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Calendar No. 80
113th Congress Report
SENATE
1st Session 113-40
======================================================================
BORDER SECURITY, ECONOMIC OPPORTUNITY, AND IMMIGRATION MODERNIZATION
ACT
_______
June 7, 2013.--Ordered to be printed
_______
Mr. Leahy, from the Committee on the Judiciary,
submitted the following
R E P O R T
together with
ADDITIONAL AND MINORITY VIEWS
[To accompany S. 744]
The Committee on the Judiciary, to which was referred the
bill (S. 744), to provide for comprehensive immigration reform,
and for other purposes, having considered the same, reports
favorably thereon, with an amendment, and recommends that the
bill, as amended, do pass.
CONTENTS
Page
I. Background and Purpose of the Border Security, Economic
Opportunity, and Immigration Modernization Act...................1
II. History of the Bill and Committee Consideration.................22
III. Section-by-Section Summary of the Bill..........................75
IV. Congressional Budget Office Cost Estimate......................161
V. Regulatory Impact Evaluation...................................161
VI. Conclusion.....................................................161
VII. Additional and Minority Views..................................163
VIII.Changes to Existing Law Made by the Bill, as Reported..........186
I. Background and Purpose of the Border Security, Economic Opportunity,
and Immigration Modernization Act of
A. PURPOSE OF THE BILL
Few policy issues are as central to the history and
character of America as immigration. The foundation of the
Nation, and its future promise, was laid by men and women who
came to America's shores from around the world. Immigration is
the history of all Americans who are not indigenous to the
territory of the United States. It is an issue of enormous
importance to all Americans. Notwithstanding diverse viewpoints
on the best path forward, there is broad recognition that
America's current system of immigration is broken and in need
of significant reform.
There are many aspects of Federal immigration law that are
in need of improvement. But there may be no issue more central
to the legislative proposal upon which the Committee has acted
than the estimated 11 million individuals living in the United
States in undocumented status.\1\ The Senate Judiciary
Committee has approved legislation that addresses this
situation in a fair, tough, practical, and humane way. With the
approval of this legislation, the Senate Judiciary Committee
has begun the process of effecting these reforms and creating
an immigration system for the 21st Century.
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\1\Dep't of Homeland Security, Office of Immigration Stat.,
Estimates of the Unauthorized Immigrant Population Residing in the
United States: January 2011 (March 2012) available at http://
www.dhs.gov/xlibrary/assets/statistics/publications/
ois_ill_pe_2011.pdf.
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1. Creating an Earned Path to Citizenship
One of the key components of the Border Security, Economic
Opportunity and Immigration Modernization Act (S. 744) is the
path to earned citizenship for the estimated 11 million
undocumented immigrants living and working in the shadows of
American society. This legislation will give this population a
tough but fair opportunity to come forward and earn their
citizenship by meeting several requirements, including paying
fees and fines, passing national security and criminal
background checks, paying their taxes, and learning English.
During the Committee's consideration of S. 744, and its
extensive study and consideration of comprehensive immigration
reform in previous Congresses, the Committee has heard from law
enforcement officials, community leaders, faith groups, civil
rights groups, and individual members of the public about the
urgent need to address the millions of undocumented immigrants
living in the United States. Undocumented immigrants have a
tenuous place in our communities. They live in constant fear of
deportation. If they are victims of crime, they often do not
report those crimes to State and local law enforcement.\2\ They
work for low wages, unable to defend themselves from employer
harassment and exploitation.\3\ Many have been in the country
for 10 years or more, have made valuable contributions to their
communities, and have immediate relatives who are American
citizens.\4\ The prospect of deporting these individuals would
not only be prohibitively expensive,\5\ but would also have
untold damaging effects on our economy, which relies on the
work, taxes, and purchasing power of undocumented immigrants
even as our legal system fails to fully recognize or protect
them. It would separate families and run counter to our ideals
as a Nation. Instead, S. 744 outlines a tough but fair path
that will bring individuals out of the shadows and into the
lawful immigration system, by allowing eligible applicants to
adjust to the legal status of Registered Provisional Immigrant
(RPI).
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\2\Southern Poverty Law Center, Under Siege: Life for Low-Income
Latinos in the South 25 (2009) (noting the vulnerability for
undocumented immigrants in the South and across the United States due
to fears of deportation and low confidence in law enforcement)
available at http://www.splcenter.org/get-informed/publications/under-
siege-life-for-low-income-latinos-in-the-south#.UazxQ5yGcd0.
\3\Rebecca Smigh & Eunice Hyunhye Cho, Nat'l Employment Law
Project, Worker's Rights on Ice: How Immigration Reform Can Stop
Retaliation and Advance Labor Rights (2013) available at http://
www.nelp.org/page/-/Justice/2013/Workers-Rights-on-ICE-Retaliation-
Report.pdf?nocdn=1.
\4\According to the latest publicly available estimates,
approximately 86 percent of undocumented immigrants arrived in the
United States before 2005. See Dep't of Homeland Security, Office of
Immigration Stat., Estimates of the Unauthorized Immigrant Population
Residing in the United States: JANUARY 2011 (March 2012) available at
http://www.dhs.gov/xlibrary/assets/statistics/publications/
ois_ill_pe_2011.pdf.
\5\Marshall Fitz et al., Center for Am. Progress, the Costs of Mass
Deportation: Impractical, Expensive, and Ineffective (2010), available
at http://www.americanprogress.org/wp-content/uploads/issues/2010/03/
pdf/cost_of_deportation.pdf.
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The most recent legislative attempt to create a path to
citizenship was the Immigration Reform and Control Act of 1986
(IRCA), a law that legalized three million undocumented
immigrants and created employer sanctions against hiring
undocumented workers.\6\ The hope was that IRCA would offer a
long-term solution to the problem of illegal immigration.\7\
Legalization was meant to decrease the undocumented population
and prevent its expansion. Employer sanctions were expected to
deter future illegal immigration by drying up the job magnet
that drew unauthorized workers to the United States.
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\6\Pub. L. No. 99-603, 100 Stat.3359.
\7\Immigration Reform and Control Act of 1986, H.R. Rep No. 99-
682(I), 99th Cong., 2d Sess. 46 (1986); See also McNary v. Haitian
Refugee Center, Inc., 498 U.S. 479, n. 4 (1991).
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Under IRCA, undocumented individuals who had been
continuously present in the United States since January 1, 1982
(almost five years before the date of enactment) and who met
certain other requirements could apply for temporary permanent
resident status.\8\ Upon learning English, meeting other
requirements, and applying within a prescribed time period,
they could then become lawful permanent residents.\9\
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\8\8 U.S.C. Sec. 1255A(a) (2008).
\9\Id. at Sec. 1255A(b).
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Even though three million undocumented immigrants obtained
legalization under IRCA, gaps in the law kept large numbers of
the undocumented population underground and in long-term limbo.
The early cutoff date included in that legislation left almost
five years' worth of arrivals without the ability to legalize.
Vague statutory language, combined with restrictive
interpretations by the former Immigration and Naturalization
Service (INS), led to extensive litigation that prolonged the
legalization program for more than 20 years.\10\ Moreover, the
IRCA legalization program did not account for the spouses and
children of legalized immigrants,\11\ which created a strong
incentive for many to enter or remain in the country illegally
to keep their families together.
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\10\See Lucas Guttentag, a Brief Introduction to Judicial Review in
Relation to IRCA Legislation (Yale Law School Workshop Series Readings,
Fall 2009), available at http://www.law.yale.edu/documents/pdf/Clinics/
Immigration_Reading5.pdf.
\11\The former INS established a ``Family Fairness'' program and in
1990 Congress added statutory relief for the spouses and children of
legalized aliens, but that relief was extremely limited. See
Immigration and Nationality Act of 1990, Pub. L. 101-649, Sec. 301, 104
Stat. 4978.
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Establishing a tough but fair path to bring undocumented
individuals out of the shadows and into the lawful immigration
system will benefit American workers and our society as a
whole. Studies of the 1986 immigration reform law found that
legalizing previously undocumented workers increased wages by
close to 10 percent or more, reflecting increases in worker
productivity that benefit the broader economy.\12\ Bringing
undocumented workers into the legal workforce will ensure that
they are not forced to accept below-market or below-minimum-
wage compensation or other violations of U.S. labor laws,
reducing harmful employment practices that undercut wages and
worsen conditions for American workers. A 2010 study by the
Center for American Progress found that ``wages of native-born
workers also increase under . . . comprehensive immigration
reform . . . because the ``wage floor'' rises for all workers--
particularly in industries where large numbers of easily
exploited, low-wage unauthorized immigrants currently
work.''\13\
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\12\See e.g., Sherrie A. Kossoudji & Deborah Cobb-Clark, Coming Out
of the Shadows: Learning about Legal Status and Wages from the
Legalized Population, 20 J. Labor Econ. 3 (2002); Shirley J. Smith,
Roger G. Kramer, et al., Characteristics and Labor Market Behavior of
the Legalized Population Five Years Following Legalization, 102 (U.S.
Department of Labor, 1996).
\13\Dr. Raul Hinojosa-Ojeda, Center for Am. Progress, Raising the
Floor for American Workers: The Economic Benefits of Comprehensive
Immigration Reform 13 (2010) (``The real wages of newly legalized
workers increase by roughly $4,400 per year among those in less-skilled
jobs during the first three years of implementation, and $6,185 per
year for those in higher-skilled jobs. The higher earning power of
newly legalized workers translates into an increase in net personal
income of $30 billion to $36 billion, which would generate $4.5 to $5.4
billion in additional net tax revenue nationally, enough to support
750,000 to 900,000 new jobs.''); See also Dr. Raul Hinojosa-Ojeda, The
Economic Benefits of Comprehensive Immigration Reform, 32 Cato J. 1,
189 (Winter 2012); Giovanni Peri, The Effect of Immigration on
Productivity: Evidence from U.S. States, 94 Rev. Econ. & Statistics
348-358 (MIT Press, 2012).
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A path to citizenship for the undocumented population will
also balance out an aging population and protect the future of
Social Security, by empowering a new class of lawful workers
who can pay into the system. The independent Chief Actuary of
the Social Security Administration recently estimated that S.
744 will add more than $200 billion to the Social Security
Trust Fund over the next decade.\14\ His analysis found that
undocumented workers in particular will pay $170 billion more
in Social Security and Medicare payroll taxes if they are
allowed to come out of the shadows and work legally. The Chief
Actuary wrote, ``[o]verall, we anticipate that the net effect
of this bill on the long-range OASDI [Social Security]
actuarial balance will be positive.''\15\ That is, the Border
Security, Economic Opportunity, and Immigration Modernization
Act will strengthen Social Security not just in the immediate
future, but over the full 75-year projection period. Because
most immigrants are young, additional immigration helps balance
out the increase in retirees-per-worker that will occur as the
Baby Boom generation retires.\16\
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\14\Letter from Social Security Office of the Chief Actuary to
Senator Marco Rubio (May 8, 2013), available at http://
www.socialsecurity.gov/oact/solvency/.
\15\Id.
\16\A recent study by the journal HealthAffairs supports the Chief
Actuary's conclusions about the contributions of immigrants to public
programs. It found that in 2009, immigrants made 14.7 percent of
contributions to the Medicare Trust Fund, but accounted for only 7.9
percent of its expenditures, contributing a net surplus of $13.8
billion. The report noted, ``many immigrants in the United States are
working-age taxpayers; few are elderly beneficiaries of Medicare. This
demographic profile suggests that immigrants may be disproportionately
subsidizing the Medicare Trust Fund, which supports payments to
hospitals and institutions under Medicare Part A.'' Leah Zallman,
Steffie Woohnalder et al., Immigrants Contributed An Estimated $115.2
Billion More to the Medicare Trust Fund Than They Took Out in 2002-09,
Health Affairs (May 2013), available at http://
content.healthaffairs.org/content/early/2013/05/20/hlthaff.2012.1223.
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Overall, a path to citizenship for our Nation's
undocumented immigrants is crucial to modernizing our
immigration system.
2. Ending the Lengthy Backlogs in the Immigrant Visa System
Two central failures of our modern immigration system are
its inability to meet the demands of U.S. businesses that wish
to attract and retain highly qualified immigrants, and its
failure to reunite many Americans with their loved ones living
abroad.
The current annual limits and per-country caps on
employment-based and family-sponsored immigrant visas have
generated protracted waiting periods for both family
reunification and employment needs. The backlog of family visas
for the spouses and children of U.S. citizens and lawful
permanent residents and siblings of U.S. citizens now stands at
4.3 million, meaning that 4.3 million family members whose visa
applications have been approved are nevertheless prevented from
entering the country because of the annual visa caps.\17\
Moreover, strict per-country limitations, which prevent
countries from receiving more than 7 percent of the visas
awarded in a given year, have created excessive backlogs,
especially in countries with high demand. The State Department
is currently processing visas for Filipino siblings of U.S.
citizens who submitted their visa applications 24 years ago, in
1989.\18\ Siblings of U.S. citizens from China and India who
are currently being processed have been waiting for their
family-sponsored visas for 12 years.\19\ Even in the general
pool of non-high demand countries, the wait times for unmarried
sons and daughters of U.S. citizens (the ``F1'' family
preference category) currently stand at seven years.\20\
Because they are ``intending immigrants,'' these applicants are
typically unable to obtain even tourist visas to visit their
U.S. citizen and permanent resident relatives in the United
States.\21\ In addition to the personal hardship inherent in
prolonged family separation, these long wait times and forced
separations provide incentives for illegal immigration, as
spouses seek to reunite and parents seek to join their
children. Senate bill 744 addresses this problem by
prioritizing the reunification of the nuclear family in ways
described below.
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\17\U.S. Department of State, Annual Report of Immigrant Visa
Applicants in the Family-Sponsored and Employment-Based Preferences
Registered at the National Visa Center as of November 1, 2012,
available at http://www.travel.state.gov/pdf/WaitingListItem.pdf; see
also Ruth Ellen Wasem, Cong. Research Serv., R42866, Permanent Legal
Immigration to the United States: Policy Overview (2012).
\18\U.S. Dep't of State, Visa Bulletin Number 56 Vol. IX, May 2013,
available at http://www.travel.state.gov/pdf/visabulletin/
visabulletin_may2013.pdf.
\19\Id.
\20\Id.
\21\See INA Sec. 214(b), 8 U.S.C. Sec. 1184. For more information,
see Ruth Ellen Wasem, Cong. Research Serv., RL31381, U.S. Immigration
Policy on Temporary Admissions at 10 (2011).
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Although employment-based immigrant visas have historically
not faced the same backlogs as family-sponsored visas, the EB-3
visa category for professional and other skilled workers faces
considerable delays. Since 2005, the wait time for EB-3 visas
has ranged from just under four years to 7\1/2\ years.\22\
High-demand countries including China, India, Mexico, and the
Philippines currently have EB-3 visa backlogs ranging from 5\1/
2\ to 10 years.\23\ For an employer seeking to fill a job
vacancy, a delay of that magnitude simply is not practical.
Businesses around the country have called for this problem to
be addressed.
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\22\See U.S. Dep't of State, Visa Bulletin Archive, http://
travel.state.gov/visa/bulletin/bulletin_1770.html.
\23\U.S. Dep't of State, Visa Bulletin Number 56 Vol. IX, May 2013,
available at http://www.travel.state.gov/pdf/visabulletin/
visabulletin_may2013.pdf.
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3. Border Security and Enforcement
Over the last two decades, the Executive branch and
Congress have sought to bolster Federal investments in
personnel, technology, infrastructure, and other resources to
strengthen immigration enforcement at our borders. These
investments have included increases in annual appropriations
and additional authorizations across multiples agencies. As
Secretary of Homeland Security Janet Napolitano recently
stated, the historic levels of expenditure ``have contributed
to a border that is far stronger today than at any point in our
nation's history, and border communities that are safe and
prosperous.''\24\
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\24\The Border Security, Economic Opportunity, and Immigration
Modernization Act, S. 744: Hearing Before the S. Comm. of the
Judiciary, 113th Cong. (2013) (testimony of Secretary of Homeland
Security Janet Napolitano).
---------------------------------------------------------------------------
According to a recent Migration Policy Institute report,
the Federal Government spends nearly $18 billion on immigration
enforcement every year, approximately 24 percent more than its
collective spending on all other principal Federal criminal law
enforcement agencies combined.\25\
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\25\Doris Meissner, et al., Migration Policy Inst., Immigration
Enforcement in the United States 9 (Jan. 2013), available at http://
www.migrationpolicy.org/pubs/enforcementpillars.pdf.
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While border enforcement involves a variety of activities
and agencies, U.S. Customs and Border Protection (CBP) is the
primary agency tasked with securing our borders and
facilitating safe, lawful trade.\26\ Since 2004, the number of
Border Patrol agents has doubled from approximately 10,000 to
more than 21,000 agents.\27\ Approximately 18,500 of these
agents are deployed along the Southwest border, and more than
2,200 work along the Northern Border.\28\ In contrast, there
were fewer than 2,500 Border Patrol agents in 1980.\29\ The
number of CBP officers has also increased from 17,279 customs
and immigration inspectors in 2003, to more than 21,000
officers and 2,400 agriculture specialists today.\30\
Additionally, U.S. Immigration and Customs Enforcement (ICE)
has deployed fully one quarter of its operational personnel to
the Southwest border.\31\ These personnel are working to
analyze intelligence, identify, disrupt and dismantle criminal
organizations, and facilitate cooperation between U.S. and
Mexican law enforcement authorities on investigations and
operations.
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\26\See id.
\27\The Border Security, Economic Opportunity, and Immigration
Modernization Act, S. 744: Hearing Before the S. Comm. of the
Judiciary, 113th Cong. (2013) (testimony of Secretary of Homeland
Security Janet Napolitano).
\28\Id.
\29\Marc R. Rosenblum, Cong. Research Serv., R42138, Border
Security: Immigration Enforcement Between Ports of Entry (2013).
\30\The Border Security, Economic Opportunity, and Immigration
Modernization Act, S. 744: Hearing Before the S. Comm. of the
Judiciary, 113th Cong. (2013) (testimony of Secretary of Homeland
Security Janet Napolitano).
\31\Press Release, White House, White House Drug Policy Director,
Secretary Napolitano Highlight Progress in Disrupting Drug Trafficking
along Southwest Border (Apr. 5, 2013), available at http://
www.whitehouse.gov/ondcp/news-releases-remarks/kerlikowske-napolitano-
southwest-border-trip.
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Beyond personnel, the Department of Homeland Security (DHS)
has deployed technology assets, including mobile surveillance
units, thermal imaging systems, and large- and small-scale non-
intrusive inspection equipment. It currently has 124 aircraft
and six Unmanned Aircraft Systems operating along the Southwest
border.\32\ The Department also has completed 651 miles of
fencing out of nearly 652 miles mandated by Congress, including
299 miles of vehicle barriers and 352 miles of pedestrian
fence.\33\ The precise location and type of fencing used was
developed by examining unique characteristics of the terrain
and gathering feedback and intelligence from Border Patrol
chiefs with responsibility over the nine Southern border
sectors.
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\32\Dep't of Homeland Security, Information Page: Secure and Manage
Our Borders, http://ipv6.dhs.gov/xabout/gc_1240606351110.shtm (last
visited June 7, 2013).
\33\U.S. Customs and Border Protection, Southwest Border Fence
Construction Progress, available at http://www.cbp.gov/xp/cgov/
border_security/ti/ti_news/sbi_fence/ (last visited June 7, 2013).
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Reports from law enforcement confirm that the number of
border apprehensions has declined in recent years, while
seizures of illegal currency, drugs and weapons have increased.
According to the latest DHS statistics, nationwide Border
Patrol apprehensions of illegal entrants decreased from nearly
724,000 in fiscal year 2008 to approximately 357,000 in fiscal
year 2012, a 50 percent reduction, indicating that fewer people
are attempting to cross the border illegally.\34\ During Fiscal
Years 2009-2012, DHS seized 71 percent more currency, 39
percent more drugs, and 189 percent more weapons along the
Southwest border as compared to the prior four years.\35\ In
Fiscal Years 2009-2011, ICE made more than 30,936 criminal
arrests along the Southwest border, including 19,563 arrests of
drug smugglers and 4,151 arrests of human smugglers.\36\
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\34\U.S. Dep't of Homeland Security, Budget-in-Brief: Fiscal Year
2014 (2013) at 71.
\35\The Border Security, Economic Opportunity, and Immigration
Modernization Act, S. 744: Hearing Before the S. Comm. of the
Judiciary, 113th Cong. (2013) (testimony of Secretary of Homeland
Security Janet Napolitano).
\36\Oversight of the Department of Homeland Security: Hearing
Before the S. Comm. of the Judiciary, 112th Cong. (2012) (testimony of
Secretary of Homeland Security Janet Napolitano).
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Mayors in border communities and law enforcement officials
have reported that their communities are safer than in prior
years. FBI crime reports show that violent crimes in Southwest
border States have dropped by an average of 40 percent in the
last two decades.\37\ For the past three years, El Paso, Texas,
has been named the city with a population of over 500,000 with
the lowest crime rate.\38\ In 2012, San Diego had the second-
lowest crime rate.\39\ Crime rates in border cities like
Nogales, Tucson, and San Diego have also decreased since
2008.\40\ In that same time period, crime has decreased in each
of the four Southwest border States.\41\
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\37\Border Security Threats to the Homeland: DHS's Response to
Innovative Tactics and Techniques: Hearing Before the H. Comm. on
Homeland Security, 113th Cong. (2013) (testimony of U.S. Customs and
Border Protection Office Asst. Commissioner Donna Buccella).
\38\Congressional Quarterly, City Crime Rankings 2013: Rankings by
Population Categories (2012).
\39\Id.
\40\See e.g., Government Accountability Office, GAO-13-175,
Southwest Border Security (2013) at 14; Alan Gomez et al, U.S. border
cities prove havens from Mexico's drug violence, USA TODAY, July 18,
2011; Tim Padgett, The `Dangerous' Border: Actually One of America's
Safest Places, TIME, July 30, 2010.
\41\GAO-13-175, Southwest Border Security at 14.
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The Department of Homeland Security also has put in place
several security-related measures that have resulted in more
effective screening of those seeking to enter the country and
reduced the number of individuals who overstay their visas.
Most notably, the U.S. Visitor and Immigration Status Indicator
Technology (US-VISIT) program, established in 2003, collects
biometric information (fingerprints and photographs) for
noncitizens admitted to the country.\42\ Since 2009, the
program has been in place in almost all land, sea, and air
ports of entry. The collected biometric information is checked
against Federal criminal databases before individuals are
allowed into the United States. This information is also
checked against visa records to determine whether individuals
may have overstayed their visas.
---------------------------------------------------------------------------
\42\Lisa M. Seghetti & Stephen R. Vina, Cong. Research Serv.,
RL32234, U.S. Visitor and Immigrant Status Indicator Technology Program
(US-VISIT) (2004) at 8.
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Due to the technological, infrastructure, and cost
challenges relating to a biometric exit system, DHS has instead
established a biographic exit system, which it has worked to
improve in various ways.\43\ For example, DHS has partnered
with the government of Canada to complete a land entry/exit
pilot program by using entry data from one country as exit data
from the other.\44\ This system will become operational in June
2013, with continued developments in 2014.\45\ Although visa
overstays remain a challenge, a recent study found that in the
decade following the terrorist attacks of September 11, 2001,
visa overstays dropped by 78 percent in the 15 States that had
the most overstays in 2000.\46\
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\43\See U.S. General Accounting Office, GAO-10-860, Homeland
Security: US-VISIT Pilot Evaluations Offer Limited Understanding of Air
Exit Options (2010).
\44\See Press Release, Dep't of Homeland Security, U.S. Customs and
Border Protection, The U.S. and Canada Announce Pilot to Enhance Border
Security at Land Ports of Entry (Sept. 28, 2012), available at http://
www.cbp.gov/xp/cgov/newsroom/news_releases/national/09282012.xml.
\45\Id.
\46\Robert Warren & John Robert Warren, Unauthorized Immigration to
the United States: Annual Estimates and Components of Change, by State,
1990 to 2010, Int'l Migration Rev. 1-34 (spring 2013).
---------------------------------------------------------------------------
The Border Modernization, Economic Opportunity and
Immigration Modernization Act builds on these successes in a
number of ways, by providing additional personnel and resources
to continue the deployment of proven, effective border security
technology and other measures that are tailored to meet the
distinct terrain in the highest trafficked areas of the
Southwest border; enhancing biographic exit requirements; and
creating mechanisms that reduce the incentives for illegal
migration.
4. Employment Verification
E-Verify is an Internet-based program that allows employers
to electronically verify newly hired workers' employment
eligibility by accessing databases maintained by DHS and Social
Security Administration. Until 2007, E-Verify was known as the
Basic Pilot Program. This program was authorized as a pilot in
five States as part of the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (IIRIRA).\47\ The program
began operating in California, Florida, Illinois, New York, and
Texas in November 1997, and was expanded to Nebraska in
1999.\48\ The authorizing statute specifically limited the
program to new hires and limited the use of information in the
agency databases to employment verification.\49\ The program
was established as a voluntary program. In September 2009,
however, a final rule requiring certain Federal contractors and
subcontractors to use E-Verify went into effect.\50\ A handful
of States have also passed laws requiring employers to use the
program for new hires, but these rules are not consistent
across States.\51\
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\47\Pub. L. No. 104-208, 110 Stat. 3009 (codified as 8 U.S.C.
Sec. 1324a).
\48\See Expansion of the Basic Pilot Program to the State of
Nebraska, 64 Fed. Reg. 13606-02 (Mar. 19, 1999).
\49\8 U.S.C. Sec. 1324a(d)(2)(C).
\50\73 Fed. Reg. 67651 (Nov. 14, 2008) (to be codified at 48 C.F.R.
pt. 2, 22, 5).
\51\See Nat'l Conference of State Legislatures, Immigration Policy
Project, State Actions Regarding E-Verify (2012) available at http://
www.ncsl.org/documents/immig/StateActions_Everify.pdf.
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The Department of Homeland Security has made a number of
improvements since the E-Verify program was first implemented,
including photo matching of certain immigration documents and
passports, allowing individuals to check their employment
eligibility and correct any errors, and establishing an
employee hotline.\52\ As of May 18, 2013, 452,252 employers
were registered for E-Verify, representing more than 1.3
million hiring sites.\53\ Thus far in 2013, over 14.5 million
queries have been run through the system.\54\ Senate bill 744
mandates the nationwide use of this program by all employers,
to significantly curtail the number of unauthorized workers
working in the United States.
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\52\73 Fed. Reg. 67651 (Nov. 14, 2008).
\53\See Press Release, U.S. Citizenship and Immigration Services,
E-Verify Receives High Ratings in Customer Survey (Feb. 21, 2013),
available at http://www.uscis.gov/portal/site/uscis/
menuitem.5af9bb95919f35e66f614176543f6d1a/
?vgnextoid=1671ed7ebecfc310VgnVCM100000082
ca60aRCRD&vgnextchannel;=a2dd6d26d17df110VgnVCM1000004718190aRCRD.
\54\Id.
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5. The Economic Benefits of Immigration Reform
Comprehensive immigration reform will help the economy and
U.S. workers through a number of channels. Because immigrants
are disproportionately likely to start small businesses and to
patent new innovations, S. 744 will increase entrepreneurship,
job creation, innovation, and investment. In 2011, immigrants
started 28 percent of all new businesses in this country,
despite making up just 13 percent of the population.\55\
Likewise, 40 percent of Fortune 500 companies were started by
first or second generation immigrants.\56\ Immigrants are also
disproportionately likely to start a business that employs at
least 10 workers. According to a study by the Fiscal Policy
Institute, small businesses owned by immigrants employed 4.7
million people in 2007.\57\
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\55\P'ship for a New Am. Econ., Open for Business: How Immigrants
are Driving Small Business Creation in the United States (August 2012),
available at http://www.renewoureconomy.org/sites/all/themes/pnae/
openforbusiness.pdf.
\56\Id.
\57\David Dyssegaard Kallick, Fiscal Policy Institute, Immigrant
Small Business Owners: A Significant and Growing Part of the Economy
(June 2012), available at http://www.fiscalpolicy.org/immigrant-small-
business-owners-FPI-20120614.pdf.
---------------------------------------------------------------------------
Immigrants' contributions in the high-tech sector are
especially striking, with one study finding that immigrants
started 25 percent of all engineering and technology companies
founded in the United States between 1995 and 2005.\58\ At
higher skill levels, more than 40 percent of Ph.D.s in science
and 55 percent of Ph.D.s in engineering in the United States
are awarded to foreign-born students.\59\ Research shows that
immigrants obtain patents at two to three times the rate of
U.S.-born citizens, and that increases in high skilled
immigration have spillover effects, increasing the number of
patent applications filed by non-immigrant workers.\60\
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\58\Vivek Wadhwa, et al., America's New Immigrant Entrepreneurs:
Part I, Duke Science, Tech. & Innovation Paper No. 23 (2007), available
at http://
people.ischool.berkeley.edu/Eanno/Papers/
Americas_new_immigrant_entrepreneurs_I.pdf.
\59\Lori Thurgood et al., National Science Foundation, U.S.
Doctorates in the 20th Century (2006) at 18, available at http://
www.nsf.gov/statistics/nsf06319/pdf/nsf06319.pdf.
\60\Marjolaine Gauthier-Louiselle & Jennifer Hunt, How Much Does
Immigration Boost Innovation?, 2 Am. Econ. J.: Macroecon. 2 (2010).
---------------------------------------------------------------------------
Senate bill 744 will allow immigrants to fill critical job
needs and contribute to increased productivity that will
benefit the U.S. workforce as a whole. Moreover, recent
research finds that immigrants generally complement rather than
substitute for U.S. workers.\61\ In particular, rather than
reducing U.S. workers' wages, increases in the number of new
immigrants lead U.S. workers to specialize in tasks requiring
stronger English language and other skills, raising their
productivity and earnings. One recent study found that over the
period from 1990 to 2006, immigration increased average wages
for native workers by 0.6 percent and had essentially no effect
or a positive effect on the wages of even the least-educated
U.S.-born workers.\62\
---------------------------------------------------------------------------
\61\Giovanni Peri & Chad Sparber, Task Specialization, Immigration,
and Wages, 1 Am. Econ. J. Applied Econ. 3 (2009).
\62\Gianmarko I.P. Ottaviano & Giovanni Peri, Rethinking the
Effects of Immigration on Wages,1 J. of the Eur. Econ. Ass'n (2012);
Giovanni Peri, The Effect of Immigration on Productivity: Evidence from
U.S. States, 94 Rev. of Econ. & Stat. 1 (2012).
---------------------------------------------------------------------------
Finally, S. 744 will further strengthen the U.S. economy by
facilitating tourism and promoting more efficient trade with
both Mexico and Canada. Canada and Mexico are our first and
third trading partners in the world, respectively, together
accounting for nearly one-third of U.S. exports in 2012 and
more than $3 billion in two-way trade per day in 2012.\63\
Travel and tourism represent the largest service-export
industry in the United States, setting a record $168.1 billion
in exports in 2012 and supporting nearly eight million jobs in
2012.\64\ The economic impact and importance of travel and
tourism will continue to grow in the coming years as emerging
economies around the world experience an increase in their
vacationing middle classes. China, Brazil, and India alone
represent approximately 40 percent of the world's
population,\65\ and by 2017 the number of travelers from those
countries is expected to increase by 259 percent, 83 percent,
and 47 percent respectively.\66\ Provisions in S. 744 help
improve and streamline the tourist visa process to boost this
key sector of our economy.
---------------------------------------------------------------------------
\63\U.S. Census Bureau, Top Trading Partners--Total Trade, Exports,
Imports: Year-to-Date December 2012, http://www.census.gov/foreign-
trade/statistics/highlights/top/top1212yr.html.
\64\U.S. Dep't Commerce, Office of Travel & Tourism Industries,
U.S. Travel and Tourism Exports, Imports, and the Balance of Trade 2012
(May 23, 2013) at 4, available at http://tinet.ita.doc.gov/
outreachpages/download_data_table/
2012_International_Visitor_Spending.pdf.
\65\Article, BRICS in Search of a Foundation, The Economist, Apr.
16, 2011.
\66\Press Release, U.S. Dep't Commerce, Office of Travel & Tourism
Industries, U.S. Commerce Dep't Forecasts Continued Strong Growth for
International Travel to the United States 2012-2017, Dec. 7, 2012,
available at http://tinet.ita.doc.gov/tinews/archive/tinews2012/
20121206_USDOC_Forecasts_Strong_Growth_International_Travel_US.html.
---------------------------------------------------------------------------
B. BACKGROUND AND HISTORY OF IMMIGRATION REFORM
1. History of Immigration Reform
The Immigration and Nationality Act (INA) was first
codified in 1952, and initiated the modern era of immigration
law.\67\ Previously, a number of different statutes governed
immigration law and included racial exclusions,\68\ national
origin quotas,\69\ and literacy requirements.\70\ The 1952 Act
abolished racial restrictions that dated back to the 1790s,
which limited naturalization to immigrants who were ``free
white persons'' of ``good moral character.''\71\ Since 1952,
Congress has amended the INA several times, including by the
Immigration Amendments of 1965, the Refugee Act of 1980, the
Immigration Reform and Control Act of 1986 (IRCA), the
Immigration Act of 1990, and the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (IIRIRA).
---------------------------------------------------------------------------
\67\McCarran-Walter Act of 1952, Pub. L. 82-414, 66 Stat. 163.
\68\Chinese Exclusion Act of 1882, Pub. L. No. 71, 22 Stat. 58
(repealed).
\69\67. Cong. Ch. 8, 42 Stat. 5 (1921); 68 Cong. Ch. 185, 43 Stat.
153 (1924).
\70\64 Cong. Ch. 29, 39 Stat. 874 (1917).
\71\The Naturalization Act, ch. 3, 1 Stat. 103 (1790).
---------------------------------------------------------------------------
Immigration Reform and Control Act of 1986 (IRCA)
Although IRCA is often associated with President Ronald
Reagan's support for the legalization of an estimated three
million undocumented individuals, it had two main pillars:
legalization, and employer sanctions for hiring immigrants
without work authorization.\72\ It was the first time U.S. law
expressly prohibited the knowing employment of undocumented
immigrants. The law mandated specific procedures for employers
to verify work eligibility, including inspection of specified
documents evidencing identity and work authorization, employer
attestations, and retention of those attestations for
prescribed periods of time.\73\ Violations were made punishable
by civil fines, and criminal sentences for a pattern or
practice of knowingly hiring unauthorized workers.\74\
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\72\Immigration Reform and Control Act of 1986 (IRCA), Pub. L. No.
99-603, 100 Stat. 3359.
\73\See 8 U.S.C. Sec. 1324(b).
\74\Id. at Sec. Sec. 1324a(e)(f), 1324b(g).
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As discussed above, IRCA provided that individuals who had
been continuously unlawfully present in the United States since
January 1, 1982, and who met other requirements could apply for
temporary permanent resident status.\75\ These immigrants could
become lawful permanent residents if they learned English, or
satisfactorily pursued a course of English study, applied
within a prescribed time period, and met certain other
requirements.\76\ The bill also established smaller
legalization programs for certain agricultural workers\77\ and
certain Haitian and Cuban nationals.\78\ In total, almost three
million undocumented immigrants obtained legalization under
IRCA.\79\
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\75\Id. at Sec. 1255(a).
