification and comparison of records maintained by the Secretary, other Federal departments, states, or outlying possessions of the United States, or other available information, as determined necessary by the Secretary, including—

“(I) records maintained by the Social Security Administration;

“(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 Department of State; and

“(IV) state driver's license or identity card information (including photographs) maintained by State departments of motor vehicles;

“(vii) 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 a photograph is not available from the issuer, the Secretary shall specify alternative procedures for confirming the authenticity of the document; and

“(viii) to include, notwithstanding section 6103 of title 26, U.S. Code, procedures for verification by the Secretary of the Treasury of the validity of any employer identification number and related information provided by an employer to the Secretary for the purpose of participating in the System.

“(C) ACCESS TO INFORMATION.—

“(i) Notwithstanding any other provision of law, the Secretary of Homeland Security shall have access to relevant records described in subparagraphs (B)(vi) and (viii), for the purposes of preventing identity theft, fraud and misuse in the use of the System and administering and enforcing the provisions of this section governing employment verification. Any governmental agency or entity possessing such relevant records shall provide such assistance and cooperation in resolving further action notices and nonconfirmations relating to such records, or otherwise to improve the accuracy of the System, as the Secretary may request. A state or other non-Federal jurisdiction that does not provide such access, assistance, and cooperation shall not be eligible for any grant or other program of financial assistance administered by the Secretary or by the Commissioner.

“(ii) The Secretary, in consultation with the Commissioner 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 or maintained by the System. 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 under the System.

“(iii) The Secretary, acting through the Chief Privacy Officer of the Department of Homeland Security, shall conduct regular privacy audits of the policies and procedures established under clause (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 any changes necessary to improve the privacy protections of the program.

“(D) RESPONSIBILITIES OF THE SECRETARY OF HOMELAND SECURITY.—

“(i) As part of the System, the Secretary shall maintain a reliable, secure method, which, operating through the System and within the time periods specified, compares the name, alien identification or authorization number, or other information as determined relevant by the Secretary, 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 records available to the Secretary verify the identity or status of a national of the United States), and such other information as the Secretary may prescribe.

“(ii) As part of the System, the Secretary shall establish a reliable, secure method, which, operating through the System, displays the digital photograph described in subparagraph (B)(vii).

“(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 System, as described in subparagraph (B)(v) and shall utilize the information obtained from such audits, as well as any information obtained from the Commissioner pursuant to section 304 of the CIR ACT OF 2010, for the purposes of this section, to administer and enforce the immigration laws, and to ensure employee rights are protected under the System.

“(v) The Secretary may make appropriate arrangements to allow employers or employees who are otherwise unable to access the System to use Federal Government facilities or public facilities or other available locations in order to utilize the program.

“(vi) The Secretary shall, in consultation with the Commissioner, establish a program which shall provide a reliable, secure method by which victims of identity fraud and other individuals may suspend or limit the use of their Social Security account number or other identifying information for System purposes. The Secretary may implement the program on a limited pilot program basis before making it fully available to all individuals.

“(vii) The Secretary, in consultation with the Commissioner of Social Security, shall establish procedures for an Enhanced Verification System under paragraph (X).

“(viii) The Secretary and the Commissioner shall establish a program in which Social Security account numbers that have been identified to be subject to unusual multiple use in the System, or that are otherwise suspected or determined to have been compromised by identity fraud or other misuse, shall be blocked from use for System purposes unless the individual using such number is able to establish, through secure and fair additional security procedures, that he or she is the legitimate holder of the number.

“(ix) The Secretary shall establish a monitoring and compliance unit to detect and reduce identity fraud and other misuse of the program.

“(x) The Secretary, acting through the Officer for Civil Rights and Civil Liberties of the Department of Homeland Security, shall conduct regular civil rights and civil liberties assessments of the System, including participation by employers, other private entities, other Federal agencies, and state and local government. The Officer shall review the results of the assessment and recommend to the Secretary any changes necessary to improve the civil rights and civil liberties protections of the program.

“(E) RESPONSIBILITIES OF THE SECRETARY OF STATE.—As part of the System, 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 subsection (c)(1)(B) confirms the identity of the subject of the System check, or that a passport, passport card or visa photograph matches the Secretary of State’s records, and shall provide such assistance as the Secretary may request in order to resolve further action notices or nonconfirmations relating to such information.

“(F) UPDATING INFORMATION.—The Commissioner 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.

“(14) LIMITATION ON USE OF THE SYSTEM.—Notwithstanding any other provision of law, nothing in this subsection shall be construed to permit or allow any department, bureau, or other agency of the United States Government to utilize any information, database, or other records assembled under this subsection for any purpose other than for verification as provided by this subsection the enforcement and administration of the immigration laws, or the enforcement of Federal laws for violations relating to use of the System.

“(15) CONFORMING AMENDMENT.—Sections 401 to 405 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (division C of Public Law 104–208, as amended; 8 U.S.C. 1234a note) 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 in the System of employers who have participated in the E–Verify program established by such sections.

“(16) NONDISCRIMINATION.—The employer shall use the procedures for the System specified in this section for all employees without regard to race, sex, national origin, or, unless specifically permitted in this section, to 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 subsections (a) or (f)(1);

“(B) for the investigation of those complaints which the Secretary deems appropriate to investigate; and

“(C) for such other investigations of violations of subsections (a) or (f)(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;

“(B) immigration officers designated by the Secretary, and administrative law judges and other persons authorized to conduct hearings under this section, 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 refusal to fully comply with 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 the subpoena, and any failure to obey such order may be punished by the court as contempt. Failure to cooperate with the 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 paragraph (4)(D); and

“(C) the Secretary, in cooperation with the Commissioner and Attorney General, and in consultation with other relevant agencies, shall establish a Joint Employment Fraud Task Force consisting of, at a minimum, the System’s compliance personnel, immigration law enforcement officers, Special Counsel for Unfair Immigration-Related Employment Practices personnel, Department of Homeland Security Office for Civil Rights and Civil Liberties personnel, and Social Security Administration fraud division personnel.

“(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, 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;

“(iv) describe the penalty sought to be imposed; and

“(v) inform such employer that he or she shall have a reasonable opportunity to make representations as to why a monetary or other penalty should not be imposed.

“(B) EMPLOYER’S RESPONSE.—Whenever any employer receives written pre-penalty notice of a fine or other penalty in accordance with subparagraph (A), the employer may, within 30 days from receipt of such notice, file with the Secretary its written response to the notice. The response may include any relevant evidence or proffer of evidence that the employer wishes to present with respect to whether the employer violated this section and whether, if so, the penalty should be mitigated, and shall be filed and considered in accordance with procedures to be established by the Secretary.

“(C) PENALTY CLAIM.—After considering the employer’s response under 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 of the penalty that the Secretary deems appropriate under paragraph (4)(D).

“(4) CIVIL PENALTIES.—All penalties in this section may be adjusted periodically to account for inflation as provided by law.

“(A) HIRING OR CONTINUING TO EMPLOY UNAUTHORIZED ALIENS.—Any employer that violates any provision of subsection (a)(1)(A) or (a)(2) shall:

“(i) pay a civil penalty of not less than $2,000 and not more than $5,000 for each unauthorized alien with respect to which each violation of either subsection (a)(1)(A) or (a)(2) occurred;

“(ii) if the employer has previously been fined under this paragraph, pay a civil penalty of not less than $4,000 and not more than $10,000 for each unauthorized alien with respect to which a violation of either subsection (a)(1)(A) or (a)(2) occurred; and

“(iii) if the employer has previously been fined more than once under this paragraph, pay a civil penalty of not less than $8,000 and not more than $25,000 for each unauthorized alien with respect to which a violation of either subsection (a)(1)(A) or (a)(2) occurred.

“(B) ENHANCED PENALTY.—If an employer is determined to have committed within the 5 years immediately preceding the date of any violation of subsection (a)(1)(A) or (a)(2) a civil or criminal violation of a Federal or State law relating to wage and hour or other employment standards, workplace safety, collective bargaining, civil rights, or immigration, by a court or an administrative agency with jurisdiction over such violation, for which a monetary penalty of at least $500, a judicial injunction, or other equitable relief, or any term of imprisonment has been imposed, any civil money penalty or criminal fine otherwise applicable under this section shall be trebled. In any proceeding under this section, the Secretary of Homeland Security, administrative law judge, or court, as appropriate, shall determine whether a court or administrative agency has imposed such penalty for such previous violation of other law, but the validity and appropriateness of such prior action shall not be subject to review.

“(C) RECORDKEEPING OR VERIFICATION PRACTICES.—Any employer that violates or fails to comply with any requirement of subsection (a)(1)(B), shall pay a civil penalty as follows:

“(i) not less than $500 and not more than $2,000 for each violation;

“(ii) if an employer has previously been fined under this paragraph, not less than $1,000 and not more than $4,000 for each violation; and

“(iii) if an employer has previously been fined more than once under this paragraph, not less than $2,000 and not more than $8,000 for each violation.

“(D) 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 (f)(2).

“(E) MITIGATION.—The Secretary is authorized, upon such terms and conditions as the Secretary deems reasonable and just and in accordance with such procedures as the Secretary may establish, 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, and voluntary disclosure of violations of this subsection to the Secretary. The Secretary shall not mitigate a penalty below the minimum penalty provided by this section, except that the Secretary may, in the case of an employer subject to penalty for record-keeping or verification violations only who has not previously been penalized under this section, in the Secretary’s discretion, mitigate the penalty below the statutory minimum or remit it entirely.

“(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 System (once that system is implemented with respect to that employer according to the requirements of subsection (d)(1)), and with any additional requirements that the Secretary may promulgate by regulation pursuant to subsections (c) or (d) 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) IN GENERAL.—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 paragraph (3)(C), except as specifically provided by this paragraph. Judicial review of a final determination under paragraph (4) is governed only by chapter 158 of title 28, except as specifically provided below. The Secretary is authorized to require that the 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 paragraph (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 paragraph (3)(C).

“(ii) VENUE AND FORMS.—The petition for review shall be filed with the court of appeals for the judicial circuit where the employer’s principal place of business was located 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 or electronically filed record and briefs.

“(iii) SERVICE.—The respondent is the Secretary of Homeland Security. 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, an abuse of discretion, not supported by substantial evidence, or otherwise not in accordance with law.

“(C) EXHAUSTION OF ADMINISTRATIVE REMEDIES.—A court may review a final determination under paragraph (3)(C) only if—

“(i) the petitioner has exhausted all administrative remedies available to the petitioner as of right; and

“(ii) 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 the final determination issued against the employer under this subsection is not subject to review as provided in paragraph (6), the Attorney General, upon request by the Secretary, may bring a civil action to enforce compliance with the final determination in any appropriate district court of the United States. The court, on a proper showing, shall issue a temporary restraining order or a preliminary or permanent injunction requiring that the employer comply with the final determination issued against that employer under this subsection. In any such civil action, 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), 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), 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 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. section 3002 and enforceable pursuant to the Federal Debt Collection Procedures Act.

“(9) TRANSITION PROVISION.—The Attorney General shall have jurisdiction to adjudicate administrative proceedings under this subsection, pursuant to procedures for hearings before administrative law judges as in effect under section 274A(e) of this Act and its implementing regulations on the day immediately before the date of the enactment of the CIR Act of 2010, until the date that regulations promulgated by the Secretary, in consultation with the Attorney General, for the adjudication of cases under this subsection are in effect. Such regulations may provide for the continuing jurisdiction of the Attorney General over cases pending before the Attorney General on such date that the regulations are promulgated. Sections 1512 and 1517 of the Homeland Security Act (6 U.S.C. 552 and 557) shall apply to any transfer of jurisdiction to adjudicate cases under this subsection from the Attorney General to the Secretary as if such transfer is a transfer under the Homeland Security Act; provided that, nothing in this sentence shall be construed to require any transfer of personnel from the Department of Justice to the Department of Homeland Security.

“(f) Prohibition of indemnity bonds.—

“(1) PROHIBITION.—It is unlawful for an employer, in the hiring 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 of the individual.

“(2) CIVIL PENALTY.—Any employer who 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.

“(g) Government contracts.—

“(1) CONTRACTORS AND RECIPIENTS.—Whenever an employer who holds Federal contracts, grants, or cooperative agreements, or reasonably may be expected to submit offers for or be awarded a government contract, 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 5 years in accordance with the procedures and standards prescribed by the Federal Acquisition Regulation. 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 5 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 5 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 administrative determination of liability for civil penalty by the Secretary or the Attorney General shall not be reviewable in any debarment proceeding.

“(2) EFFECT OF INDICTMENTS OR OTHER ACTIONS.—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.

“(3) INADVERTENT VIOLATIONS.—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.

“(4) OTHER REMEDIES AVAILABLE.—Nothing in this subsection shall be construed to modify or limit any remedy available to any agency or official of the Federal Government for violation of any contractual requirement to participate in the System, as provided in the final rule published at 73 Federal Register 67,651 (Nov. 14, 2008), or any subsequent amendments thereto.

“(h) Preemption.—The provisions of this section preempt any State or local law, contract license, or other standard, requirement, action or instrument from—

“(1) imposing sanctions or liabilities for employing, or recruiting or referring for employment, unauthorized aliens, or for working without employment authorization;

“(2) requiring those hiring, recruiting, or referring individuals for employment to ascertain or verify the individuals’ employment authorization or to participate in an employment authorization verification system, or requiring individuals to demonstrate employment authorization; and

“(3) requiring, authorizing or permitting the use of an employment verification system, unless otherwise mandated by Federal law, for any other purpose including, but without limitation, such purposes as verifying the status of renters, determining eligibility for receipt of benefits, enrollment in school, obtaining or retaining a business license or other license, or conducting a background check.

“(i) Backpay remedies.—Neither backpay nor any other monetary remedy for unlawful employment practices, workplace injuries or other causes of action giving rise to liability shall be denied to a present or former employee on account of—

“(1) the employer's or the employee's failure to comply with the requirements of this section in establishing or maintaining the employment relationship; the employee‘s violation of the provisions of federal law related to the employment verification system set forth in subsection (a); or’

“(2) the employee's continuing status as an unauthorized alien both during and after termination of employment.

“(j) Deposit of amounts received.—Except as otherwise specified, civil penalties collected under this section shall be deposited by the Secretary into the Immigration Reform Penalty Account.

“(k) Challenges to validity of the system.—

“(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 subsection must be filed no later than 180 days after the date the challenged section or regulation described in subparagraph (A) or (B) of paragraph (1) is first implemented.

“(3) 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.

“(l) Private right of action.—Any person or entity who is injured in his business or property by reason of the employment of an unauthorized alien by any other person or entity may sue such other person or entity in any district court of the United States in the district in which the defendant resides or is found or has an agent, without respect to the amount in controversy, and shall recover threefold the damages sustained, and the cost of suit, including reasonable attorney’s fees. The award of interest, and the amount of damages payable to foreign states and instrumentalities of foreign states, shall be determined in the manner provided by section 15 of title 15, United States Code. The provision shall become effective 3 years after the date of the enactment of the CIR Act of 2010 and shall apply only to injury occurring after the effective date.

“(m) Criminal penalties and injunctions for pattern or practice violations.—

“(1) PATTERN AND PRACTICE.—Any employer who engages in a pattern or practice of knowing violations of subsection (a)(1)(A) or (a)(2) shall be fined under title 18, United States Code, imprisoned for not more than 3 years 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 in violation of subsection (a)(1)(A) or (a)(2), 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 or Attorney General deems necessary.

“(n) Criminal penalties for unlawful employment.—

“(1) UNAUTHORIZED ALIENS.—Any person who, during any 12-month period, knowingly employs or hires for employment 10 or more individuals within the United States knowing that the individuals are unauthorized aliens (as defined in subsection (b)(1) of this section) shall be fined under title 18, United States Code, or imprisoned for not more than 5 years, or both.

“(2) ABUSIVE EMPLOYMENT.—Any person who, during any 12-month period, knowingly employs or hires for employment 10 or more individuals within the United States—

“(A) knowing that the individuals are unauthorized aliens; and

“(B) under conditions that violate section 206 or 207 of Title 29 (relating to minimum wages and maximum hours of employment),

shall be fined under title 18, United States Code, or imprisoned for not more than 10 years, or both.

“(3) ATTEMPT AND CONSPIRACY.—Any person who attempts or conspires to commit any offense under this subsection shall be punished in the same manner as a person who completes the offense.”.

(b) Conforming amendment.—Section 274(a)(3) of the Immigration and Nationality Act (8 U.S.C. 1324(a)(3)) is repealed.

SEC. 302. Disclosure of certain taxpayer information to assist in immigration enforcement.

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, the Commissioner of Social Security shall disclose directly to the Department of Homeland Security—

“(i) the taxpayer identity information of persons within the specifications of the written request who have filed an information return required by reason of section 6051 or section 6041(a) after calendar year 2010 that contains—

“(I) 10 (or any greater number the Secretary of Homeland Security shall request) names and addresses of employees (within the meaning of section 6041(a)) with the same taxpayer identifying number, and

“(II) the taxpayer identity and date of birth of each such employee, and

“(ii) the taxpayer identity of each person who has filed an information return required by reason of section 6051 or 6041(a) after calendar year 2010 that contains the taxpayer identifying number (assigned under section 6109) of an employee (within the meaning of section 6051) or a recipient (within the meaning of section 6041(a))—

“(I) who is under the age of 14 (or any lesser age the Secretary of Homeland Security shall request), according to the records maintained by the Commissioner of Social Security, or

“(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, and

“(iii) the taxpayer identity and date of birth of each such employee.

“(B) RESTRICTION ON DISCLOSURE.—The taxpayer identities disclosed under subparagraph (A) may be used by officers, employees, and contractors of the Department of Homeland Security only for purposes of, and to the extent necessary to—

“(i) prevent identity fraud, and

“(ii) prevent unauthorized aliens from obtaining or continuing employment in the United States.