\76\Id. at Sec. 1255(b).
\77\Id. at Sec. 1160.
\78\Id. at Sec. 1255(a).
\79\U.S. Dep't of Justice, 1994 Statistical Yearbook of the
Immigration and Naturalization Service 32 (1994) available at http://
ia600306.us.archive.org/21/items/statisticalyearb1994unit/
statisticalyearb1994unit.pdf.
---------------------------------------------------------------------------
Unfortunately, both pillars of IRCA had significant gaps.
The January 1, 1982, cutoff date for legalization left almost
five years' worth of arrivals ineligible for legalization. As a
result of vague statutory language and restrictive
interpretations by the former Immigration and Naturalization
Service, extensive litigation arose that prolonged the
legalization program for more than 20 years. These gaps
inevitably kept large portions of the undocumented population
underground. The IRCA legalization program also made no
provision for the immediate families of legalized
immigrants,\80\ creating a strong incentive for them to enter
or remain in the country illegally.
---------------------------------------------------------------------------
\80\As noted above, the former INS established a ``Family
Fairness'' program to which Congress added statutory relief for spouses
and children of legalized aliens under the Immigration Act of 1990, but
that relief was extremely limited. See Pub. L. No. 101-649, Sec. 301,
104 Stat. 4978 (1990) (codified under 8 U.S.C. Sec. 1255a).
---------------------------------------------------------------------------
Additionally, the employer sanctions resulted in
significant discrimination. Despite prohibitions on national
origin employment discrimination, a congressionally-mandated
study concluded that employer sanctions had caused ``a serious
pattern of discrimination,'' finding that some 891,000
employers--19 per cent of those surveyed nationwide--had
engaged in one or more discriminatory practices, including not
hiring individuals whose foreign appearance or accent led the
employer to suspect might be an undocumented worker.\81\
Meaningful penalties for employer violators, adequate resources
for enforcing the employer sanctions laws, and the political
will to prioritize such enforcement were also lacking in 1986.
---------------------------------------------------------------------------
\81\U.S. General Accounting Office, GAO-90-62, Immigration Reform:
Employer Sanctions and the Question of Discrimination 3-8 (1990).
---------------------------------------------------------------------------
The 1986 legislation also failed to ensure that immigration
enforcement would not undermine applicable labor laws. The
result was that employers of workers who complained about
illegal working conditions often either retaliated or
threatened to retaliate against their workers based on the
workers' immigration status. This created a condition where
unscrupulous employers could seek out undocumented workers for
financial gain with very little risk. All of these factors
contributed to the ineffectiveness of employer sanctions.
Lastly, IRCA made no significant provision for modernizing the
criteria for future legal immigration for either family
reunification or labor needs, thereby failing to address two
root causes of illegal immigration. Informed by these lessons
from history, S. 744 seeks to address these and other core
issues that undermined IRCA's effectiveness.\82\
---------------------------------------------------------------------------
\82\As discussed below, S.744 addresses many of the deficiencies
that undermined IRCA's effectiveness. The bill permits individuals to
apply for Registered Provisional Immigrant status if they were present
in the country as of December 31, 2011, much closer to the expected
date of enactment than was the case with IRCA. The bill makes express,
if limited, provision for spouses and children of RPI applicants to
apply for legal status. The bill significantly toughens the penalties
for hiring unauthorized aliens, implements nation-wide E-Verify, and
creates new penalties for employers who violate both immigration and
labor laws.
---------------------------------------------------------------------------
The Immigration Act of 1990
The Immigration Act of 1990\83\ was more limited in scope
than IRCA. It made changes to the structure of legal
immigration--for example, by slightly increasing the worldwide
caps on family immigration\84\ and substantially increasing the
caps for skilled and professional employment-based
immigration\85\--but it did not address the increasing number
of undocumented immigrants. The Act also created new
immigration programs, including ``diversity visas'' for
immigrants from countries and regions that have sent relatively
few immigrants to the United States in recent years,\86\ and
``temporary protected status'' for persons who cannot safely
return home because of armed conflict, natural disaster, or
certain other dangers.\87\ Importantly, the 1990 Act imposed
the first-ever numerical limits on the admission of
nonimmigrants: 65,000 per year (since increased to 85,000) for
H-1B nonimmigrants, and 66,000 per year for H-2B nonimmigrants,
exclusive of their spouses and children accompanying or
following to join.\88\
---------------------------------------------------------------------------
\83\Pub. L. No. 101-649, 104 Stat. 4978.
\84\Under the formula introduced in 1990, the worldwide cap on
family preference immigration went from 216,000 to a minimum of
226,000. Immediate relatives (the spouses and children of U.S.
citizens, and the parents of U.S. citizens over the age of 21) were
exempt from numerical limits, but the number of such immediate
relatives is subtracted from the following year's worldwide ceiling on
family-sponsored immigrants.
\85\8 U.S.C. Sec. Sec. 1255(d), 1259.
\86\Id. at Sec. 1259.
\87\Id. at Sec. 1254(a)
\88\Id. at 1101(a)(15)(H), 1184(g).
---------------------------------------------------------------------------
Although these changes were important, they proved
insufficient to address the many gaps in IRCA. The 1990 Act
added very few visas to the family preference visa categories,
with the result that many immigrant families continued to be
separated from their loved ones for prolonged periods of time.
Additionally, the flat numerical caps attached to temporary
worker programs proved to have limitations. During the economic
boom of the late 1990s, employer demand, particularly in the
information technology sector, often could not be accommodated
by the numeric caps established by the 1990 Act.\89\ Corrective
legislation to alter the H-1B program limits was enacted in
1998 and again in 2000,\90\ but subsequent fluctuations in the
supply and demand of qualified U.S. workers made it difficult
to strike a consistent balance between furnishing U.S. industry
with a high-skilled labor force to meet identified labor
shortages, and protecting the jobs and wages of American
workers. Although the H-2B nonimmigrant visa program was
designed to meet low-skilled seasonal needs for temporary
labor,\91\ there have been ongoing difficulties ensuring that
employers use the program instead of resorting to undocumented
workers, and that this workforce--both H-2B nonimmigrant
workers and U.S. co-workers--have adequate labor protections.
---------------------------------------------------------------------------
\89\Susan Martin & B. Lindsay Lowell, Competing for Skills: U.S.
Immigration Policy since 1990, 11 L. & Bus. Rev. Am. 387, 398-400
(2005).
\90\Pub. L. No. 105-277, 112 Stat. 2681 (1998); American
Competitiveness in the Twenty-First Century Act of 2000, 8 U.S.C.
Sec. 1184(g).
\91\18 U.S.C. Sec. 1101(a)(15)(H).
---------------------------------------------------------------------------
Illegal Immigration Reform and Immigrant Responsibility Act
of 1996 (IIRIRA)
In 1996, 10 years after IRCA was enacted, Congress enacted
three major statutes that had a significant impact on
immigration. The first, the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA),\92\ focused largely on counter-
terrorism efforts, but also added a wide range of immigration
restrictions and enforcement measures. The second, the Personal
Responsibility and Work Opportunity Reconciliation Act of 1996
(PRWORA),\93\ dramatically restricted access to welfare
benefits for non-U.S. citizens, including lawful permanent
residents. The third, and most sweeping, was the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996
(IIRIRA).\94\
---------------------------------------------------------------------------
\92\Pub. L. No. 104-132, 110 Stat. 1214 (1996).
\93\Pub. L. No. 104-193, 110 Stat. 2105 (1996).
\94\Pub. L. No. 104-208, Div. C, 110 Stat. 3009 (1996).
---------------------------------------------------------------------------
The IIRIRA legislation focused almost exclusively on border
security and strengthening interior enforcement against
undocumented immigrants. Resources were increased dramatically
for personnel, physical barriers, and technology at the
border.\95\ Additional funding was authorized for more Federal
prosecutors, detention facilities, and the physical removal of
undocumented immigrants ordered removed.\96\ As noted above,
the law also established a pilot program for employer
electronic verification of workers' identities and work
authorizations, the precursor of E-Verify.\97\ There were
substantially increased civil and criminal penalties for alien-
smuggling, document and other fraud, and other miscellaneous
immigration-related offenses.\98\ The law created the 3-year
and 10-year bars to reentry for immigrants who were previously
unlawfully present in the United States. It expanded the crime-
related and terrorism-related removal grounds, restricted the
availability of discretionary remedies, and narrowed the
procedural rights previously applicable in removal
proceedings.\99\ The Act broadened, and in some circumstances
mandated, the use of preventive detention in connection with
removal proceedings.\100\ With limited exceptions, IIRIRA also
barred applications for asylum filed more than one year after
arrival.\101\
---------------------------------------------------------------------------
\95\Illegal Immigration Reform and Immigrant Responsibility Act
[IIRIRA], Pub. L. No. 104-208, Div. C, 110 Stat. 3009 (1996) at
Sec. Sec. 101-12.
\96\Id. at Sec. Sec. 204, 131-34, 385, 386.
\97\Id. at Sec. Sec. 401-05.
\98\Id. at Sec. Sec. 202, 203, 211-20, 321-34.
\99\Id. at Sec. Sec. 301-58.
\100\Id. at Sec. 305.
\101\Id. at Sec. 604.
---------------------------------------------------------------------------
By focusing narrowly on enforcement and border security,
IIRIRA continued to leave the significant gaps in IRCA
unaddressed. It did not respond to the growing undocumented
population, and failed to address future flows of either
permanent or temporary legal immigration.
Precursors to Comprehensive Immigration Reform
In 1997, Congress began to take initial steps to address
the limitations of IRCA and IIRIRA and the growing population
of undocumented immigrants in the United States. Rather than
drafting a broad-based response to cover nationals from all
countries, however, the efforts were focused on a series of
small bills that targeted specific countries.
The first bill was the Nicaraguan and Central American
Relief Act (NACARA),\102\ which provided adjustment to lawful
permanent residence status for certain Nicaraguans and Cubans
who arrived in the United States by December 1, 1995. The
legislation also offered a more difficult route to permanent
residence, through cancellation of removal, to certain persons
from El Salvador, Guatemala, and the former Soviet bloc
countries who arrived in the United States before 1991.\103\ A
year later, following public outcry that Haitians had been
omitted from NACARA, Congress enacted the Haitian Refugee
Immigration Fairness Act (HRIFA),\104\ which provided permanent
residence status to certain Haitian nationals who had arrived
in the United States before December 31, 1995. While meaningful
for those they affected, these bills addressed only a tiny
fraction of the millions of people living in the shadows in the
United States.
---------------------------------------------------------------------------
\102\Nicaraguan Adjustment and Central American Relief Act
(NACARA), Pub. L. No. 105-100, tit. II, 111 Stat. 2160, 2193-201
(1997), amended by Pub. L. 105-139, 111 Stat. 2644 (1997).
\103\Id. at Sec. 202.
\104\Haitian Refugee Immigrant Fairness Act of 1998 (HRIFA), Pub L.
No. 105-277, 112 Stat. 2681 (1998).
---------------------------------------------------------------------------
In September 2001, efforts at a more comprehensive approach
were underway as part of bilateral discussions between
President George W. Bush and President Vicente Fox of
Mexico.\105\ Those talks focused on a new temporary worker
program, stronger border enforcement measures, and a solution
for the undocumented population. On September 7, 2001, the
Senate Judiciary Committee held a hearing discussing the need
for comprehensive immigration legislation.\106\ As the subtitle
of the hearing--``a historic opportunity''--suggested, there
was a chance to enact long-awaited reforms.
---------------------------------------------------------------------------
\105\Press Release, White House, Remarks by President George W.
Bush and President Vicente Fox of Mexico in Joint Press Conference
(Feb. 16, 2011), available at http://georgewbush-
whitehouse.archives.gov/news/releases/2001/02/20010216-3.html.
\106\See U.S.-Mexico Migration Discussions: A Historic Opportunity,
Hearing Before the S. Comm. on the Judiciary, 107th Cong. (Sep. 7,
2001).
---------------------------------------------------------------------------
The terrorist attacks of September 11, 2001, put efforts at
comprehensive immigration reform on hold. Instead, Congress
again turned to further strengthening border security and
interior enforcement.
Post-9/11 Legislation
The USA PATRIOT Act of 2001\107\ built on previous
restrictions and introduced a series of new measures that
broadened terrorism-related grounds for removal, narrowed the
possibilities for discretionary relief, reinforced border
security, expanded detention, and streamlined the procedures
for removing alien terrorists. Five years later, the REAL ID
Act of 2005\108\ again expanded grounds of inadmissibility,
further restricted judicial review in immigration proceedings,
prohibited the issuance of driver's licenses to undocumented
individuals, and mandated various security procedures relating
to applications for drivers' licenses. The Secure Fence Act of
2006\109\ bolstered existing border security measures by
mandating 700 miles of fencing along the Southern border. Other
measures were adopted to provide additional resources for
immigration enforcement.\110\ Overall, in the years following
the attacks of September 11, 2001, Federal laws enacted in the
immigration realm have focused almost entirely on interior
enforcement and border security.
---------------------------------------------------------------------------
\107\Pub. L. No. 107-56, 115 Stat. 272 (2001).
\108\Pub. L. No. 109-13, Div. B, 119 Stat 231 (2005).
\109\Pub. L. No. 109-367, 120 Stat. 2638 (2006).
\110\See, e.g., Intelligence Reform and Terrorism Prevention Act
Secs. 5101-5204, Pub. L. No. 108-458, 118 Stat. 3638 (2004) (containing
several border security and immigration enforcement provisions,
including authorization of an increase of 10,000 Border Patrol agents
and 4,000 ICE agents); Security and Accountability For Every Port Act
of 2006 (SAFE Port Act), P.L. 109-347 (2006); Jamie Zapata Border
Enforcement Security Task Force Act, Pub. L No. 112-205, 126 Stat. 1487
(2012).
---------------------------------------------------------------------------
Recent Efforts at Comprehensive Immigration Reform
Recent efforts to pass comprehensive immigration reform
failed in 2006 and 2007. Following many years and repeated
legislative work on border security and interior enforcement,
the central issue in these efforts was the proposed
legalization of the millions of undocumented immigrants
currently living in the United States. In 2006, the Senate
passed S. 2611, the bipartisan Comprehensive Immigration Reform
Act, by a vote of 62-36. The House of Representatives failed to
pass a reconcilable companion bill, and the measure did not
become law. In 2007, the Senate considered S. 1348, the Secure
Borders, Economic Opportunity, and Immigration Reform Act,
without Committee consideration. Several weeks of floor debates
ensued, with 30 amendments considered. Cloture, however, failed
by a vote of 34-61. The amended bill was re-introduced as S.
1639 and a compromise was reached to bring the bill back to the
floor. Cloture on the motion to proceed was invoked for the
legislation, after which the Senate debated the bill for three
days. Following debate, the Senate did not invoke cloture on
the bill by a vote of 46-53.
Recent Border Security Legislation
In the absence of comprehensive immigration reform,
Congress continued to take other substantial steps to bolster
immigration enforcement and address national security concerns
relating to immigration. In 2010, Congress passed an emergency
supplemental appropriations bill for border security.\111\ The
legislation was introduced in the Senate by Senator Schumer as
S. 3721, and in the House by Representative David Price as H.R.
6080, and was signed into law on August 13, 2010. It allocated
more than $600 million in supplemental appropriations for
Southwest border security resources and operations, allowing
U.S. Customs and Border Protection to hire more than 1,000 new
agents and otherwise supplement its enforcement efforts. The
legislation also provided for a strike force to be deployed in
areas of the Southwest border, as well as for unmanned aerial
vehicles to provide technological support to patrol officers.
The legislation provided resources for the construction of
operating bases closer to the border and the improvement of
interagency communications, and it increased the capacity of
U.S. Immigration and Customs Enforcement and other agencies to
conduct investigations of drug runners, money launderers, and
human traffickers along the border. These provisions have
contributed to the strengthening of border enforcement efforts
in recent years.
---------------------------------------------------------------------------
\111\Pub. L. No. 111-230 (2010).
---------------------------------------------------------------------------
2. State and Local Immigration Measures
Over the last two decades, State and local governments have
increasingly proposed and enacted legislation to address
immigration-related issues, with varying degrees of acceptance
by the courts that have evaluated such legislation in light of
the Constitution's Supremacy Clause.\112\ The proliferation of
legislation reflects dissatisfaction with the Federal
Government's implementation of immigration policy. Moreover, it
has created a patchwork of laws and protracted litigation that
creates uncertainty for immigrants, employers, workers, and law
enforcement alike. In 2007, 50 State legislatures enacted 167
immigration bills into law; in 2011, the number of proposed
State or local bills introduced on immigration matters reached
1,607, with 197 enacted into law.\113\ The largest categories
were laws punishing employers for hiring unauthorized
immigrants and laws that enlisted State and local law
enforcement agencies to help police illegal immigration.\114\
These State and local efforts in recent years to enact laws
that affect immigration policy provide further evidence of the
need for comprehensive reform at the Federal level.
---------------------------------------------------------------------------
\112\See Nat'l Conference of State Legislatures, Immigration Policy
Report, 2011 Immigration Laws and Resolutions in the States (2011)
available at http://www.ncsl.org/documents/immig/
2011ImmFinalReportDec.pdf.
\113\Laureen Laglagaron et al., Migration Policy Institute,
Regulating Immigration at the State Level (2008), available at http://
www.migrationpolicy.org/pubs/2007methodology.pdf.
\114\Id.; see also Nat'l Conference of State Legislatures,
Immigration Policy Project, State Actions Regarding e-verify (2012)
available at http://www.ncsl.org/documents/immig/
StateActions_Everify.pdf.
---------------------------------------------------------------------------
In 1994, California voters, amidst claims that millions of
undocumented immigrants were contributing to rising crime rates
and public welfare costs, passed Proposition 187, a broad
measure denying undocumented immigrants many State-funded
services.\115\ The measure also required law enforcement,
social services, health care workers, and public education
personnel to verify the immigration status of those with whom
they come in contact and report those with unlawful status to
State and Federal officials.\116\ Despite its passage, several
city officials and institutions vowed not to enforce the law,
citing undesirable consequences such as denying shelter to
abandoned children and healthcare to children in need.\117\
Civil rights groups immediately sued to enjoin the law's
enforcement, and a Federal district judge held its provisions
unconstitutional to the extent they infringed upon the Federal
Government's exclusive power to regulate immigration.\118\
---------------------------------------------------------------------------
\115\See League of United Latin Am. Citizens v. Wilson, 908 F.Supp.
755,763(C.D.Cal. 1995) (``LULAC I'').
\116\Id.
\117\See Op-Ed., Why Proposition 187 Won't Work, N.Y. Times, Nov.
20, 1994.
\118\See LULAC I, 908 F.Supp. at 769-71.
---------------------------------------------------------------------------
Since then, several other jurisdictions have also attempted
to discourage undocumented immigrants from living or working
within their boundaries. In 2006, the city of Hazleton,
Pennsylvania enacted ordinances that required employers to
verify employee work eligibility and sanctioned landlords who
rented accommodations to undocumented immigrants.\119\ Civil
rights and Hispanic business organizations challenged the law,
and the U.S. Court of Appeals for the Third Circuit held that
its provisions were preempted by Federal law.\120\
---------------------------------------------------------------------------
\119\Tenant Registration Ordinance, Hazleton, PA., Ordinance 2006-
13 (Aug. 15, 2006); Illegal Immigration Relief Act Ordinance, Hazleton,
PA., Ordinance 2006-18 (Sept. 21, 2006).
\120\See Lozano v. City of Hazleton, 620 F.3d 170 (3d Cir. 2010),
vacated for further consideration by Lozano v. City of Hazleton, 131
S.Ct. 2958 (June 6, 2011)).
---------------------------------------------------------------------------
The city of Farmers Branch, Texas, is another municipality
whose restrictive immigration ordinances have sparked major
litigation. Starting in 2006, the city passed a series of
ordinances that required immigration status checks for renters,
including a law that would have prohibited occupants--on pain
of criminal penalties--from renting housing without a
declaration of citizenship or other lawful status.\121\ A local
landlord, joined by the United States as amicus curiae,
challenged the rental ordinance, arguing that Federal policy
preempts housing regulations that serve only to restrict
immigration.\122\ The Fifth Circuit Court of Appeals agreed,
finding that these regulations intruded on the Federal domain
of immigration and foreign policy.\123\ The Fifth Circuit
recently re-heard the case en banc.\124\
---------------------------------------------------------------------------
\121\See Villas at Parkside Partners v. City of Farmers Branch,
Tex., 675 F.3d 802, 805 reh'g en banc granted, 688 F.3d 801 (5th Cir.
2012).
\122\See Villas at Parkside Partners, 675 F.3d at 805.
\123\Id.
\124\Villas at Parkside Partners v. City of Farmers Branch, Tex.,
688 F.3d 801 (5th Cir. 2012).
---------------------------------------------------------------------------
Although most of these State and local efforts to regulate
immigration have been rejected by the courts, they reflect the
frustration that many feel about our broken immigration system.
More needs to be done to combat illegal immigration, but the
responsibility for solving this national problem cannot rest
with individual States and localities.
That conclusion has been underscored by recent Supreme
Court cases addressing this issue. Over the last several years
Arizona, Alabama, South Carolina, and Utah (among other
jurisdictions) have attempted to enact their own immigration
laws. Arizona's S.B. 1070, the Support Our Law Enforcement and
Safe Neighborhoods Act, included a comprehensive set of
immigration provisions and criminal sanctions for immigration
violations.\125\ It reflected the most expansive effort by a
single State to discourage undocumented immigrants from moving
to or living in that State. Among its key provisions were
Section 3, making failure to meet Federal immigrant-
registration requirements a State misdemeanor; Section 5,
making it a misdemeanor for undocumented immigrants to work in
Arizona; Section 6, allowing State and local law enforcement to
arrest persons suspected of being in the United States
unlawfully; and Section 2(B), requiring an immigration status
check after all arrests.\126\
---------------------------------------------------------------------------
\125\Randal C. Archibold, Arizona Enacts Stringent Law on
Immigration, N.Y. Times (April 23, 2010) at A1.
\126\See Arizona v. United States, 132 S. Ct. 2492, 2501-08 (2012).
---------------------------------------------------------------------------
Alabama's H.B. 56 largely mirrored Arizona's S.B. 1070, but
added provisions to prevent undocumented immigrants from
obtaining housing and to identify those enrolled in its public
school system. After the bill's passage, education officials in
Alabama reported that immigrant families kept children at home
or withdrew them from school altogether,\127\ and foreign
travelers reported being detained while on business in the
State.\128\
---------------------------------------------------------------------------
\127\See Associated Press, Alabama: May Immigrants Pull Children
From Schools, N.Y. Times, Sept. 30,2011.
\128\Gustavo Valdes & Catherine E. Shoichet, Auto Exec's Arrest a
New Flashpoint in Alabama's Immigration Debate, CNN, Nov. 22, 2011
(reporting that local police detained a German Mercedes Benz executive
because he was driving a rental car and did not have his driver's
license in hand); Arian Campo-Flores & Miriam Jordan, Alabama
Immigration Law Ensnares Auto Workers, Wall St. J., Dec. 1, 2011
(reporting that local police issued a citation to a Japanese Honda
employee even though he had a valid passport and international driver's
license).
---------------------------------------------------------------------------
The United States Department of Justice and civil rights
groups challenged Arizona's law and other similar measures,
arguing that Federal immigration policy preempted State efforts
to regulate immigration.\129\ Many immigrant, Latino, and civil
liberties advocates also opposed the laws, arguing that the
provisions allowing arrest on suspicion of immigration
violations would lead to racial profiling.\130\ In 2012, the
Supreme Court ruled that Sections 3, 5, and 6 of S.B. 1070 were
preempted by Federal immigration policy, while noting that it
was premature to enjoin the Section 2(B) provisions requiring
immigration status checks for all arrests.\131\ The Court held
that under the Supremacy Clause, Congress had occupied the
field of immigration regulation, and State statutes conflicting
with the Federal framework for immigration enforcement were
preempted.\132\ In April 2013, the Supreme Court declined to
hear an appeal from a Federal circuit court decision striking
down similar provisions in Alabama's H.B. 56.\133\
---------------------------------------------------------------------------
\129\Randal C. Archibold & Mark Landler, Justice Dept. Will Fight
Arizona on Immigration, N.Y. Times, June 18, 2010, at A8.
\130\Randal C. Archibold & Ana Facio Contreras, First Legal
Challenges to New Arizona Law, N.Y. Times, Apr. 29, 2010, at A15.
\131\Arizona 132 S. Ct. at 2493 (2012).
\132\Id. at 2498.
\133\United States v. Alabama, 691 F.3d 1269 (11th Cir. 2012),
cert. denied April 29, 2013 (No. 12-884).
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In analyzing S.B. 1070, the Supreme Court discussed the
dangers inherent in a State-by-State approach to immigration
enforcement, noting that immigration policy can affect trade,
investment, tourism, and diplomatic relations for the entire
country.\134\ The perceived mistreatment of immigrants in the
United States, even as a result of the actions of a single
State or locality, can lead to reciprocal harmful treatment of
American citizens abroad.\135\ A critical tenet of our foreign
policy is that countries concerned about the status, safety,
and security of their citizens must be able to confer and
communicate with the United States, not 50 separate States.
---------------------------------------------------------------------------
\134\Arizona, 132 S.Ct. at 2498.
\135\Id. at 2498-99.
---------------------------------------------------------------------------
3. Broad Public Support for Comprehensive Immigration Reform
There is widespread agreement that our current immigration
system is in disrepair and that a comprehensive solution is
needed to address the full scope of the problem. At the outset
of the Senate Judiciary Committee's consideration of S. 744,
Republican and Democratic Senators alike acknowledged the need
for congressional action. Senator Lee stated, ``We all agree
that our immigration system is broken and it needs to be
fixed.'' Senator Coons noted, ``As many have already
recognized, where we are today is totally unacceptable.''
Senator Cruz stated, ``I appreciate that we are now having this
process to address a broken immigration system. Virtually
everyone agrees the immigration system we now have it broken.''
Senator Blumenthal observed, ``The world is watching, because
we are the greatest nation in the history of the world . . .
Our system of immigration is broken and unworthy of the
greatest nation in the history of the world.''
Public sentiment in recent years has echoed the call for
action on comprehensive immigration reform. In an April 2013
poll conducted by Gallup, 69 percent of Americans indicated
that they would support a law ``that would allow illegal
immigrants living in the United States the chance to become
permanent legal residents if they meet certain
requirements.''\136\ Similarly, 65 percent of Americans
indicated that they would support a law ``that would allow
illegal immigrants living in the United States the chance to
become U.S. citizens if they meet certain conditions.''\137\
---------------------------------------------------------------------------
\136\Elizabeth Mendes, Americans Favor Giving Illegal Immigrants a
Chance to Stay, Gallup: Politics, Apr. 12, 2013.
\137\Id.
---------------------------------------------------------------------------
Findings of support for immigration reform generally, and
specifically for the comprehensive immigration bill currently
under consideration, have been widely reported. According to a
national survey conducted by the Winston Group in April 2013,
74 percent of voters surveyed believe the current immigration
system is working ``poorly,'' with 41 percent saying it works
``very poorly.''\138\ Some 68 percent of those surveyed stated
that our immigration system needs ``a lot of changes'' or ``a
complete overhaul.'' Moreover, 75 percent of those surveyed
stated that they ``strongly support'' or ``somewhat support''
the requirement that ``illegal immigrants in the [United
States] register for legal status, pay fines, learn English,
pay taxes, and wait in the back of the line to apply for
citizenship, until everyone who is currently in line to legally
enter the U.S. gets in.'' Similar recent surveys have shown
broad majorities supporting a path to citizenship when coupled
with paying back taxes and passing background checks.\139\
---------------------------------------------------------------------------
\138\The Winston Group, Attitudes on Immigration Reform: an
analysis of survey research (Apr. 25, 2013).
\139\See, e.g., Post-ABC Poll: Immigration Reform and Gun Control,
Wash. Post, May 23, 2013; N.Y. Times-CBS Poll, N.Y. Times, Apr. 29,
2013; Fox News Poll: Majority Says Legal Immigration Should Be Reduced,
Fox News, Apr. 23, 2013.
---------------------------------------------------------------------------
These findings are consistent with what this Nation's
leaders have been urging. Businesses, community and faith
leaders, and individuals from across the political spectrum
have called for Congress to fix the broken immigration system.
The Chamber of Commerce and companies from a variety of sectors
have described the flaws in the existing immigration system
that prevent American businesses from recruiting world-class
talent, and urged those issues to be addressed through
comprehensive immigration reform.\140\ The call for reform has
been joined by think tanks such as Americans for Tax
Reform,\141\ the CATO Institute,\142\ the Brookings
Institution,\143\ the American Immigration Council,\144\ and a
group of 111 prominent conservative economists.\145\ Support
for immigration reform has been voiced by leaders from both
political parties, including President Bill Clinton, President
George W. Bush, former New Mexico Governor Bill Richardson, and
former Secretaries of State Colin Powell, Condoleezza Rice, and
Hillary Clinton.
---------------------------------------------------------------------------
\140\Press Release, U.S. Chamber of Commerce, U.S. Chamber
Expresses Support for Introduction of Comprehensive Immigration Reform
(Apr. 17, 2013), available at http://www.uschamber.com/press/releases/
2013/april/us-chamber-expresses-support-introduction-comprehensive-
immigration-reform.
\141\Press Release, Americans For Tax Reform, Americans for Tax
Reform Supports Comprehensive Immigration Reform, Apr. 6, 2013,
available at: http://www.prnewswire.com/news-releases/americans-for-
tax-reform-supports-comprehensive-immigration-reform-55996837.html.
\142\See Stuart Anderson, Cato Instit., Trade Briefing Paper No.
32, Answering the Critics of Comprehensive Immigration Reform 1-10
(2011), available at http://www.cato.org/publications/trade-briefing-
paper/answering-critics-comprehensive-immigration-reform.
\143\See Darrell M. West, The Path to a New Immigration Reform,
Brookings Instit., July 21, 2009, available at http://
www.brookings.edu/research/opinions/2009/07/21-immigration-reform-west.
\144\Press Release, Am. Immigration Council, Senate Judiciary
Committee Votes to Pass Immigration Bill on to Full Senate, May 21,
2013, available at http://www.americanimmigrationcouncil.org/news-
media/press-releases.
\145\Lisa Mascaro, Conservative economists endorse immigration
reform bill, L.A. Times, May 23, 2013, available at http://
articles.latimes.com/2013/may/23/nation/la-na-pn-immigration-letter-
20130522.
---------------------------------------------------------------------------
The call for comprehensive immigration reform has also been
echoed by law enforcement. Secretary of Homeland Security Janet
Napolitano testified before the Judiciary Committee: ``Our
immigration system is out of date and badly in need of reform.
Our law enforcement, our economy, our workforce, and our
communities are suffering and frustrated by the current
patchwork of laws and requirements that make up this
system.''\146\ The former president of the National District
Attorneys Association, Robert Johnson, described how the fear
of ``being funneled into a harsh and unreasonable immigration
system deters [undocumented workers] from engaging with law
enforcement because of the constant threat of deportation.'' He
concludes: ``This reality makes the criminal justice system
less effective and hinders our ability to solve crimes and hold
perpetrators accountable.''\147\ Former Utah Attorney General
Mark Shurtleff has said that comprehensive immigration reform
``will discourage illegal immigration [and] will encourage
those people to come out of the darkness,'' concluding that
reform ``would be a boon to public safety.''\148\ Additional
support for comprehensive immigration reform has been expressed
in letters from 36 current and 76 former State Attorneys
General, who believe that reform will bolster border security
while also addressing the 11 million undocumented individuals
present in the country.\149\
---------------------------------------------------------------------------
\146\The Border Security, Economic Opportunity, and Immigration
Modernization Act, S.744: Hearing Before the Senate Committee on the
Judiciary, 113th Cong. (2013) (testimony from Secretary of the U.S.
Department of Homeland Security Janet Napolitano).
\147\Robert Johnson, Commentary, Justice System Should Determine
Which Immigrants Are Public Safety Risk, CQ News (May 16, 2013).
\148\The Border Security, Economic Opportunity, and Immigration
Modernization Act, S.744: Hearing Before the Senate Committee on the
Judiciary, 113th Cong. (April 22, 2013) (testimony from former Utah
Attorney General Mark Shurtleff).
\149\Letter from 76 Former State Attorney Generals to Members of
the Judiciary Committee (Apr. 21, 2013) (copy on file with the Senate
Judiciary Committee); Letter from 36 Current State Attorney Generals to
Senate and House Leadership (Apr. 15, 2013) (copy on file with the
Senate Judiciary Committee).
---------------------------------------------------------------------------
Education leaders have joined in the call for comprehensive
reform. An open letter by Cornell University President David J.
Skorton, Arizona State University President Michael M. Crow,
and Miami Dade College President Eduardo J. Pardron noted that
comprehensive immigration reform ``impact[s] our ability to
attract, retain, and educate the world's leading minds.''\150\
They wrote: ``Too often . . . our ability to educate and our
ability to innovate are frustrated by U.S. immigration laws.
Particularly in the innovation-rich fields of Science,
Technology, Engineering, and Math (STEM), we train many of the
brightest minds of the world, only to have those students sent
abroad to compete against us because our immigration laws do
not provide a viable path for them to stay.''
---------------------------------------------------------------------------
\150\Ronald Roach, Higher Education Leaders Join Immigration Reform
Coalition, Diverse: Issues in Higher Educ., Mar. 13, 2013.
---------------------------------------------------------------------------
Leaders in religious communities have also called for
immigration reform as a core priority. Evangelical leaders have
said that immigration is a ``Christian issue . . . not a
political issue.''\151\ The PICO National Network, a broad
coalition of diverse faiths, has held prayer vigils across the
country to demonstrate support for immigration reform.\152\ For
many of these leaders, immigration reform became a priority
after they witnessed the experience of immigrants in their
congregations whose families have been separated or who spend
their lives in fear of deportation because of our current
immigration system.\153\ Civil rights groups and community
advocates have also joined in the call for comprehensive
immigration reform. The National Council of La Raza, the
National Immigration Law Center, the American Civil Liberties
Union, Human Rights Campaign, United We Dream, and other groups
across the Nation have submitted letters and statements to the
Committee calling for Congress to act.
---------------------------------------------------------------------------
\151\Adelle M. Banks, Immigration Reform gets personal for
Evangelicals, Religion News Service, Apr. 11, 2013.
\152\Julia Preston, Showing Grass-Roots Support for Immigration
Overhaul, N.Y. Times, May 1, 2013.
\153\Banks, Immigration Reform gets Personal for Evangelicals,
Religion News Service, Apr. 11, 2013.
---------------------------------------------------------------------------
In sum, the Committee has heard from business leaders,
faith groups, family groups, community advocates, civil rights
organizations, law enforcement, and individual members of the
public about the urgent need to fix our immigration system and
to address the plight of the millions of undocumented
immigrants who are living their lives in the shadows of our
country. These voices across the Nation and the political
spectrum agree that the time has come for common-sense,
comprehensive immigration reform.