“(C) REIMBURSEMENT.—The Secretary of Homeland Security shall transfer to the Commissioner of Social Security the funds necessary to cover the additional cost directly incurred by the Commissioner in carrying out the searches requested by the Secretary of Homeland Security.

“(D) INFORMATION RETURNS UNDER SECTION 6041.—For purposes of this paragraph, any reference to information returns required by reason of section 6041(a) shall only be a reference to such information returns relating to payments for labor.”.

SEC. 303. Compliance by department of homeland security contractors with confidentiality safeguards.

(a) In general.—Section 6103(p) of the Internal Revenue Code is amended by adding at the end the following new paragraph:

“(9) DISCLOSURE TO DEPARTMENT OF HOMELAND SECURITY.—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 of the Treasury—

“(A) has requirements in effect that require each such contractor that 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.”.

(b) Conforming amendments.—

(1) Section 6103(p)(8)(B) of such Code is amended by inserting “or paragraph (9)” after “subparagraph (A)”.

(2) Section 7213(a)(2) of such Code is amended by striking “or (20)” and inserting “(20), or (21)”.

(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.

SEC. 304. 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 the enactment of this Act, the Commissioner of Social Security shall begin work to administer and issue fraud-resistant, tamper-resistant, and wear-resistant Social Security cards.

(B) COMPLETION.—Not later than 2 years after the date of the enactment of this Act, the Commissioner of Social Security shall issue only 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.

(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.”.

(c) Criminal penalties.—Section 208(a) of the Social Security Act (42 U.S.C. 408(a)) is amended—

(1) by amending existing paragraph (7) to read as follows:

“(7) for any purpose—

“(A) knowingly uses a social security account number or social security card knowing that the number or card was obtained from the Commissioner of Social Security by means of fraud or false statement with the intent to defraud the actual holder of the number or card;

“(B) knowingly and falsely represents a number to be the social security account number assigned by the Commissioner of Social Security to him or to another person, when in fact such number is not the social security account number assigned by the Commissioner of Social Security to him or to such other person with the intent to defraud the actual holder of the number or card;

“(C) knowingly sells, or possesses with intent sell a social security account number or a social security card that is or purports to be a number or card issued by the Commissioner of Social Security; or

“(D) knowingly alters, counterfeits, forges, or falsely makes a social security account number or a social security card;

“(E) knowingly distributes a social security account number or a social security card knowing the number or card to be altered, counterfeited, forged, falsely made, or stolen; or;”;

(2) in paragraph (8)—

(A) by inserting the word “knowingly” immediately before the word “discloses”;

(B) by inserting the word “account” immediately after the word “security”; and

(C) by adding “or” at the end of the paragraph;

(3) by inserting immediately after paragraph (8) the following:

“(9) without lawful authority, knowingly produces or acquires for any person a social security account number, a social security card, or a number or card that purports to be a social security account number or social security card;”;

(4) in the undesignated penalty language at the end of subsection (a), by striking the word “five” and inserting the word “ten”.

(d) Conspiracy and disclosure.—Section 208 of the Social Security Act (42 U.S.C. 408) is amended by adding at the end the following:

“(f) Whoever attempts or conspires to violate any criminal provision within this section shall be punished in the same manner as a person who completes a violation of that provision.

“(g)(1) Notwithstanding any other provision of law and subject to paragraph (2), the Commissioner of Social Security shall disclose the following records of the Social Security Administration to any federal law enforcement agency that requests such records for the purpose of investigating a violation of this section or section 274A, section 274B, or section 274C of the Immigration and Nationality Act, provided that such request is in writing and from an officer in a supervisory position or higher official:

“(A) records concerning the identity, address, location, or financial institution accounts of the holder of a social security account number or social security card;

“(B) records concerning the application for and issuance of a social security account number or social security card; and

“(C) records concerning the existence or non-existence of a social security account number or social security card.

“(2) The Commissioner of Social Security shall not disclose any tax return or tax return information pursuant to this subsection.”.

SEC. 305. Increasing security and integrity of immigration documents.

Not later than 1 year after the date of the enactment of this Act, the Secretary shall—

(1) issue only machine-readable, tamper-resistant employment authorization documents that use biometric identifiers; and

(2) submit a report to Congress that describes the feasibility, advantages, and disadvantages of issuing a document described in paragraph (1) to any nonimmigrant alien authorized for employment with a specific employer.

SEC. 306. 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 subparagraph:

“(A) 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 System and within the time periods specified in section 274A(d) of the Immigration and Nationality Act:

“(I) Compares the name, date of birth, 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) Determines the correspondence of the name, number, and any other identifying information.

“(III) Determines whether the name and number belong to an individual who is deceased.

“(IV) Determines whether an individual is a national of the United States (when available).

“(V) Determines whether the individual has presented a social security account number that is not valid for employment.

The System shall not disclose or release social security information to employers through the confirmation system (other than such confirmation or nonconfirmation, information provided by the employer to the System, or the reason for the issuance of a further action notice).

“(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 of Homeland Security, 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 System, 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 SUSPEND USE OF SOCIAL SECURITY NUMBER.—The Commissioner of Social Security, in consultation with the Secretary of Homeland Security, may establish a secure process whereby an individual can request that the Commissioner preclude any confirmation under the System based on that individual's Social Security number until it is reactivated by that individual.”.

SEC. 307. Antidiscrimination protections.

(a) Amendments.—Section 274B (8 U.S.C. 1324b) is amended—

(1) by amending subsection (a) to read as follows—

“(a) Prohibition of discrimination based on national origin or citizenship status.—

“(1) IN GENERAL.—It is an unfair immigration-related employment practice for a person or other entity to discriminate against any individual, because of such individual’s national origin or citizenship status, with respect to the hiring of the individual for employment, the verification of the individual’s eligibility for employment through the System described in section 274A(d), the compensation, terms, conditions, or privileges of the employment of the individual, or the discharging of the individual from employment.

“(2) EXCEPTIONS.—Paragraph (1) shall not apply to—

“(A) a person or other entity that employs 3 or fewer employees, except for an employment agency, as defined in paragraph (9);

“(B) a person’s or entity’s discrimination because of an individual’s national origin if the discrimination with respect to that person or entity and that individual is covered under section 703 of the Civil Rights Act of 1964 (42 U.S.C. 2000e–2);

“(C) discrimination because of citizenship status which is otherwise required in order to comply with law, regulation, or executive order, or required by Federal, State, or local government contract, or which the Attorney General determines to be essential for an employer to do business with an agency or department of the Federal, State, or local government.

“(3) ADDITIONAL EXCEPTION PROVIDING RIGHT TO PREFER EQUALLY QUALIFIED CITIZENS.—Notwithstanding any other provision of this section, it is not an unfair immigration-related employment practice for a person or other entity to prefer to hire, recruit, or refer an individual who is a citizen or national of the United States over another individual who is an alien if the two individuals are equally qualified.

“(4) UNFAIR IMMIGRATION-RELATED EMPLOYMENT PRACTICES AND THE SYSTEM.—It is also an unfair immigration-related employment practice for a person or other entity—

“(A) to terminate the employment of an individual or take any adverse employment action with respect to that individual (including, but not limited to, any change in the terms and conditions of employment of the individual) due to a further action notice issued by the System, or the individual’s decision to challenge or appeal any System determination;

“(B) to use the System with regard to any person who is not an employee;

“(C) to use the System to reverify the employment authorization of a current employee, other than reverification upon expiration of employment authorization, or as otherwise authorized under section 274A(d) or by Executive Order;

“(D) to use the System selectively to exclude certain individuals from consideration for employment as a result of a perceived likelihood that additional verification will be required, beyond what is required for most newly hired individuals;

“(E) to fail to provide any required notice to a current employee within the relevant time period;

“(F) to use the System to deny workers’ employment benefits or otherwise interfere with their labor rights;

“(G) to use the System for any discriminatory or retaliatory purpose; and

“(H) to use an immigration status verification system or service other than those described in section 274A for purposes of verifying employment eligibility under that section.

“(5) PROHIBITION OF INTIMIDATION OR RETALIATION.—It is also an unfair immigration-related employment practice for a person or other entity to intimidate, threaten, coerce, or retaliate against any individual for the purpose of interfering with any right or privilege secured under this section or because the individual intends to file or has filed a charge or a complaint, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this section.

“(6) TREATMENT OF CERTAIN DOCUMENTARY PRACTICES AS EMPLOYMENT PRACTICES.—A person’s or other entity’s request, for purposes of satisfying the requirements of section 274A(b), for more or different documents than are required under such section or refusing to honor documents tendered that reasonably appear to be genuine shall be treated as an unfair immigration-related employment practice in violation of paragraph (1).

“(7) BURDEN OF PROOF IN DISPARATE IMPACT CASES.—

“(A) An unlawful immigration-related employment practice or unfair employment practice case based on disparate impact is established only if:

“(i) A complaining party demonstrates that a respondent uses a particular employment practice that causes a disparate impact on the basis of national origin or citizenship status and the respondent fails to demonstrate that the challenged practice is job related for the position in question and consistent with business necessity.