II. History of the Bill and Committee Consideration
A. INTRODUCTION OF THE BILL
The Senate Committee on the Judiciary has debated the issue
of immigration reform extensively since 2005, convening some 52
hearings on immigration-related matters during that time
period. In the 109th Congress (2005-2006), the Committee held
15 hearings on immigration matters and convened six Executive
Business Meetings to consider, amend, and report legislation
that was then introduced in the Senate as S. 2611, the
Comprehensive Immigration Reform Act of 2006. The bipartisan
bill was sponsored by Senators Specter, Brownback, Graham,
Hagel, Kennedy, Martinez and McCain. After several weeks of
debate, S. 2611 passed the Senate in 2006 by a vote of 62-36,
but the House of Representatives did not pass a reconcilable
companion bill and the legislation was not enacted into law.
There have been several attempts to revive comprehensive
immigration reform over the past few years, most notably in
2007 and 2010, but those attempts also ended with no
legislation enacted.
On January 16, 2013, Senate Judiciary Committee Chairman
Patrick Leahy announced in a speech at Georgetown University
that he would make immigration reform the Committee's top
legislative priority for the year. He pledged to dedicate much
of the Committee's time in the spring to comprehensive
immigration reform, noting the promising work of a bipartisan
group of eight Senators who had begun discussing potential
legislation. Those eight Senators, Senators Schumer, McCain,
Durbin, Graham, Menendez, Rubio, Bennet, and Flake, announced
their principles of agreement in a press conference on January
28, 2013. The President called for comprehensive immigration
reform in a policy speech on January 29, 2013, and again in his
State of the Union address on February 12, 2013.
The framework discussed by the bipartisan group of eight
Senators and developed over several months led to their
development of S. 744, the Border Security, Economic
Opportunity, and Immigration Modernization Act. The bill was
introduced on April 17, 2013, and was referred to the Senate
Committee on the Judiciary.
B. HEARINGS
The Judiciary Committee has held extensive hearings on the
subject of immigration reform over the course of the past
decade, including in connection with previous efforts to enact
comprehensive immigration reform in 2006, 2007, and 2010. In
the 109th Congress (2005-2006), the Committee held 15 hearings
on immigration related matters, addressing both the need for
reform and specific comprehensive immigration reform proposals.
This close examination of immigration policy continued in the
110th Congress (2007-2008) with eight hearings on immigration-
related matters. During those Congresses, hearing topics
included challenges and strategies for border security, reform
of the Visa Waiver Program, and privacy concerns surrounding
the REAL ID Act.
During the 111th and 112th Congresses, the Committee
continued to analyze the need to update U.S. immigration laws
and consider potential areas of reform. A total of 17 hearings
were held on topics including enforcement of current law, the
Uniting American Families Act, and legislation to update the
EB-5 visa program for immigrant investors coming to the United
States to invest in specific job-creating development projects.
The Committee also maintained its oversight of the Department
of Homeland Security and U.S. Citizenship and Immigration
Services.
During the 111th Congress, the Subcommittee on Immigration,
Refugees and Border Security, under the chairmanship of Senator
Schumer, held four hearings on comprehensive immigration
reform, including hearings on border security, employment
verification, and faith-based attitudes toward immigration
reform. Over the course of the 111th Congress, the subcommittee
heard from a total of 25 witnesses on reform. In the 112th
Congress, the Subcommittee on Immigration, Refugees and Border
Security continued its examination of comprehensive immigration
reform, with seven hearings examining diverse topics including
the Northern border, the DREAM Act, the economics behind
immigration reform, the Nation's agricultural labor crisis, the
impact of reform on international travel, the constitutionality
of State preemption of Federal immigration law, and oversight
of the student visa program. During these hearings, a total of
33 witnesses testified before the subcommittee.
Early this Congress, the Committee renewed its focus on our
Nation's immigration system in anticipation of comprehensive
reform legislation being introduced. Between February and April
2013, the Committee held a total of six hearings on immigration
reform, with 42 witnesses testifying before the Committee.
Three of the hearings focused specifically on S. 744, including
an extensive, all-day hearing with multiple panels on April 22,
2013.
The Secretary of Homeland Security appeared twice before
the Committee during the 2013 hearings. Other witnesses
included a broad range of representatives from law enforcement
and State and local government; business, labor, and
agricultural interests; economists, faith leaders, and
community advocates; immigration attorneys, law professors, and
a former immigration judge. A detailed description of the
Judiciary Committee's 2013 hearings follows.
On February 13, 2013, the Committee held a hearing
entitled, ``Comprehensive Immigration Reform.'' The witnesses
at the hearing were the Honorable Janet Napolitano, Secretary
of the U.S. Department of Homeland Security; Jose Antonio
Vargas, Founder of Define American; Jessica Vaughan, Director
of Policy Studies at the Center for Immigration Studies; Steve
Case, Chairman and CEO of Revolution LLC; Chris Crane,
President of the National Immigration and Customs Enforcement
Council 118 of the American Federation of Government Employees;
and Janet Murguia, President and CEO of the National Council of
La Raza. Their testimony is available on the Committee's
website.
On March 18, 2013, the Committee held a hearing entitled,
``How Comprehensive Immigration Reform Should Address the Needs
of Women and Families.'' The witnesses at the hearing were Ai-
jen Poo, Director of the National Domestic Workers Alliance;
Dr. Karen Panetta, Professor of Electrical and Computer
Engineering at Tufts University; Mee Moua, President and CEO at
the Asian American Justice Center; Susan Martin, Donald G.
Hertzberg Professor of International Migration at Georgetown
University; and Jennifer Ng'andu, Director of the Health and
Civil Rights Policy Project at the National Council of La Raza.
Their testimony is available on the Committee's website.
On March 20, 2013, the Committee held a hearing entitled,
``Building an Immigration System Worthy of American Values.''
The witnesses at the hearing were Ahilan Arulanantham, Deputy
Legal Director of the ACLU of Southern California; Michael
Cutler, Retired Senior Special Agent at the Immigration and
Naturalization Service; Professor Paul Grussendorf, Retired
Immigration Judge; Jan C. Ting, Professor of Law at Temple
University Beasley School of Law; and Pamela Stampp, Esq.,
Attorney at Castro Law Firm. Their testimony is available on
the Committee's website.
On April 19, 2013, the Committee held a hearing entitled,
``Hearing on Comprehensive Immigration Reform Legislation.''
The witnesses at the hearing were Peter Kirsanow, Partner at
Benesch, Friedlander, Coplan & Arnoff and Commissioner on the
United States Commission on Civil Rights; and Dr. Douglas
Holtz-Eakin, President of the American Action Forum. Their
testimony is available on the Committee's website.
On April 22, 2013, the Committee held a hearing entitled,
``The Border Security, Economic Opportunity, and Immigration
Modernization Act, S. 744.'' The witnesses at the hearing were
Arturo Rodriguez, President of United Farm Workers; Charles
Conner, President and CEO of the National Council of Farmer
Cooperatives; Alyson Eastman, President of Book-Ends
Associates; Megan Smith, Commissioner of the Vermont Department
of Tourism & Marketing; the Honorable Jim Kolbe, Former United
States Representative (R-AZ-5); Tamar Jacoby, President and CEO
of Immigration Works USA; Rick Judson, Chairman of the Board of
the National Association of Home Builders; Brad Smith, General
Counsel and Executive Vice President of Microsoft, Legal and
Corporate Affairs; Professor Ron Hira, Associate Professor of
Public Policy at the Rochester Institute of Technology; Neeraj
Gupta, CEO of Systems in Motion; Fred Benjamin, CPO of
Medicalodges, Inc.; Gaby Pacheco, Immigrant Rights Leader and
Director of the Bridge Project; Janet Murguia, President and
CEO of the National Council of La Raza; Dr. David Fleming,
Senior Pastor at Champion Forest Baptist Church; Mark
Krikorian, Executive Director at the Center for Immigration
Studies; Laura L. Lichter, Esq., President of the American
Immigration Lawyers Association; the Honorable Kris Kobach,
Kansas Secretary of State; Mark Shurtleff, Partner at Troutman
Sanders LLP and Former Utah Attorney General; the Honorable
Bill Vidal, Former Mayor of Denver and President and CEO of the
Hispanic Chamber of Commerce of Metro Denver; Janice L.
Kephart, Former Counsel on the September 11 Commission and
Principal of 911 Security Solutions; Chris Crane, President of
the National Immigration and Customs Enforcement Council 118 of
the American Federation of Government Employees; Dr. Steven
Camarota, Director of Research at the Center for Immigration
Studies; and Grover Norquist, President of Americans for Tax
Reform. Their testimony is available on the Committee's
website.
On April 23, 2013, the Committee held a hearing entitled,
``The Border Security, Economic Opportunity, and Immigration
Modernization Act, S. 744.'' The witness at the hearing was the
Honorable Janet Napolitano, Secretary of the United States
Department of Homeland Security. Secretary Napolitano's
testimony is available on the Committee's website.
Three other Senate Committees also held hearings related to
comprehensive immigration reform in 2013. The Senate Committee
on Commerce, Science & Transportation held a hearing on May 8,
2013 entitled, ``The Role of Immigrants in America's Innovation
Economy.'' The Senate Committee on Homeland Security and
Government Affairs held three hearings related to border
security. The first hearing, on March 14, 2013, was entitled,
``Border Security: Measuring the Progress and Addressing the
Challenges.'' The second hearing was held on April 10, 2013 and
was entitled, ``Border Security: Frontline Perspectives on
Progress and Remaining Challenges.'' The third hearing, on May
7, 2013, was specific to S. 744 and was entitled, ``Border
Security: Examining Provisions in the Border Security, Economic
Opportunity, and Immigration Modernization Act S. 744.'' The
Senate Committee on Small Business and Entrepreneurship held a
hearing on May 16, 2013, relating to the E-Verify provisions in
S. 744, entitled, ``The Impact of Mandatory E-Verify on
America's Small Businesses.''
C. LEGISLATIVE HISTORY
The Border Security, Economic Opportunity, and Immigration
Modernization Act, S. 744, was introduced on April 17, 2013, by
Senators Schumer, McCain, Durbin, Graham, Menendez, Rubio,
Bennet and Flake. Its introduction followed several months of
discussions by the bill's sponsors, who first outlined their
agreed principles for reform during a press conference on
January 28, 2013. During the press conference, the group
identified four basic legislative pillars for reform: creating
a tough but fair path to citizenship for unauthorized
immigrants that is contingent upon achieving increased border
security and tracking visa overstays; reforming the legal
immigration system; creating an effective employment
verification system; and establishing an improved process for
admitting future workers.\154\ The Senators committed to draft
legislation that would provide resources to secure the border
and to modernize and streamline our current legal immigration
system, while creating a tough but fair legalization program
for individuals who are already present in the United States.
---------------------------------------------------------------------------
\154\Memoranda from Senator Charles Schumer et al. on the
Bipartisan Framework for Comprehensive Immigration Reform (Jan. 28,
2013), available at http://www.nytimes.com/interactive/2013/01/23/us/
politics/28immigration-principles-document.html.
---------------------------------------------------------------------------
The group developed the text of S. 744 over several months
of negotiations, during which the Senators met approximately 24
times. The Agricultural Worker Program included in S. 744 as
Title II, Subtitle B, was developed by Senators Feinstein,
Hatch, Bennet, and Rubio, after several months of negotiations
and discussions with the Agriculture Workforce Coalition,
representing a broad cross-section of agricultural employers,
and representatives of farmworkers, including the United Farm
Workers of America. The bill was introduced on April 17, 2013.
The Border Security, Economic Opportunity, and Immigration
Modernization Act was listed on the Judiciary Committee's
Executive Business Meeting Calendar for April 25, 2013, and was
held over in accordance with Committee rules. Amendments were
first considered during the Committee's Executive Business
Meeting on Thursday, May 9, 2013.
In total, Committee members filed 301 first degree
amendments to the bill, 106 by Democrats and 194 by
Republicans. In addition, Senator Schumer introduced a
sponsors' amendment on behalf of the eight sponsors of the
bill, making technical changes to S. 744. The amendments filed
included 17 amendments to the Pre-Title section of the bill
(trigger), 26 amendments to Title I (Border Security), 99
amendments to Title II (Immigrant Visas), 87 amendments to
Title III (Interior Enforcement), and 72 amendments to Title IV
(Non-immigrant Visas).
During the course of its markup of S. 744, the Committee
considered a total of 212 amendments, including first degree,
second degree, and substitute amendments. Of the amendments
considered, 100 were offered by Democrats (including the
sponsors' amendment) and 112 by Republicans. The Committee
adopted 136 amendments, all but three on a bipartisan basis. A
detailed description of the amendments considered appears
below.
Following 37 hours of debate during five Executive Business
Meetings conducted over the course of three weeks, the
Committee voted to report S. 744 as amended on the evening of
Tuesday, May 21, 2013, by a bipartisan vote of 13-5.
D. EXECUTIVE BUSINESS MEETINGS
Upon introduction of S. 744 and its referral to the Senate
Committee on the Judiciary, Chairman Leahy announced several
measures to ensure that the Committee's markup would be as
transparent and comprehensive as possible. As detailed above,
the Committee held three public hearings specifically on the
text of S. 744, during which the Committee received in-person
testimony from 26 witnesses and written submissions from
numerous additional groups and interested members of the
public.
Chairman Leahy initiated several new procedures to assist
the thorough and transparent review of the bill by the public.
The Chairman established, with the agreement and cooperation of
the Committee's Ranking Member Senator Grassley, a 5 p.m.
filing deadline for all amendments two days before the first
Executive Business Meeting at which amendments would be
considered. For the first time in the Committee's history, the
Chairman directed that all of the amendments filed would be
posted on the Committee's website to facilitate public review.
Of the 301 amendments filed, 296 were filed by the 5 p.m.
deadline on Tuesday, May 7, 2013. The final five amendments
were filed at approximately 7:15 p.m. All amendments were
posted on the Committee's website that evening.
As amendments were considered during the Committee's
Executive Business Meetings, the Committee's website was
updated in real time to reflect the disposition of amendments
and their modification by substitute or second-degree
amendments. The text of modified amendments was scanned and
posted to the Committee website as soon as possible after any
modification was made, to further promote public review. This
process was positively received by the public and the media,
many of whom circulated links to the Committee's website and
used the Committee's website as a basis to provide real-time
feedback to Senators' offices during the debate. In accordance
with longstanding Committee practice, the markup was open to
the public and webcast live on the Committee's website, further
promoting public engagement in the Committee's deliberations.
In total, the Committee engaged in more than 37 hours of
debate during five Executive Business Meetings that took place
over three weeks. The first markup where amendments were
considered took place on Thursday, May 9, 2013, beginning at
9:30 a.m. and concluding at 5:05 p.m. The Committee considered
amendments relating to the Pre-Title and Title I, adopting 24
of the 35 amendments considered.
The second markup took place on Tuesday, May 14, from 10:05
a.m. to 5:15 p.m., covering Title I and Title IV. Of the 38
amendments considered, 23 were adopted.
The third markup took place on Thursday, May 16, from 9:40
a.m. to 12:55 p.m., focusing on Title IV and Subtitle A of
Title III. Of the 26 amendments considered, 16 were adopted.
The fourth markup took place on Monday, May 20, from 10:10
a.m. to 8:20 p.m., focusing on Title III and Title II of the
bill. Of the 70 amendments considered, 49 were adopted.
The fifth and final markup took place on Tuesday, May 21,
from 10:45 a.m. until 7:55 p.m., focusing on Title II and a
remaining amendment to Title IV from Senator Hatch that had
been held over. Of the 40 amendments considered, 24 were
adopted.
For the second and third day of markup, the Committee met
in the Dirksen Senate Office Building Room G-50. For the other
days, it met in the Senate Judiciary Committee's large hearing
room, Hart Senate Office Building Room 216. Hundreds of members
of the public, including faith groups, community advocates,
immigration experts, families, and other interested individuals
attended the markup sessions each day for the duration of the
Committee's consideration of the bill.
E. AMENDMENTS CONSIDERED
1. PRE-TITLE and TITLE I
a. Overview of Amendments
The material preceding Title I (the ``Pre-Title'') and
Title I of the bill contain a variety of provisions that
strengthen border security and establish staggered ``triggers''
that must be satisfied before any undocumented individuals can
apply for the new ``Registered Provisional Immigrant'' (RPI)
status created by the bill, or for lawful permanent residence.
The bill allocates up to $6.5 billion for border security and
interior enforcement measures; authorizes thousands of
additional Customs and Border Protection officers;
significantly expands border security infrastructure and the
use of technology at the border; and provides additional
resources for criminal prosecutions of those unlawfully
crossing the border and to State, local and tribal governments
for their costs related to illegal immigration. The bill sets
forth specific border security metrics and establishes a
bipartisan Southern Border Security Commission if those metrics
are not attained within five years, with members appointed by
the President, both Houses of Congress, and Governors of the
Border States to further improve border security.
The bill prohibits the Department of Homeland Security
(``DHS'') from processing any applications from undocumented
individuals to adjust to RPI status until the Secretary has
submitted to Congress a Comprehensive Southern Border Security
Strategy and a Southern Border Fencing Strategy within six
months of enactment. The Department of Homeland Security may
not issue green cards to any RPIs for at least 10 years, and
not until the Secretary of Homeland Security certifies that the
Comprehensive Southern Border Security Strategy is
substantially deployed and substantially operational, that the
Southern Border Fencing Strategy is implemented and
substantially completed, that DHS has implemented a mandatory
employment verification system to be used by all employers, and
that DHS is using an electronic exit system at air and seaports
to track departures. These triggers do not apply to those
seeking to adjust status under the DREAM Act portion of the
bill or agricultural workers with blue card status.
Strengthening Border Security
A number of the amendments adopted in the Pre-Title and
Title I strengthen the border security provisions already in
the bill. Senator Grassley offered an amendment, Grassley1,
that expands the bill's border security goals and metrics to
cover the entire Southern border, not just high-risk sectors.
Amendments offered by Senator Feinstein provide U.S. Customs
and Border Protection with equipment to engage in maritime
border security activities (Feinstein8), and create the Safe
and Secure Border Infrastructure Program to provide funding to
State and local governments to improve facilities at land ports
of entry (Feinstein10). As discussed below, the Committee also
adopted an amendment filed by Senator Hatch, Hatch6, that
creates biometric exit processing at certain airports and
provides for further study and expansion of that program in
future years. Taken together, these amendments strengthen the
border security provisions in S. 744 and build upon the
significant resources that the Government currently invests in
border security measures.
Oversight and Efficient Use of Resources
Other amendments adopted by the Committee will help ensure
the efficient use of the significant border security and
enforcement resources allocated by the bill and by existing
law. Senator Leahy and Senator Cornyn offered an amendment,
Leahy4, that gives the Department of Homeland Security
flexibility to spend the $1.5 billion fencing fund created by
S. 744 on the most effective infrastructure and technology,
including at ports of entry, while also specifying that $1
billion of the fencing fund is available for deploying and
repairing fencing along the Southern border. The amendment also
requires consultation with relevant stake holders and respect
for State and local laws in the implementation of fencing
projects. Senator Feinstein offered a bipartisan amendment that
was adopted, Feinstein2, that adds new Federal judgeships in
Southern border districts so that the growing number of
immigration cases can be resolved more quickly. The Judicial
Conference of the United States wrote to the Judiciary
Committee in support of Feinstein2, explaining that the new
enforcement resources provided in the bill will significantly
increase the Federal caseload in those districts.\155\
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\155\Letter from Judicial Conference of the United States to
Chairman Leahy (May 9, 2013) (copy on file with the Senate Judiciary
Committee). The additional judgeships are off-set by a $10 increase in
civil filing fees, from $350 to $360.
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The Committee also adopted several amendments that will
improve oversight mechanisms relating to enforcement and border
security. Senator Grassley offered two amendments, Grassley24
and Grassley5, that require audits both of the Comprehensive
Immigration Reform Trust Fund established by S. 744 and of
entities that receive grants under the bill. Senator Flake
offered an amendment, Flake2, to require the Government
Accountability Office to assess annually the status of the
Department of Homeland Security's implementation of the
Comprehensive Southern Border Security Strategy. Amendments
offered by Senator Hirono (Hirono24), and Senator Sessions
(Sessions36), expand the role of the DHS Ombudsman. Amendments
adopted by the Committee also help protect children in
immigration detention facilities (Feinstein6), and families and
others affected by DHS border apprehension and repatriation
programs (Hirono23 and Coons2). The bill as amended by the
Committee also helps border communities by prohibiting border
crossing fees (Leahy1); requiring that private landowners
participate on the new DHS Border Oversight Task Force
(Flake2); and ensuring that Border Patrol does not deploy
unmanned aerial vehicles in California beyond three miles from
the border, given the heavily populated areas in that region
(Feinstein11).
Additional Trigger Amendments
The Committee debated, but did not adopt, several other
amendments that would have significantly delayed or altered the
earned path to citizenship that the underlying bill provides
for undocumented immigrants already living in this country.
These amendments, including Grassley4, Cornyn1 and Sessions11,
among others, would have imposed further ``triggers'' before
the application process for RPI status or for the earned path
to citizenship could commence. In rejecting these amendments,
Senators voiced concern that they either were unattainable or
would further postpone the challenging path to citizenship,
which already will take a minimum of 13 years for most
applicants under the provisions in the bill. Senators discussed
the importance of the triggers already contained in the base
bill, including, in particular, the requirement that a
mandatory employment verification system be implemented before
anyone in RPI status may obtain lawful permanent residence
(i.e., a green card).
During deliberations, the Committee also rejected an
amendment offered by Senator Lee, Lee4, that would have
required Congress to ratify the certifications that must be
made by the Department of Homeland Security before any
undocumented individuals could apply for RPI status or
ultimately a green card. Senators noted that the amendment
would make the legalization program inappropriately subject to
partisan disputes, and would likely result in long delays.
Senators also noted that the steps required by the amendment
would be unnecessary, because the bill already provides that if
certain border security metrics are not met within five years,
a bipartisan Commission will be created, with members selected
by the President, leaders of both parties in the Senate and
House of Representatives, and representatives of the Southern
border States, to make recommendations to further enhance
border security, and $2 billion of additional funding will be
made available for additional border security measures at that
time.
Further Expenditures
The Committee rejected other amendments that would have
required significant increases in border security personnel or
infrastructure, noting that the border security provisions of
S. 744 already provide for billions of dollars in expenditures,
in addition to the considerable expenditures authorized by
existing law. Senator Sessions offered an amendment, Sessions9,
that would have required the construction of hundreds of miles
of additional ``double-layered'' border fencing before anyone
in RPI status could apply for a green card. In opposing the
amendment, Senators warned of its high cost and noted that
fencing is not an effective or recommended border security
measure in many parts of the Southern border. The Committee
also debated and rejected Cruz1, an amendment offered by
Senator Cruz that would have tripled the number of border
patrol agents, quadrupled the equipment and other assets
stationed along the border, and prevented any undocumented
individual from applying for RPI status or for an agricultural
blue card until those and other strict border security
requirements were met. In rejecting the Cruz1 amendment,
Senators again expressed concern about the high cost of the
measure, and noted that the underlying bill already provides
billions of dollars in border security resources. Senators also
noted that the amendment would significantly delay the start of
the application process for RPI status, a core purpose of the
bill and an essential step in Congress's effort to bring out of
the shadows, and into the lawful immigration system, the
millions of undocumented persons currently living in the United
States.
Biometric Exit System
During deliberation, the Committee engaged in extensive
debate over amendments offered by Senators Sessions, Cruz, and
others to establish a comprehensive biometric exit system that
would obtain the fingerprints of all non-citizens who depart
the United States (Sessions4, Sessions6, Cruz1). Senators
opposing these amendments noted that implementing such a
biometric exit system at all ports of entry, including the
hundreds of land ports of entry around the country, would be
prohibitively expensive and create extensive technological and
infrastructure challenges. The United States did not build its
border, aviation, and immigration infrastructure with exit
processing in mind. Unlike the entry system, U.S. airports do
not have designated exit areas for outgoing passengers to wait
prior to departure, nor do they have specific checkpoints
through which an outgoing passenger's departure is recorded by
an immigration officer.\156\ At the land border, the
infrastructure problems are even more acute, with far fewer
lanes serving departure from the United States than for
admission. In discussing the biometric exit amendments,
Senators further noted that S. 744 already contains significant
improvements to the current biographic exit system, by
requiring the collection of exit data from machine-readable
visas, passports, and other travel documents for those exiting
from air and seaports, and by requiring that Federal
immigration databases be interoperable.
---------------------------------------------------------------------------
\156\In 2009, DHS created a pilot program in 15 airports using
biometric technology to study ways to collect biometric information
from departing passengers. See Dep't of Homeland Security, Notice to
Aliens Included in the United States Visitor and Immigrant Status
Indicator Technology (US-VISIT) Program; Collection of Alien Biometric
Data upon Exit From the United States at Air Ports of Departure,74 Fed.
Reg. 105 (June 3, 2009), available at http://www.gpo.gov/fdsys/pkg/FR-
2009-06-03/pdf/E9_12939.pdf; see also David Heyman, DHS: We can
identify those who overstay on visas, USA Today, Feb. 25, 2013
(describing costs of program).
---------------------------------------------------------------------------
Despite these concerns, following several debates over
multiple Executive Business Sessions, the Committee accepted a
more limited biometric exit amendment that was filed by Senator
Hatch and offered by Senator Flake, Hatch6. The adopted
amendment requires a biometric exit system to be in place at
the 10 largest international airports in the United States
within two years, and provides for the program to be expanded
to 20 additional airports within six years. The amendment also
requires the Department of Homeland Security to report to
Congress on the effectiveness and cost of expanding biometric
exit to major sea and land ports. The vote tally for the
amendment is reflected below in the discussion of Title III,
because the amendment was ultimately adopted in that Title.
b. List of Amendments Adopted, Not Adopted, and Withdrawn
Relating to Pre-Title and Title I
In all, 42 amendments relating to the Pre-Title and Title I
were considered during the Committee markup, 25 offered by
Democratic Senators and 17 offered by Republican Senators. Of
the 42 amendments considered, 29 were adopted, all but one with
bipartisan support.
Amendments Adopted
The Committee began consideration of amendments to S. 744
on May 9, 2013. Senator Schumer offered a Sponsors' amendment
(Sponsors1-MDM13313), a complete substitute amendment to make a
number of technical fixes to the bill. The amendment was
adopted by a roll call vote as follows (votes by proxy
indicated with *):
Tally: 14 Yeas, 4 Nays
Yeas (14): Leahy (D-VT), Feinstein (D-CA), Schumer (D-NY),
Durbin (D-IL), Whitehouse (D-RI), Klobuchar (D-MN)*, Franken
(D-MN)*, Coons (D-DE)*, Blumenthal (D-CT), Hirono (D-HI), Hatch
(R-UT), Graham (R-SC)*, Cornyn (R-TX), Flake (R-AZ).
Nays (4): Grassley (R-IA), Sessions (R-AL), Lee (R-UT),
Cruz (R-TX).
Chairman Leahy offered an amendment (Leahy1-EAS13369) that
forbids the Secretary of Homeland Security from establishing a
border crossing fee at land ports of entry along the Southern
and Northern borders. The amendment was adopted by a voice
vote.
Chairman Leahy offered an amendment (Leahy4-EAS13416) that
provides the Department of Homeland Security with additional
flexibility in how it may use the $1.5 billion that the bill
makes available for fencing along the Southern border. It also
requires DHS to consult with relevant stakeholders along the
Southern border as it implements the Southern Border Fencing
Strategy, and ensures that if DHS invokes the provision in the
bill that allows it to waive legal requirements in order to
construct improvements at the border, DHS must specify which
laws it is waiving, and any such waivers will expire once the
relevant triggers have been satisfied. The amendment also
includes a rule of construction to ensure that the bill is not
construed to authorize fencing along the Northern border.
Chairman Leahy offered a substitute amendment (Leahy4-EAS13457)
to reduce funding available only for fencing by $500 million
and leave the remaining $1 billion of fence funding available
to be spent on deploying or repairing fencing. The substitute
amendment was adopted by a voice vote.
Senator Feinstein offered an amendment (Feinstein1-
EAS13279) that reauthorizes the State Criminal Alien Assistance
Program (SCAAP) through 2015 so that State and local
governments may obtain reimbursement from the Attorney General
for the incarceration of undocumented immigrants charged with
or convicted of an offense. Reimbursement is authorized even
when the immigration status of the detained individual is
unknown. The amendment was adopted by a roll call vote as
follows (votes by proxy indicated with *):
Tally: 10 Yeas, 8 Nays
Yeas (10): Feinstein (D-CA), Schumer (D-NY), Hirono (D-HI),
Hatch (R-UT), Sessions (R-AL), Graham (R-SC), Cornyn (R-TX)*,
Lee (R-UT)*, Cruz (R-TX), Flake (R-AZ).
Nays (8): Leahy (D-VT), Durbin (D-IL), Whitehouse (D-RI),
Klobuchar (D-MN), Franken (D-MN), Coons (D-DE), Blumenthal (D-
CT), Grassley (R-IA).
Senator Feinstein offered an amendment (Feinstein2-
HEN13550) that creates additional permanent district court
judgeships in the Southwest Border States of Arizona,
California and Texas. The amendment was modified by a second
degree amendment (HEN13558) offered by Ranking Member Grassley
and adopted by a voice vote.
Senator Feinstein offered an amendment (Feinstein6-
MDM13537) that requires the Secretary of Homeland Security to
establish standards to ensure humane conditions for children in
the custody of U.S. Customs and Border Protection. The
amendment was adopted en bloc by voice vote.
Senator Feinstein offered an amendment (Feinstein7-
MDM13459) that requires the Federal Emergency Management Agency
to allocate Operation Stonegarden grants and reimbursement
through a competitive process. The amendment was adopted en
bloc by voice vote.
Senator Feinstein offered an amendment (Feinstein8-
MDM13520) that provides U.S. Customs and Border Protection with
funding to acquire and deploy watercraft to support border-
related, maritime anti-crime activities. The amendment was
adopted en bloc by voice vote.
Senator Feinstein offered an amendment (Feinstein9-
MDM13538) that ensures the U.S. Department of Justice provides
reimbursement for all State and county immigration-related
prosecutions under the Southwest Border Region Prosecution
Initiative, including prosecution, pre-trial services and
detention, clerical support, and public defender services. The
amendment was adopted en bloc by voice vote.
Senator Feinstein offered an amendment (Feinstein10-
MDM13491) authorizing the Secretary of Homeland Security and
the Secretary of Transportation to create the Safe and Secure
Border Infrastructure Program to offer grants to State and
local government to improve land port facilities. The program
will be administered by the U.S. Department of Transportation
and the General Services Administration, and its funding will
come from the Comprehensive Immigration Reform Trust Fund. The
amendment was adopted by voice vote.
Senator Feinstein offered an amendment (Feinstein11-
ARM13559) that would have redefined the Southwest Border region
from within 100 miles of the Southern Border to within 25 miles
of the Southern Border. Senator Feinstein then offered a
substitute amendment (MDM13596) that replaced the original text
of her amendment with a new limitation that prohibits U.S.
Border Patrol from operating unarmed, unmanned aerial vehicles
in California except within three miles of the Southern Border.
Senator Feinstein then offered a further substitute amendment
(MDM13599) that specifies that this limitation on the use of
unmanned aerial vehicles in California shall not restrict
maritime operations of U.S. Customs and Border Protection. The
amendment as modified was adopted by voice vote.
Senator Schumer offered an amendment (Schumer2-EAS13444)
that provides additional up-front funding for implementation of
the bill, refines how the Comprehensive Immigration Reform
Trust Fund account is funded, and requires an expenditure plan.
The amendment was adopted by a roll call vote as follows (votes
by proxy indicated with *):
Tally: 14 Yeas, 4 Nays
Yeas (14): Leahy (D-VT), Feinstein (D-CA), Schumer (D-NY),
Durbin (D-IL), Whitehouse (D-RI), Klobuchar (D-MN), Franken (D-
MN)*, Coons (D-DE)*, Blumenthal (D-CT), Hirono (D-HI), Hatch
(R-UT)*, Graham (R-SC)*, Cruz (R-TX), Flake (R-AZ).
Nays (4): Grassley (R-IA), Sessions (R-AL), Cornyn (R-TX),
Lee (R-UT).
Senator Coons offered an amendment (Coons2-ARM13605) that
would have prohibited the deportation of a migrant at a
specific point along the Southern border if it would threaten
the person's safety or if the deportation was to a different
sector than where the migrant was originally detained. Senator
Coons offered a substitute amendment (Coons2-MDM13590) that
prohibits nighttime deportations, allowing exceptions for
compelling governmental interest, with agreement of the
migrant, or in accordance with a local agreement with the
appropriate Mexican consulate. The substitute amendment was
adopted by a voice vote.
Senator Blumenthal offered an amendment (Blumenthal10-
DAV13376) that would have prohibited the Federal reimbursement
of State and local governments for the prosecution or pre-trial
detention of an individual if the Attorney General concludes
that the individual's apprehension arose from unlawful conduct
by a law enforcement official. Senator Blumenthal offered a
substitute amendment (Blumenthal10-EAS13525) that gives the
Attorney General discretion to limit Federal reimbursement when
the jurisdiction seeking reimbursement has engaged in unlawful
conduct in connection with immigration-related apprehensions.
The substitute amendment was adopted by voice vote.
Senator Hirono offered an amendment (Hirono23-EAS13376)
that authorizes the Department of Homeland Security to consider
humanitarian concerns, safety risks, or family unit disruption
in certain cases when determining whether to repatriate or
prosecute an individual. After it was amended to strike a
requirement that the Department of Homeland Security ascertain
such humanitarian concerns within two hours of an individual's
apprehension, the amendment was adopted by a roll call vote as
follows (votes by proxy indicated with *):
Tally: 10 Yeas, 8 Nays
Yeas (10): Leahy (D-VT), Feinstein (D-CA), Schumer (D-NY),
Durbin (D-IL), Whitehouse (D-RI), Klobuchar (D-MN), Franken (D-
MN), Coons (D-DE), Blumenthal (D-CT), Hirono (D-HI).
Nays (8): Grassley (R-IA), Hatch (R-UT), Sessions (R-AL),
Graham (R-SC), Cornyn (R-TX), Lee (R-UT), Cruz (R-TX), Flake
(R-AZ).
Senator Hirono offered an amendment (Hirono24-ARM13613)
that expands the role of the Immigration Ombudsman, created in
Section 1114 of S. 744, to ensure an independent and impartial
perspective on agency policy. The amendment was adopted en bloc
by voice vote.
Ranking Member Grassley offered an amendment (Grassley1-
HEY13237) that expands the Comprehensive Southern Border
Security Strategy to include all border sectors, not just high-
risk sectors. The amendment was adopted by a voice vote.
Ranking Member Grassley offered an amendment (Grassley2-
HEY13238) that requires several Congressional reports mandated
by the bill to be provided to the Senate and House Judiciary
Committees, in addition to the committees already listed in the
bill. The amendment was adopted en bloc by a voice vote.
Ranking Member Grassley offered an amendment (Grassley5-
ARM13617) that requires the Department of Homeland Security
Inspector General and Chief Financial Officer to conduct annual
audits of the Comprehensive Immigration Reform Trust Fund
created in the bill. The amendment was adopted en bloc by a
voice vote.
Ranking Member Grassley offered an amendment (Grassley24-
DAV13369) that requires audits of grant recipients under the
bill, and places restrictions on the eligibility of nonprofit
organizations for grant funding. The amendment was adopted by a
voice vote.
Senator Sessions offered an amendment (Sessions36-MDM13430)
that expands the role of the Immigration Ombudsman to include
providing assistance for individuals and families who have been
victims of crimes committed by aliens, or violence near the
border. The amendment was adopted en bloc by voice vote.