“(ii) The complaining party demonstrates that an alternative employment practice is available and the respondent refuses to adopt such an alternative employment practice. An alternative employment practice is defined as a policy that would satisfy the employer’s legitimate interests without having a disparate impact on a protected class.

“(B) With respect to demonstrating that a particular employment practice causes a disparate impact as described in subparagraph (A), the complaining party shall demonstrate that each particular challenged employment practice causes a disparate impact, except that if the complaining party can demonstrate to the court that the elements of a respondent’s decision-making process are not capable of separation for analysis, the decision-making process may be analyzed as one employment practice.

“(C) If the respondent demonstrates that a specific employment practice does not cause the disparate impact, the respondent shall not be required to demonstrate that such practice is required by business necessity.

“(D) A demonstration that an employment practice is required by business necessity may not be used as a defense against a claim of intentional discrimination under this statute.

“(8) MOTIVATING FACTOR.—Except as otherwise provided in this Act, an unlawful immigration-related unfair employment practice is established when the charging party demonstrates that citizenship status or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.

“(9) EMPLOYMENT AGENCY DEFINED.—As used in this section, the term ‘employment agency’ means any person or entity regularly undertaking with or without compensation to procure employees for an employer or to procure for employees opportunities to work for an employer and includes an agent of such person or entity.”;

(2) in subsection (d)—

(A) by amending paragraphs (1) and (2) to read as follows—

“(1) The Special Counsel shall investigate each charge received and determine whether or not there is reasonable cause to believe that the charge is true and whether or not to bring a complaint with respect to the charge before an administrative law judge. The Special Counsel may, on his or her own initiative, conduct investigations respecting unfair immigration-related employment practices or unfair employment practices and, based on such an investigation, file a complaint before such judge.

“(2) If the Special Counsel, after receiving such a charge respecting an unfair immigration-related employment practice or an unfair employment practice which alleges discriminatory activity or a pattern or practice of discriminatory activity, has not filed a complaint before an administrative law judge with respect to such charge within 120 days, the Special Counsel shall notify the person making the charge of the determination not to file such a complaint during such period and the person making the charge may file a complaint directly before such judge within 90 days after the date of receipt of the notice.”;

(3) in subsection (g)(2)—

(A) in subparagraph (A), by inserting before the period “and which requires such affirmative action as may be appropriate, or any other individual equitable relief as the administrative law judge determines appropriate.”;

(B) in subparagraph (B)—

(i) in clause (iii), by inserting before the semicolon “, and to provide such other relief as the administrative law judge determines appropriate to make the individual whole”; and

(ii) by amending clause (iv) to read as follows—

“(iv) to pay any applicable civil penalties proscribed below, the amounts of which may be adjusted periodically to account for inflation as provided by law—

“(I) except as provided in subclauses (II) through (IV), to pay a civil penalty of not less than $2,000 and not more than $5,000 for each individual subjected to an unfair immigration related employment practice;

“(II) except as provided in subclauses (III) and (IV), in the case of a person or entity previously subject to a single order under this paragraph, to pay a civil penalty of not less than $4,000 and not more than $10,000 for each individual subjected to an unfair immigration related employment practice;

“(III) except as provided in subclause (IV), in the case of a person or entity previously subject to more than one order under this paragraph, to pay a civil penalty of not less than $8,000 and not more than $25,000 for each individual subjected to an unfair immigration related employment practice; and

“(IV) in the case of an unfair immigration-related employment practice described in subsection (a)(6) of this section, to pay a civil penalty of not less than $500 and not more than $5,000 for each individual subjected to an unfair immigration related employment practice.”;

(C) in clause (vii) by striking “and”;

(D) in clause (viii) by striking the period and inserting “; and”; and (E) by adding a new clause (ix) to read as follows—

“(i)(I) An order of the administrative law judge may not require the admission or reinstatement of an individual as a member of a union, or the hiring, reinstatement, or promotion of an individual as an employee, if such individual was refused admission, suspended, or expelled, or was refused employment or advancement or was suspended or discharged more likely that not, for any reason other than discrimination on account of citizenship status or national origin or in violation of this section.

“(II) On a claim in which an individual proves a violation under paragraph (a)(9) and a respondent demonstrates that the respondent would have taken the same action in the absence of the impermissible motivating factor, the administrative law judge may grant declaratory relief, injunctive relief (except as provided in clause (b)(2)), and attorney’s fees and costs demonstrated to be directly attributable only to the pursuit of a claim under paragraph (a)(9); and shall not award damages or issue an order requiring any admission, reinstatement, hiring, promotion, or payment, described in subparagraph (I).”;

(4) in subsection (l)(3) by inserting “and an additional $40,000,000 for each of fiscal years 2011 through 2013” before the period at the end; and

(5) by adding new subsections (m) and (n) to read as follows—

“(m) Reports.—The Secretary of Homeland Security shall make transactional data and citizenship status data related to the System available upon request by the Special Counsel.

“(n) Records.—Every employer, employment agency, and labor organization subject to this section shall—

“(1) make and keep such records relevant to the determinations of whether unlawful employment practices have been or are being committed;

“(2) preserve such records for such periods; and

“(3) make such reports therefrom as the Special Counsel shall prescribe by regulation or order, after public hearing, as reasonable, necessary, or appropriate for the enforcement of this section or the regulations or orders thereunder.

The Special Counsel may cooperate with State and local agencies charged with the administration of State fair employment practices laws and, with the consent of such agencies, may, for the purpose of carrying out its functions and duties under this section and within the limitation of funds appropriated specifically for such purpose, engage in and contribute to the cost of research and other projects of mutual interest undertaken by such agencies, and utilize the services of such agencies and their employees, and, notwithstanding any other provision of law, pay by advance or reimbursement such agencies and their employees for services rendered to assist the Special Counsel in carrying out this section. In furtherance of such cooperative efforts, the Special Counsel may enter into written agreements with such State or local agencies and such agreements may include provisions under which the Special Counsel shall refrain from processing a charge in any cases or class of cases specified in such agreements or under which the Special Counsel shall relieve any person or class of persons in such State or locality from requirements imposed under this section. The Special Counsel shall rescind any such agreement whenever it determines that the agreement no longer serves the interest of effective enforcement of this section.”.

(b) Effective date.—The amendments made by this section shall take effect on the date of the enactment of this Act and shall apply to violations occurring on or after such date.

SEC. 308. Immigration enforcement support by the internal revenue service and the Social Security administration.

(a) Increase in penalty on employer failing to file correct information returns.—Section 6721 of the Internal Revenue Code of 1986(relating to failure to file correct information returns), as amended by section 2101 of the Small Business Jobs Act of 2010, is amended as follows—

(1) in subsection (a)(1)—

(A) by striking “$100” and inserting “$200”; and

(B) by striking “$1,500,000” and inserting “$2,000,000”;

(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 “$250,000” 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 “$500,000” and inserting “$600,000”;

(6) in subsection (d)—

(A) in paragraph (1)(B) by striking “ ‘$75,000’ for ‘$250,000’” and inserting “ ‘$100,000’ for ‘$300,000’”;

(B) in paragraph (1)(C) by striking “ ‘$200,000’ for ‘$500,000’” and inserting “ ‘$200,000’ for ‘$600,000’”;

(C) in paragraph (2)(A), by striking “$5,000,000” and inserting “$2,000,000”; and

(D) in the heading, by striking “$5,000,000” and inserting “$2,000,000”;

(7) in subsection (e)—

(A) in paragraph (2) in the matter preceding subparagraph (A) by striking “$250” and inserting “$400”;

(B) in paragraph (2)(C)(i) by striking “$25,000” and inserting “$100,000”;

(C) in paragraph (2)(C)(ii) by striking “$100,000” and inserting “$400,000”; and

(D) in paragraph (3)(A), by striking “$1,500,000” and inserting “$2,000,000”.

(b) Effective date.—The amendments made by subsection (c) shall apply to failures occurring after the date of enactment of this section.

SEC. 309. Enhanced Verification System.

(a) Right to review and correct system information.—The Secretary, in consultation with the Commissioner of Social Security, shall establish—

(1) procedures to permit an individual—

(A) to verify the individual’s eligibility for employment in the United States before obtaining or changing employment;

(B) to view the individual’s own records in the Enhanced Verification System in order to ensure the accuracy of such records; and

(C) to correct or update the information used by the System regarding the individual by electronic means, to the greatest extent practicable; and

(2) procedures for establishing an Enhanced Verification System under subsection (b) through which an individual who has viewed the individual’s own record may electronically—

(A) block the use of the individual’s Social Security number under the System; and

(B) remove such block in order to—

(i) prevent the fraudulent or other misuse of a Social Security account number;

(ii) prevent employer misuse of the system;

(iii) protect privacy; and

(iv) limit erroneous nonconfirmations during employment verification.