Senator Cornyn offered an amendment (Cornyn6-ALB13436) that
adds prevention of human trafficking under the Omnibus Crime
Control and Safe Streets Act of 1968 to the purposes of the
Edward Byrne Memorial Justice Assistance Grant Program. This
ensures that States receive funding to prevent human
trafficking and report human trafficking statistics to the
Federal Bureau of Investigation for inclusion in the Uniform
Crime Reporting Program. The amendment was adopted en bloc by
voice vote.
Senator Flake offered an amendment (Flake1-MDM13451) that
adds three private land owner representatives from the Northern
and Southern Border Regions to join the Department of Homeland
Security Border Oversight Task Force created in the bill. The
amendment was adopted en bloc by voice vote.
Senator Flake offered an amendment (Flake2-MDM13456) that
requires the Secretary of Homeland Security to provide
semiannual reports to Congress on the status of DHS's
implementation of the Comprehensive Southern Border Security
Strategy, and requires the Comptroller General to conduct an
annual review of the Secretary's semiannual reports. The
amendment was adopted en bloc by a voice vote.
Amendments Not Adopted
Ranking Member Grassley offered an amendment (Grassley4-
EAS13439) that would have prohibited granting Registered
Provisional Immigrant status until the Secretary of Homeland
Security certifies to Congress that the Department of Homeland
Security has maintained ``effective control'' over the entire
Southern border for six months. The amendment was not agreed to
by a roll call vote as follows (votes by proxy indicated with
*):
Tally: 6 Yeas, 12 Nays
Yeas (6): Grassley (R-IA), Hatch (R-UT)*, Sessions (R-AL),
Cornyn (R-TX), Lee (R-UT), Cruz (R-TX).
Nays (12): Leahy (D-VT), Feinstein (D-CA), Schumer (D-NY),
Durbin (D-IL), Whitehouse (D-RI), Klobuchar (D-MN)*, Franken
(D-MN), Coons (D-DE)*, Blumenthal (D-CT), Hirono (D-HI), Graham
(R-SC), Flake (R-AZ).
Senator Sessions offered an amendment (Sessions4-MDM13410)
that would have required the Department of Homeland Security to
establish a biometric entry and exit system, instead of a
biographic system, at all land and sea ports before any
registered provisional immigrants can adjust to lawful
permanent residence. The amendment was not agreed to by a roll
call vote as follows (votes by proxy indicated with *):
Tally: 6 Yeas, 12 Nays
Yeas (6): Grassley (R-IA), Hatch (R-UT), Sessions (R-AL),
Cornyn (R-TX)*, Lee (R-UT), Cruz (R-TX).
Nays (12): Leahy (D-VT), Feinstein (D-CA), Schumer (D-NY),
Durbin (D-IL), Whitehouse (D-RI), Klobuchar (D-MN), Franken (D-
MN), Coons (D-DE), Blumenthal (D-CT), Hirono (D-HI), Graham (R-
SC), Flake (R-AZ).
Senator Sessions offered an amendment (Sessions9-MDM13544)
that would have required the completion of 700 miles of
reinforced double-layered fencing on the Southern border as a
trigger before those in RPI status could apply for lawful
permanent residence. The amendment was not agreed to by a roll
call vote as follows (votes by proxy indicated with *):
Tally: 6 Yeas, 12 Nays
Yeas (6): Grassley (R-IA), Hatch (R-UT), Sessions (R-AL),
Cornyn (R-TX), Lee (R-UT)*, Cruz (R-TX).
Nays (12): Leahy (D-VT), Feinstein (D-CA), Schumer (D-NY),
Durbin (D-IL), Whitehouse (D-RI), Klobuchar (D-MN), Franken (D-
MN), Coons (D-DE)*, Blumenthal (D-CT), Hirono (D-HI), Graham
(R-SC)*, Flake (R-AZ).
Senator Sessions offered an amendment (Sessions11-MDM13441)
that would have altered the stated objectives of several border
security provisions in the bill, including the objectives of
the Comprehensive Border Security Strategy (substantial
deployment of which is a trigger that must be met before RPIs
can apply for lawful permanent residence), to require achieving
and maintaining ``operational control,'' or the prevention of
all unlawful entries across the entire border. The amendment
was not agreed to by a roll call vote as follows (votes by
proxy indicated with *):
Tally: 6 Yeas, 12 Nays
Yeas (6): Grassley (R-IA), Hatch (R-UT)*, Sessions (R-AL),
Cornyn (R-TX), Lee (R-UT)*, Cruz (R-TX).*
Nays (12): Leahy (D-VT), Feinstein (D-CA), Schumer (D-NY),
Durbin (D-IL)*, Whitehouse (D-RI), Klobuchar (D-MN), Franken
(D-MN), Coons (D-DE)*, Blumenthal (D-CT), Hirono (D-HI), Graham
(R-SC)*, Flake (R-AZ).
Senator Sessions offered an amendment (Sessions37-MDM13365)
that would have struck the section of the bill that requires
the Secretary of Homeland Security to issue policies, in
consultation with the Civil Rights Division of the U.S.
Department of Justice, regarding the use of force by Department
of Homeland Security personnel. The amendment was not agreed to
by a roll call vote as follows (votes by proxy indicated with
*):
Tally: 7 Yeas, 11 Nays
Yeas (7): Whitehouse (D-RI), Grassley (R-IA), Hatch (R-
UT)*, Sessions (R-AL), Cornyn (R-TX), Lee (R-UT), Cruz (R-TX).*
Nays (11): Leahy (D-VT), Feinstein (D-CA), Schumer (D-NY),
Durbin (D-IL)*, Klobuchar (D-MN), Franken (D-MN), Coons (D-DE),
Blumenthal (D-CT)*, Hirono (D-HI), Graham (R-SC)*, Flake (R-
AZ).
Senator Cornyn offered an amendment (Cornyn1-ARM13593) that
would have replaced the entirety of Title I and required the
Department of Homeland Security to achieve ``full situational
awareness'' and ``operational control'' of the Southern border
for one year before processing applications for Registered
Provisional Immigrant status or agricultural blue card status.
The amendment was not agreed to by a roll call vote as follows
(votes by proxy indicated with *):
Tally: 6 Yeas, 12 Nays
Yeas (6): Grassley (R-IA), Hatch (R-UT)*, Sessions (R-AL),
Cornyn (R-TX), Lee (R-UT)*, Cruz (R-TX).
Nays (12): Leahy (D-VT), Feinstein (D-CA), Schumer (D-NY),
Durbin (D-IL), Whitehouse (D-RI), Klobuchar (D-MN)*, Franken
(D-MN), Coons (D-DE), Blumenthal (D-CT)*, Hirono (D-HI), Graham
(R-SC), Flake (R-AZ).
Senator Lee offered an amendment (Lee4-MDM13493) that would
have required Congressional ratification of the Secretary of
Homeland Security's certification that the triggers had been
satisfied, before those in Registered Provisional Immigrant
status could apply for green cards. The amendment was not
agreed to by a roll call vote as follows (votes by proxy
indicated with *):
Tally: 6 Yeas, 12 Nays
Yeas (6): Grassley (R-IA), Hatch (R-UT)*, Sessions (R-AL),
Cornyn (R-TX)*, Lee (R-UT), Cruz (R-TX).
Nays (12): Leahy (D-VT), Feinstein (D-CA)*, Schumer (D-NY),
Durbin (D-IL), Whitehouse (D-RI)*, Klobuchar (D-MN), Franken
(D-MN)*, Coons (D-DE)*, Blumenthal (D-CT), Hirono (D-HI),
Graham (R-SC), Flake (R-AZ).
Senator Cruz offered an amendment (Cruz1-MDM13528) that
would have replaced Title I with specific border security
requirements that would be required before the Secretary of
Homeland Security could process any applications for Registered
Provisional Immigrant status or agricultural blue cards,
failing which the Department of Homeland Security would face
budget reductions. The amendment was not agreed to by a roll
call vote as follows (votes by proxy indicated with *):
Tally: 5 Yeas, 13 Nays
Yeas (5): Grassley (R-IA), Sessions (R-AL), Cornyn (R-TX),
Lee (R-UT)*, Cruz (R-TX).
Nays (13): Leahy (D-VT), Feinstein (D-CA), Schumer (D-NY),
Durbin (D-IL), Whitehouse (D-RI), Klobuchar (D-MN), Franken (D-
MN)*, Coons (D-DE)*, Blumenthal (D-CT)*, Hirono (D-HI), Hatch
(R-UT), Graham (R-SC), Flake (R-AZ).
Amendments Withdrawn
Senator Sessions offered an amendment (Sessions38-MDM13366)
that would have struck provisions of the bill that specify the
training requirements to be issued by the Secretary of Homeland
Security, in consultation with the Civil Rights Division of the
Department of Justice, for border patrol agents, U.S.
Immigration and Customs Enforcement agents, and other U.S.
Department of Homeland Security personnel. The amendment was
withdrawn.
Senator Cornyn offered an amendment (Cornyn2-MDM13521) that
would have required the Comprehensive Southern Border Security
Strategy to include a plan for reducing wait times at land
ports of entry, increased land port of entry personnel by 5,000
officers, and taken other steps to expand the infrastructure at
land ports of entry. It would have paid for these expansions
with a general rescission of unobligated funds. The amendment
was withdrawn.
2. TITLE II
a. Overview of Amendments
Title II of S. 744 establishes the legalization framework
for eligible undocumented persons to apply for Registered
Provisional Immigrant (RPI) status and, ultimately, seek a path
to legal permanent residence and earned citizenship if they
meet the criteria set forth in the bill. The Title permits an
accelerated track for ``DREAM'' applicants (persons brought to
the United States under the age of 16 who meet certain higher
education or military service criteria), and creates an earned
pathway to legal status and citizenship for experienced
agricultural workers who have previously worked for a minimum
number of years in the United States and who fulfill
prospective employment requirements.
The legalization framework created in S. 744 is tough,
rigorous, and informed by the lessons learned from the
Immigration Reform and Control Act of 1986. Applicants must
pass criminal background and national security checks, satisfy
employment requirements, pay fines, fees, and back taxes, learn
civics and English, and wait for the backlogs for family-
sponsored and employment-based visa applicants to be cleared
before their applications for lawful permanent residence may be
processed. If an applicant obtains RPI status, he or she must
petition to renew that status after six years (including
passing renewed background checks). RPIs may only apply for
lawful permanent residence after 10 years have passed and the
triggers in the bill have been met. The work requirements in
the bill require all adult applicants to demonstrate that they
have been consistently employed throughout their time in RPI
status with breaks no longer than 60 days (subject to certain
limited exceptions) and that the applicant is not likely to
become a ``public charge,'' or that their income or resources
are equal to the Federal poverty level (at the RPI renewal
stage) or 125 percent of the Federal poverty level (at the LPR
stage). As discussed below, criminal ineligibility grounds
apply and build upon the tough criminal provisions for
immigrants already in existing law. Persons in RPI status may
not qualify for means-tested Federal benefits or subsidies
under the Patient Protection and Affordable Care Act (ACA).
National Security Concerns and Fraud Detection in the Legalization
Program
In addition to the rigorous screening processes already set
forth in S. 744, several amendments adopted by the Committee
added further national security screening and fraud detection
efforts in the application process for previously undocumented
persons. An amendment offered by Ranking Member Grassley,
Grassley19, requires new benefit fraud assessment and
compliance review programs within the Department of Homeland
Security that will conduct audits, publish annual reports, and
develop counter-measures for fraud detection in connection with
certain immigration programs. Senator Flake added an amendment,
Flake4, that requires the Secretary of Health and Human
Services to conduct regular audits to ensure that individuals
in Registered Provisional Immigration status do not
fraudulently receive Federal means-tested benefits, which they
are ineligible for under the base bill.
The Committee adopted two amendments to strengthen the
already stringent background check requirements in the bill. An
amendment by Senator Flake, Flake3, requires those in
Registered Provisional Immigrant status to undergo additional
law enforcement and national security screenings when they
apply to renew their RPI status after six years. An amendment
offered by Senator Graham, Graham3, requires additional
national security screening for applicants who are from
countries or regions that pose a national security threat to
the United States, or that harbor groups that pose a national
security threat.
A further amendment by Senator Cornyn, Cornyn4, requires
the Department of Homeland Security to identify certain
applicants for RPI status who are seeking a waiver for a
criminal offense, to work with relevant prosecutors to make
reasonable efforts to notify any victims of that offense that
the individual has applied for RPI status, and to offer the
victim an opportunity to request consultation regarding the
individual's waiver application.
The Committee did not adopt an amendment by Senator Lee,
Lee12, that would have prohibited the use of sworn affidavits
by Registered Provisional Immigrants to verify their employment
and educational history when applying for adjustment of status.
The amendment was opposed by immigration experts and advocacy
groups, who noted that many undocumented workers do not possess
formal employment records, and requiring paper documentation
would make the application process impossible for potentially
hundreds of thousands of individuals, undermining a central
purpose of the bill. Senators noted that the bill already
requires the submission of additional documentation such as
bank records, business records, and available employment
records to supplement a sworn affidavit, which will help reduce
fraud concerns. The Committee similarly rejected an amendment
by Senator Lee, Lee10, that would have changed S. 744's current
requirement that RPIs pay all back-taxes assessed by the
Internal Revenue Service (IRS), and instead placed the burden
on RPI applicants to demonstrate that they have paid all
applicable taxes owed to the Federal government. In opposing
this amendment, Senators noted that the tax payment requirement
in S. 744 establishes a clearer threshold for review and a more
workable system, because it relies on the IRS to make an
assessment of tax payments owed. Notably, the 2006 Senate-
passed immigration bill did not require immigrants to satisfy
any tax requirement until they sought lawful permanent
residence status.
Ensuring Participation in the Path
Several other amendments adopted by the Committee in Title
II improve upon the legalization framework in the bill, to
ensure that the process, while tough, is accessible enough that
unauthorized workers will come forward to apply for RPI status
instead of remaining in the shadows. Senator Hirono offered an
amendment, Hirono12, that will ease the financial strain for
RPI applicants by allowing them to pay the first of several
penalties owed in installments, instead of two $500 payments.
An amendment offered by Senator Blumenthal, Blumenthal12, will
allow DREAMers serving in the United States military to apply
for citizenship on the same terms as those who apply under
current law. Without this amendment, S. 744 would have
prevented DREAMers from naturalizing while in provisional
status, even if they were serving in the military.
Future Immigration
In addition to its legalization provisions, Title II also
creates a future immigration framework that is premised on a
merit-based points system, which will be available to all
immigrants who have had legal presence in the United States as
well as intending immigrants from abroad. Title II also
contains a variety of other modifications to the immigration
system, establishes a new non-immigrant agricultural worker
visa, and sets forth provisions relating to the integration of
new immigrants. The agricultural provisions were developed by
Senators Feinstein, Hatch, Bennet, and Rubio to address the
present and future workforce needs of the American agriculture
industry, including dairy, to create a streamlined process that
will help employers secure a sufficient legal workforce while
protecting U.S.-based workers from being displaced or otherwise
adversely affected by foreign workers.
Two amendments adopted by the Committee in Title II
encourage further immigration of high-skilled individuals.
Senator Whitehouse offered Whitehouse4, which creates a special
immigrant visa with expedited naturalization for immigrants who
come to the United States to work in Federal laboratories
dedicated to Federal national security, science and technology
research. An amendment offered by Senator Klobuchar,
Klobuchar5, improves the Conrad 30 Physician program, by
allowing physician applicants who are denied a J-1 waiver
because the State in which they applied has reached its annual
cap of 30 waivers to extend their legal status for six months
so they may apply to work in a medically underserved area in
another State.
An amendment adopted by the Committee that was proposed by
Senator Coons, Coons3, provides special immigrant status for
the surviving spouses and children of employees of the U.S.
government overseas who are killed in the line of duty.
Ineligibility Provisions
The Committee considered, but did not adopt, a number of
amendments that would have created additional bars to the
legalization programs for certain individuals. An amendment by
Ranking Member Grassley, Grassley11, would have removed the
provision of the bill that allows undocumented persons facing
removal to stay removal proceedings and apply for RPI status if
they appear prima facie eligible for such status. The amendment
would have also eliminated the limited RPI eligibility waiver
that will allow some undocumented persons who departed the
country prior to December 31, 3011, to apply for RPI status and
reunite with their families in the United States. During
Committee debate, the view prevailed that fairness requires
that someone who appears eligible for RPI status and who is in
removal proceedings should have an opportunity to apply for
status if they are eligible.
During deliberation, the Committee rejected an amendment
offered by Senator Cornyn, Cornyn3, that would have changed the
criminal bars for RPI and lawful permanent residence status to
preclude anyone who: 1) had one conviction, at any time, for a
misdemeanor involving domestic violence, violation of a
protection order, child abuse, assault, or drunk driving,
unless the applicant could demonstrate by clear and convincing
evidence that he or she was innocent of the offense or that no
offense occurred; 2) had convictions for three misdemeanors of
any kind, at any time (other than minor traffic offenses and
offenses relating to immigration status) even if the
misdemeanors had arisen out of a single incident; or 3) had
committed any offense under foreign law that would render them
inadmissible for entry to the United States. Although intended
to protect victims, the amendment was opposed by a large
coalition of groups that serve victims of domestic violence,
sexual abuse, child and elder abuse, dating violence, and
stalking.\157\ They expressed concern that the amendment could
have the unintended consequence of sweeping in someone who is
herself a victim of domestic violence, because it is not
uncommon for an alien who is a victim of domestic violence to
be arrested due to language and cultural barriers that prevent
her from explaining that she acted in self-defense or that an
abuser's allegations are false. Senators on the Committee made
clear that while domestic violence and child abuse are serious
crimes, the concerns voiced were persuasive. They noted that
there are already significant criminal penalties and
immigration consequences for abuse in existing law, and that S.
744 already contains stringent criminal bars to legalization.
Many of the offenses listed in Cornyn3 are already non-waivable
bars to admissibility and eligibility.
---------------------------------------------------------------------------
\157\Letter from 156 Advocacy Groups to Members of the U.S. Senate
Judiciary Committee (May 15, 2013) (copy on file with Senate Judiciary
Committee).
---------------------------------------------------------------------------
Disclosure of Social Security Numbers
The Committee also considered and rejected an amendment
offered by Ranking Member Grassley, Grassley18, that would have
rendered all applicants ineligible for legalization unless they
disclosed any Social Security Number or name they previously
used to gain employment in the United States during the time
they were undocumented. Numerous advocacy groups and
immigration attorneys warned that such a provision would
discourage undocumented immigrants from coming out of the
shadows to seek RPI status, undermining a core purpose of the
bill. Others expressed concern that the amendment could be used
to attack employers who may have previously employed illegal
workers, and that gathering such information raises privacy and
security concerns.
Judicial Review
The Committee did not adopt an amendment offered by Ranking
Member Grassley, Grassley17, that would have significantly
limited provisions in the bill establishing judicial review and
eliminated any Federal court review of the adjudication of
legalization applications. This amendment was strongly opposed
by the Leadership Conference on Civil and Human Rights and
other groups, who warned that the amendment would eliminate the
important backstop of the Federal court system to determine
whether the executive branch properly implemented the
bill.\158\ The amendment was also opposed in a letter to the
Committee by the group Justice at Stake, which, like the
Leadership Conference, underscored the danger of narrowing the
scope of judicial review.\159\ During debate, Senators voiced
concern that the amendment would undermine the Constitutional
system of checks and balances by eliminating independent
oversight of a significant administrative program that will
affect millions of people. They also emphasized the risk of
error in the program, and the resulting need for judicial
review.
---------------------------------------------------------------------------
\158\Letter from the Leadership Conference on Civil and Human
Rights to Chairman Patrick Leahy and Ranking Member Charles Grassley,
U.S. Senate Judiciary Committee (May 9, 2013) (copy on file with the
Senate Judiciary Committee).
\159\Letter from Justice At Stake to Chairman Leahy and Ranking
Member Charles Grassley, U.S. Senate Judiciary Committee (May 9, 2013)
(copy on file with the Senate Judiciary Committee).
---------------------------------------------------------------------------
Amendments Relating to Public Benefits
During deliberations of Title II and Title III, the
Committee discussed extensively the provisions of S. 744 that
require applicants for RPI status and lawful permanent
residence to demonstrate their financial security, as well as
provisions in the bill that prohibit those in RPI status from
receiving any Federal means-tested benefits. Under current law,
lawful permanent residents who entered the country after 1996
typically only become eligible for Federal means-tested public
benefit programs (such as Medicaid or Temporary Assistance for
Needy Families) five years after they obtain a ``qualified''
immigrant status, such as lawful permanent residence.\160\ S.
744 expressly provides that RPIs are not eligible for Federal
means-tested benefits while they are in RPI status (a minimum
10-year period), and once they earn LPR status it further
requires them to wait an additional five years, or until they
obtain citizenship, before they may become eligible for those
programs. As a result, RPIs effectively face a minimum 13-year
bar before they could potentially qualify for means-tested
Federal benefits. Even then, such benefits would only be
available to individuals who had met the strict eligibility
criteria of the legalization program and had successfully
earned lawful permanent residence or citizenship over the prior
thirteen or more years.
---------------------------------------------------------------------------
\160\The Department of Health and Human Services has limited waiver
authority for certain programs, such as for TANF benefits with regard
to pregnant women and children.
---------------------------------------------------------------------------
Other provisions in the bill further limit access to
benefits programs. As discussed above, the bill requires those
in RPI status to apply to renew their RPI status after six
years, at which juncture applicants must (among other criteria)
show that they are not ``likely to become a public charge'' and
demonstrate their financial security by showing that they have
not been unemployed for any period longer than 60 days in the
past six years, or that they have maintained an income or
resources that are at or above the Federal poverty level.
Applicants seeking Lawful Permanent Resident status after 10
years must again meet the ``public charge'' test, and
demonstrate financial security by showing that they have not
been unemployed for any period longer than 60 days, or that
they have maintained an income or resources that equal to at
least 125 percent of the Federal poverty level. Applicants must
also pay all assessed Federal tax liability, and as much as
$2,000 in fines. During Committee deliberations, the Committee
rejected an amendment by Senator Sessions, Sessions10, that
would have made these strict criteria even harder for workers
by expanding the criteria for ``public charge,'' such that
applicants would have to show they were not likely to qualify
even for non-cash employment supports such as Medicaid, the
SNAP program, or the Children's Health Insurance Program
(CHIP). Senators opposing the amendment cited the strict
benefit restrictions and requirements already included in both
S. 744 and existing law, and the amendment was rejected by
voice vote.
Affordable Care Act
Under current law, immigrants who are lawfully present in
the United States are eligible for premium assistance tax
credits and cost-sharing reductions under the Patient
Protection and Affordable Care Act (Pub. L. No 111-148). The
subsidies available to purchase private health insurance are
not Federal public benefits and are available without a five-
year waiting period.\161\ In contrast, Section 2101 of S. 744
plainly states that RPIs may not receive premium assistance tax
credits or cost-sharing reductions under the Affordable Care
Act until they successfully obtain lawful permanent resident
status, a process that will take a minimum of 10 years. Section
2211 imposes similar restrictions on agricultural workers with
blue card status. These subsidies are denied even though RPIs
and blue card holders are considered ``lawfully present'' in
the United States.
---------------------------------------------------------------------------
\161\When Congress considered the Affordable Care Act, Pub. L. No
(Pub. L. 111-148, 124 Stat. 119) and the Health Care and Education
Reconciliation Act of 2010, Pub. L. No 111-152, 124 Stat. 1029 (2010),
it specifically chose to grant lawfully present immigrants access to
premium tax credits and cost-sharing subsidies available under the Act,
and chose not to impose a five-year bar to qualify for such benefits on
public health policy grounds. An amendment to impose a five-year bar
was defeated by a vote of 10-13 in the Senate Committee on Finance
(Oct. 1, 2009). See Continuation of the Open Executive Session to
consider an Original Bill Providing for Health Care Reform, Hearing
Before the S. Comm. on Finance, 110th Cong. (2009).
---------------------------------------------------------------------------
During deliberations, some Republican Senators called for
S. 744's tight restrictions on affordable healthcare for
immigrants to be restricted even further, including by
preventing immigrants from benefiting from the Affordable Care
Act not only during the 10 or more years in which they are in
RPIs status, but also for a further five years after they have
achieved lawful permanent residence. Under this approach,
immigrants on the path to citizenship would have been blocked
from accessing the subsidies under the Affordable Care Act for
a minimum of 15 years after they first begin the path. Advocacy
groups have strongly opposed these reforms, noting that such
restrictions would deny access to affordable health insurance
for large categories of individuals and undermine the important
cost-saving and public health objectives of the ACA.
Social Security Credits; Child Tax Credit; Earned Income Tax Credit
During Committee deliberations, the Committee also
discussed provisions in the bill concerning tax payments by
undocumented workers under current law, and future payments by
those who will qualify for RPI status. Senator Hatch filed but
did not offer an amendment, Hatch24, that would have prevented
previously undocumented workers from claiming credit for
contributions they paid into the Social Security system through
payroll taxes during the years they were in undocumented
status. Advocates and others strongly opposed this amendment,
noting that many workers have paid into Social Security for
years, and denying them the benefit of those payments in the
future will severely harm families and retirees when immigrants
who earn citizenship reach retirement age. The Social Security
Administration estimates than in 2010 undocumented workers paid
$13 billion in payroll taxes. Advocates also warned that an
amendment such as Hatch24 could not be fairly or accurately
administered, because many workers (such as visa overstays)
have gone in and out of work authorized status over the years,
and the Social Security Administration and DHS do not have
accurate records to fairly credit their lawful work. As a
result, the amendment would cause many lawful workers to lose
the benefit of taxes they have paid. Moreover, Hatch24 would
have risked the quarters of many legal immigrants who were
never in undocumented status, because it required the Social
Security Administration to affirmatively determine that each
quarter they worked was a quarter in which they had legal
status--information that DHS may not be able to verify
affirmatively even for those who never were in an undocumented
status.
During markup, Senator Sessions offered an amendment,
Sessions30, that would deny the Child Tax Credit to families
who paid taxes with an Individual Taxpayer Identification
Number (ITIN) instead of a Social Security Number (SSN).
Opponents of the amendment noted that while many undocumented
workers use ITINs to file their tax returns, not all ITIN
filers are undocumented. Moreover, the Child Tax Credit is not
a welfare payment; it is a refundable credit for low-income
working families who pay taxes. Approximately 20 million
working families with children benefit from the refundable
credit each year. Without access to the Child Tax Credit, low-
and moderate-income immigrant taxpayers without Social Security
Numbers would face Federal tax bills that are significantly
higher than what other families in similar circumstances pay.
The amendment was defeated on an 8-10 vote.
Senator Sessions offered an amendment, Sessions31, to deny
the Earned Income Tax Credit to workers in RPI status and some
other categories of legal immigrants who are lawfully working
in this country. Under current law, undocumented immigrants are
not eligible to claim the Earned Income Tax Credit, but
immigrants who are working here legally may do so. Advocates
and others strongly opposed this amendment because it would
create an unprecedented two-tier tax system for workers that
would result in one group of legal workers owing significantly
higher Federal taxes than other legal workers with the same
earnings. Like the Child Tax Credit, the Earned Income Tax
Credit is not a welfare benefit; it is a credit only available
to working families and is an integral part of the tax code.
The Earned Income Tax Credit benefits about six million people
with low incomes each year, almost all of whom (97 percent in
2010) are part of families with children. The amendment was
defeated on an 8-10 vote.
Withdrawn Amendments
A number of amendments that would have significantly
improved Title II were withdrawn out of concern that they would
have upset the bill's bipartisan support. Senator Leahy offered
and withdrew Leahy7, an amendment that would have amended the
Immigration and Nationality Act to recognize for immigration
purposes any marriage entered into in full compliance with the
laws of the State or foreign country within which such marriage
was performed, including same-sex marriages. After significant
debate, the Republican cosponsors of the bill made clear that
they would abandon their support of the comprehensive
immigration bill if the amendment were adopted. The Chairman
withdrew the amendment from consideration.
Additionally, Senator Blumenthal filed but did not offer
Blumenthal1, which would have allowed children under the age of
18 to qualify for the DREAM Act's expedited path to citizenship
if they meet all the eligibility criteria except the higher
education and military service requirements, which they are too
young to meet. Senator Hirono also filed but did not offer two
amendments, Hirono6 and Hirono7, that would have restored the
family immigration categories eliminated by the bill for the
siblings and unmarried children over age 31 of citizens and
legal permanent residents. These amendments were personally
important to the members who offered them, but were objected to
by Republican members and were subsequently withdrawn in an
effort to promote strong bipartisan support for S. 744.
b. List of Amendments Adopted, Not Adopted, and Withdrawn
Relating to Title II
In all, 49 amendments relating to Title II were considered
during the Committee markup, 21 offered by Democratic Senators
and 28 offered by Republican Senators. Of those 49 amendments,
28 were adopted, all with bipartisan support.
Amendments Adopted
Senator Feinstein offered an amendment (Feinstein13-
MDM13498) that ensures that grant programs authorized under
Section 2106 include agricultural workers seeking blue card
status. A second degree amendment (MDM13689) offered by Senator
Feinstein also precludes the denial or revocation of certain
non-immigrant visas solely because the applicant has expressed
a ``dual intent'' to be the beneficiary of an immigrant
application, or has filed such an application. The amendment as
modified was adopted by a voice vote.
Senator Whitehouse offered an amendment (Whitehouse4-
ARM13611) that provides a new conditional immigrant visa and
expedited naturalization for certain high-skilled and
specialized immigrants who come to the United States to work in
Federal laboratories dedicated to Federal national security,
science and technology research. The amendment was adopted by a
voice vote.
Senator Klobuchar offered an amendment (Klobuchar5-
MDM13503) that allows physicians whose J-1 waiver is denied
because their State's allotted number of waivers has been
filled to remain in legal status for 6 months so they may apply
for the Conrad 30 Program in a medically underserved area of
another State. It also authorizes their employment with the new
employer who has applied for the waiver until their new waiver
is approved. The amendment was modified by a second degree
amendment (MDM13702) offered by Senator Klobuchar, which allows
dual intent for J-1 visa holders entering the country for
graduate medical education or training. The amendment as
modified was adopted by a voice vote.
Senator Franken offered an amendment (Franken9-GRA13162)
that confirms that immigrant victims of domestic violence who
have received U visas are eligible for public or assisted
housing. The amendment was adopted by a voice vote.
Senator Coons offered an amendment (Coons3-EAS13380) that
confers special immigrant status on the surviving spouse or
child of a U.S. government employee overseas who is killed in
the line of duty. The amendment was adopted by a voice vote.
Senator Blumenthal offered an amendment (Blumenthal12-
MDM13543) that permits DREAM Act eligible individuals serving
in the Armed Forces to naturalize on the same terms as those
who apply under current law. The amendment was adopted by a
voice vote.
Senator Hirono offered an amendment (Hirono1-EAS13437) that
exempts from the numerical limitations on immigrant visas the
sons and daughters of Filipino veterans of World War II who
were naturalized under the Immigration Act of 1990 or other
specified Federal law. The amendment was adopted by a voice
vote.
Senator Hirono offered an amendment (Hirono11-MDM13540)
that requires the Comptroller General to conduct a study of the
impact on families and workers of the new merit-based
immigration system created by Title II. The amendment was
adopted by a voice vote.
Senator Hirono offered an amendment (Hirono12-ARM13554)
that permits individuals applying for Registered Provisional
Immigrant status to pay the first $1000 penalty in installment
payments. The amendment was adopted by a voice vote.
Senator Hirono offered an amendment (Hirono20-MDM13523)
that requires the Secretary of Homeland Security to collect
certain information, which shall be kept confidential, from
applicants for Registered Provisional Immigrant status for the
purpose of understanding immigration trends. The amendment was
modified by a second degree amendment (MDM13671) offered by
Senator Hirono and was adopted by a voice vote.
Senator Hirono offered an amendment (Hirono21-BOM13213)
that ensures that youth who are brought to the United States
before the age 16 would not be prohibited from accessing
financial aid for higher education. The amendment was modified
by a second degree amendment (MDM13659) offered by Senator
Hirono and was adopted by a voice vote.
Ranking Member Grassley offered an amendment (Grassley19-
ARM13529) that requires the Department of Homeland Security to
establish a fraud assessment program through the Fraud
Detection and National Security Directorate with respect to
Registered Provisional Immigrants, DREAM applicants, blue card
applicants, U visas, and Iraq/Afghanistan visas. The program
will include audits to identify and analyze types of fraud, and
submission of annual reports on fraud trends. Any instances of
fraud discovered through the program can be used to deny or
revoke immigration benefits. The program will be paid for
through the Comprehensive Immigration Reform Trust Fund. The
amendment was modified and adopted by a voice vote.
Senator Graham offered an amendment (Graham3-DAV13381),
modified by a second degree amendment also offered by Senator
Graham (MDM13668), that requires additional national security
screening of applicants for Regional Provisional Immigrant
status and their derivatives who are citizens or long-time
residents of a country or region that poses a threat to
national security or harbors organizations that pose a threat
to national security. The amendment as modified by the second
degree amendment was adopted by a voice vote.
Senator Cornyn offered an amendment (Cornyn4-ALB13424) that
changes the legalization waiver for individuals who departed
the United States prior to December 31, 2011. As amended by a
second degree amendment (ALB13471), it requires the Department
of Homeland Security in certain cases in which an RPI applicant
has been convicted of a crime, to work with willing state and
local prosecutors to identify and locate the victim, provide
written notice of the RPI application, and allow the victim 60
days to consult DHS regarding the application. The second
degree amendment was adopted by a voice vote.
Senator Cornyn offered an amendment (Cornyn8-MDM13316)
relating to the EB-5 visa program for investors, that permits
areas to be designated as Targeted Employment Areas for
purposes of that program if they are negatively affected by the
Base Realignment and Closure Program. The amendment was
modified by a second degree amendment (EAS13622) offered by
Senator Cornyn and the amendment as modified was adopted by a
voice vote.
Senator Flake offered an amendment (Flake3-MDM13454) that
requires Registered Provisional Immigrants to undergo national
security and law enforcement background checks before their
status can be renewed at the six-year renewal period. The
amendment, as modified by a second degree by Senator Schumer
(EAS13631), also makes several clarifications regarding
eligibility of dependent spouses and children for the
legalization programs. The amendment was modified by second
degree amendments offered by Senator Schumer (EAS13631) and
Senator Flake (MDM13649) and agreed to by a voice vote.
Senator Flake offered an amendment (Flake4-MDM13529) that
adds a requirement that the Secretary of Health and Human
Services conduct regular audits to ensure that individuals in
Registered Provisional Immigrant status are not fraudulently
receiving Federal means-tested public benefits. The amendment
also adds a conviction for fraudulently claiming or receiving
Federal means-tested public benefits after receiving Registered
Provisional Immigrant status to the list of reasons that
Department of Homeland Security can revoke Registered
Provisional Immigrant status. The amendment was adopted by a
voice vote.
Amendments Not Adopted
Senator Hirono offered an amendment (Hirono10-ARM13626)
that would have allocated six percent of worldwide visas for
family-sponsored immigrants to address separations that result
in extreme hardship. The amendment was not agreed to by a roll
call vote as follows (votes by proxy indicated with *):
Tally: 7 Yeas, 11 Nays
Yeas (7): Leahy (D-VT), Whitehouse (D-RI), Klobuchar (D-
MN), Franken (D-MN), Coons (D-DE), Blumenthal (D-CT), Hirono
(D-HI).
Nays (11): Feinstein (D-CA), Schumer (D-NY), Durbin (D-IL),
Grassley (R-IA), Hatch (R-UT), Sessions (R-AL), Graham (R-SC),
Cornyn (R-TX), Lee (R-UT)*, Cruz (R-TX)*, Flake (R-AZ).
Ranking Member Grassley offered an amendment (Grassley11-
ARM13536) that would have struck provisions allowing
apprehended individuals a reasonable opportunity to apply for
Registered Provisional Immigrant status if they are prima facie
eligible. The amendment would have also eliminated the limited
RPI eligibility waiver that will allow some undocumented
persons who departed the country prior to December 31, 2011 to
apply for RPI status and reunite with their families. The
amendment was not agreed to by a roll call vote as follows
(votes by proxy indicated with *):
Tally: 6 Yeas, 12 Nays
Yeas (6): Grassley (R-IA), Hatch (R-UT)*, Sessions (R-AL),
Cornyn (R-TX), Lee (R-UT), Cruz (R-TX).*
Nays (12): Leahy (D-VT), Feinstein (D-CA)*, Schumer (D-
NY)*, Durbin (D-IL), Whitehouse (D-RI), Klobuchar (D-MN)*,
Franken (D-MN), Coons (D-DE), Blumenthal (D-CT), Hirono (D-HI),
Graham (R-SC), Flake (R-AZ).
Ranking Member Grassley offered an amendment (Grassley16-
ARM13504) that would have required all fees and penalties for
immigrant visas to be adjusted at least yearly for inflation.
This amendment was not agreed to by voice vote.
Ranking Member Grassley offered an amendment (Grassley17-
EAS13399) that would have restricted judicial review of any
Department of Homeland Security decision on an immigrant's
adjustment of status or legalization. The amendment was not
agreed to by a roll call vote as follows (votes by proxy
indicated with *):
Tally: 6 Yeas, 12 Nays
Yeas (6): Grassley (R-IA), Hatch (R-UT)*, Sessions (R-AL),
Cornyn (R-TX), Lee (R-UT), Cruz (R-TX).
Nays (12): Leahy (D-VT), Feinstein (D-CA), Schumer (D-NY),
Durbin (D-IL), Whitehouse (D-RI), Klobuchar (D-MN), Franken (D-
MN)*, Coons (D-DE)*, Blumenthal (D-CT), Hirono (D-HI), Graham
(R-SC), Flake (R-AZ).
Ranking Member Grassley offered an amendment (Grassley18-
ARM13537) that would have prohibited the Secretary of Homeland
Security from granting Registered Provisional Immigrant status
to any person unless such person fully discloses all the names
and Social Security Number ever used to obtain employment. The
amendment was not agreed to by a roll call vote as follows
(votes by proxy indicated with *):
Tally: 8 Yeas, 10 Nays
Yeas (8): Grassley (R-IA), Hatch (R-UT)*, Sessions (R-AL),
Graham (R-SC)*, Cornyn (R-TX)*, Lee (R-UT), Cruz (R-TX)*, Flake
(R-AZ).
Nays (10): Leahy (D-VT), Feinstein (D-CA)*, Schumer (D-NY),
Durbin (D-IL)*, Whitehouse (D-RI), Klobuchar (D-MN)*, Franken
(D-MN), Coons (D-DE), Blumenthal (D-CT), Hirono (D-HI).
Senator Sessions offered an amendment (Sessions15-EAS13333)
that would have granted the Department of Homeland Security
sole authority to revoke or deny visas for security purposes,
without judicial review. The amendment was not agreed to by
voice vote.
Senator Sessions offered an amendment (Sessions16-MRW13311)
that would have required a fully electronic filing system for
legalization petitions and mandated specific law enforcement
procedures for the Department of Homeland Security. The
amendment was not agreed to by a roll call vote as follows
(votes by proxy indicated with *):
Tally: 6 Yeas, 12 Nays
Yeas (6): Grassley (R-IA), Hatch (R-UT), Sessions (R-AL),
Cornyn (R-TX), Lee (R-UT), Cruz (R-TX).*
Nays (12): Leahy (D-VT), Feinstein (D-CA)*, Schumer (D-NY),
Durbin (D-IL), Whitehouse (D-RI), Klobuchar (D-MN)*, Franken
(D-MN), Coons (D-DE), Blumenthal (D-CT), Hirono (D-HI), Graham
(R-SC)*, Flake (R-AZ).
Senator Sessions offered an amendment (Sessions30-MDM13331)
that would have required taxpayers and their qualifying
children to have a valid tax identification number to be
eligible for the Child Tax Credit under section 24 of the
Internal Revenue Code of 1986. The amendment was not agreed to
by a roll call vote as follows (votes by proxy indicated with
*):
Tally: 8 Yeas, 10 Nays
Yeas (8): Grassley (R-IA), Hatch (R-UT)*, Sessions (R-AL),
Graham (R-SC)*, Cornyn (R-TX)*, Lee (R-UT), Cruz (R-TX), Flake
(R-AZ).
Nays (10): Leahy (D-VT), Feinstein (D-CA), Schumer (D-NY),
Durbin (D-IL), Whitehouse (D-RI)*, Klobuchar (D-MN), Franken
(D-MN)*, Coons (D-DE)*, Blumenthal (D-CT), Hirono (D-HI).
Senator Cornyn offered an amendment (Cornyn3-MDM13315) that
would have changed the criminal bars for RPI and lawful
permanent residence status to preclude anyone who: (1) had one
conviction, at any time, for a misdemeanor involving domestic
violence, violation of a protection order, child abuse,
assault, or drunk driving, unless the applicant could
demonstrate by clear and convincing evidence that he or she was
innocent of the offense or that no offense occurred; (2) had
convictions for three misdemeanors of any kind, at any time
(other than minor traffic offenses and offenses relating to
immigration status), including if the misdemeanors arose out of
a single incident; or (3) committed an offense under foreign
law that would render the person inadmissible for entry to the
United States. The amendment was not agreed to by a roll call
vote as follows (votes by proxy indicated with *):
Tally: 8 Yeas, 10 Nays
Yeas (8): Grassley (R-IA), Hatch (R-UT)*, Sessions (R-AL),
Graham (R-SC)*, Cornyn (R-TX), Lee (R-UT)*, Cruz (R-TX)*, Flake
(R-AZ).
Nays (10): Leahy (D-VT), Feinstein (D-CA)*, Schumer (D-NY),
Durbin (D-IL), Whitehouse (D-RI), Klobuchar (D-MN)*, Franken
(D-MN), Coons (D-DE), Blumenthal (D-CT), Hirono (D-HI).
Senator Cornyn offered an amendment (Cornyn5-MDM13500) that
would have required the Secretary of Homeland Security to
disclose immigrant application information to law enforcement
and would have authorized the Secretary of State to share
limited information with a foreign government. The amendment
was not agreed to by a roll call vote as follows (votes by
proxy indicated with *):
Tally: 9 Yeas, 9 Nays
Yeas (9): Feinstein (D-CA), Grassley (R-IA), Hatch (R-UT)*,
Sessions (R-AL), Graham (R-SC), Cornyn (R-TX), Lee (R-UT), Cruz
(R-TX), Flake (R-AZ).
Nays (9): Leahy (D-VT), Schumer (D-NY), Durbin (D-IL),
Whitehouse (D-RI), Klobuchar (D-MN), Franken (D-MN), Coons (D-
DE)*, Blumenthal (D-CT), Hirono (D-HI).
Senator Lee offered an amendment (Lee8-MDM13342) that would
have prohibited any individual who absconded or attempted to
reenter the United States after receiving a deportation order
from qualifying for Registered Provisional Immigrant status.
The amendment was not agreed to by voice vote.
Senator Lee offered an amendment (Lee10-ARM13485) that
would have required a Registered Provisional Immigrant
applicant to demonstrate that he or she had paid all Federal
taxes owed, rather than those assessed by the Internal Revenue
Service, as required in the base bill. The amendment was not
agreed to by voice vote.
Senator Lee offered an amendment (Lee12-MDM13378) that
would have prohibited the use of sworn affidavits to verify the
employment or education of Registered Provisional Immigrants
applying for permanent residence. The amendment was not agreed
to by voice vote.
Senator Cruz offered an amendment (Cruz2-DAV13378) that
would have denied eligibility for Federal, State, and local
government means-tested benefits to any individual who
previously entered or remained in the United States unlawfully,
regardless of the person's immigration status at the time of
applying for the benefits. The amendment was not agreed to by a
roll call vote as follows (votes by proxy indicated with *):
Tally: 6 Yeas, 12 Nays
Yeas (6): Grassley (R-IA), Hatch (R-UT), Sessions (R-AL),
Cornyn (R-TX)*, Lee (R-UT), Cruz (R-TX).
Nays (12): Leahy (D-VT), Feinstein (D-CA), Schumer (D-NY),
Durbin (D-IL), Whitehouse (D-RI), Klobuchar (D-MN), Franken (D-
MN), Coons (D-DE), Blumenthal (D-CT), Hirono (D-HI), Graham (R-
SC)*, Flake (R-AZ).
Senator Cruz offered an amendment (Cruz3-DAV13373) that
would have made any person ineligible for citizenship if they
had ever been willfully present in the United States while not
of lawful status. The amendment was modified by a second-degree
amendment offered by Senator Cruz (MDM13677) that would have
created a limited exception to the amendment for certain
asylees. The amendment as modified was not agreed to by a roll
call vote as follows (votes by proxy indicated with *):
Tally: 5 Yeas, 13 Nays
Yeas (5): Grassley (R-IA), Sessions (R-AL), Cornyn (R-TX)*,
Lee (R-UT), Cruz (R-TX).
Nays (13): Leahy (D-VT), Feinstein (D-CA)*, Schumer (D-NY),
Durbin (D-IL), Whitehouse (D-RI)*, Klobuchar (D-MN), Franken
(D-MN), Coons (D-DE), Blumenthal (D-CT), Hirono (D-HI), Hatch
(R-UT)*, Graham (R-SC)*, Flake (R-AZ).
Senator Cruz offered an amendment (Cruz4-MDM13526) that
would have established an annual cap of 1,012,500 for
employment-based immigrant visas and an annual cap of 337,500
for family-sponsored immigrant visas, and made other changes to
the family visa category. The amendment was not agreed to by a
roll call vote as follows (votes by proxy indicated with *):
Tally: 6 Yeas, 12 Nays
Yeas (6): Grassley (R-IA), Hatch (R-UT), Sessions (R-AL),
Cornyn (R-TX), Lee (R-UT)*, Cruz (R-TX).
Nays (12): Leahy (D-VT), Feinstein (D-CA), Schumer (D-NY),
Durbin (D-IL), Whitehouse (D-RI), Klobuchar (D-MN)*, Franken
(D-MN), Coons (D-DE)*, Blumenthal (D-CT), Hirono (D-HI), Graham
(R-SC), Flake (R-AZ).
Amendments Withdrawn
Chairman Leahy offered an amendment (Leahy7-MDM13374) to
recognize, for purposes of the Immigration and Nationality Act,
any marriage entered into in full compliance with the laws of
the State or foreign country within which such marriage was
performed. After an extensive debate and hearing that
Republican supporters would abandon their support for the
legislation, Chairman Leahy withdrew this amendment.
Senator Blumenthal offered an amendment (Blumenthal15-
MDM13448) to change the date at which undocumented immigrants
had to have entered the United States to qualify for Registered
Provisional Immigrant status from December 31, 2011, to April
17, 2013. Senator Blumenthal withdrew the amendment.
Senator Hirono offered an amendment (Hirono16-ERN13170) to
eliminate the five-year bar for lawful permanent residents to
obtain benefits, and provide full-scope Medicaid to lawfully
present immigrant adults who are otherwise eligible and to
children and pregnant women regardless of status. Senator
Hirono withdrew this amendment.
Senator Hirono offered an amendment (Hirono17-ERN13174) to
provide that an applicant's time in Registered Provisional
Immigrant status or blue card status would apply toward the
five-year waiting period for Federal means-tested public
benefit programs. The amendment included a ``do no harm''
provision that would have ensured that individuals who have an
immigration status that makes them eligible for affordable
health insurance prior to obtaining Registered Provisional
Immigrant or blue card status should not lose access to
affordable health coverage if they enter Registered Provisional
Immigrant status. The amendment would also have given States
the option to eliminate the five-year bar for public benefits
and to provide full-scope Medicaid to lawfully present
individuals, DREAMers, or blue card holders who are otherwise
eligible. Senator Hirono withdrew this amendment.
Senator Sessions offered an amendment (Sessions2-MRW13343)
to reduce the number of immigrants granted permanent resident
status and limited admission of nonimmigrant workers under S.
744 to 30 million during the 10 years after enactment. The
amendment was withdrawn.
3. TITLE III
a. Overview of Amendments
Title III of S. 744 focuses on interior enforcement of
immigration policy. Specifically, it establishes a mandatory E-
Verify system and mandatory entry-exit system to help law
enforcement identify visa overstays. It also modifies existing
law relating to asylum-seekers and refugees, strengthens
efforts to reduce human trafficking, and improves the
functioning and efficiency of our Nation's immigration courts.
It includes new measures to strengthen the penalties imposed on
immigrants who commit crimes, by expanding the already
significant grounds for deportation and inadmissibility in the
immigration code, increasing civil and criminal penalties for
illegal entry and re-entry, and creating new prohibitions
against manufacturing fraudulent immigration documents.
Contrary to views expressed by some opponents of the bill,
S. 744 contains strong measures to promote interior
enforcement. The E-Verify system created by the bill will apply
to all businesses across the Nation within five years of
implementing regulations, making it significantly harder for
unauthorized persons to obtain work without detection.
Provisions imposing a mandatory entry/exit system will crack
down on visa overstays, and changes to the student visa system
made in Title IV will address potential abuses in that program.
As discussed below, the bill also contains many provisions
to ensure that undocumented immigrants with significant
criminal histories are barred from staying in the United
States. The bill precludes from RPI status anyone with a single
felony conviction that is not based on immigration status.
There is no exception and there is no time limit. As a result,
the bar applies even to non-violent felony offenses (such as
receiving stolen property) that occurred years before.
The bill also bars anyone who has been convicted of an
``aggravated felony'' as defined in the Immigration and
Naturalization Act, which encompasses more than 40 offenses
including misdemeanors, crimes of violence, and theft crimes.
For example, one single decades-old shoplifting offense could
bar someone from RPI status. The bill also prohibits anyone
with more than two misdemeanor convictions from RPI status.
This prohibition can include misdemeanors as minor as
trespassing, littering, speeding, or loitering. The bill
further toughens the already significant grounds for
deportation and inadmissibility, to include involvement in
criminal street gangs, habitual drunk driving, immigration
document fraud, child abuse and domestic violence.
At the same time, the bill restores reasonable powers to
immigration judges to allow them to take into account the
individual circumstances in a case. In aggregate, the
provisions of Title III as amended by the Committee promote a
tough but fair interior enforcement system that will improve
our immigration system and make the Nation more secure.
National Security and Fraud Detection Efforts
A number of the amendments adopted in Title III strengthen
the existing national security and fraud enforcement provisions
included in S. 744. Senator Graham offered two amendments,
Graham1 and Graham2, in response to the bombing that took place
during the Boston Marathon on April 15, 2013. Graham1 requires
the Department of Homeland Security to terminate status of any
refugee or asylee who travels back to his or her home country
without good cause.\162\ Graham2 requires the Department of
Homeland Security to share with Federal law enforcement,
intelligence, and national security agencies information
concerning individuals who have overstayed their visas, and
requires DHS to employ reasonably available enforcement
resources to locate visa overstays and commence removal
proceedings.
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\162\Refugee Council USA wrote a letter to the Committee opposing
this amendment, which was also opposed by other advocacy groups. They
noted that ``any provision requiring automatic termination of refugee
or asylee status for any return to the country of nationality or last
habitual residence is contrary to the international obligations of the
[United States] and is unnecessary under existing U.S. law. Refugees
and asylees have many legitimate reasons for returning to their
countries of origin, particularly years later once they have attained
permanent resident status in the United States and the conditions that
caused them to flee have changed.'' See Letter from Refugee Council USA
to Members of the Senate Judiciary Committee (May 9, 2013) (copy on
file with the Senate Judiciary Committee).
---------------------------------------------------------------------------
Senator Feinstein offered an amendment that was adopted,
Feinstein4, which requires full biographic and biometric
security screening for all applicants for refugee and asylum
status by the Department of Homeland Security, the Department
of State, the Federal Bureau of Investigation, and the
Department of Defense. Senator Lee offered two amendments that
were adopted, Lee16 and Lee17, which strengthen enforcement
efforts to stop the use of fraudulent identification documents.
Drunk Driving Convictions
Senator Grassley offered an amendment, Grassley44, to make
a third drunk driving conviction an ``aggravated felony'' under
immigration law. An aggravated felony is an offense for which a
non-citizen, regardless of immigration status, may be
immediately deported and permanently barred from being
readmitted to the United States with no opportunity for
judicial review to take into consideration the specific
circumstances of an individual case. It is the harshest
immigration consequence available. The amendment was adopted
and significantly expanded the strong deportation and
inadmissibility penalties for repeat drunk drivers already in
the bill.
E-Verify
The Committee adopted several amendments to improve the
accuracy and transparency of the E-Verify System, which is
intended to ensure that only those authorized to work in the
United States are able to obtain employment. Senator Franken
offered an amendment, Franken2, that requires annual accuracy
audits of the E-Verify system by the DHS Inspector General, and
reduces the maximum penalty for first-time non-compliance with
E-Verify requirements if the error rate exceeds a certain rate.
He also offered an amendment, Franken4, that creates an Office
of the Small Business and Employee Advocate within U.S.
Citizenship and Immigration Services to serve as a resource for
small businesses and individuals using the E-Verify system.
The Committee adopted an amendment by Senator Coons,
Coons1, that requires the Secretary of Homeland Security to
create a system to notify individuals when their name receives
a non-confirmation determination or ``further action notice''
in the E-Verify system. The Committee also adopted two
amendments offered by Senator Grassley. The first, Grassley31,
requires a parent or guardian, rather than an adult, to attest
to the identity of a potential worker under the age of 18 who
does not possess other forms of identification. The second,
Grassley 36, requires U.S. Citizenship and Immigration Services
to provide a weekly report to U.S. Immigration and Customs
Enforcement providing the names of persons who received a final
non-confirmation in the E-Verify system.
Victim Protections
Other amendments adopted in Title III improve protections
for immigrant victims of domestic violence, elder abuse, and
other vulnerable populations, including unaccompanied children
arriving at the border. Senator Leahy offered an amendment,
Leahy3, to ensure that immigrant victims of domestic violence,
human trafficking, and other crimes do not wait longer than 180
days to receive work authorization while their immigration
applications are being adjudicated. An amendment offered by
Senator Klobuchar, Klobuchar2, adds ``elder abuse'' as one of
the crimes for which a U visa is available. Senators Feinstein,
Franken, and Hirono each offered amendments that were adopted
to improve the screening and other procedures available for
unaccompanied immigrant children to ensure that they are
appropriately cared for. Senator Blumenthal offered several
amendments that were adopted to strengthen the anti-human
trafficking provisions in the underlying bill.
Asylees and Refugees
The Committee extensively debated, but ultimately rejected,
other amendments that would have removed important improvements
to the asylum process made by the underlying bill. Senator
Grassley introduced two amendments, Grassley27A and B, that
would have struck key provisions of the bill text. Grassley 27A
would have eliminated Section 3401, which ends the current one-
year filing deadline on asylum claims, and replaced it with a
two and a half year filing deadline, and Section 3404, which
enhances efficiency in the asylum determination process by
giving expert asylum officers initial jurisdiction over certain
asylum cases.\163\ Both provisions eliminate unnecessary and
costly barriers to protection that have proven to have no
bearing on immigration fraud, but have resulted in the denial
of legitimate claims and costly and time-consuming litigation.
In discussing these amendments, Senators noted that the
Department of Homeland Security has significant mechanisms in
place for determining whether claims have merit and for
identifying fraud. There are also strict requirements related
to establishing credibility, complying with reasonable requests
for corroborating evidence, and undergoing background and
security checks. These mechanisms and requirements function
well, regardless of when they are applied.
---------------------------------------------------------------------------
\163\The Committee received a letter from the Leadership Conference
strongly opposing this amendment, which noted that the amendment
``would reinstate the one year filing deadline for asylum applications,
which has prevented thousands of bona fide refugees from receiving
asylum based on this arbitrary and technical requirement. The deadline
is inefficient and wastes government resources by overburdening the
immigration courts to determine arrival times of asylum applications
rather than their actual merits.'' See Letter from Judicial Conference
of the United States to Chairman Leahy (May 9, 2013) (copy on file with
the Senate Judiciary Committee).
---------------------------------------------------------------------------
Grassley27B would have eliminated a provision in the
underlying bill that would allow RPI applicants the ability to
legalize despite having filed an asylum claim that has been
deemed ``frivolous,'' or failing to voluntarily depart the
United States. During debate, Senators noted that it is not
uncommon for asylum applicants, who often speak little English
and have limited resources, to receive poor legal
representation or no legal representation, which can result in
poorly drafted filings and findings of ``frivolous'' claims.
The flexibility in the underlying bill was designed to ensure
that an otherwise eligible immigrant is not barred from seeking
RPI status for the mistakes of his or her lawyer. The amendment
was not agreed to on a roll call vote.
Criminal Street Gangs
Senator Grassley also introduced an amendment, Grassley43,
that would have significantly broadened the definition of a
criminal ``street gang'' and imposed immigration consequences
for gang membership beyond the significant penalties in
existing law, which are already strengthened by S. 744. The
bill makes individuals inadmissible, deportable, and ineligible
for RPI status for grounds related to gang activity. The bill
makes inadmissible and deportable those who have been convicted
of an offense for which an element was active participation in
a criminal street gang (as defined in Title 18). The bill also
permits the Department of Homeland Security to determine by
clear and convincing evidence that certain immigrants have
knowingly and willfully participated in a criminal street gang
since the age of 18 (even without any criminal
conviction).\164\ The amendment to further modify these
provisions was defeated on a roll call vote.
---------------------------------------------------------------------------
\164\In their Minority Views, Senators Grassley, Sessions, Lee, and
Cruz misstate the bill's provisions related to street gangs. They claim
that S.744 is weak on foreign national criminal street gang members. In
fact, the bill prevents street gang members from obtaining RPI status,
and amends current immigration law to make them inadmissible and
deportable for the first time. There is no requirement that individuals
have felony convictions for drug trafficking or violent crimes, for
example, to be considered members of criminal street gangs, as the
minority asserts. Indeed, certain individuals can be considered street
gang members under Section 3701 without any conviction at all. Section
3701(a)(J)(i)(II) gives the Secretary the authority to designate
certain individuals as street gang members even if they have no
criminal convictions at all, based on information from law enforcement
sources that the Secretary deems credible.
---------------------------------------------------------------------------
Access to Counsel and Legal Information
Some opponents of the legislation have criticized
provisions in the bill that provide access to counsel and legal
orientation programs for immigrants. These provisions, however,
will increase court efficiency and save taxpayer dollars. They
have been strongly supported by the National Association of
Immigration Judges, who wrote to the Committee stating: ``It is
our experience that when noncitizens are represented by
attorneys, Immigration Judges are able to conduct proceedings
more expeditiously and resolve cases more quickly.''\165\ They
note that represented individuals are less likely to pursue
claims that do not have a legal basis, and that programs to
promote appointed counsel will help reduce exploitation of
immigrants by notarios and promote better functioning in the
courts. Similarly, the Department of Justice's Legal
Orientation Program (LOP) demonstrates the efficiency and cost
benefits of providing legal assistance. The program, which
currently provides basic legal information in a limited number
of immigration detention facilities, results in legal
proceedings that are 13 days shorter on average. Given the
average detention bed cost of $97 a day, this reduction in
detention time has led to considerable cost-savings.\166\ These
provisions are designed to save tax payer money and promote a
fair and efficient immigration court system.
---------------------------------------------------------------------------
\165\Letter from Dana Leigh Marks, President, National Association
of Immigration Judges, to the U.S. Senate Judiciary Committee (March
22, 2103) (copy on file with the Senate Judiciary Committee).
\166\Vera Institute of Justice, Legal Orientation Program
Evaluation and Performance and Outcome Report, Phase II (May 2008)
available at: http://www.justice.gov/eoir/reports/LOPEvaluation-
final.pdf.
---------------------------------------------------------------------------
b. List of Amendments Adopted, Not Adopted, and Withdrawn
Relating to Title III
In all, 73 amendments relating to Title III were considered
by the Committee, 38 offered by Democratic Senators and 35
offered by Republican Senators. Of those 73 amendments, 53 were
adopted, all with bipartisan support.
Amendments Adopted
Chairman Leahy offered an amendment (Leahy3-MRW13332) that
ensures that immigrant victims of domestic violence, human
trafficking, and other crimes do not wait longer than 180 days
to receive work authorization while their immigration
applications are being adjudicated. The amendment was adopted
by a voice vote.
Senator Feinstein offered an amendment (Feinstein3-
MDM13397) that provides for a total of 5,000 immigrant visas
for displaced Tibetans and their children and spouses. The
visas will be issued over a three-year period beginning October
2013. To be eligible for the visas, Tibetans must be living in
India or Nepal. Priority will be given to those Tibetans who
are not resettled in India or Nepal, and who will be most
likely to successfully resettle in the United States. The
amendment was adopted by a voice vote.
Senator Feinstein offered an amendment (Feinstein4-
MDM13398) that codifies national security and fraud screening
practices that are currently used by the Department of Homeland
Security in refugee and asylum cases. This screening requires
biographic and biometric screening on a number of databases
maintained by several Federal agencies including the Department
of Homeland Security, the Federal Bureau of Investigation, the
Department of State, and the Department of Defense. The
amendment was adopted by a voice vote.
Senator Feinstein offered an amendment (Feinstein5-
MDM13339) that creates a pilot program using the services of
child welfare professionals to aid U.S. Customs and Border
Protection in screening unaccompanied children attempting to
enter the United States illegally for signs of human
trafficking or other abuse. The program will operate at six or
more points of entry with high numbers of unaccompanied
children, with a report to the Senate and House Judiciary
Committees due not later than 15 months after implementation
regarding the effectiveness of the program and recommendations
for expansion. The amendment was modified by a second degree
amendment offered by Senator Feinstein (MDM13664) that requires
the live training of all U.S. Customs and Border Protection
personnel who are likely to come into contact with
unaccompanied immigrant children. The amendment as modified was
adopted by a voice vote.
Senator Klobuchar offered an amendment (Klobuchar2-
JEN13517) that adds ``elder abuse'' as one of the crimes for
which a U visa is available. The amendment was adopted by a
voice vote.
Senator Franken offered an amendment (Franken2-ARM13598)
that requires annual accuracy audits of the E-Verify System by
the Department of Homeland Security Inspector General, and
reduces the maximum penalty for first-time non-compliance with
E-Verify requirements if the error rate exceeds a certain rate.
The amendment was modified by a second degree amendment offered
by Senator Franken (EAS13579) increasing the ``error rate''
that will trigger reduced fines from 0.26 percent to 0.3
percent, and was subsequently adopted by a voice vote.
Senator Franken offered an amendment (Franken4-ARM13606) to
create an Office of the Small Business and Employee Advocate
within U.S. Citizenship and Immigration Services that would be
a resource for small businesses and individuals using the E-
Verify system. The Office would also have authority to issue an
``Assistance Order'' on behalf of small businesses and
employees that face ``significant hardship'' as a result of an
E-Verify or employment verification-related action by the
Department of Homeland Security. The amendment was modified by
a second degree amendment offered by Senator Franken (MDM13609)
and was adopted by a voice vote.
Senator Franken offered an amendment (Franken7-ARM13584)
that requires the Department of Homeland Security, following an
enforcement action, to inquire whether individuals apprehended
are the parent or primary care giver of a child in the United
States, and to allow the detained person to make calls to
arrange for child care or notify the appropriate child welfare
agency that the parent or primary care giver cannot make care
arrangements. It precludes the Department of Homeland Security
from transferring parents away from the point of detention
until care arrangements are made and requires that detained
parents will be given access to their children, as well as
access to State courts, welfare agencies, and consulates to
ensure the care of the children. The amendment was agreed to by
a roll call vote as follows (votes by proxy indicated with *):
Tally: 18 Yeas, 0 Nays
Yeas (18): Leahy (D-VT), Feinstein (D-CA), Schumer (D-NY),
Durbin (D-IL)*, Whitehouse (D-RI), Klobuchar (D-MN), Franken
(D-MN), Coons (D-DE), Blumenthal (D-CT), Hirono (D-HI),
Grassley (R-IA), Hatch (R-UT)*, Sessions (R-AL), Graham (R-SC),
Cornyn (R-TX)*, Lee (R-UT), Cruz (R-TX), Flake (R-AZ).*
Nays (0):
Senator Franken offered an amendment (Franken8-ARM13600)
that transfers the administration of the unaccompanied alien
children legal services program from the Department of Health
and Human Services Refugee Resettlement Program to the
Department of Justice's Executive Office of Immigration Review.
The amendment was modified by a second degree amendment offered
by Senator Franken (MDM13607) and was adopted by a voice vote.
Senator Coons offered an amendment (Coons1-EAS13421) that
requires the Secretary of Homeland Security to create a system
for individuals to receive notification whenever the individual
is looked up in E-Verify. The amendment was adopted by a voice
vote and further modified by Coons9 (EAS13423), to require
notification when an individual's name receives a non-
confirmation determination in E-Verify or a ``further action
notice.''
Senator Coons offered an amendment (Coons5-DAV13374) to
require the Department of Homeland Security to provide an
individual in a removal proceeding with a complete copy of his
or her Department of Homeland Security file, typically referred
to as the ``A-File.'' The Department of Homeland Security is
not required to produce privileged documents, law enforcement
sensitive documents, or national security sensitive documents.
The amendment was adopted by a voice vote.
Senator Coons offered an amendment (Coons6-MRW13307) that
requires Immigration and Customs Enforcement, Customs and
Border Protection, and U.S. Citizenship and Immigration
Services to keep detailed records and submit reports to
Congress about the number of persons apprehended, detained, and
supervised. It further requires these agencies to have
interoperable databases to consolidate the information. The
amendment was modified by a second degree amendment offered by
Coons (MDM13663) and was adopted by a voice vote.
Senator Coons offered an amendment (Coons8-DAV13356) that
clarifies that applicants for asylum shall be granted a work
authorization180 days after their application is filed, if
their application is still pending. Currently, issuance of a
work authorization is discretionary, and immigration judges can
toll the 180 day clock based on docketing delays. The amendment
was adopted by a voice vote.
Senator Coons offered an amendment (Coons10-DAV13371) that
provides that individuals authorized to work in the United
States will not be denied professional, commercial, or business
licenses because of their immigration status. The amendment was
modified slightly by a second degree amendment (EAS13594)
offered by Senator Coons and was adopted by a voice vote.
Senator Coons offered an amendment (Coons12-ARM13532) to
deter foreign human rights violators from seeking safe haven in
the United States. Specifically, it amends the Torture Victims
Protection Act of 1991, P.L. 102-256, S. Rep. No. 102-249
(1991), to include claims for war crimes, genocide, or
widespread or systemic attacks on civilians. The amendment was
adopted by a voice vote.
Senator Blumenthal offered an amendment (Blumenthal2-
MDM13517) that states that solitary confinement for immigration
detainees should be imposed only in limited circumstances, such
as for a detainee who presents a serious security risk or has
committed a serious infraction. It limits such confinement to
the briefest period practicable, and would not permit solitary
confinement for individuals under 18 years of age. The
amendment was adopted by a voice vote.
Senator Blumenthal offered an amendment (Blumenthal3-
ARM13595) that strengthens the anti-human trafficking
provisions in the underlying bill by allowing workers who have
been the victims of foreign labor recruiter violations to seek
redress from their employer, if the employer has chosen to
contract with an unregistered, unregulated foreign labor
recruiter. The amendment was modified by a substitute amendment
offered by Blumenthal (EAS13618) and was adopted by a voice
vote.
Senator Blumenthal offered an amendment (Blumenthal4-
ARM13597) that requires the Department of Homeland Security to
consult with the Department of Labor when developing
regulations to implement the anti-human trafficking and foreign
labor recruiter provisions of the underlying bill. The
amendment was adopted by a voice vote.
Senator Blumenthal offered an amendment (Blumenthal5-
ARM13608) that strengthens the disclosure and transparency
requirements of the anti-human trafficking and foreign labor
recruiter provisions of the underlying bill. The amendment was
slightly modified by a second degree amendment offered by
Blumenthal (EAS13613) and was adopted by a voice vote.
Senator Blumenthal offered an amendment (Blumenthal8-
ARM13753) that codifies existing limitations on Immigration and
Customs Enforcement's enforcement actions in sensitive
locations (i.e. schools, hospitals, and places of worship),
while leaving exceptions for exigent circumstances and approved
operations. The amendment was modified by a second degree
amendment offered by Blumenthal (MDM13655) and was adopted by a
voice vote.
Senator Blumenthal offered an amendment (Blumenthal18-
EAS13448) that prohibits employers from withholding employment
records by treating the failure to do so as an unfair
immigration-related employment practice. The amendment was
adopted by a voice vote.
Senator Hirono offered an amendment (Hirono22-MDM13422)
that establishes a program to develop best practices for safe
repatriation of unaccompanied immigrant children to their
country of residence. This program will be established by the
U.S. Agency for International Development (USAID) Administrator
in consultation with the Department of Homeland Security, the
Department of Health and Human Services, and the Department of
Justice. The amendment was modified by a second degree
amendment offered by Senator Hirono (MDM13667), which made some
technical changes. The amendment as modified was adopted by a
voice vote.
Ranking Member Grassley offered an amendment (Grassley31-
MDM13354) that requires U.S. Citizenship and Immigration
Services to provide a weekly report to Immigration and Customs
Enforcement providing the names of all individuals who received
a final non-confirmation in the mandatory E-Verify System, and
the names of individuals who received a tentative non-
confirmation in the System and were unable to or did not
contest the error. The amendment was modified in markup,
striking lines 9-13, relating to the use of this information.
The amendment, as modified, was adopted by a voice vote.
Ranking Member Grassley offered an amendment (Grassley36-
MDM13358) that changes a provision in S. 744 that governs what
identification a person under 18 years of age may provide for
work authorization purposes if the individual does not have a
passport, green card, driver's license, or voter registration
card. S. 744 states that the Secretary of Homeland Security may
allow ``other reliable means of identification, which may
include an attestation by a person 21 years of age or older.''
The amendment replaces ``person over 21'' with ``a parent or
guardian.'' The amendment was adopted by a voice vote.
Ranking Member Grassley offered an amendment (Grassley38-
MDM13360) that establishes a pilot program for parents to lock
Social Security Numbers of their minor children in order to
prevent identity theft. The amendment was adopted by a voice
vote.