(b) Enhanced Verification System.—

(1) IN GENERAL.—The Secretary, in consultation with the Commissioner of Social Security, shall establish a voluntary self-verification system to allow an individual to submit biometric information, verify the individual’s own record, and to block and unblock the use of the individual’s Social Security number in order to prevent the fraudulent or other misuse of the individual’s Social Security Number during employment verification, to prevent employer misuse of the system, to protect privacy, and to limit erroneous non-confirmations during employment verification.

(2) VOLUNTARY ENROLLMENT.—An individual may enroll in the Enhanced Verification System on a voluntary basis.

(3) ELECTRONIC ACCESS.—The Secretary shall establish procedures allowing individuals to use a Personal Identification Number (PIN) or other biographic information to authenticate the individual’s identity and to block and unblock the individual’s Social Security number electronically.

(4) USE OF ENHANCED VERIFICATION SYSTEM RECEIPT FOR PURPOSE OF EMPLOYMENT VERIFICATION.—The Secretary shall establish procedures to allow an individual who has authenticated the individual’s identity and unblocked the individual’s Social Security number to receive a single –use code as a receipt indicating that the individual is work authorized and has self-verified, and procedures to allow the individual to use the single-use code in place of the identity and eligibility documents described in this section.

(5) EXPEDITED REVIEW PROCESS.—The Secretary shall establish an expedited review process to allow an individual who has authenticated the individual’s identity and unblocked the individual’s Social Security number immediately to correct user or system errors which result in an erroneous non-confirmation of work eligibility.

(6) REPORTS.—

(A) SYSTEM ASSESSMENT.—Not later than 3 months after the end of the third and fourth years in which the programs are in effect, the Secretary shall submit reports to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives on the Enhanced Verification System that—

(i) assesses the degree of fraudulent attesting of United States citizenship;

(ii) assesses the benefits of the Enhanced Verification System to employers and the degree to which it assists in the enforcement of section 274A of the Immigration and Nationality Act;

(iii) assesses the benefits of the Enhanced Verification System to individuals and the degree to which they prevent misuse of the System and erroneous non-confirmations during employment verification;

(iv) determines whether the Enhanced Verification System reduces discrimination during the employment verification process;

(v) assesses the degree to which the Enhanced Verification System protects employee civil liberties and privacy; and

(vi) includes recommendations on whether the Enhanced Verification System should be continued or modified.

(B) REPORT ON EXPANSION.—Not later than September 30, 2015, the Secretary shall submit a report shall to the committees referred to in subparagraph (A) that—

(i) evaluates whether the problems identified by the reports submitted under subparagraph (A) have been substantially resolved; and

(ii) describes the actions to be taken by the Secretary before requiring any individual to participate in the Enhanced Verification System.

(7) LIMITATION ON USE OF THE CONFIRMATION SYSTEM AND ANY RELATED SYSTEMS.—Notwithstanding any other provision of law, nothing in this section may be construed to permit any department, bureau, or other agency of the United States Government to utilize any information, database, or other records assembled under this section for any other purpose other than as provided for under the Enhanced Verification System.

SEC. 310. Authorization of appropriations.

(a) Department of Homeland Security.—There are authorized to be appropriated to the Department such sums as may be necessary to carry out this title, and the amendments made by this title, including the following:

(1) In each of the 5 years beginning on the date of the enactment of this Act, the appropriations necessary to increase to a level not less than 4500, by the end of such five-year period, the total number of personnel of the Department of Homeland Security assigned exclusively or principally to an office or offices in U.S. Citizenship and Immigration Services and U.S. Immigration and Customs Enforcement (and consistent with the missions of such agencies), dedicated to administering the System, and monitoring and enforcing compliance with sections 274A, 274B, and 274C of the Immigration and Nationality Act (8 U.S.C. 1324a, 1324b, and 1324c), including compliance with the requirements of the System. These personnel shall perform compliance and monitoring functions, including the following:

(A) Verify Employment Identification Numbers of employers participating in the System.

(B) Verify compliance of employers participating in the System with the requirements for participation that are prescribed by the Secretary.

(C) Monitor the System for multiple uses of Social Security Numbers and immigration identification numbers that could indicate identity theft or fraud.

(D) Monitor the System to identify discriminatory or unfair practices.

(E) Monitor the System to identify employers who are not using the system properly, including employers who fail to make available 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, civil or labor rights, or misused the System, and create procedures for employees to report such allegations.

(G) Analyze and audit the use of the System and the data obtained through the System to identify fraud trends, including fraud trends across industries, geographical areas, or employer size.

(H) Analyze and audit the use of the System and the data obtained through the System 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 System, including but not limited to privacy training and employee rights.

(J) Perform threshold evaluation of cases for referral to the Special Counsel for Unfair Immigration-Related Employment Practices or the Equal Employment Opportunity Commission, and other officials or agencies with responsibility for enforcing anti-discrimination, civil rights, privacy or worker protection laws, as may be appropriate.

(K) Any other compliance and monitoring activities that, in the Secretary's judgment, are necessary to ensure the functioning of the System.

(L) Investigate identity theft and fraud detected through the System and undertake the necessary enforcement or referral actions.

(M) Investigate use of or access to fraudulent documents and undertake the necessary enforcement actions.

(N) Perform any other investigations that, in the Secretary's judgment, are necessary to ensure the lawful functioning of the System, 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 System and the connectivity between U.S. Citizenship and Immigration Services and U.S. Immigration and Customs Enforcement, Department of Justice, and other agencies or officials with respect to the sharing of information to support the System and related immigration enforcement actions.

(3) The appropriations necessary to establish a robust redress process for employees who wish to appeal contested nonconfirmations to ensure the accuracy and fairness of the System.

(4) The appropriations necessary to provide a means by which individuals may access their own employment authorization data to ensure its accuracy independent of their employer.

(5) The appropriations necessary to establish a Joint Employment Fraud Task Force to promote employer compliance with the system and ensure a coordinated response to noncompliance.

(6) The appropriations necessary for the Office for Civil Rights and Civil Liberties and the Office of Privacy to perform their responsibilities as they relate to the System.

(7) The appropriations necessary to make grants to states to support them in assisting the federal government in carrying out the provisions of this title.

(b) Social Security Administration.—There are authorized to be appropriated to the Social Security Administration such sums as may be necessary to carry out its responsibilities under this title, including section 308.

(c) Department of Justice.—There are authorized to be appropriated to the Department of Justice such sums as may be necessary to carry out its responsibilities under this title, including enforcing compliance with section 274B of the Act, as amended by section 307 of this Act.

(d) Department of State.—There are authorized to be appropriated to the Department of State such sums as may be necessary to carry out its responsibilities under this title.

TITLE IVReforming America’s Legal Immigration System

subtitle ANew worker program and the creation of a standing commission

SEC. 401. Standing Commission on Immigration, Labor Markets, and the National Interest.

(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, Labor Markets, and the National Interest (referred to in this section as the “Commission”).

(2) PURPOSES.—The purposes of the Commission are to—

(A) establish employment-based immigration policies that promote America's economic growth and competitiveness while minimizing job displacement, wage depression and unauthorized employment in the United States;

(B) create and implement a policy-focused research agenda on the economic impacts of immigration at the national, regional, State, industry and occupation levels;

(C) collect and analyze information about employment-based immigration and the labor market and share the data and analysis with lawmakers, researchers and the American public;

(D) recommend to the Congress and the President on a regular basis an evidence-based methodology for determining the level of employment-based immigration;

(E) recommend to Congress and the President the numeric levels and characteristics of workers to be admitted in various employment-based visa categories; and

(F) to collect and analyze information about the economic, labor, security, and foreign policy impacts of our Nation’s immigration policies.

(3) MEMBERSHIP.—The Commission shall be composed of—

(A) 7 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 this Act;

(ii) who shall serve for 5-year staggered terms;

(iii) one of whom the President shall appoint as Chair of the Commission to serve a 6-year term, which can be extended for 1 additional 3-year term;

(iv) who shall have expertise in economics, demography, sociology, labor, business, civil rights, 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 4 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;

(vii) the Secretary of Agriculture; and

(viii) the Commissioner of Social Security.

(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 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 collect, analyze, and publish data regarding—

(1) the historic migration patterns to and from the United States and demographic trends, including the birth rate, education levels, and age profiles of the immigrant and native population of the United States;

(2) the national, regional, State, and local impacts of employment-based immigration—

(A) within industries and business sectors;

(B) on wages, labor standards, occupations, and employment levels;

(C) on small business;

(D) on employment and unemployment levels;

(E) on economic growth, productivity, and competitiveness;

(F) on national and border security; and

(G) on local communities;

(3) the development and implementation of the new worker program to admit H–2C nonimmigrants (referred to in this section as the “Program”), including—

(A) the criteria for the admission of workers under the Program; and

(B) the formula and methodologies for determining the annual numerical limitations of the Program;

(4) the current and anticipated needs of employers for skilled and unskilled labor;

(5) the national interest;

(6) the current and anticipated supply of skilled and unskilled labor;

(7) the impact of employment-based immigration on the economic growth, competitiveness, labor standards, labor conditions, and wages;

(8) the extent and impact of unauthorized employment in the United States;

(9) the factors that determine the economic success of immigrants to the United States;

(10) specific aspects of the Nation’s immigration policies and programs that Congress has requested the Commission to examine or analyze; and

(11) any other matters regarding the impact of employment-based immigration that the Commission considers appropriate.