Ranking Member Grassley offered an amendment (Grassley44-
MDM13530) to make it an ``aggravated felony'' under immigration
law to have been convicted of a third offense of driving under
the influence, if the offense was committed after the date of
enactment. The amendment was modified by a second degree
amendment offered by Senator Schumer (MDM13657), which struck
language stating ``regardless of the States in which the
convictions occurred or whether the offenses are classified as
misdemeanors or felonies under Federal or State law,'' and the
amendment was agreed to by a roll call vote as follows (votes
by proxy indicated with *):
Tally: 17 Yeas, 1 Nays
Yeas (17): Feinstein (D-CA), Schumer (D-NY), Durbin (D-IL),
Whitehouse (D-RI), Klobuchar (D-MN), Franken (D-MN), Coons (D-
DE), Blumenthal (D-CT), Hirono (D-HI), Grassley (R-IA), Hatch
(R-UT), Sessions (R-AL), Graham (R-SC), Cornyn (R-TX)*, Lee (R-
UT)*, Cruz (R-TX)*, Flake (R-AZ).
Nays (1): Leahy (D-VT).
Senator Hatch offered an amendment (Hatch2-MDM13383) that
increases penalties for drug offenses occurring on Federal
land. The amendment creates a new stand-alone Federal crime for
cultivating or manufacturing drugs on Federal property. The
amendment was adopted by voice vote.
Senator Hatch offered an amendment (Hatch6-MDM13437) that
requires the Department of Homeland Security to establish a
mandatory biometric exit system for non-citizens at the ten
U.S. airports with the highest volume of international travel
within two years, followed by a Government Accountability
Office report within five years. The amendment was modified by
a second degree amendment (MDM13648) offered by Senator
Schumer, to require a Government Accountability Office report
three years after enactment, to require a cost analysis, and to
clarify that funding to collect biometrics would come from the
bill's Trust Fund. The amendment, as modified by the second
degree amendment, was agreed to by a roll call vote as follows
(votes by proxy indicated with *):
Tally: 13 Yeas, 5 Nays
Yeas (13): Feinstein (D-CA), Schumer (D-NY), Durbin (D-
IL)*, Whitehouse (D-RI), Klobuchar (D-MN), Franken (D-MN),
Coons (D-DE)*, Blumenthal (D-CT), Hirono (D-HI), Hatch (R-UT)*,
Graham (R-SC)*, Lee (R-UT), Flake (R-AZ).
Nays (5): Leahy (D-VT), Grassley (R-IA), Sessions (R-AL),
Cornyn (R-TX)*, Cruz (R-TX).*
Senator Hatch filed an amendment (Hatch7-MDM13393), which
was offered by Senator Schumer on his behalf. The amendment
terminates the Amerasian Homecoming Act of 1988 upon passage of
S. 744. The amendment was agreed to by a voice vote.
Senator Graham offered an amendment (Graham1-DAV13389) that
requires the Department of Homeland Security to terminate
status for a refugee or asylee who travels to his or her home
country without good cause, before the refugee or asylee has
become a Lawful Permanent Resident. The amendment allows the
Department of Homeland Security to waive the requirement for
good cause. The amendment, as modified by a second degree
amendment (MDM13651) offered by Senator Graham, was adopted by
a voice vote.
Senator Graham offered an amendment (Graham2-DAV13390) that
requires the Department of Homeland Security to share with
Federal law enforcement, intelligence, and national security
agencies information on individuals who have overstayed their
visas. It also requires that ``all reasonable efforts are made
to locate the alien and to commence removal proceedings against
the alien.'' The amendment was modified by a second degree
amendment (MDM13652) offered by Senator Graham that changed
this language to say that ``reasonably available enforcement
resources are employed'' to locate visa overstays and commence
removal proceedings. The amendment was agreed to by a voice
vote.
Senator Lee offered an amendment (Lee16-ARM13486) that
reinstates the criminal offense of knowingly using fraudulent
identification to prove employment eligibility--a provision in
existing law that had been removed in the bill as drafted. The
amendment was modified slightly by a second degree amendment
(MDM13634) offered by Senator Lee, and the amendment was
adopted by voice vote.
Senator Lee offered an amendment (Lee17-EAS13515) that
makes attempting to use, possess, receive, buy, sell, or
distribute a passport in violation of the laws a crime subject
to the same penalties as those for using, possessing,
receiving, buying, selling or distributing a passport in
violation of the laws. The amendment was agreed to by voice
vote.
Amendments Not Adopted
Ranking Member Grassley offered an amendment (Grassley27A-
ARM 13551) that would have struck Section 3401 of the bill,
which eliminates the one-year filing deadline for asylum
applicants, and replaced it with a two and a half year filing
deadline. It also would have struck section 3404 of the bill,
which improves the efficiency of the asylum process by giving
the asylum office initial jurisdiction over certain cases where
the applicant has been found to have a credible fear of
persecution. The amendment was not agreed to by a roll call
vote as follows (votes by proxy indicated with *):
Tally: 6 Yeas, 12 Nays
Yeas (6): Feinstein (D-CA)*, Grassley (R-IA), Hatch (R-
UT)*, Sessions (R-AL)*, Cornyn (R-TX), Cruz (R-TX).*
Nays (12): Leahy (D-VT), Schumer (D-NY), Durbin (D-IL),
Whitehouse (D-RI), Klobuchar (D-MN)*, Franken (D-MN), Coons (D-
DE), Blumenthal (D-CT), Hirono (D-HI), Graham (R-SC), Lee (R-
UT), Flake (R-AZ).
Ranking Member Grassley offered an amendment (Grassley27B-
ARM13551) that would have removed a provision of S. 744 that
allows Registered Provisional Immigrant applicants the ability
to legalize despite having previously filed claims that were
deemed frivolous or having failed to voluntarily depart the
United States. The amendment was not agreed to by a roll call
vote as follows (votes by proxy indicated with *):
Tally: 9 Yeas, 9 Nays
Yeas (9): Feinstein (D-CA)*, Grassley (R-IA), Hatch (R-
UT)*, Sessions (R-AL)*, Graham (R-SC), Cornyn (R-TX), Lee (R-
UT), Cruz (R-TX)*, Flake (R-AZ).
Nays (9): Leahy (D-VT), Schumer (D-NY), Durbin (D-IL),
Whitehouse (D-RI), Klobuchar (D-MN)*, Franken (D-MN), Coons (D-
DE), Blumenthal (D-CT), Hirono (D-HI).
Ranking Member Grassley offered an amendment (Grassley29-
MDM13352) that would have required all employers to use the
Employment Verification System not later than 18 months after
date of enactment. The amendment was not agreed to by a roll
call vote as follows (votes by proxy indicated with *):
Tally: 5 Yeas, 13 Nays
Yeas (5): Grassley (R-IA), Sessions (R-AL), Cornyn (R-TX)*,
Lee (R-UT)*, Cruz (R-TX).*
Nays (13): Leahy (D-VT), Feinstein (D-CA), Schumer (D-NY),
Durbin (D-IL), Whitehouse (D-RI)*, Klobuchar (D-MN), Franken
(D-MN), Coons (D-DE)*, Blumenthal (D-CT), Hirono (D-HI)*, Hatch
(R-UT)*, Graham (R-SC)*, Flake (R-AZ).*
Ranking Member Grassley offered an amendment (Grassley34-
ARM13474) that, as modified by his second degree amendment
(MDM13622), would have made using another person's Social
Security Number subject to a sentence enhancement for
aggravated identity theft. The amendment also would have
criminalized identity fraud committed to ``facilitate or assist
in harboring or hiring undocumented workers'' with a sentence
of up to 20 years. The amendment, as modified, was not agreed
to by a roll call vote as follows (votes by proxy indicated
with *):
Tally: 8 Yeas, 10 Nays
Yeas (8): Grassley (R-IA), Hatch (R-UT), Sessions (R-AL),
Graham (R-SC)*, Cornyn (R-TX), Lee (R-UT), Cruz (R-TX)*, Flake
(R-AZ).
Nays (10): Leahy (D-VT), Feinstein (D-CA), Schumer (D-NY)*,
Durbin (D-IL), Whitehouse (D-RI), Klobuchar (D-MN), Franken (D-
MN), Coons (D-DE)*, Blumenthal (D-CT), Hirono (D-HI).*
Ranking Member Grassley offered an amendment (Grassley35-
MDM13357) that would have delayed the preemption of State and
local laws relating to employment verification until all
employers are required to use the E-Verify System. The
amendment was not agreed to by a roll call vote as follows
(votes by proxy indicated with *):
Tally: 5 Yeas, 13 Nays
Yeas (5): Grassley (R-IA), Hatch (R-UT)*, Sessions (R-AL),
Lee (R-UT), Cruz (R-TX).*
Nays (13): Leahy (D-VT), Feinstein (D-CA), Schumer (D-NY)*,
Durbin (D-IL), Whitehouse (D-RI), Klobuchar (D-MN), Franken (D-
MN), Coons (D-DE)*, Blumenthal (D-CT), Hirono (D-HI)*, Graham
(R-SC)*, Cornyn (R-TX)*, Flake (R-AZ).*
Ranking Member Grassley offered an amendment (Grassley43-
ARM13616) that would have broadened the definition of a
criminal street gang and allowed the Department of Homeland
Security to determine criminal gang membership (as defined in
the amendment) as grounds for inadmissibility or deportation.
The amendment was not agreed to by a voice vote.
Ranking Member Grassley offered an amendment (Grassley45-
MRW13334) to make it easier for prosecutors to seek the maximum
penalties for illegal entry and reentry crimes by removing
certain predicates. The amendment also narrowed the exception
to criminal penalties for those providing emergency
humanitarian assistance so that it applied only to the
provision of food, medical care and related transportation. The
amendment was not agreed to by a roll call vote as follows
(votes by proxy indicated with *):
Tally: 8 Yeas, 10 Nays
Yeas (8): Grassley (R-IA), Hatch (R-UT)*, Sessions (R-AL),
Graham (R-SC), Cornyn (R-TX)*, Lee (R-UT), Cruz (R-TX), Flake
(R-AZ).
Nays (10): Leahy (D-VT), Feinstein (D-CA), Schumer (D-NY),
Durbin (D-IL), Whitehouse (D-RI), Klobuchar (D-MN), Franken (D-
MN)*, Coons (D-DE)*, Blumenthal (D-CT), Hirono (D-HI).
Ranking Member Grassley offered an amendment (Grassley47-
EAS13355) that would have struck Section 3717 of the bill,
which requires timely custody hearings for all detained
immigrants, timely charging documents, and regular and timely
review of custody determinations. The amendment was not agreed
to by a voice vote.
Ranking Member Grassley offered an amendment (Grassley49-
MDM13414) that would have allowed Federal law enforcement
officers to consider an individual's country of origin in
connection with an investigation ``as permitted by the
Constitution and laws of the United States.'' The amendment was
not agreed to by a voice vote.
Ranking Member Grassley offered an amendment (Grassley52-
EAS13415) that would have required the Director of National
Intelligence to submit to Congress an Intelligence Community
Inspector General's report on the Federal government's handling
of the Boston marathon bombing of April 15, 2013 that includes
new areas for review. The amendment would have delayed the
implementation of refugee, asylee, and student visa provisions
until one year after the submission of this report and certain
sub-reports. The amendment was not agreed to by a voice vote.
Senator Sessions offered an amendment (Sessions10-
MRW13340), as modified by a second degree amendment (MDM13653),
that would have expanded the definition of ``public charge''
such that people who received non-cash health benefits could
not become legal permanent residents. This amendment would also
have denied entry to individuals whom the Department of
Homeland Security determines are likely to receive these types
of benefits in the future. The amendment was not agreed to by a
voice vote.
Senator Sessions offered an amendment (Sessions12-EAS13337)
that would have mandated a minimum bond of $5,000 for nationals
of non-contiguous countries who unlawfully entered and are
apprehended within 100 miles of the border or present a flight
risk. The amendment was not agreed to by a roll call vote as
follows (votes by proxy indicated with *):
Tally: 9 Yeas, 9 Nays
Yeas (9): Grassley (R-IA), Hatch (R-UT)*, Sessions (R-AL),
Graham (R-SC)*, Cornyn (R-TX)*, Lee (R-UT), Cruz (R-TX)*, Flake
(R-AZ), Feinstein (D-CA).
Nays (9): Leahy (D-VT), Schumer (D-NY), Durbin (D-IL),
Whitehouse (D-RI), Klobuchar (D-MN), Franken (D-MN), Coons (D-
DE), Blumenthal (D-CT), Hirono (D-HI).
Senator Sessions offered an amendment (Sessions31-OTT13233)
that would have denied the earned income tax credit (EITC) that
is available under current law to anyone who is not a U.S.
citizen or a Legal Permanent Resident. The amendment was not
agreed to by a roll call vote as follows (votes by proxy
indicated with *):
Tally: 8 Yeas, 10 Nays
Yeas (8): Grassley (R-IA), Hatch (R-UT)*, Sessions (R-AL),
Graham (R-SC), Cornyn (R-TX)*, Lee (R-UT), Cruz (R-TX)*, Flake
(R-AZ).
Nays (10): Leahy (D-VT), Feinstein (D-CA), Schumer (D-NY),
Durbin (D-IL), Whitehouse (D-RI), Klobuchar (D-MN), Franken (D-
MN), Coons (D-DE), Blumenthal (D-CT), Hirono (D-HI).
Senator Sessions offered an amendment (Sessions32-MDM13332)
that stated that it would have affirmed the authority of States
or localities to enforce Federal immigration law. The amendment
would have denied State Criminal Alien Assistance Program
(SCAAP) funding to States that do not assist in Federal
immigration law enforcement. It also would have required the
Attorney General to approve more State and local requests to
enter into 287(g) agreements that allow State and local
agencies to assist with immigration enforcement, among other
things. The amendment was modified slightly by a second degree
amendment (MDM13638) offered by Senator Sessions. The amendment
was not agreed to by a voice vote.
Senator Lee offered an amendment (Lee15-ARM13492) that
would have required discrimination to be intentional in order
for workers to be covered by anti-discrimination provisions.
The amendment was not agreed to by a roll call vote as follows
(votes by proxy indicated with *):
Tally: 6 Yeas, 12 Nays
Yeas (6): Grassley (R-IA), Hatch (R-UT), Sessions (R-AL),
Cornyn (R-TX)*, Lee (R-UT), Cruz (R-TX).*
Nays (12): Leahy (D-VT), Feinstein (D-CA), Schumer (D-NY)*,
Durbin (D-IL), Whitehouse (D-RI), Klobuchar (D-MN), Franken (D-
MN), Coons (D-DE)*, Blumenthal (D-CT), Hirono (D-HI)*, Graham
(R-SC)*, Flake (R-AZ).*
Amendments Withdrawn
Senator Whitehouse offered an amendment (Whitehouse3-
BAG13308) to extend S. 744's provision that prevents employers
from using the E-Verify system to re-verify the employment
authorization of a current employee. The amendment provided
that re-verification is also prohibited by an employer who
takes over the company if there is substantial continuity in
business operations. The amendment was withdrawn and did not
receive a vote.
Senator Whitehouse offered the ``Denying Firearms and
Explosives to Dangerous Terrorists Act of 2013'' as an
amendment (Whitehouse5-ALB13431). This legislation was
introduced as S. 34 in the 113th Congress by Senator
Lautenberg, with Senators Durbin, Schumer, Feinstein,
Whitehouse, and Blumenthal as cosponsors. The amendment was
withdrawn and did not receive a vote.
Senator Blumenthal offered an amendment (Blumenthal6-
ALB13433) to change the law to prohibit the sale of firearms or
ammunition to an immigrant who is not ``lawfully admitted for
permanent residence.'' The amendment would make a similar
change in the current law regarding possession of firearms and
ammunition. The effect of this amendment would have been that
only U.S. citizens, legal permanent residents, or those
lawfully admitted for permanent residence, could purchase or
possess firearms and ammunition. The amendment was withdrawn
and did not receive a vote.
Senator Sessions offered an amendment (Sessions7-EAS133357)
to require the Secretary of Homeland Security to submit to
Congress a quarterly report identifying the countries that have
refused to accept repatriation of ten percent or more of their
citizens who have been given final orders of removal from the
United States or are directed to return to their home countries
upon arrival in the United States. The amendment was modified
by a second degree amendment offered by Senator Sessions
(EAS13558), before being withdrawn.
4. TITLE IV
a. Overview of Amendments
Title IV makes a series of changes to non-immigrant,
employment-based visas, as well as visas for tourists and
students. It also establishes a new W non-immigrant visa
program for temporary, low-skilled, non-agricultural workers.
The provisions in Title IV are intended to make it easier for
American businesses to hire foreign workers when needed,
attract high-skilled talent to the country, promote foreign
investment and job creation in American communities, and spur
growth in domestic innovation.
Throughout the drafting and amendment process of Title IV,
Senators placed an emphasis on giving priority to American
workers seeking jobs, while also meeting the needs of
businesses to ensure the continued success of our economy. The
drafters of the bill and members of the Committee recognized
that immigrants have the potential to help stimulate our
economy by supplementing our workforce and helping American
businesses to succeed. However, there was bipartisan consensus
that employers should not engage in hiring practices that
permit systematic displacement of qualified Americans by
foreign workers. Several amendments offered by both Democratic
and Republican Senators and adopted by the Committee sought to
give American workers priority over foreign workers, and to
increase transparency in the hiring of foreign workers.
Amendments offered by Senators Schumer and Grassley were
adopted that require employers to post vacancies online for
U.S. workers before hiring a foreign worker (Schumer5),
prioritize the hiring of American workers in the majority of
cases (Schumer5), and disclose when they hire foreign workers
for high-skilled work (Grassley58). An amendment offered by
Senator Whitehouse (Whitehouse6) establishes a toll-free
hotline for employees to report violations relating to H-1B
visas, and requires a report by the Inspector General on the
Department of Labor's enforcement of H-1B provisions, including
the requirement for employers to pay H-1B visa holders the
prevailing wage.
H-1B and L Nonimmigrant Visas
Ranking Member Grassley's amendment Grassley58, requiring
transparent hiring of H-1B workers, was part of a larger
discussion among the Committee members about how best to meet
the needs of American businesses. Senators Schumer and Hatch
negotiated a number of changes that were ultimately adopted by
the Committee in a second degree amendment to Hatch10. Among
other changes, the Hatch/Schumer second degree amendment to
Hatch10 provided that (1) all H-1B employers must take good
faith steps to recruit U.S. workers for the occupational
classification for which an H-1B worker is sought, using
procedures that meet industry-wide standards and offering
compensation that is at least as great as that required to be
offered to H-1B nonimmigrants; (2) all employers must advertise
the job on an Internet website maintained by the Secretary of
Labor for such purpose; and, (3) if the employer is an ``H-1B
skilled worker dependent employer,'' the employer must offer
the job to any U.S. worker who applies and is equally or better
qualified for the job for which the nonimmigrant is sought.
These obligations are to be enforced by the Labor Department.
An amendment offered by Senator Klobuchar was incorporated into
this agreement, to require the job listings posted by employers
on the Department of Labor website to also be posted on State-
based labor websites.
The Hatch/Schumer second degree amendment to Hatch10 also
changed the formula set forth in S. 744 for calculating the
annual number of H-1B visas made available, allowing the
numeric cap to increase by certain increments if the cap is
reached within a certain time period, provided that the
unemployment level in the professional sector remains below 4.5
percent. During the Committee's deliberations, Senators noted
that the underlying bill effectively doubles and potentially
triples the number of H-1B visas to meet the needs of high tech
industries, who have frequently voiced frustration that the
existing cap for H-1B visas is reached within the first few
days of visas becoming available each year. The Hatch/Schumer
second degree amendment to Hatch10 made further changes
requested by U.S. companies, such as creating a presumption
that spouses of H-1B visa-holders may work, unless overridden
by the Department of State because the visa-holder's home
country does not provide reciprocity.
Other provisions of the underlying bill seek to address
concerns about the H-1B visa program, including concerns that
the program has been abused by a small number of companies that
use a disproportionate number of the H-1B visas that are
available each year. Specifically, the bill increases oversight
of the H-1B visa program by establishing a clear complaints
process; allowing the Secretary of Labor to review labor
condition applications for fraud and misrepresentation;
removing the requirement that the Secretary and the Secretary
of Labor must show ``reasonable cause'' before commencing an
investigation; and providing for random audits of H-1B
employers and annual audits of ``H-1B dependent'' employers
with over 100 employees. As noted, the bill strengthens
recruiting obligations by requiring all companies to list job
postings online and take good faith steps to recruit American
workers for the occupational classification for which foreign
workers are sought, obligations to be enforced by the
Department of Labor. The bill creates additional obligations
for companies that are ``H-1B dependent'', including heightened
wage requirements, requirements that the company not displace a
U.S. worker within a specified period of time, and limitations
on outsourcing. H-1B dependent companies must also pay
additional fees. Finally, the bill restricts further H-1B or L
visas for companies that have a very large percentage of H-1B
employees. Companies with 50 or more employees in the United
States will not able to petition for any new or additional H-1B
or L workers if their workforce comprises more than 75 percent
H-1B or L workers in Fiscal Year 2015, 65 percent in Fiscal
Year 2016, or if their companies are more than 50 percent H-1B
or L workers in Fiscal Years 2017 and thereafter.
Some Senators sought to increase the number of visas
available for high-skilled workers beyond what was provided in
the underlying bill. For example, Senator Cruz offered an
amendment (Cruz5) that would have immediately made available
325,000 H-1B visas irrespective of market conditions or
unemployment rates. Senators opposing this amendment cited its
potential to flood the job market with foreign workers,
disadvantaging American job seekers. Such efforts were opposed
by labor organizations, including the American Federation of
Labor and Congress of Industrial Organizations (AFL-CIO) and
the Service Employees International Union (SEIU). The amendment
was not agreed to.
STEM Funding
The Committee adopted a bipartisan amendment proposed by
Senators Hatch, Klobuchar, and Coons and modified by Senator
Schumer (Hatch9) that reformulates certain fees to promote
funding for Science, Technology, Engineering, and Math (STEM)
training for American students, including education at the K-12
level, grants to minority groups, and individual loan repayment
for higher education. A significant portion of the funds are
directed to the States for their direct expenditures on STEM-
related programs. The STEM provisions are funded by
reallocating certain fees associated with H-1B visas and the
labor certification applications filed by employers seeking an
employment-based green card for an employee.
EB-5 Program
Chairman Leahy offered an amendment (Leahy2) to improve and
enhance the EB-5 Regional Center Program, which facilitates
foreign investment and job creation in American communities.
Chairman Leahy's amendment, which was accepted unanimously by
voice vote, makes the EB-5 Regional Center Program permanent
and makes several other changes to ensure the longevity and
integrity of the program. Certain aspects of the Regional
Center program promote foreign capital investment in businesses
that create jobs in communities within the United States that
are either rural or experiencing a high rate of unemployment.
Provisions were included in Chairman Leahy's amendment to
ensure that investments made in Targeted Employment Areas,
designated areas in which a reduced investment amount on the
part of a foreign investor is permitted, will be concentrated
in rural and truly high unemployment areas as Congress
intended.
Qualified Entrepreneurs
Senate bill 744 creates a new three-year visa for qualified
entrepreneurs who have received investment of at least $100,000
from a qualified investor and generated at least $250,000 in
revenue and three jobs. The Committee adopted an amendment to
these provisions offered by Senator Whitehouse (Whitehouse1)
that allows investments by certain startup accelerators,
including government-funded entities, to be used to reach this
threshold.
Foreign Student Visas
Senate bill 744 contains several provisions to make it
easier for foreign students to remain in the United States
after they complete their studies, which were preserved during
the Committee's review. It was widely acknowledged during the
Committee's consideration of the legislation that immigration
policy should encourage well-educated students to remain in the
United States, so they can contribute their newly acquired
skills to the U.S. economy.
Ranking Member Grassley offered amendments, which were
adopted, to prevent fraud in the student visa program through
SEVIS (the Student and Exchange Visitor Information System) by
certain educational institutions that claim to sponsor
students. Senator Grassley's amendments include providing real
time information to U.S. Immigration and Customs Enforcement
about the status of student visas (Grassley77), and increasing
criminal penalties on those who violate the terms of a student
visa (Grassley69).
b. List of Amendments Adopted, Not Adopted and Withdrawn
Relating to Title IV
In all, 48 amendments relating to Title IV were considered
by the Committee, 17 offered by Democratic Senators and 31
offered by Republican Senators. Of the 48 amendments offered,
26 were adopted, all but one with bipartisan support.
Amendments Adopted
Chairman Leahy offered an amendment (Leahy2-MRW13335) that
makes the EB-5 Regional Center Program permanent, requires the
Department of Homeland Security to establish a binding
preapproval system for business plans, and removes the indirect
job counting requirement at the removal of conditions phase.
The amendment was adopted by a voice vote.
Senator Schumer offered an amendment (Schumer3-EAS13447)
that creates an E-6 Visa program to allow participation by
citizens from certain sub-Saharan African and Caribbean nations
who possess at least a high school degree or two years of work
experience in their field. The annual cap on the E-6 visa
program for citizens from all of these countries is 10,500
total. The amendment was adopted by a voice vote.
Senator Schumer offered an amendment (Schumer4-EAS13419)
that expands the J-Visa program to allow individuals who are
proficient in languages spoken as native languages in countries
that received less than 5,000 immigrant visas the previous year
to qualify as J-visa nonimmigrants if coming to perform any
type of work requiring specialized knowledge of that language.
The amendment was modified by a second degree amendment offered
by Senator Schumer (EAS13536) and adopted by a voice vote.
Senator Schumer offered an amendment (Schumer5-EAS12443)
that requires the Department of Labor to maintain a publicly
available electronic registry of positions and vacancies. The
amendment would also establish priority for U.S. workers over W
visa temporary workers in filling those vacancies. Finally, it
would provide more portability for W visa workers by creating a
secondary registry of employers that can hire W visa workers
already in the country if they cannot find American workers.
The amendment was modified by a second degree amendment offered
by Senator Schumer (EAS13560) and adopted by a voice vote.
Senator Whitehouse offered an amendment (Whitehouse1-
AYO13346) that includes investments from qualified startup
accelerators in determining whether the INVEST visa investment
thresholds are satisfied. The amendment was modified by a
second degree amendment offered by Senator Whitehouse
(AYO13360) and adopted by a voice vote.
Senator Whitehouse offered an amendment (Whitehouse6-
DAV13388) that requires the Department of Labor to create a
toll-free hotline for employees to report violations relating
to H-1B visas, and requires a report by the Inspector General
on the Department of Labor's enforcement. The amendment was
modified by a second degree amendment offered by Senator
Whitehouse (DAV13418) that added a requirement that the
Department of Labor offer an Internet website for reporting
violations. The amendment, as modified, was adopted by a voice
vote.
Senator Klobuchar offered an amendment (Klobuchar1-
EAS13431) that allows abused spouses and children of non-
immigrant, temporary visa holders to apply for independent
immigration status using the existing Violence Against Women
Act self-petition process. That process is currently only
available to the abused spouses and children of U.S. citizens
and lawful permanent residents. The amendment was adopted by a
voice vote.
Senator Klobuchar offered an amendment (Klobuchar3-
EAS13420) that creates a pilot program for processing short-
term tourist visa applications by using videoconferences to
conduct interviews. The Department of State would report to
Congress on the pilot and recommend whether to broaden it or
discontinue it if it posed an undue security risk. The
amendment was adopted by a voice vote.
Senator Hirono offered an amendment (Hirono2-EAS13233) that
allows crewmen on fishing vessels to change-out in Hawaii.
Currently this practice is allowed in Guam, but not in Hawaii.
The amendment was modified by a second degree amendment offered
by Senator Hirono (EAS13539) and adopted by a voice vote.
Senator Hirono offered an amendment (Hirono4-ARM13402) that
gives the Department of State authority to designate Hong Kong
a visa waiver country if it meets the necessary requirements
for that program. The amendment was adopted by a roll call vote
as follows (votes by proxy indicated with *):
Tally: 14 Yeas, 4 Nays
Yeas (14): Leahy (D-VT), Feinstein (D-CA), Schumer (D-NY),
Durbin (D-IL), Whitehouse (D-RI), Klobuchar (D-MN), Franken (D-
MN), Coons (D-DE)*, Blumenthal (D-CT)*, Hirono (D-HI), Hatch
(R-UT), Graham (R-SC)*, Lee (R-UT)*, Flake (R-AZ).
Nays (4): Grassley (R-IA), Sessions (R-AL), Cornyn (R-TX),
Cruz (R-TX).*
Senator Hirono offered an amendment (Hirono15-ERN13168)
that makes citizens of the Compact of Free Association States
(COFA) eligible for Medicaid, as was the case before a
legislative change in 1996. The amendment was adopted by a
voice vote.
Ranking Member Grassley offered an amendment (Grassley58-
ARM13459) that requires employers seeking H-1B visas to
publicly post the name and location of the place H-1B visa
applicants will be working. The amendment was adopted by a
voice vote.
Ranking Member Grassley offered an amendment (Grassley69-
ARM13558) that increases criminal penalties for individuals who
misuse the Student and Exchange Visitor Program, requires
certification for institutions enrolling foreign students,
strengthen penalties for visa fraud, and prohibits certain
schools from accessing the Student and Exchange Visitor
Information System. The amendment was modified by a second
degree amendment offered by Senator Schumer (MDM13605) that
ensured the Department of Homeland Security has authority and
discretion to decide whether to bar a school from using the
student visa program. The amendment, as modified, was adopted
by a voice vote.
Ranking Member Grassley offered an amendment (Grassley77-
HEY13248) that would require the Department of Homeland
Security to implement real-time transmission of data from the
Student and Exchange Visitor Information System to the
databases used by border officials within Customs and Border
Protection (the TECS system). The amendment was adopted by a
voice vote.
Senator Hatch offered an amendment (Hatch9-MDM13519),
cosponsored by Senators Coons and Klobuchar, that increases the
fee provided in the bill for the filing of a labor
certification application, and would provide 70 percent of the
funds collected to the States to improve science, technology,
engineering and math (STEM) education. The amendment was
modified by a second degree amendment offered by Senator
Schumer (EAS13559) that made some of this funding, as well as
the funding provided the already existing STEM fund under
current law, more readily available to minority groups. The
amendment, as modified, was adopted by a voice vote.
Senator Hatch offered an amendment (Hatch10-MDM13513),
modified by a second degree amendment offered by Senator
Schumer with Senator Hatch's support (MDM13698), that changes
the formula for calculating annual levels of H-1B visas;
removes a provision in S. 744 preventing non L-visa-dependent
companies from allowing L-visa workers to work at other
companies/client sites; creates a presumption that spouses of
H-1B workers can work, unless overridden by the Department of
State; and scales back the requirement in S. 744 that required
all employers (not just H-1B skilled-worker dependent
employers) to make good faith efforts to recruit U.S. workers
for a job. The amendment as modified incorporated several
different amendments that had been filed by Senator Hatch.
Senator Schumer's second degree amendment to Hatch10 was
adopted by a roll call vote as follows (votes by proxy
indicated with *):
Tally: 16 Yeas, 2 Nays
Yeas (16): Leahy (D-VT), Feinstein (D-CA), Schumer (D-NY),
Durbin (D-IL), Whitehouse (D-RI), Klobuchar (D-MN), Franken (D-
MN), Coons (D-DE)*, Blumenthal (D-CT)*, Hirono (D-HI), Hatch
(R-UT), Graham (R-SC), Cornyn (R-TX)*, Lee (R-UT)*, Cruz (R-
TX)*, Flake (R-AZ).
Nays (2): Grassley (R-IA), Sessions (R-AL).
The amendment as modified by Senator Schumer's second degree
amendment was adopted by a voice vote.
Ranking Member Grassley offered several second degree
amendments to Hatch10 that were not agreed to by roll call
votes as follows (voted by proxy indicated with *):
Grassley 2nd Degree1-MDM13687:
Tally: 2 Yeas, 15 Nays, 1 Pass
Yeas (2): Grassley (R-IA), Sessions (R-AL).
Nays (15): Feinstein (D-CA), Schumer (D-NY), Durbin (D-
IL)*, Whitehouse (D-RI), Klobuchar (D-MN), Franken (D-MN),
Coons (D-DE)*, Blumenthal (D-CT), Hirono (D-HI), Hatch (R-UT),
Graham (R-SC)*, Cornyn (R-TX)*, Lee (R-UT)*, Cruz (R-TX)*,
Flake (R-AZ).
Pass (1): Leahy (D-VT).
Grassley 2nd Degree2:
Tally: 3 Yeas, 15 Nays
Yeas (3): Feinstein (D-CA), Grassley (R-IA), Sessions (R-
AL).
Nays (15): Leahy (D-VT), Schumer (D-NY), Durbin (D-IL)*,
Whitehouse (D-RI), Klobuchar (D-MN), Franken (D-MN), Coons (D-
DE)*, Blumenthal (D-CT), Hirono (D-HI), Hatch (R-UT), Graham
(R-SC)*, Cornyn (R-TX), Lee (R-UT)*, Cruz (R-TX)*, Flake (R-
AZ).
Grassley 2nd Degree3-MDM13684:
Tally: 2 Yeas, 16 Nays
Yeas (2): Grassley (R-IA), Sessions (R-AL).
Nays (16): Leahy (D-VT), Feinstein (D-CA), Schumer (D-NY),
Durbin (D-IL)*, Whitehouse (D-RI), Klobuchar (D-MN), Franken
(D-MN), Coons (D-DE)*, Blumenthal (D-CT), Hirono (D-HI), Hatch
(R-UT), Graham (R-SC)*, Cornyn (R-TX), Lee (R-UT)*, Cruz (R-
TX)*, Flake (R-AZ).
Grassley 2nd Degree4:
Tally: 3 Yeas, 15 Nays
Yeas (3): Franken (D-MN)*, Grassley (R-IA), Sessions (R-
AL).*
Nays (15): Leahy (D-VT), Feinstein (D-CA), Schumer (D-NY),
Durbin (D-IL)*, Whitehouse (D-RI), Klobuchar (D-MN), Coons (D-
DE)*, Blumenthal (D-CT), Hirono (D-HI), Hatch (R-UT), Graham
(R-SC)*, Cornyn (R-TX), Lee (R-UT)*, Cruz (R-TX)*, Flake (R-
AZ).
Senator Sessions offered an amendment (Sessions13-EAS13330)
that would have required in-person interviews for any non-
immigrant visa applicant who the Department of Homeland
Security determines to be a threat to national security, is
identified as a person of concern, or applies in certain visa
categories. It also would have limited the Department of
State's ability to waive the interview requirement. The
amendment was modified by a second degree amendment offered by
Senator Schumer (EAS13563) that struck the interview waiver
limits, required that consular officers have access to all
terrorism records and databases, denied admission to anyone
whose information is listed in any terrorist watch list or
database, and required any visa revocation be immediately
provided to relevant consular, law enforcement, and terrorist
screening databases and to all Department of Homeland Security
port inspectors. The amendment, as modified by Senator
Schumer's second degree amendment (EAS13563), was agreed to by
a roll call vote as follows (votes by proxy indicated with *):
Tally: 10 Yeas, 8 Nays
Yeas (10): Leahy (D-VT), Feinstein (D-CA), Schumer (D-NY),
Durbin (D-IL)*, Whitehouse (D-RI), Klobuchar (D-MN), Franken
(D-MN), Coons (D-DE), Blumenthal (D-CT), Hirono (D-HI).