(c) Annual reports.—

(1) PROGRAM EVALUATION.—Not later than 180 days after the date of the enactment of this Act, and annually thereafter, the Commission shall submit a report to the President and Congress that—

(A) assesses the economic, labor, security, and foreign policy impacts of the nation’s immigration policies;

(B) evaluates the Program and defines a formula and methodologies for measuring the need for H–2C nonimmigrants in States, industries, and occupations and determines the numeric limitations of the H–2C Program;

(C) recommends adjustments, based on the established methodologies, to the Program’s numeric allocations for the subsequent fiscal year; and

(D) reviews the issuance and allocations of employment-based immigrant and nonimmigrant visa categories.

(2) EFFECT ON EMPLOYMENT LEVELS.—Not later than February 1 of each year, the Commission shall submit a report to Congress that contains—

(A) the Commission’s recommendations on the increase or decrease in the number of employment-based immigrant visas to be made available for temporary or permanent employment under the Immigration and Nationality Act and a statement of the reasons for such recommendations; and

(B) the Commission’s recommendations on how many immigrant visas from the discretionary national interest pool described in section 411(e) should be added to the subsequent fiscal year’s annual immigrant visa allocations to comport with the increases recommended in subparagraph (A) and to which employment preference categories such visas should be added.

(3) EFFECT OF CONGRESSIONAL INACTION.—If Congress does not enact a law to approve or disapprove the Commission’s recommendations under paragraph (2) not later than 90 days after receiving a report under such paragraph, the number of employment-based immigrant visas shall remain at the level authorized for the previous fiscal year.

(d) National interest defined.—For purposes of determining whether immigrant visas should be allocated from the discretionary national interest pool in a given fiscal year, the term “national interest” shall be broadly defined and shall take into consideration—

(1) national and regional unemployment rates;

(2) unemployment rates by industry and sector;

(3) national and regional demographic and industry projections;

(4) wage and labor impact;

(5) immigrant visa backlogs and length of familial separation;

(6) national security and border security;

(7) community impact assessments; and

(8) competitiveness and economic growth.

(e) Powers of the Commission.—The Commission, by vote of a majority of the members present and voting, shall have the power to—

(1) establish general policies and promulgate such rules and regulations for the Commission as are necessary to carry out the purposes of this section;

(2) appoint and fix the salary and duties of the Staff Director of the Commission, who shall serve at the discretion of the Commission and who shall be compensated at a rate not to exceed the highest rate now or hereafter prescribed for Level 6 of the Senior Executive Service Schedule (5 U.S.C. 5382), and such other personnel as may be necessary to enable the Commission to carry out its functions;

(3) deny, revise, or ratify any request for regular, supplemental, or deficiency appropriations prior to any submission of such request to the Office of Management and Budget by the Chair;

(4) utilize, with their consent, the services, equipment, personnel, information, and facilities of other Federal, State, local, and private agencies and instrumentalities with or without reimbursement for such utilization;

(5) without regard to section 3324 of title 31, United States Code, enter into and perform such contracts, leases, cooperative agreements, and other transactions as may be necessary in the conduct of the functions of the Commission, with any public agency, or with any person, firm, association, corporation, educational institution, or nonprofit organization;

(6) accept and employ, in carrying out the provisions of this title, voluntary and uncompensated services, notwithstanding the provisions of section 1342 of title 31, United States Code, however, individuals providing such services shall not be considered Federal employees except for purposes of chapter 81 of title 5, United States Code, with respect to job-incurred disability and title 28, United States Code, with respect to tort claims;

(7) request such information, data, and reports from any Federal agency as the Commission may from time to time require and as may be produced consistent with other law;

(8) arrange with the head of any other Federal agency for the performance by such agency of any function of the Commission, with or without reimbursement;

(9) establish a research and development program within the Commission for the purpose of understanding and documenting the effects of immigration and the admission of foreign workers on the labor market and national competitiveness;

(10) collect systematically the data obtained from studies, research, and the empirical experience of public and private agencies concerning the need for and effects of immigration;

(11) interview and confer with state and local officials, representatives of labor and industry, and experts in academia to obtain information about the need for or benefit of additional immigrant or nonimmigrant workers;

(12) make recommendations to Congress concerning the numeric limitations of the H–2C program and all immigrant and nonimmigrant employment-based visa categories and recommend modifications or the enactment of statutes relating to matters that the Commission finds to be necessary and advisable to carry out an effective immigration policy;

(13) hold hearings and call witnesses to assist the Commission in the exercise of its powers or duties;

(14) retain and, in its discretion pay reasonable attorneys' fees out if its appropriated funds to, private attorneys who—

(A) shall provide legal advice to the Commission in the conduct of its work, or to appear for or represent the Commission in any case in which the Commission is authorized by law to represent itself, or in which the Commission is representing itself with the consent of the Department of Justice; and

(B) when serving as officers or employees of the United States, shall be considered special government employees as defined in section 202(a) of title 18;

(15) grant incentive awards to its employees pursuant to chapter 45 of title 5, United States Code; and

(16) perform such other functions as may be necessary to carry out the purposes of this section, which may be delegated to any member or designated person, as appropriate.

(f) 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.

(g) 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.

(h) 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, at rates authorized for employees of agencies 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.

(i) Determination of new levels of program visas.—The numeric levels for visas under the Program shall be set by the Commission unless Congress enacts superseding legislation.

(j) Funding.—Fees and fines deposited into the New Worker Program and Conditional Nonimmigrants Fee Account established under section 286(w) of the Immigration and Nationality Act, as added by subsection (k), may be used by the Commission to carry out its duties under this section.

(k) Establishment of account; use of fees.—Section 286 (8 U.S.C. 1356) is amended by adding at the end the following:

“(w) New worker program and conditional nonimmigrants fee account.—

“(1) IN GENERAL.—There is established in the general fund of the Treasury a separate account, which shall be known as the ‘New Worker Program and Conditional Nonimmigrants Fee Account’.

“(2) DEPOSITS.—Notwithstanding any other provision of law, there shall be deposited as offsetting receipts into the account all fees and fines collected under this title.

“(3) USE OF FEES.—Fees collected under this section may only be used by the Secretary of Homeland Security to administer and operate the New Worker Program and Conditional Nonimmigrants Fee Account Program.”.

SEC. 402. H–2C nonimmigrant worker program.

(a) Definition.—Section 101(a)(15)(H) (8 U.S.C. 1101(a)(15)(H)) is amended—

(1) in clause (i)—

(A) by redesignating subclause (c) as subclause (d); and

(B) by inserting after subclause (b) the following:

“(c) who is coming temporarily to the United States to initially perform temporary labor or services other than the labor or services described in clause (i)(b), (i)(b)(1), (i)(d), (ii)(a), or (iii), subparagraph (D), (E), (I), (L), (O), (P), or (R), or section 214(e) (if United States workers who are able, willing, and qualified to perform such labor or services cannot be found in the United States); and”; and

(2) by adding at the end the following:

“(iv) who—

“(I) is the spouse or minor child of an alien described in this subparagraph; and

“(II) is accompanying or following to join such alien.”.

(b) Admission of H–2C nonimmigrant workers.—Chapter 2 of title II (8 U.S.C. 1181 et seq.) is amended by inserting after section 218 the following:

“SEC. 218A. Admission of H–2C nonimmigrants.

“(a) Authorization.—The Secretary of State may grant a visa to an H–2C nonimmigrant who demonstrates an intent to perform labor or services in the United States (other than the labor or services described in clause (i)(b), (i)(b)(1), (i)(c), (ii)(a), or (iii) of section 101(a)(15)(H), subparagraph (D), (E), (I), (L), (O), (P), or (R) of section 101(a)(15), or section 214(e) (if United States workers who are able, willing, and qualified to perform such labor or services cannot be found in the United States).

“(b) Requirements for admission.—An alien shall be eligible for H–2C 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)(H)(ii)(c).

“(2) EVIDENCE OF EMPLOYMENT OFFER.—Evidence of an alien’s employment offer 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) FEE.—The alien shall pay a $100 visa issuance fee in addition to the cost of processing and adjudicating such application. Nothing in this paragraph shall be construed to affect consular procedures for charging reciprocal fees.

“(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 H–2C 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 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.

“(c) Grounds of inadmissibility.—

“(1) IN GENERAL.—In determining an alien’s admissibility as an H–2C nonimmigrant—

“(A) paragraphs (5), (6) (except subparagraphs (E) and (G)), (7), (9), and (10)(B) of section 212(a) may not apply with respect to conduct that occurred before the effective date of this Act;

“(B) the Secretary of Homeland Security may not waive the application of—

“(i) subparagraph (A), (B), (C), (D), (E), (G), (H), or (I) of section 212(a)(2);

“(ii) section 212(a)(3); or

“(iii) subparagraph (A), (C) or (D) of section 212(a)(10);

“(C) the Secretary of State may waive the application of any provision of section 212(a) not listed in subparagraph (B) on behalf of an individual alien—

“(i) for humanitarian purposes;

“(ii) to ensure family unity; or

“(iii) if such a waiver is otherwise in the public interest; and

“(D) nothing in this paragraph shall be construed as affecting the authority of the Secretary other than under this paragraph to waive the provisions of section 212(a).

“(2) RENEWAL OF AUTHORIZED ADMISSION AND SUBSEQUENT ADMISSIONS.—An alien seeking renewal of authorized admission or subsequent admission as an H–2C nonimmigrant shall establish that the alien is not inadmissible under section 212(a).

“(3) BACKGROUND CHECKS.—The Secretary of Homeland Security shall not admit, and the Secretary of State shall not issue a visa to, an alien seeking H–2C nonimmigrant status unless all appropriate background checks have been completed.

“(d) Period of Authorized Admission.—

“(1) AUTHORIZED PERIOD.—The initial period of authorized admission as an H–2C nonimmigrant shall be 3 years.

“(2) RENEWAL.—Before the expiration of the initial period under paragraph (1), an H–2C nonimmigrant may submit an application to the Secretary of Homeland Security to extend H–2C nonimmigrant status for 1 additional 3-year period. The Secretary may not require an applicant under this paragraph to depart the United States as a condition for granting such extension.

“(3) LOSS OF EMPLOYMENT.—

“(A) IN GENERAL.—

“(i) PERIOD OF UNEMPLOYMENT.—Subject to clause (ii) and subsection (c), the period of authorized admission of an H–2C nonimmigrant shall terminate if the alien is unemployed for 60 or more consecutive days.

“(ii) EXCEPTION.—The period of authorized admission of an H–2C nonimmigrant shall not terminate if the alien is unemployed for 60 or more consecutive days if the alien submits documentation to the Secretary of Homeland Security that establishes that such unemployment was caused by—

“(I) a period of physical or mental disability of the alien or the spouse, son, daughter, or parent (as defined in section 101 of the Family and Medical Leave Act of 1993 (29 U.S.C. 2611)) of the alien;

“(II) a period of vacation, medical leave, maternity leave, or similar leave from employment authorized by employer policy, State law, or Federal law; or

“(III) any other period of temporary unemployment that is the direct result of a major disaster or emergency.

“(iii) EXTENSION.—The Secretary of Labor and the Secretary of Homeland Security shall promulgate regulations to establish procedures for granting an extension of the 60-day period described in clause (i) in accordance with the conditions described in section 218B(g).

“(B) RETURN TO FOREIGN RESIDENCE.—Any alien whose period of authorized admission terminates under subparagraph (A) shall be required to leave the United States.

“(C) PERIOD OF VISA VALIDITY.—Any alien, whose period of authorized admission terminates under subparagraph (A), who leaves the United States under subparagraph (B), may reenter the United States as an H–2C nonimmigrant to work for an employer, if the alien has complied with the requirements of subsection (b).

“(4) VISITS OUTSIDE THE UNITED STATES.—

“(A) IN GENERAL.—Under regulations established by the Secretary of Homeland Security, an H–2C nonimmigrant—

“(i) may travel outside of the United States; and

“(ii) may be readmitted without having to obtain a new visa if the period of authorized admission has not expired.

“(B) EFFECT ON PERIOD OF AUTHORIZED ADMISSION.—Time spent outside the United States under subparagraph (A) shall not extend the period of authorized admission in the United States.

“(5) BARS TO EXTENSION OR ADMISSION.—An alien may not be granted H–2C nonimmigrant status, or an extension of such status, if—

“(A) the alien has violated any material term or condition of such status granted previously, including failure to comply with the change of address reporting requirements under section 265;

“(B) the alien is inadmissible as a nonimmigrant except that grounds of inadmissibility that are waived under section 218(a) of the Immigration and Nationality Act as amended by this Act shall not apply; or

“(C) the granting of such status or extension of such status would allow the alien to exceed 6 years as an H–2C nonimmigrant, unless the alien has resided and been physically present outside the United States for at least 1 year after the expiration of such H–2C nonimmigrant status.

“(e) Evidence of Nonimmigrant Status.—Each H–2C nonimmigrant shall be issued documentary evidence of nonimmigrant status, which—

“(1) shall be machine-readable, tamper-resistant, and allow for biometric authentication;

“(2) shall, during the alien’s authorized period of admission under subsection (f), serve as a valid entry document for the purpose of applying for admission to the United States—

“(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 H–2C nonimmigrant by the Secretary of Homeland Security promptly after final adjudication of such status or, at the discretion of the Secretary of Homeland Security, may be issued by the Secretary of State at a consulate instead of a visa.

“(f) Penalties for Failure to Depart.—If an H–2C nonimmigrant fails to depart the United States by the date that the alien’s authorized admission as an H–2C nonimmigrant concludes, the visa of the alien shall be void under section 222(g)(1) and the alien shall be ineligible to be readmitted to the United States under section 222(g)(2). The alien may be removed if found to be within 1 or more of the classes of deportable aliens described in section 237.

“(g) Portability.—A nonimmigrant alien described in this section, who was previously issued a visa or otherwise provided H–2C nonimmigrant status, may accept a new offer of employment with a subsequent employer, if—

“(1) the employer complies with section 218B; and

“(2) the alien, after lawful admission to the United States, did not work without authorization.

“(h) Change of Address.—An H–2C nonimmigrant shall comply with the change of address reporting requirements under section 265 through electronic or paper notification.

“(i) Collection of Fees.—All fees (other than the application filing fee) collected under this section shall be deposited in the Treasury in accordance with section 286(w).”.

(c) Clerical Amendment.—The table of contents (8 U.S.C. 1101 et seq.) is amended by inserting after the item relating to section 218 the following:


“Sec. 218A. Admission of H–2C nonimmigrants.”.

(d) Employer obligations.—

(1) IN GENERAL.—Title II (8 U.S.C. 1201 et seq.) is amended by inserting after section 218A, as added by subsection (b), the following:

“SEC. 218B. Employer obligations.

“(a) General requirements.—Each employer that seeks to employ an H–2C nonimmigrant shall—

“(1) file a petition with the Secretary of Labor in accordance with subsections (b) and (c); and

“(2) be required to pay—

“(A) an application filing fee for each alien, based on the cost of carrying out the processing duties under this subsection;

“(B) for an initial application, a secondary fee, to be deposited in the Treasury in accordance with section 286(w), 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) $1,250, in the case of an employer employing between 151 and 500 employees; or

“(iv) $1,500, in the case of an employer employing more than 500 employees; and

“(C) a secondary fee shall only be required once for each alien applying for the H–2C program and shall not be required for subsequent applications to new employers.

“(b) Required Procedure.—Unless the Secretary of Labor determines that there is a shortage of United States workers in the occupation and area of intended employment to which the H–2C nonimmigrant is sought, each employer that employs an H–2C nonimmigrant shall comply with the following requirements:

“(1) EFFORTS TO RECRUIT UNITED STATES WORKERS.—During the period beginning not later than 90 days before the date on which a petition is filed under subsection (a)(1), and ending on the date that is 14 days before such filing date, the employer involved shall recruit United States workers for the position for which the H–2C nonimmigrant is sought under the petition, by—

“(A) submitting a copy of the job opportunity, including a description of the wages and other terms and conditions of employment and the minimum education, training, experience, and other requirements of the job, to the State Employment Service Agency that serves the area of employment in the State in which the employer is located;

“(B) authorizing the employment service agency of the State to post the job opportunity on the Internet website established under Section 405 of this Act with local job banks, and with unemployment agencies and other labor referral and recruitment sources pertinent to the job involved;

“(C) authorizing the employment service agency of the State to notify—

“(i) labor organizations in the State in which the job is located; and

“(ii) if applicable, the office of the local union which represents the employees in the same or substantially equivalent job classification of the job opportunity;

“(D) posting the availability of the job opportunity for which the employer is seeking a worker in conspicuous locations at the place of employment for all employees to see;

“(E) advertising the availability of the job opportunity for which the employer is seeking a worker in a publication with the highest circulation in the labor market that is likely to be patronized by a potential worker for not fewer than 10 consecutive days; and

“(F) based on recommendations by the local job service, advertising the availability of the job opportunity in professional, trade, or ethnic publications that are likely to be patronized by a potential worker.

“(2) EFFORTS TO EMPLOY UNITED STATES WORKERS.—An employer that seeks to employ an H–2C nonimmigrant shall first offer the job to any eligible United States worker who applies, is qualified for the job and is available at the time of need, notwithstanding any other valid employment criteria.