Nays (8): Grassley (R-IA), Hatch (R-UT)*, Sessions (R-AL),
Graham (R-SC), Cornyn (R-TX)*, Lee (R-UT)*, Cruz (R-TX)*, Flake
(R-AZ).*
Amendments Not Adopted
Ranking Member Grassley offered an amendment (Grassley56-
ARM13458) that would have struck the Secretary of State's
authority to waive in-person visa applicant interviews for
certain low-risk applicants, in consultation with the Secretary
of Homeland Security. The amendment was not agreed to by a roll
call vote as follows (votes by proxy indicated with *):
Tally: 9 Yeas, 9 Nays
Yeas (9): Feinstein (D-CA), Grassley (R-IA), Hatch (R-UT)*,
Sessions (R-AL), Graham (R-SC), Cornyn (R-TX)*, Lee (R-UT)*,
Cruz (R-TX)*, Flake (R-AZ).
Nays (9): Leahy (D-VT), Schumer (D-NY), Durbin (D-IL),
Whitehouse (D-RI), Klobuchar (D-MN)*, Franken (D-MN)*, Coons
(D-DE), Blumenthal (D-CT), Hirono (D-HI).
Ranking Member Grassley offered an amendment (Grassley60-
ARM13461) that would have required all H-1B employers to
certify that they made a good faith effort to recruit American
workers for the position filled by the H-1B employee, instead
of just H-1B dependent companies. The amendment was not agreed
to by a roll call vote as follows (votes by proxy indicated
with *):
Tally: 2 Yeas, 15 Nays, 1 Pass
Yeas (2): Grassley (R-IA), Sessions (R-AL).
Nays (15): Feinstein (D-CA), Schumer (D-NY), Durbin (D-IL),
Whitehouse (D-RI), Klobuchar (D-MN), Franken (D-MN), Coons (D-
DE), Blumenthal (D-CT), Hirono (D-HI), Hatch (R-UT), Graham (R-
SC), Cornyn (R-TX)*, Lee (R-UT)*, Cruz (R-TX), Flake (R-AZ).
Pass (1): Leahy (D-VT).
Ranking Member Grassley offered an amendment (Grassley62-
ARM13463) that would have struck an exception permitting
companies to avoid classification as an H-1B dependent company
by not counting H-1B employees towards the H-1B dependent
threshold if they are ``intending immigrants'' who have applied
for a green card. The amendment was not agreed to by a roll
call vote as follows (votes by proxy indicated with *):
Tally: 2 Yeas, 15 Nays, 1 Pass
Yeas (2): Grassley (R-IA), Sessions (R-AL).
Nays (15): Feinstein (D-CA), Schumer (D-NY), Durbin (D-IL),
Whitehouse (D-RI), Klobuchar (D-MN)*, Franken (D-MN), Coons (D-
DE), Blumenthal (D-CT), Hirono (D-HI), Hatch (R-UT), Graham (R-
SC), Cornyn (R-TX)*, Lee (R-UT)*, Cruz (R-TX)*, Flake (R-AZ).
Pass (1): Leahy (D-VT).
Ranking Member Grassley offered an amendment (Grassley67-
ARM13467) that would have required the Secretary of Labor to
conduct annual audits of one percent or more of all H-1B
employers. The amendment was not agreed to by a roll call vote
as follows (votes by proxy indicated with *):
Tally: 2 Yeas, 16 Nays
Yeas (2): Grassley (R-IA), Sessions (R-AL).
Nays (16): Leahy (D-VT), Feinstein (D-CA), Schumer (D-NY),
Durbin (D-IL), Whitehouse (D-RI)*, Klobuchar (D-MN), Franken
(D-MN), Coons (D-DE), Blumenthal (D-CT), Hirono (D-HI), Hatch
(R-UT)*, Graham (R-SC)*, Cornyn (R-TX)*, Lee (R-UT)*, Cruz (R-
TX), Flake (R-AZ).
Ranking Member Grassley offered an amendment (Grassley68-
ARM13484) that would have delayed the effective date of the
student visa provisions until one year after the second
generation of the student visa tracking system (``SEVIS II'')
has been fully completed and deployed. The amendment was not
agreed to by a roll call vote as follows (votes by proxy
indicated with *):
Tally: 9 Yeas, 9 Nays
Yeas (9): Feinstein (D-CA), Grassley (R-IA), Hatch (R-UT)*,
Sessions (R-AL), Graham (R-SC)*, Cornyn (R-TX)*, Lee (R-UT)*,
Cruz (R-TX)*, Flake (R-AZ).
Nays (9): Leahy (D-VT), Schumer (D-NY), Durbin (D-IL),
Whitehouse (D-RI), Klobuchar (D-MN), Franken (D-MN)*, Coons (D-
DE), Blumenthal (D-CT), Hirono (D-HI).
Ranking Member Grassley offered an amendment (Grassley70-
MDM13420) that would have conditioned the enactment of the E-5
special business visas for South Korea on Korea's lifting of
``age-based'' restrictions on imports of U.S. beef to Korea.
The amendment was not agreed to by a voice vote.
Senator Sessions offered an amendment (Sessions1-EAS13466)
that would have limited family visas, focused the new merit-
based point system on education and employment, and imposed
worldwide immigrant visa caps. It also would have required all
non-immigrants to have an ``Employment Authorization Document''
to be eligible to work, and capped the issuance of those
documents at one million annually. The amendment was not agreed
to by a roll call vote as follows (votes by proxy indicated
with *):
Tally: 1 Yeas, 17 Nays
Yeas (1): Sessions (R-AL).
Nays (17): Leahy (D-VT), Feinstein (D-CA), Schumer (D-NY),
Durbin (D-IL), Whitehouse (D-RI), Klobuchar (D-MN), Franken (D-
MN)*, Coons (D-DE), Blumenthal (D-CT), Hirono (D-HI), Grassley
(R-IA), Hatch (R-UT), Graham (R-SC), Cornyn (R-TX)*, Lee (R-
UT), Cruz (R-TX), Flake (R-AZ).
Senator Sessions offered an amendment (Sessions6-MRW13303)
that would have eliminated a provision that allows the
Department of Homeland Security, under certain criteria, to
keep a country in the Visa Waiver Program even if the country's
non-immigrant refusal rate is above three percent. It also
would have conditioned the effectuation of changes to the Visa
Waiver Program on full implementation of a biometric entry-exit
system. The amendment was not agreed to by a roll call vote as
follows (votes by proxy indicated with *):
Tally: 6 Yeas, 12 Nays
Yeas (6): Grassley (R-IA), Hatch (R-UT)*, Sessions (R-AL),
Graham (R-SC)*, Cornyn (R-TX)*, Cruz (R-TX).*
Nays (12): Leahy (D-VT), Feinstein (D-CA), Schumer (D-NY),
Durbin (D-IL), Whitehouse (D-RI), Klobuchar (D-MN), Franken (D-
MN), Coons (D-DE), Blumenthal (D-CT), Hirono (D-HI), Lee (R-
UT)*, Flake (R-AZ).
Senator Cruz offered an amendment (Cruz5-MDM13527) that
would have immediately made available 325,000 H-1B visas
irrespective of market conditions or unemployment rates. The
amendment was not agreed to by a roll call vote as follows
(votes by proxy indicated with *):
Tally: 4 Yeas, 14 Nays
Yeas (4): Hatch (R-UT)*, Cornyn (R-TX)*, Lee (R-UT)*, Cruz
(R-TX).
Nays (14): Leahy (D-VT), Feinstein (D-CA), Schumer (D-NY),
Durbin (D-IL), Whitehouse (D-RI), Klobuchar (D-MN), Franken (D-
MN), Coons (D-DE), Blumenthal (D-CT), Hirono (D-HI), Grassley
(R-IA), Sessions (R-AL), Graham (R-SC), Flake (R-AZ).
Amendments Withdrawn
Senator Blumenthal offered an amendment (Blumenthal17-
MDM13545) to provide whistleblower protections for H-2B visa
holders (non-agricultural temporary workers). The amendment was
withdrawn.
Ranking Member Grassley offered an amendment (Grassley71-
ARM13476) to, among other things, makes E-Visa holders
ineligible for any public benefit. The amendment was withdrawn.
Ranking Member Grassley offered an amendment (Grassley76-
EAS13386) to prohibit the implementation of the W visa
temporary-worker program, or the admission of a W visa
temporary worker, until E-Verify is fully implemented. The
amendment was withdrawn.
Senator Cornyn offered an amendment (Cornyn9-MDM13343) to
eliminate W visa construction carve outs and exempt returning
workers from annual visa caps. The amendment was withdrawn.
Senator Lee offered an amendment (Lee1-MDM13379) to strike
the entire bill and replace it with a 12-page border security
proposal. The amendment was withdrawn.
Senator Lee offered an amendment (Lee2-MDM13380) to strike
the entire bill and replace it with S. 202, the Accountability
Through Electronic Verification Act. The amendment was
withdrawn.
Senator Lee offered an amendment (Lee3-MDM13381) to strike
the entire bill and replace it with the I-Squared Act of 2013,
governing H-1B visas and Science, Technology, Engineering, and
Mathematics funding. The amendment was withdrawn.
Senator Lee offered an amendment (Lee18-MDM13343) to
increase the W visa caps from 20,000 to 200,000 for the first
year following enactment, ultimately increasing to 400,000
visas. The amendment was withdrawn.
Senator Lee offered an amendment (Lee19-EAS13425) to limit
the ability of individuals to submit complaints about an
employer's compliance with W visa program requirements. The
amendment was withdrawn.
F. FINAL PASSAGE
On May 21, 2013, the Committee voted to report the Border
Security, Economic Opportunity, and Immigration Modernization
Act, as amended, favorably to the Senate. The Committee
proceeded by roll call vote as follows:
Tally: 13 Yeas, 5 Nays
Yeas (13): Leahy (D-VT), Feinstein (D-CA), Schumer (D-NY),
Durbin (D-IL), Whitehouse (D-RI), Klobuchar (D-MN), Franken (D-
MN), Coons (D-DE), Blumenthal (D-CT), Hirono (D-HI), Hatch (R-
UT), Graham (R-SC), Flake (R-AZ).
Nays (5): Grassley (R-IA), Sessions (R-AL)*, Cornyn (R-TX),
Lee (R-UT)*, Cruz (R-TX).
III. Section-by-Section Summary of the Bill
Section 1. Short title, table of contents
This section provides that the legislation may be cited as
the ``Border Security, Economic Opportunity, and Immigration
Modernization Act.''
Section 2. Findings
This section states, inter alia, that the United States has
a right to maintain its sovereignty by protecting its borders
and controlling the flow of immigration, which is a source of
security and strength for our country.
Section 3. Effective date triggers
This section sets forth definitions for the purpose of this
title. The term ``Commission'' means the Southern Border
Security Commission established pursuant to Section 3. The term
``Comprehensive Southern Border Security Strategy'' means the
strategy established by the Secretary pursuant to Section 5(a)
to achieve and maintain an effectiveness rate of 90 percent or
higher in all border sectors. ``Effective control'' is defined
as the ability to achieve and maintain persistent surveillance
and an effectiveness rate of 90 percent or higher in a Border
Patrol sector. The section defines ``Effectiveness rate,'' in
the case of a border sector, as the percentage calculated by
dividing the number of apprehensions and ``turn backs'' in a
given sector during a fiscal year by the total number of
illegal entries in that sector during the fiscal year. The
``Southern border'' is defined as the international border
between the United States and Mexico. The ``Southern Border
Fencing Strategy'' is the strategy established by the Secretary
of Homeland Security (``the Secretary'') pursuant to Section
5(b) that identifies where fencing, including double-layer
fencing, as well as infrastructure and technology, should be
deployed along the Southern border. The Department of Homeland
Security's (DHS) ``Border Security Goal'' is defined as a goal
to achieve and maintain effective control in all border sectors
of the Southern border.
This section also sets forth the ``triggers'' for the bill.
It provides that no application for Registered Provisional
Immigrant (RPI) status will be processed until the Secretary
has submitted to Congress the Notice of Commencement for
implementation of the Comprehensive Southern Border Security
Strategy and the Southern Border Fencing Strategy.
Individuals who have been granted RPI status may not adjust
their status to permanent resident (except for blue card
recipients and DREAM Act beneficiaries) until the Comprehensive
Southern Border Security Strategy is substantially deployed and
substantially operational, the Southern Border Fencing Strategy
has been implemented and substantially completed, a mandatory
employment verification (E-Verify) system to be used by all
employers has been implemented, and DHS is using an electronic
exit system at air and sea ports of entry that operates by
collecting machine-readable visa or passport information from
air and vessel carriers.
A limited exception is made to allow the Secretary to
permit RPIs to apply for adjustment of status after 10 years if
litigation or force majeure has prevented one or more of the
conditions precedent to adjustment of status from being
implemented, or if any of the conditions precedent to
adjustment of status has been declared unconstitutional.
The section provides authority for certain regulatory
waivers to ensure expeditious construction of the physical
border infrastructure, and provides for limited judicial
review. The Secretary must provide notice and an explanation
for the use of such waivers in the Federal Register, and any
waiver that is used under this section expires when DHS
certifies that the fencing strategy is substantially completed,
or that the Southern Border Security Strategy is substantially
deployed and operational--whichever is later.
Section 4. Southern Border Security Commission
If, after five years, ``effective control'' of all Southern
border sectors has not been achieved in at least one of the
five years following the date of enactment, a Southern Border
Security Commission will be established. The Commission will
comprise experts in the field of border security and will be
appointed by the President (two members), the President pro
tempore of the Senate (two members, upon the recommendation of
each party), the Speaker of the House of Representatives (two
members, upon the recommendation of each party), and the
Governors of each State along the Southern border, or their
appointees (four members).
The Commission shall review the state of border security in
all Southern border sectors, and make recommendations on
policies to achieve persistent surveillance of the Southern
border and to achieve and maintain an effectiveness rate of 90
percent or higher for all Southern border sectors. The
Commission's report shall be submitted, no later than 180 days
from the end of the five-year period described above, to the
President, the Secretary, and Congress. The Comptroller General
of the United States will also review the report and the
feasibility of its recommendations.
Section 5. Comprehensive Southern Border Security Strategy and Southern
Border Fencing Strategy
Within 180 days of the enactment of this Act, the Secretary
must submit a Comprehensive Southern Border Security Strategy
to Congress and the Comptroller General of the United States.
The Strategy will outline priorities to be met for achieving
effective control of the Southern border and identify resources
and capabilities needed to meet those priorities, including
surveillance and detection capabilities used by Department of
Defense (DOD), staffing requirements for Border Patrol Agents
and Customs Officers, and fixed, mobile, and agent-portable
surveillance systems and manned and unmanned aircraft. The
Strategy shall also outline interim goals and milestones for
successful implementation.
Also within 180 days of the enactment of this Act, the
Secretary must submit a Southern Border Fencing Strategy to
Congress and the U.S. Comptroller General to identify areas of
the Southern border where fencing--including double-layer
fencing, infrastructure, and technology, including at ports of
entry--should be put in place. The Secretary is required to
consult with appropriate Federal agencies and State and local
public and private stakeholders in determining the proper
location for placement of fencing.
The Comprehensive Southern Border Security Strategy shall
be submitted specifically to the Committee on Homeland Security
and Governmental Affairs, the Committee on Appropriations, and
the Committee on the Judiciary of the Senate; and to the
Committee on Homeland Security, the Committee on
Appropriations, and the Committee on the Judiciary of the House
of Representatives. Semiannual reports must also be submitted
to these Committees.
For both of these strategies, the Secretary shall
immediately begin to implement the strategy and provide notice
of commencement of this implementation to Congress and the
Government Accountability Office (GAO). After such notice,
processing of applications for RPI status may commence. The
Secretary must also report to Congress semiannually on the
status of the implementation of the Comprehensive Southern
Border Security Strategy. Finally, GAO shall conduct an annual
review of the reports submitted by the Secretary to assess the
status and progress of the Southern Border Security Strategy
Section 6. Comprehensive Immigration Reform Trust Fund
To meet the trigger requirements, a Comprehensive
Immigration Reform Trust Fund (``CIR Trust Fund'') is created.
The fund consists of two sources: first, $8,300,000,000, which
shall be transferred from the Treasury to the fund; and second,
fees, fines, and penalties on users of the immigration system
in the future.
Of the $8,300,000,000 provided to the CIR Trust Fund to pay
for the implementation of this law, $3,000,000,000 shall be
made available to meet the requirements of the Comprehensive
Southern Border Security Strategy; $2,000,000,000 shall be made
available to the Secretary to carry out programs, projects, and
activities recommended by the Southern Border Security
Commission; $1,500,000,000 shall be made available to the
Secretary to procure and deploy additional fencing,
infrastructure, and technology in accordance with the Southern
Border Fencing Strategy (provided that not less than
$1,000,000,000 shall be used to deploy, repair, or replace
fencing); $750,000,000 shall remain available for a six-year
period to expand and implement the electronic employment
verification system; $900,000,000 shall remain available for an
eight-year period for the Secretary of State to implement this
Act; and $150,000,000 shall be appropriated for startup costs
for implementing this Act to be borne by the Secretary of
Labor, the Secretary of Agriculture, and the Attorney General.
This section also provides that the first $8,300,000,000 of
fees, fines, and penalties collected under this section shall
be collected, deposited in the general fund of the Treasury,
and used for Federal budget deficit reduction. This repays the
$8,300,000,000 initially borrowed from the Treasury for startup
implementation costs. Collections in excess of $8,300,000,000
shall be deposited into the CIR Trust Fund.
This section appropriates a total of $100,000,000 from the
CIR Trust Fund each year from Fiscal Year 2014 through Fiscal
Year 2018 for increased border prosecutions and for Operation
Stonegarden ($50,000,000 per year, per program). The section
authorizes appropriations from the CIR Trust Fund to carry out
the operations and maintenance of border security and
immigration enforcement programs contained in the bill. It
requires the Secretary to provide an expenditure plan to
Congress indicating how all of the monies appropriated in the
Act will be spent. The section also establishes a Comprehensive
Immigration Reform Startup Account consisting of $3,000,000,000
initially provided out of the Treasury, to fund the startup
costs to be incurred by U.S. Citizenship and Immigration
Services (USCIS) in registering the unauthorized population.
These funds will be repaid to the Treasury by the unauthorized
population through the application fees they will pay for the
processing of their applications. The CIR Trust Fund account
shall be audited annually by the Chief Financial Officer of DHS
and the Inspector General of DHS, and this audit shall be made
publicly available on a DHS website. This section contains an
emergency designation for the purposes of complying with
Section 4(g) of the Statutory Pay-As-You-Go Act of 2010.
Section 7. References to the Immigration and Nationality Act
This section clarifies that, except as otherwise expressly
provided, whenever in this Act an amendment or repeal is
expressed in terms of an amendment to, or repeal of, a section
or other provision, the reference shall be considered to be
made to a section or other provision of the Immigration and
Nationality Act (INA).
Section 8. Definitions
This section specifies that in this Act, except as
otherwise provided, the term ``Department'' means the
Department of Homeland Security and the term ``Secretary''
means the Secretary of Homeland Security.
Section 9. Grant accountability
This section provides for waste, fraud, and abuse audits
for grant programs that are administered by DHS and the
National Science Foundation in this bill. A recipient of grant
funds that is found to have an unresolved audit finding will be
ineligible to receive grant funds for two years. Recipients may
not keep funds in offshore accounts, nor use more than $25,000
for conferences without the approval of the awarding entity.
TITLE I--BORDER SECURITY
Section 1101. Definitions
This section establishes certain key definitions for Title
I, including providing that the ``Northern border'' means the
international border between the United States and Canada; the
``Southern border'' means the international border between the
United States and Mexico; and the ``Southwest border region''
means the area in the United States that is within 100 miles of
the Southern border.
Section 1102. Additional U.S. Customs and Border Protection Officers
By September 30, 2017, DHS must hire an additional 3,500
Customs and Border Protection (CBP) officers in order to reduce
border-crossing and airport entry wait times and to enhance
port security efforts. This section also raises the fee used by
Visa Waiver Program travelers from $14 to $30 to pay for the
increased number of CBP officers and permanently authorizes the
Corporation for Travel Promotion created in the Travel
Promotion Act of 2009.
Section 1103. National Guard Support to secure the southern border
A State's Governor, with the approval and logistical
support of the Secretary of Defense, may order the State's
National Guard to perform operations on the Southwest border in
order to assist CBP operations. The National Guard may perform
operations that include constructing fencing, increasing
ground-based mobile surveillance systems, deploying unmanned
and manned aircraft surveillance, providing radio capability
for communication between CBP and local officials, and
constructing checkpoints.
Section 1104. Enhancement of existing border security operations
Subsection (a)--Border Crossing Prosecutions. This section
provides that $50,000,000 per year for five years will be
appropriated to increase the number of border crossing
prosecutions in the Tucson Sector to up to 210 per day, through
increased funding for attorneys, administrative support staff,
pre-trial services, public defenders, and additional personnel,
and to reimburse State, local, and tribal law enforcement for
detention costs related to border crossing prosecutions.
Subsection (b)--Funding Operation Stonegarden. Additional
funding shall also go to Operation Stonegarden for grants and
reimbursement to law enforcement agencies in the Southwest
border region States for costs related to illegal immigration
and drug smuggling. This section also creates a competitive
grant program to allocate funds to law enforcement agencies.
Subsection (c)--Infrastructure Improvements. The Department
of Homeland Security must construct additional Border Patrol
stations and additional permanent forward operating bases as
needed, to provide full operational support in rural, high-
trafficked areas. This section also provides for a new grant
program to allow DHS and the Secretary of Transportation, in
consultation with the Governors of Southern and Northern border
States, to provide grants to construct transportation and
supporting infrastructure improvements at existing and new
international border crossing ports.
Subsection (d)--New District Courts. This section provides
for eight new Federal district court judgeships in the four
Southwest border States, to be funded by a $10 increase in
filing fees. In addition, this section provides for
whistleblower protection for employees of the judicial branch.
Section 1105. Border Security on certain Federal land
Customs and Border Protection personnel are authorized to
access Federal lands in the Southwest border region in Arizona
for security activities, including routine motorized patrols
and the deployment of communication, surveillance, and
detection equipment. The Secretaries of the Interior and
Agriculture must conduct a programmatic environmental impact
statement to analyze the impact of the security activities, and
advise the Secretary of Homeland Security.
Section 1106. Equipment and technology
In the Southwest border region, CBP will be required to
deploy additional mobile, video, and agent-portable
surveillance systems and unmanned aerial vehicles, which must
be operated along the Southern border in a manner to achieve
constant surveillance; deploy additional fixed-wing aircraft
and helicopters; acquire new rotorcraft and make upgrades to
the existing helicopter fleet; acquire maritime equipment; and
increase horse patrols. Unarmed, unmanned aerial vehicles are
allowed to operate only within three miles of the Southern
border in the San Diego and El Centro Sectors, but this
limitation does not apply to the maritime operations of Customs
and Border Protection.
Section 1107. Access to emergency personnel
With the consultation of border State Governors, DHS must
establish a two-year grant program to improve emergency
communication by providing satellite telephones for people
living within the Southwest border region that are at greater
risk of border violence due to lack of cellular service.
Funding is available to DHS, the Department of Justice (DOJ),
and the Department of the Interior for five years to purchase
P25-compliant radios for Federal, State, and local law
enforcement agents working in the border regions supporting
CBP, as well as to upgrade the communications network of the
Department of Justice to ensure coverage and capacity in the
border region.
Section 1108. Southwest Border Region Prosecution Initiative
The Department of Justice must reimburse State, county,
tribal, and municipal governments for costs associated with the
prosecution and pre-trial detention of Federally-initiated
criminal cases that local offices of the United States
Attorneys declined to prosecute. These services shall include
pre-trial services, clerical support, and public defenders'
services. Reimbursement shall not be available if the Attorney
General determines that there is reason to believe that the
jurisdiction seeking reimbursement has engaged in unlawful
conduct with respect to immigration-related apprehensions.
Section 1109. Interagency collaboration
The Department of Defense and DHS must collaborate to
identify equipment used by DOD that could be used by CBP to
improve border security.
Section 1110. State Criminal Alien Assistance Program (SCAAP)
Reauthorization
The State Criminal Alien Assistance Program is reauthorized
through 2015. Reimbursements are expanded to include
reimbursement to States and localities for the cost of
detaining individuals who were charged with committing
deportable offenses prior to their conviction.
Section 1111. Use of force
After consulting with the Department of Justice, DHS must
issue policies regarding the use of force by its personnel,
including a requirement that all uses of force be reported. The
Department of Homeland Security must also create procedures for
investigating complaints, reviewing all uses of force, and
disciplining personnel who commit violations.
Section 1112. Training for Border Security and Immigration Enforcement
Officers
The Department of Homeland Security must ensure that all
CBP, Border Patrol, and Immigration and Customs Enforcement
(ICE) agents, as well as agriculture specialists within 100
miles of the border, receive appropriate training on individual
rights, detecting fraudulent travel documents, the scope of
enforcement authority, the use of force policies, immigration
laws, social and cultural sensitivity toward border
communities, the impact of border operations on communities,
and environmental concerns to a particular area. Border
community liaison officers must also receive training to better
perform their duties. Not later than 90 days after enactment,
DHS must establish standards to ensure the humane treatment of
children in CBP custody, including adequate medical treatment
and access to phone calls to family members.
Section 1113. Department of Homeland Security Border Oversight Task
Force
An independent task force, consisting of 22 members
appointed by the President, will be established to review and
make recommendations regarding immigration and border
enforcement policies, procedures, strategies, and programs,
taking into consideration their impact on border communities.
Members shall include law enforcement officials, members of the
business community, local elected officials, private
landowners, and representatives of faith and religious
communities. The task force is empowered to take testimony,
hold hearings, and request statistical information from Federal
agencies. All recommendations made by the task force must
receive a response from DHS within 180 days, describing how the
Department will address the findings. Within two years of its
first meeting, the task force must submit a final report to the
President, Congress, and DHS regarding its findings.
Section 1114. Immigration Ombudsman
An Ombudsman for Immigration Related Concerns will be
appointed within DHS, and shall have the authority to receive
complaints from individuals and employers, conduct inspections
of facilities or contract facilities of the immigration
components of the Department, assist individuals and families
who have been the victims of crimes committed by aliens or
violence near the border, to request the Inspector General of
DHS to conduct inspections, investigations, and audits, and to
make recommendations concerning CBP, ICE, and USCIS. The
Ombudsman must have a background in immigration law as well as
civil and human rights law.
Section 1115. Protection of family values in apprehension programs
As soon as practicable after an individual is apprehended
in a migration deterrence program, DHS and cooperating entities
shall, for each such apprehended individual, inquire as to
whether the person is a parent, legal guardian, or primary
caregiver of a child or traveling with a spouse or child and
ascertain whether repatriation of the individual presents any
humanitarian concerns related to his or her physical safety.
Due consideration must be given to the best interests of the
child and to family unity. Rules must be promulgated within 120
days of enactment and training on these issues is mandatory.
Section 1116. Reports
The Secretary of Homeland Security shall prepare a report
detailing the effectiveness rate for each Border Sector, the
number of miles along the Southern border that are under
persistent surveillance, the monthly wait times per passenger
for crossing the Southern and Northern borders, and the
allocations of personnel at each port of entry along the
Southern and Northern borders. The report shall be submitted to
the Committee on Homeland Security and Governmental Affairs and
the Committee on the Judiciary of the Senate, as well as the
Committee on Homeland Security and the Committee on the
Judiciary of the House of Representatives. A report shall also
be submitted on interagency collaboration.
Section 1117. Severability and delegation
If any provision of this Act or any amendment to the Act,
or any application thereof to any person or circumstance, is
held to be unconstitutional, the remainder of the provisions
shall not be affected. This section permits the Secretary of
Homeland Security to delegate any authorities provided under
this Act to other appropriate Federal agencies.
Section 1118. Prohibition on land border crossing fees
This section prohibits the collection of any border
crossing fees at land ports of entry along the Southern or
Northern borders. It also prohibits any study relating to the
imposition of a border crossing fee.
Section 1119: Human trafficking report
This section adds human trafficking to the Federal Bureau
of Investigation's (FBI) Uniform Crime Reporting program. State
and local governments receiving Edward Byrne Memorial Justice
Assistance grants will be required to include human trafficking
in their reporting of Part 1 Violent Crimes.
Section 1120. Rule of construction
Nothing in this Act may be construed to authorize the
deployment, procurement, or construction of fencing along the
Northern border.
Section 1121. Limitations on dangerous deportation practices
Within one year of enactment of this Act and every 180 days
thereafter, DHS must submit written certification to Congress
that DHS has only deported or removed migrants through an entry
or exit point on the Southern border during daylight hours,
unless there is a compelling Government interest, an applicable
local arrangement for repatriating Mexican nationals, or if the
alien is not a minor and is deported through the same point of
entry as the place where the migrant was apprehended, or agrees
to such deportation.
TITLE II--IMMIGRANT VISAS
SUBTITLE A--REGISTRATION AND ADJUSTMENT OF REGISTERED PROVISIONAL
IMMIGRANTS
Section 2101. Registered Provisional Immigrant status
This section establishes Registered Provisional Immigrant
status. The Secretary, after conducting the requisite law
enforcement and national security clearances, may grant RPI
status to eligible aliens who apply within the application
period and pay the fee, including any applicable penalties. To
be eligible for RPI status, an alien must have been physically
present in the United States on or before December 31, 2011,
and have maintained a continuous presence since that date,
except for certain limited absences. Other requirements, such
as payment of taxes and national security and law enforcement
clearances are described below.
Grounds for Ineligibility. Grounds for ineligibility for
RPI status include the following: (1) conviction for a felony
(other than a State or local offense for which an essential
element was the alien's immigration status, or a violation of
this Act); (2) conviction for an aggravated felony; (3)
conviction for three or more misdemeanor offenses if the alien
was convicted on different dates for each of the offenses
(other than minor traffic offenses or a State or local offense
for which an essential element was the alien's immigration
status or a violation of this Act); (4) any foreign law
offense, except for a purely political offense, that would
render the alien inadmissible if it had been committed in the
United States; (5) conviction for unlawful voting; (6) certain
other grounds of inadmissibility set forth in INA Section
212(a); and (7) persons whom the Secretary knows or has
reasonable grounds to believe are engaged in or likely to
engage in terrorist activity.
Individuals who at the date of introduction of the bill in
the Senate are lawful permanent residents, refugees, or
asylees, or are lawfully present in a nonimmigrant status, may
not apply for RPI status.
The Secretary has limited authority to waive some grounds
of ineligibility to account for individual circumstances, such
as the bar for individuals convicted of three or more
misdemeanors, for humanitarian purposes, to ensure family
unity, or if such a waiver is in the public interest. Waivers
are not available to aliens who are convicted of a felony or an
aggravated felony, persecutors, human traffickers, money
launderers, those inadmissible on security grounds,
polygamists, child abductors, unlawful voters, citizenship
renouncers, or those who lie on their RPI applications.
Dependent Spouses and Children. Spouses and unmarried
children under 21 may be included on the application if the
spouse or child was physically present in the United States on
or before December 31, 2012, maintained continuous physical
presence since that date except for certain limited absences,
and he or she meets the eligibility requirements. Divorce,
death, or separation because of domestic violence will not bar
a spouse or unmarried child from re-applying for RPI status.
Applicable Taxes and Fees. In order to apply, an alien must
have paid taxes assessed in accordance with Section 6203 of the
Internal Revenue Code of 1986 and a $1,000 penalty fee, which
may be paid in installments. The application form shall
anonymously collect certain demographic data about each
immigrant, which shall be compiled in a report to Congress on
immigration trends.
Application Period; Ability to Apply. The application
period is for one year following publication of a final rule
and can be extended for 18 months by the Secretary. Aliens who
appear prima facie eligible and are apprehended during the
application period should be given a reasonable opportunity to
apply for RPI status and shall not be removed until a final
determination has been made concerning their application. An
alien who departed from the United States subject to an order
of removal and is outside the United States or illegally
reentered the country after December 31, 2011, is not eligible
to apply for RPI status. The Secretary has discretion to waive
this bar in certain cases if the alien is the spouse or child
of a U.S. citizen or lawful permanent resident; a parent of a
child who is a U.S. citizen or lawful permanent resident; meets
certain requirements set forth in the DREAM Act provisions; or
is 16-years-old or older and was younger than 16 when he or she
entered the United States and has been physically present in
the United States for an aggregate period of three years within
the preceding six years of the date of enactment.
If the Secretary is considering waiving the bar for RPI
status in a circumstance described above and the applicant has
been convicted of a crime, the Secretary shall consult with the
convicting agency to identify any victims of that crime. If DHS
identifies such a victim it shall make reasonable efforts to
provide that victim with an opportunity to request consultation
with DHS on the alien's application for a waiver, or provide
notice regarding adjudication of the application. The Secretary
may not make an adverse determination of inadmissibility or
deportability based solely on information supplied during the
identification of, notice to or consultation with a victim. The
Secretary must submit an annual report to Congress detailing
the identification and notice process described in this
provision.
Suspension of Removal During Application Period. Aliens
with RPI status shall not be detained or removed, unless the
alien is or has become ineligible for RPI status or his or her
RPI status had been revoked. Aliens in removal proceedings who
are prima facie eligible for RPI status should be given an
opportunity to apply for RPI status under certain
circumstances. If an alien subject to a removal order is
granted RPI status, he or she must file a motion to reopen
removal proceedings.
Pending RPI Status. An alien who has a pending application
for RPI status may receive advance parole if urgent
humanitarian circumstances compel such travel. Such persons
will not be considered unlawfully present or unauthorized to
work under this Act. An employer who knows that an employee has
applied or will apply for RPI status during the application
period is not in violation of the law if he or she continues to
employ that individual pending adjudication of the application.
National Security and Law Enforcement Clearances. Before
any alien may be granted RPI status, all national security and
law enforcement clearances must be completed and an applicant
must submit biometric and biographic data in accordance with
DHS procedures. The Department of Homeland Security, in
consultation with the Secretary of State and other interagency
partners, shall also conduct additional security screenings
upon determining that an alien or an alien-dependent spouse or
child is or was a citizen or long-term resident of a region or
country known to pose a threat, or contain groups or
organizations that pose a threat, to the national security of
the United States.
Renewal of RPI Status After Six Years. Registered Permanent
Immigrant status shall be granted for an initial period of six
years and may be extended if the alien remains eligible, meets
certain employment requirements, successfully passes all
background checks, and has not had his or her status revoked.
To be eligible, an RPI applicant must demonstrate that he or
she has met the employment requirement by being regularly
employed throughout the period of admission as an RPI (allowing
for brief periods of unemployment lasting not more than 60
days), and is not likely to become a public charge; or an
applicant must demonstrate an average income or resources that
are not less than 100 percent of the Federal poverty level
throughout the period of admission. Certain exemptions exist
for applicants who are unable to work because of a disability,
pursuit of education, or other limited personal circumstances.
An extension of RPI status may only be granted if the applicant
has satisfied applicable Federal tax liability and paid the
penalty fee. An extension of RPI status can only be granted if
an applicant submits to and passes another series of background
checks that are also required at initial registration.
Processing Fee for RPI First-Time Applicants and RPI
Renewals. All individuals applying for RPI status, or an
extension of that status, who are 16-years-old or older will be
charged a processing fee as determined by the Secretary to
cover the full costs of processing an application, including
any costs incurred to adjudicate, process biometrics, perform
national security and background checks, prevent and
investigate fraud, and administer the collection of a fee.