“(c) Petition.—A petition to hire an H–2C nonimmigrant under this section shall include an attestation by the employer that the employer has complied with the following requirements:

“(1) PROTECTION OF UNITED STATES WORKERS.—The employment of an H–2C nonimmigrant—

“(A) will not adversely affect the wages and working conditions of workers in the United States similarly employed; and

“(B) did not and will not cause the separation from employment of a United States worker employed by the employer within the 180-day period beginning 90 days before the date on which the petition is filed.

“(2) WAGES.—

“(A) IN GENERAL.—The employer has offered to United States workers during the period of recruitment described in subsection (b)(1), and is offering and will pay H–2C nonimmigrants during the period of authorized employment 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 wage level for the occupational classification in the area of employment, as determined in accordance with subparagraph (C), taking into account experience and skill levels of employees.

“(B) CALCULATION.—The wage levels under subparagraph (A) shall be calculated based on the best information available at the time of the filing of the application.

“(C) PREVAILING WAGE LEVEL.—For purposes of subparagraph (A)(ii), the prevailing 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 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 in an occupation 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 wage level shall be the appropriate statutory wage.

“(iii)(I) If clauses (i) and (ii) do not apply, the prevailing wage rate shall be not less than the median rate of the highest 66 percent of the wage date for the occupation provided by 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 wage level on another wage survey approved by the Secretary of Labor.

“(II) The Secretary shall promulgate regulations applicable to approval of such other wage surveys that require, among other things, that the Bureau of Labor Statistics determine such surveys are statistically viable.

“(3) WORKING CONDITIONS.—All workers in the occupation at the place of employment at which the H–2C nonimmigrant will be employed will be provided the working conditions and benefits that are normal to workers similarly employed in the area of intended employment.

“(4) LABOR DISPUTE.—There is not a strike, lockout, or work stoppage in the course of a labor dispute in the occupation at the place of employment at which the H–2C nonimmigrant will be employed. If such strike, lockout, or work stoppage occurs following submission of the petition, the employer will provide notification in accordance with regulations promulgated by the Secretary of Labor.

“(5) PROVISION OF INSURANCE.—If the position for which the H–2C nonimmigrant is sought is not covered by the State workers’ compensation law, the employer will provide, at no cost to the H–2C nonimmigrant, insurance covering injury and disease arising out of, and in the course of, the worker’s employment, which will provide benefits at least equal to those provided under the State workers’ compensation law for comparable employment.

“(6) NOTICE TO EMPLOYEES.—

“(A) IN GENERAL.—The employer has provided notice of the filing of the petition to the bargaining representative of the employer’s employees in the occupational classification and area of employment for which the H–2C nonimmigrant is sought.

“(B) NO BARGAINING REPRESENTATIVE.—If there is no such bargaining representative, the employer has—

“(i) posted a notice of the filing of the petition in a conspicuous location at the place or places of employment for which the H–2C nonimmigrant is sought; or

“(ii) electronically disseminated such a notice to the employer’s employees in the occupational classification for which the H–2C nonimmigrant is sought.

“(7) RECRUITMENT.—The following conditions must be met:

“(A) There are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services involved in the petition.

“(B) Good faith efforts have been taken to recruit United States workers, in accordance with regulations promulgated by the Secretary of Labor, which efforts included—

“(i) the completion of recruitment during the period beginning on the date that is 90 days before the date on which the petition was filed with the Department of Homeland Security and ending on the date that is 14 days before such filing date; and

“(ii) the actual wage paid by the employer for the occupation in the areas of intended employment was used in conducting recruitment.

“(8) INELIGIBILITY.—The employer is not currently ineligible from using the H–2C nonimmigrant program described in this section.

“(9) CONSTRUCTION AND METAL WORKER OCCUPATIONS.—No petition by an employer may be granted for an H–2C nonimmigrant worker if the employer seeks to employ an H–2C nonimmigrant in an any construction or metal worker occupation.

“(10) BONA FIDE OFFER OF EMPLOYMENT.—The job for which the H–2C nonimmigrant is sought is a bona fide job—

“(A) for which the employer needs labor or services;

“(B) which has been and is clearly open to any United States worker; and

“(C) for which the employer will be able to place the H–2C nonimmigrant on the payroll.

“(11) PUBLIC AVAILABILITY AND RECORDS RETENTION.—A copy of each petition filed under this section and documentation supporting each attestation, in accordance with regulations promulgated by the Secretary of Labor, will—

“(A) be provided to every H–2C nonimmigrant employed under the petition;

“(B) be made available for public examination at the employer’s place of business or work site;

“(C) be made available to the Secretary of Labor during any audit; and

“(D) remain available for examination for 5 years after the date on which the petition is filed.

“(12) NOTIFICATION UPON SEPARATION FROM OR TRANSFER OF EMPLOYMENT.—The employer will notify the Secretary of Labor and the Secretary of Homeland Security of an H–2C nonimmigrant’s separation from employment or transfer to another employer not more than 3 business days after the date of such separation or transfer, in accordance with regulations promulgated by the Secretary of Homeland Security.

“(13) ACTUAL NEED FOR LABOR OR SERVICES.—The petition was filed not more than 60 days before the date on which the employer needed labor or services for which the H–2C nonimmigrant is sought.

“(14) WAIVER OF RIGHTS PROHIBITED.—An H–2C nonimmigrant may not be required to waive any rights or protections under this Actor the amendments made by such Act. Nothing in this paragraph may be construed to affect the interpretation of other laws.

“(15) NO THREATENING OF EMPLOYEES.—It shall be a violation of this subsection for an employer that has filed a petition under this section to threaten the H–2C nonimmigrant beneficiary with withdrawal of the petition for exercising a right protected by this Actor any amendment made by such Act.

“(d) Audit of attestations.—

“(1) REFERRALS BY SECRETARY OF HOMELAND SECURITY.—The Secretary of Homeland Security shall refer all approved petitions for H–2C nonimmigrants to the Secretary of Labor for potential audit.

“(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.—The Secretary of Labor shall not approve an employer’s petitions, applications, certifications, or attestations under any immigrant or nonimmigrant program if the Secretary of Labor determines, after notice and an opportunity for a hearing, that the employer submitting such documents—

“(A) has, with respect to the 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.

“(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.

“(3) EMPLOYERS IN HIGH UNEMPLOYMENT AREAS.—The Secretary of Labor may not approve any employer’s petition under subsection (b) if the work to be performed by the H–2C nonimmigrant is not agriculture based and is located in a metropolitan or micropolitan statistical area (as defined by the Office of Management and Budget) in which the unemployment rate for workers who have not completed any education beyond a high school diploma during the most recently completed 6-month period averaged more than 10 percent.

“(f) Regulation of Foreign Labor Contractors.—

“(1) COVERAGE.—Notwithstanding any other provision of law, an H–2C nonimmigrant may not be treated as an independent contractor.

“(2) APPLICABILITY OF LAWS.—An H–2C nonimmigrant shall not be denied any right or any remedy under Federal, State, or local labor or employment law that would be applicable to a United States worker employed in a similar position with the employer because of the alien’s status as a nonimmigrant worker.

“(3) TAX RESPONSIBILITIES.—With respect to each employed H–2C nonimmigrant, an employer shall comply with all applicable Federal, State, and local tax and revenue laws.

“(g) Whistleblower Protection.—It shall be unlawful for an employer or a labor contractor of an H–2C nonimmigrant to intimidate, threaten, restrain, coerce, retaliate, discharge, or in any other manner, discriminate against an employee or former employee because the employee or former employee—

“(1) discloses information to the employer or any other person that the employee or former employee reasonably believes demonstrates that a violation of this Act has occurred; or

“(2) cooperates or seeks to cooperate in an investigation or other proceeding concerning compliance with the requirements of this Act.

“(h) Labor Recruiters.—

“(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 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, 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 made by that contractor or employer regarding employment under this program.

“(6) TRAVEL COSTS.—The employer shall cover the costs of transporting the alien from the alien’s home residence to the place of employment.

“(7) OTHER WORKER PROTECTIONS.—

“(A) NOTIFICATION.—Not less frequently than once every 2 years, each employer shall notify the Secretary of Labor of the identity of any foreign labor contractor engaged by the employer in any foreign labor contractor activity for, or on behalf of, the employer.

“(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 (k) and (l). If a foreign labor contractor acting as an agent of an employer violates any provision of this subsection, the employer shall be subject to remedies under subsections (k) and (l). An employer that violates a provision of this subsection relating to employer obligations shall be subject to remedies under subsections (k) and (l).

“(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.—An H–2C nonimmigrant may not be required to waive any rights or protections under this Act. Nothing under this subsection shall be construed to affect the interpretation of other laws.

“(j) 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 a petition with the withdrawal of such a petition in retaliation for the beneficiary’s exercise of a right protected by this Act.

“(k) Enforcement.—

“(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 CAUSE.—The Secretary of Labor shall conduct an investigation under this subsection if there is reasonable cause 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 cause under paragraph (4), 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 party or organization may seek a hearing on the complaint in accordance with such 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 with respect to a claim under this subsection 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 (i); 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