Aliens who are 21-years-old or older shall pay an additional
$1,000 penalty, unless they are a DREAMer. The Secretary shall
deny an application where the applicant fails to submit
requested evidence, including biometrics.
Evidence of RPI Status. The Secretary must issue
documentary evidence of RPI status to each individual whose
application is approved, which shall be machine-readable and
meet other criteria, and can serve as a valid travel document
and as evidence of employment authorization.
DACA Recipients. The Secretary may grant RPI status to an
individual granted Deferred Action for Childhood Arrivals
(DACA) pursuant to the Secretary's memorandum of June 15, 2012,
if that individual has not engaged in any conduct since being
granted DACA that would make him or her ineligible for RPI
status, and renewed national security and law enforcement
clearances have been completed.
Terms and Conditions of RPI Status. An alien granted RPI
status is authorized to work, may travel outside the United
States subject to certain specified conditions, and shall be
considered admitted to and lawfully present in the United
States.
Revocation of RPI Status. The Secretary may revoke RPI
status if the alien is no longer eligible for such status,
knowingly used RPI documentation for an unlawful or fraudulent
purpose, or was absent from the United States for any single
period longer than 180 days or for more than 180 days in the
aggregate in any calendar year, unless the failure to return
was due to extenuating circumstances. If RPI status is revoked,
any documentation issued to the alien is automatically invalid.
Eligibility for Federal Benefits. An alien who is granted
RPI status is not eligible for any Federal means-tested
benefit. The Department of Health and Human Services (HHS)
shall conduct regular audits to ensure that RPIs are not
fraudulently receiving any such benefits. A person in RPI
status is not entitled to the premium assistance tax credit
authorized under Section 36B of the Internal Revenue Code of
1986 for his or her healthcare coverage and shall be subject to
the rules applicable to persons not lawfully present that are
set forth in section 1402(e) of the Patient Protection and
Affordable Care Act and in section 5000A(d)(3) of the Internal
Revenue Code of 1986. An alien granted RPI status may be issued
a Social Security number.
Dissemination of Information Concerning RPI Program. The
Secretary shall broadly disseminate information on the RPI
program in the languages most commonly spoken by aliens who
would qualify for such status.
Registration in the Armed Services. This section amends
Federal law so that an alien who is granted RPI status may
enlist in the Armed Services.
Section 2102. Adjustment of status of registered provisional immigrants
This section gives the Secretary discretionary authority to
adjust the status of a RPI to that of an alien lawfully
admitted for permanent residence if the RPI meets the
eligibility requirements. Aliens must establish their continued
eligibility for RPI status, and show that they have not been
outside the United States for more than 180 days in any
calendar year unless it was due to extenuating circumstances
beyond the applicant's control. If the Secretary has notified
an alien of a pending revocation hearing, no adjustment of that
alien's status may be made until a final determination has been
made regarding that pending revocation. If the Secretary has
notified the alien that he or she intends to revoke such
status, the alien may not adjust his or her status until the
Secretary makes a final determination not to revoke such
status.
Adjustment Requirements. Registered Permanent Immigrants
who apply for adjustment of status must demonstrate that they
have satisfied any applicable Federal tax liability and pay a
$1,000 penalty fee. They must also meet the employment
requirement set forth in the bill, by showing that he or she
was regularly employed throughout the period of admission
(allowing for brief periods of unemployment lasting not more
than 60 days), and is not likely to become a public charge; or
by demonstrating an average income or resources that are not
less than 125 percent of the Federal poverty level throughout
the period of admission. The alien may meet this requirement by
submitting records maintained by the Social Security
Administration, Internal Revenue Service, or any other Federal,
State, or local government agency that establish compliance by
a preponderance of the evidence. In the absence of such
records, the alien may submit at least two forms of alternative
reliable documentation such as bank records, employer records,
sworn affidavits from a non-relative with direct knowledge of
the applicant's work or education, and any additional
documentation the Secretary may require. Full-time attendance
at certain educational institutions may satisfy some or all of
the employment requirement. Certain exceptions exist to the
employment requirement based on age, disability, pregnancy, or
dependency of an RPI. If extreme hardship is demonstrated by an
alien or his or her spouse, parent or child who is a U.S.
citizen, or lawful permanent resident, the Secretary may waive
the employment requirement.
An RPI may seek adjustment of status to lawful permanent
residence only if he or she is over 16-years-old and meets the
basic English proficiency requirement specified in this
section. If an alien is subject to registration under the
Military Selective Service Act on or after the date on which
their application for RPI status is granted, proof of that
registration is required.
``Back of the Line.'' The status of an RPI may not be
adjusted until after the Secretary of State certifies that
immigrant visas have become available for all approved
employment and family based petitions filed before the date of
enactment.
Interview; Security and Law Enforcement Clearances. The
Secretary may interview applicants for adjustment of status
under this section. The Secretary may not adjust the status of
an RPI until renewed national security and law enforcement
clearances have been completed.
Fees and Penalties. The Secretary shall charge applicants a
processing fee, as determined by the Secretary to cover the
full costs of processing an application to adjust status,
including any costs incurred to adjudicate, process biometrics,
perform national security and background checks, prevent and
investigate fraud, and administer the collection of a fee. In
addition to the processing fee established by the Secretary,
individuals who were 21 years of age or older on the date of
introduction of this Act shall pay a $1,000 penalty to adjust,
unless that individual meets the requirements under the DREAM
Act set forth in section 245D(b). This penalty may be paid in
installments.
Naturalization. A lawful permanent resident who was
lawfully present in the United States and eligible for work
authorization for not less than 10 years before becoming a
lawful permanent resident may be naturalized in three years
provided that he or she meets all requirements for
naturalization, has resided continuously in the United States
for at least three years after being lawfully admitted for
permanent residence, and, during the three years immediately
preceding the naturalization filing date, was physically
present in the United States for fifty percent of the time.
Section 2103. The DREAM Act (Development, Relief, and Education for
Alien Minors Act of 2013)
This section authorizes the Secretary to adjust the status
of an RPI to that of a lawful permanent resident after five
years (instead of the usual 10 years) if the RPI demonstrates
that he or she was younger than 16 years of age on the date on
which the alien initially entered the United States; has earned
a high school diploma or certain equivalents (including a
general education development certificate recognized under
State law or a high school equivalency diploma); and has
acquired a degree from an institution of higher education or
has completed at least two years, in good standing, of a
program for a bachelor's degree or higher education degree in
the United States or has served in the Uniformed Services for
at least four years and, if discharged, received an honorable
discharge. The applicant must also provide a list of each
secondary school he or she attended while in the United States.
The Secretary has authority to waive the above requirements
for aliens who can demonstrate compelling circumstances that
have prevented them from satisfying the higher education or
Uniformed Services requirement. In obtaining a status
adjustment, an alien must demonstrate that he or she meets the
requirements that apply at citizenship, unless a physical or
developmental disability or mental impairment prevents that
individual from meeting such requirements.
Aliens seeking adjustment of status must submit biometric
and biographic information and complete national security and
law enforcement background checks. The Secretary must notify an
alien of his or her determination as to whether the alien
meets, or does not meet, the requirements set forth in Section
1 (DREAM Act eligibility requirements).
DACA Recipients. The Secretary may adopt streamlined
procedures for individuals granted relief under the DACA
program to adjust to lawful permanent resident status.
Treatment for Purposes of Naturalization. An alien adjusted
to lawful permanent resident status under this section shall be
considered to have been lawfully admitted for permanent
residence and to have been in the United States as a lawful
permanent resident during the period of RPI status. An
individual may not apply for naturalization while in RPI
status, except for those applying for military naturalization
under INA section 328 or 329.
Higher Education. Under this section, States have the
option to determine residence for the purposes of higher
education, such that a State may choose to grant in-state
tuition to out-of-status immigrants. RPIs who initially entered
the United States before reaching 16 years of age, and those
eligible for blue card status, shall be eligible for certain
assistance under Title IV of the Higher Education Act of 1965,
including certain student loans and work-study programs.
Section 2104. Additional requirements
This section specifies that, while the Secretary may
consider the information provided by an alien seeking RPI
status or extension or adjustment when considering any
immigration application from the alien, the Secretary may not
otherwise disclose the information subject to certain required
disclosures. The Secretary is required to disclose the
information to law enforcement, intelligence, and national
security agencies, components within DHS, and to a court or
grand jury in connection with a criminal investigation or
prosecution of a felony (not related to the applicant's
immigration status), or for a national security investigation
or prosecution, or to an official coroner for purposes of
identifying a deceased person. The Secretary may audit
information about applications for RPI status, extension of RPI
status or adjustment for purposes of identifying fraud or fraud
schemes. The Secretary may use evidence from audits and
evaluations for purposes of investigating, prosecuting,
referring for prosecution or denying or terminating immigration
benefits.
This section protects employers in relation to the use of
employment records submitted in connection with an application
for RPI status or extension of RPI status.
The Secretary may establish or designate an administrative
appeal process within DHS and allows for a single appeal for
each administrative decision related to an application for RPI
status, extension of RPI status, or adjustment under the RPI
provisions or the DREAM Act provisions, or for blue card status
or adjustment for those in blue card status. An alien shall not
be removed until a final decision is rendered establishing
ineligibility for RPI status or extension or adjustment, and
the alien shall not be considered unlawfully present during the
appeals process.
If an alien's application for RPI status or adjustment
under general RPI provisions or the DREAM Act, or for blue card
status or adjustment under the blue card status provisions, is
denied or revoked after the exhaustion of administrative
review, that person may seek review of the decision in
accordance with Chapter 7 of Title 5 of the United States Code,
before the U.S. District Court for the district in which the
person resides. Alternatively, for decisions related to
applications for RPI status, adjustment under the general RPI
provisions or adjustment under the DREAM Act, an alien may seek
review in a United States court of appeals in conjunction with
the judicial review of an order of removal, deportation, or
exclusion if the validity of the denial has not been upheld in
a prior judicial proceeding.
Judicial review of decisions related to applications for
RPI status, adjustment under the general RPI provisions or
adjustment under the DREAM Act shall be based upon the
administrative record established at the time of the review.
The reviewing court may remand a case for consideration of
additional evidence if the court finds that the additional
evidence is material and there were reasonable grounds for
failure to adduce the additional evidence before the Secretary.
The district courts shall have jurisdiction over any cause or
claim arising from a pattern or practice of the Secretary in
the operation or implementation of this Act that is arbitrary,
capricious or otherwise contrary to law. This section speaks to
the scope of relief available in the districts courts and
specifies how challenges to the validity of the system are to
be handled by the courts.
Section 2015. Criminal penalties
This section creates criminal penalties of not more than
$10,000 for any person who knowingly uses, publishes, or
permits the improper use of information on these applications.
Section 2106. Grant program to assist eligible applicants
The Secretary may establish a program within U.S.
Citizenship and Immigration Services to award grants, on a
competitive basis, to eligible public or private nonprofit
organizations that assist eligible applicants for Registered
Provisional Immigrant status and blue card status.
The grant funds may be used for the design and
implementation of programs that provide information to the
public regarding the eligibility and benefits of RPI status;
assistance to individuals submitting applications for
Registered Provisional Immigrant status; assistance to
individuals seeking to adjust their status to that of an alien
admitted for permanent residence; and assistance to individuals
on the rights and responsibilities of U.S. citizenship, civics
and civics-based English as a second language, and in applying
for U.S. citizenship.
Section 2107. Conforming amendments to the Social Security Act
This section allows those granted RPI status, or adjustment
of status including under the DREAM Act provisions, to correct
their Social Security records.
In addition, this section states that the removal of a
parent from the United States or the involvement of a parent in
an immigration proceeding shall constitute a compelling reason
for a State not to file a petition to terminate parental
rights, unless the parent is unfit or unwilling to be a parent.
The provision ensures that the immigration status of a relative
caregiver alone shall not disqualify the caregiver, and that
adult relatives should receive preference if he or she meets
all relevant State child protection standards.
Section 2108. Government contracting and acquisition of real property
interest
This section provides that the competition requirement
under Section 253(a) of Title 41 of the United States Code
(USC) may be waived or modified by a Federal agency for any
procurement conducted to implement this title or the amendments
made by this title if the senior procurement executive for the
agency conducting the procurement determines that the waiver or
modification is necessary, and submits an explanation for such
determination to the Committee on Homeland Security and
Government Affairs of the Senate and the Committee on Homeland
Security of the House of Representatives.
The Secretary of Homeland Security is authorized to make
term, temporary limited, and part-time appointments of
employees who will implement this title and the amendments made
by this title without regard to the number of such employees,
their ratio to permanent full-time employees, and the duration
of their employment.
The Secretary of Homeland Security may acquire a leasehold
interest in real property, and may provide in a lease entered
into for the construction or modification of any facility on
the leased property.
Section 2109. Long-Term legal residents of the Commonwealth of the
Northern Mariana Islands
This section creates a mechanism to grant lawful permanent
resident status to certain long-term legal residents of the
Commonwealth of the Northern Mariana Islands (CNMI) who,
following the federalization of immigration law in the CNMI in
2008, were left without a long-term permanent status. These
individuals include those who are lawfully present in the CNMI
under the immigration laws of the United States, are otherwise
admissible to the United States under the INA, and meet certain
criteria relating to their presence in the CNMI. The presence
criteria are that the individual either resided continuously
and lawfully in the CNMI from November 28, 2009, through the
date of enactment; was born in the Northern Mariana Islands
between January 1, 1974, and January 9, 1978; has been a
continual permanent resident of the CNMI since May 8, 2008; is
the spouse or child of such an alien; is an immediate relative
of a U.S. citizen since May 8, 2008; resided in the Northern
Mariana Islands as a guest worker under CNMI immigration law
for at least five years before May 8, 2008; or is the spouse or
child of the alien guest worker. Beginning five years after the
date of enactment, the individuals described above may apply to
receive an immigrant visa or adjust status to that of lawful
permanent residence.
Section 2110. Rulemaking
Not later than one year after the date of enactment, the
Secretary, the Attorney General, and the Secretary of State
separately shall issue interim final regulations to implement
this title and the amendments which shall take effect
immediately upon publication in the Federal Register.
Section 2111. Statutory construction
Except as specifically provided, nothing in this title, or
any amendment made by this title, may be construed to create
any substantive or procedural right or benefit that is legally
enforceable by any party against the United States or its
agencies or officers or any other person.
SUBTITLE B--AGRICULTURAL JOB OPPORTUNITIES BENEFITS
Section 2201. Short title
Section 2202. Definitions
This section defines ``blue card status'' as the status of
an alien who has been lawfully admitted into the United States
for temporary residence under Section 2211. The term
``agricultural employment'' is given the meaning that it
carries in Section 3 of the Migrant and Seasonal Agricultural
Worker Protection Act, without regard to whether the specific
service or activity is temporary or seasonal.
Section 2211. Blue card status requirements
This section provides that prospective blue card workers
must be able to document working in U.S. agriculture for a
minimum of 100 work days or 575 hours in the two years prior to
December 31, 2012, in order to be eligible to adjust to blue
card status. The spouse or child of such alien may be eligible
if he or she was physically present in the United States on or
before December 31, 2012, and has maintained continuous
presence since then. Applicants must pass a security and a law
enforcement background check in order to be eligible for the
program, just like any other Registered Provisional Immigrant.
The Department of Homeland Security will accept
applications for blue card status from aliens in the United
States during the one-year period beginning on date when DHS
publishes the final rule. The Secretary of Homeland Security
can extend the application period for 18 months.
The Secretary of Homeland Security shall collect biometric
and biographic information for blue card workers and their
dependent spouses and children to conduct national security and
law enforcement clearances.
Blue card status expires eight years after the date on
which final blue card regulations are published. The Department
of Homeland Security shall set a processing fee that is
sufficient to cover the program application and administrative
costs. Blue card workers must pay a $100 fine to the Department
of Homeland Security. Blue card documents will be machine-
readable and tamper-resistant and contain a digitized
photograph. A worker granted blue card status is not eligible
for public assistance or public benefits until five years after
the date on which the alien adjusts to green card status,
consistent with any other immigrant entering the United States.
Blue card status may be revoked at any time if the person
is no longer eligible for blue card status. Blue card holders
may convert to RPI status if DHS determines that they cannot
meet the work requirements applicable to blue card holders.
Section 2212. Adjustment to permanent resident status
Blue card workers (and spouses and children who meet
certain eligibility requirements) are eligible to apply for
permanent resident status if they have fulfilled their work
requirements in U.S. agriculture, show that they have paid all
applicable taxes, comply with the same criminal eligibility
requirements used for determining RPI status, and pay a $400
fine. Fines are to be used to cover the costs of the program.
In order to be eligible, a worker must show that he or she
performed at least five years of agricultural employment for at
least 100 work days per year during the eight-year period
beginning on the date of enactment or that he or she performed
at least three years of agricultural employment for at least
150 work days per year during the five-year period beginning on
the date of enactment. Certain credits may be given for
extraordinary circumstances, though such credits cannot exceed
12 months of work.
If an employer or farm labor contractor has kept records of
employment, the alien's burden of proof may be met by securing
production of such records under regulations to be promulgated
by the Secretary; otherwise, an applicant may meet the burden
of proof by producing sufficient evidence to show the extent of
his or her employment as a matter of just and reasonable
inference. Penalties for making false statements in conjunction
with blue card applications or adjustment to legal permanent
resident status are punishable by up to five years in prison.
Legal services through the Legal Services Corporation may
be made available for direct assistance to those applying for
blue card status or adjustment, and to individuals granted blue
card status.
Upon enactment, deportation of undocumented agricultural
workers who are eligible for blue card status and sanctions
against their employers shall be stayed until the blue card
program is operational.
Spouses and minor children of blue card workers residing in
the United States are eligible for derivative blue card status.
Workers who successfully complete blue card requirements are
eligible for lawful permanent residence and their spouses and
children are eligible for such status as derivatives.
Section 2213. Use of information
Beginning on the first day of the blue card application
period, DHS shall broadly disseminate information about the
program.
Section 2214. Reports on blue cards
Not later than September 30, 2013, and annually thereafter
for the next eight years, the Secretary of Homeland Security
shall submit a report to Congress concerning the blue card
program, including the number of aliens who applied for and
were granted blue card status, and the number of blue card
holders who applied for and received adjustment of status to
lawful permanent residence.
Section 2215. Authorization of appropriations
Congress will make appropriations as necessary to implement
the program for Fiscal Years 2013 and 2014.
Section 2221. Correction of social security records
This section provides a safe harbor for blue card holders
for past misstatements.
Section 2231. Nonimmigrant classification for nonimmigrant agricultural
workers
This section establishes a new temporary worker program to
ensure an adequate agricultural workforce. Two visa programs
are established: first, a portable, at-will employment based
visa (W-3 visa) and second, a contract-based visa (W-2 visa) to
replace the H-2A program. Regulations implementing the new
program shall be issued within 12 months of enactment.
The H-2A program will sunset after the new visa programs
are implemented and operational. The implementation of these
programs is expected to be complete two years after the date of
enactment.
Section 2232. Nonimmigrant agricultural worker program
A new Section 218A is created within the INA, establishing
a nonimmigrant agricultural worker program for employment by
contract and employment at will. Both contract and at-will
visas will be valid for agricultural employment with Designated
Agricultural Employers (DEAs), who have registered with the
Department of Agriculture to employ guest workers (described
further below). Various terms are defined, including
agricultural employment, at-will agricultural worker, blue
card, and electronic job registry. Initial employee eligibility
would be based on an offer of employment from a Designated
Agricultural Employer.
New Section 218A(c)--Numerical Limitation. For the first
five years, the nonimmigrant visa program is capped at 112,333
per year. Visas shall be evenly distributed four times per
calendar year. After the first year, the Secretary of
Agriculture may modify disbursement of visas based on prior
usage patterns. Unused visas can be rolled over to the next
quarter but not to the next year.
During the first five years of the program, the Secretary
of Agriculture has the authority to increase the cap to make
additional visas available within a calendar year in response
to a demonstrated labor shortage. The Secretary has the
authority to reduce the cap within a fiscal year in response to
the high unemployment rate of agricultural workers. The
Secretary shall consider the evidence submitted by agricultural
producers and farm worker organizations in making a
determination to increase or decrease the cap.
The Secretary of Agriculture, in consultation with the
Secretary of Labor, shall establish a new annual visa cap for
each fiscal year after year six. To determine the cap for each
fiscal year the Secretary shall consider appropriate factors,
including but not limited to, demonstrated shortages of
agricultural workers, the level of unemployment and
underemployment of agricultural workers, the number of
applications for the guest worker visa, the number of
applications approved, the number of guest workers employers
sought, and other factors. This cap is also subject to rules in
case of emergency in case of labor shortages.
New Section 218A(d)--Nonimmigrant Worker Requirements. An
alien is not eligible for the program if the alien has violated
a material term of a previous admission as a non-immigrant
agricultural worker; has failed to pass security and criminal
background checks; or departed the United States subject to an
order of exclusion, deportation or removal and is outside the
United States or reentered the United States illegally after
December 31, 2012 (subject to certain exceptions). Temporary
workers are not eligible for means-tested federal benefits or
assistance.
The visa term is for three years. The visa is portable for
at-will workers, and for contract workers it ends upon
fulfillment of contract term. A guest worker can renew his or
her visa one time. After year six, guest worker must reside
outside of the United States for three months before obtaining
another visa. A spouse or child is not eligible for derivative
status on a nonimmigrant visa.
Contract agricultural workers may seek employment with
other designated agricultural workers after the completion of
the contract period. At-will agricultural workers may seek and
accept employment with any other designated agricultural
employer. At-will and contract agricultural workers are
provided a 60 day grace period to find work in between
employment or must depart the country. A visa issued under this
section shall not specify the geographical area or limit the
type of employment which a worker may seek.
New Section 218A(e)--Employer Requirements. Each employer
seeking to employ guest workers shall submit to the U.S.
Department of Agriculture (USDA), through the Farm Service
Agency or electronically to the USDA, an application for
Designated Agricultural Employer status. Such application shall
include the employer's Employer Identification Number, the
estimated number of nonimmigrant agricultural workers the
employer will need each year, the anticipated periods during
which the employer will need such workers, and a registration
fee. The USDA shall assign each employer that meets the
criteria with a Designated Agricultural Employer registration
number. Designated Agricultural Employer status is for three
years. The Secretary may provide assistance to agricultural
employers, including helping such entities to register to be a
DAE, providing Internet access for the submission of
applications, and providing resources about the program.
A petition shall be submitted by a DAE to the Department of
Homeland Security no later than 45 days before a worker is
needed. Such petition shall include an attestation to all the
requisite criteria to ensure their compliance with the system.
Employers must provide housing or an allowance for at-will
and contract workers. Employers may provide a ``reasonable
housing allowance'' instead of arranging for housing, but the
employer shall upon request assist the employee in locating
suitable housing. Such allowance must not be used for housing
that is owned or maintained by the employer. The amount of
allowance would be based upon HUD fair market rental rates for
a two-bedroom dwelling occupied by four individuals. Contract
workers may only get a housing allowance instead of housing if
the State certifies that there is adequate housing available in
the area of intended employment. The housing provisions do not
apply to workers who live within normal commuting distance
where the job site is within 50 miles of the U.S. border.
The contract visa program requires employers to provide
daily worksite transportation or reimbursement for
transportation. The at-will visa program does not require
employers to provide transportation. The first employer pays
for inbound travel to the United States for contract workers
and at-will workers. Employers pay for outbound travel for
contract workers who complete 27 months under their contracts
with the same employer.
Nonimmigrant agricultural workers lose their status and
must depart the United States if they were unemployed for more
than 60 consecutive days. This requirement could be waived as
necessary for workers who are injured or unable to work for
extended periods of time through no fault of their own due to
natural disasters such as crop freezes or droughts. A contract
worker who breaches with his or her contract with an employer
must depart the United States before accepting another job with
a U.S. employer.
Employers must file job offers with their State workforce
agencies no later than 60 days before such employer seeks to
employ a nonimmigrant agricultural worker. These offers must be
listed for 45 days. Employers shall keep records of all
eligible, able, willing, and qualified U.S. workers who apply
for agricultural employment with the employer. An employer may
not seek a foreign worker unless the employer offers such
employment to each eligible, able, willing, and qualified U.S.
worker who applies for such employment.
Guest workers shall be provided equal labor protections
under the law as domestic agricultural workers. An employer
cannot hire a nonimmigrant agricultural worker to replace an
employee who is on strike or locked out. An employer may not
displace U.S. workers to hire nonimmigrant agricultural
workers. The three-quarters guarantee rule has required the
employer under the H-2A program to guarantee the worker to
receive 75 percent of the worker's wages under the contract
period regardless of whether or not the work was completed (in
other words, to guarantee 75 percent of the work, regardless of
other circumstances). This rule is retained for employers who
employ workers under the contract program, but this rule will
not apply to an employer's workers who came to the United
States in the at-will program.
Employers must provide worker's compensation to
nonimmigrant agricultural workers. Employers must provide U.S.
agricultural workers the same wages, benefits, and working
conditions to their employees. Employers shall make only
deductions from workers' wages that are authorized by law or
are reasonable and customary in the occupation and area of
employment.
New Section 218A(f)--Wages. If an employer pays on a piece-
rate basis and requires a minimum productivity standard, the
standard must be specified in the job offer and cannot be more
than what has been normally required by other employers at the
time of the employer's first application, unless the Secretary
of Agriculture approves a higher rate. The wage rate from
Fiscal Year 2014 through Fiscal Year 2016 shall be the higher
of the local minimum wage or specific rates listed in the bill
for these occupations. The Secretary of Agriculture is to index
an increase in the required wage rate based on the movement of
the Consumer Price Index ranging between 1.5 and 2.5 percent
per year.
The Secretary of Agriculture shall determine the prevailing
wage rate for the six categories of farm workers listed. The
Adverse Effect Wage Rate (as in effect for the current H-2A
program) will remain frozen while the new prevailing wage rate
for the categories is being determined. A new prevailing wage
shall be set by the Secretary of Agriculture by September 1,
2015. If a new prevailing wage rate is not established by
September 1, 2015, the frozen AEWR shall be the prevailing wage
for these job categories and adjusted for inflation in
accordance with the Consumer Price Index.
New Section 218A(g)--Worker Protection. Nonimmigrant
workers have the same rights and remedies under Federal, State,
and local law as their U.S. counterparts. Workers are covered
by the Migrant and Seasonal Agricultural Worker Protection Act
(MSPA) and can pursue their grievances with employers covered
under this act. In the event of a lawsuit between an employer
and an employee, any party can request mediation of the
complaint and mediation must be exhausted before the lawsuit
may proceed.
The Secretary of Labor is given authority to establish a
process to address worker grievances and complaints. The
Secretary shall be able to impose administrative remedies and
bar an employer from the program related to program violations
and abuses. Employers are prohibited from discriminating
against an employee who reports compliance violations or
misconduct.
New Section 218A(i)--Special Procedure for Certain
Occupations. Under the new agricultural visa program, the
Secretary is authorized to continue the special procedures
relating to housing, pay and visa application requirements for
sheepherders, goat herders, beekeepers and other industries
subject to such procedures under the current H-2A regulations.
New Section 218A(j)--Monitoring and Miscellaneous. Upon the
full implementation of the mandatory Employment Verification
system, this bill will ensure that everyone working in
agriculture is legally authorized to be employed in the United
States. In addition, DHS will implement a new electronic
monitoring system to ensure that those who are legally
authorized to work are actually working with the employer that
petitioned them. This is intended to not only cut down on fraud
and abuse of the system, but also to ensure compliance with
program requirements and that nonimmigrant agricultural workers
leave when legally required to do so.
Section 2234. Reports to Congress on nonimmigrant agricultural workers
The Department of Agriculture has to submit an annual
report that provides information on W agricultural worker
admissions. The Department of Homeland Security must submit an
annual report on W agricultural workers violating the program
rules who have not departed from the United States.
Section 2241. Rulemaking
The Secretary, the Secretary of Agriculture, the Secretary
of Labor and the Secretary of State shall regularly consult in
promulgating regulations to implement this subtitle.
Regulations shall be issued not later than six months from the
date of enactment of this Act.
Section 2242. Reports to Congress
Not later than 180 days after enactment, DHS and the
Department of Agriculture shall jointly submit a report to
Congress describing the implementation of this subtitle.
Section 2243. Benefits integrity programs
This section requires the creation of a benefit fraud
assessment program to monitor fraud in the RPI, blue card,
DREAM, and U visa programs.
Section 2244. Effective date
This subtitle shall take effect on that date on which
regulations required by Section 2241 are issued (six months
following enactment).
SUBTITLE C--FUTURE IMMIGRATION
Section 2301. Merit-Based Points Track One Immigrant Visas
This section sets the worldwide level of merit-based
immigrants equal to 120,000 for each fiscal year. The cap may
increase annually by up to five percent per year if the
following conditions are met, but the cap may not exceed
250,000 in any year: first, if the worldwide level of visas
available is less than 75 percent of the number of applicants,
then the worldwide level will increase by five percent in the
next fiscal year; second, if the worldwide level of visas is
equal to or more than 75 percent of the number of applicants,
then the worldwide level will stay the same, minus any amount
added for the recapture of unused visas; third, if the average
unemployment level for the prior fiscal year is more than 8.5
percent, then worldwide level of merit-based visas may not
increase; and the worldwide level will be increased by any
unused numbers from the prior fiscal year.
Tiers One and Two. For the first four years, the 120,000
visas (subject to any increase) will be available to those with
approved petitions in the 203(b)(3) category. Beginning in the
fifth fiscal year after date of enactment, the Secretary will
allocate 50 percent of the merit-based visas to Tier One and 50
percent to Tier Two. In each of the two tiers, the Secretary of
Homeland Security will give preference to aliens in each of two
tiers based upon a point allocation system, until the worldwide
level is met. The first tier allows points to be earned based
on education, employment experience, employment related
education, entrepreneurship, employment in a high-demand
occupation, civic involvement, English language proficiency,
family relationships, age, and country of origin. The second
tier allows points to be earned based on employment experience,
special employment criteria, caregiver obligations, exceptional
employment record, civic involvement, English language
proficiency, family relationships, age, and country of origin.
No one granted RPI status or those with pending or approved
employment or family petitions may be granted a merit-based
immigrant visa.
Unused numbers in Tier One will be recaptured in the
following year, with two-thirds going to Tier One and one-third
to either tier. Unused numbers in Tier Two will be recaptured
in the following year with two-thirds going to Tier Two and
one-third to either tier.
Modification of Points Allocated. The Secretary has
authority to submit a proposal to Congress recommending a
modification to the points allocated in each tier, and the
proposal shall be considered by Congress under expedited
procedures.
Study. The Comptroller General shall conduct a study of the
new merit-based immigration system during the first seven years
of the system. This study shall include the demographics of the
population that utilizes the system.
Section 2302. Merit-Based Track Two
This section allows the Secretary of State to allocate
merit-based immigrant visas beginning on October 1, 2014 for:
employment-based visas that have been pending for five years;
family-sponsored petitions that were filed prior to enactment
and have been pending for at least five years; family-sponsored
petitions filed after the date of enactment that have been
pending for at least five years for adult married children and
siblings; long-term alien workers who have been present for not
less than 10 years, and are not admitted on a W visa under
section 101(a)(15)(W) of the Act. Beginning in 2028, long-term
aliens must be present for at least 20 years to adjust to
permanent residence under this section.
Between Fiscal Years 2015 and 2021, each year, the
Secretary shall allocate a seventh of the total number of
employment-based visas that have been pending as of the date of
enactment. Between Fiscal Years 2015 and 2021, the Secretary
shall allocate a seventh of the total number of family-based
visas that are pending as of the date of enactment, excluding
petitions that are converted to the immediate relative
category. Petitions for spouses and children of permanent
residents who are accorded status under the INA are
automatically converted to petitions to accord status as
immediate relatives.
In Fiscal Year 2022, the Secretary of State shall allocate
immigrant visas to 50 percent of the number of family based
petitions approved after the date of enactment that were not
issued as of October 2021. In Fiscal Year 2023, the Secretary
shall allocate immigration visas to the remaining 50 percent of
family based petitions filed after the date of enactment that
were not issued by October 2021. Visas allocated for these
family based petitions will be issued based on the order in
which petitions were filed.
Registered Provisional Immigrants may apply for merit-based
green cards under Merit-Based Track Two ten years after
enactment of the bill.
The merit-based point system tracks will not be subject to
per country limits.
Section 2303. Repeal of the Diversity Visa Program
This section amends the INA to repeal the Diversity Visa
Program. Immigrants who were or are selected for diversity
immigrant visas for Fiscal Years 2013 or 2014 will be eligible
to receive them. All unused green cards may be recaptured
through the date of enactment.
Section 2304. Worldwide levels and recapture of unused immigrant visas
In FY 2015, unused employment-based green cards from Fiscal
Years 1992 to 2013 will be added to the FY 2015 green card
allocation. After FY 2015, unused employment-based green card
numbers will roll over to the following fiscal year.
This section maintains the current worldwide level of
family-sponsored immigrants for a fiscal year at 480,000 visas,
minus the number of immigrant visas issued to immediate
relatives, with a floor of 226,000. This allocation remains in
place for 18 months after the date of enactment. This section
allows unused visas from 1992 through 2011 to be included in
the allocation of family-sponsored immigrant visas for Fiscal
Year 2015.
Section 2305. Reclassification of spouses and minor children of lawful
permanent residents as immediate relatives
This section amends the definition of ``immediate
relative'' to include a child or spouse of an alien admitted
for lawful permanent residence. This allows for the automatic
conversion to immediate relative designation for pending
petitions filed on behalf of a spouse or child of a lawful
permanent resident.
This section provides allocations for family-based
immigrant visas for the period beginning on the date of
enactment until 18 months after enactment. It caps unmarried
sons or daughters of lawful permanent residents at 20 percent
of the worldwide family-sponsored level; caps immigrant visas
for married sons and daughters of U.S. citizens; and caps
immigrant visas for brothers and sisters of U.S. citizens at 40
percent of the worldwide family-sponsored level.
Within 180 days of enactment, the Secretary of Homeland
Security and the Secretary of State shall adopt a plan to
broadly disseminate information to the public regarding
termination of the registration of aliens who evidenced an
intention to become lawful permanent residents but who fail to
adjust status within a year of notification that an immigrant
visa is available. Termination can be overturned with two
years, if the individual establishes good cause.
The section provides for the retention of priority dates
for family-based and employment-based petitions by establishing
that the priority date for a petition is the earliest priority
date based on any petition filed on an alien's behalf,
regardless of the category of subsequent petitions. For
children who turn 21 during the course of processing of the
parent's visa such that the child is no longer eligible to
adjust as a minor child, that child would have his or her
petition automatically convert to a petition for an unmarried
son or daughter of an LPR upon the parent's admission as a
resident. The child would retain the priority date established
by the original petition.
This section also provides that VAWA self-petitioners may
receive work authorization within 180 days of filing an
application, or on the date such status is approved, whichever
is earlier. There are other technical and conforming amendments
included in this section.
Section 2306. Numerical limitations on individual foreign states
This section eliminates the per-country limits for
employment-based immigrants and increases the per-country limit
for family-based immigrants from seven to 15 percent. It also
applies special rules for countries at the ceiling to
distribute visas in a proportional way across the family
categories.
Section 2307. Allocation of Immigrant Visas
Family-Sponsored Visas. Eighteen months from the date of
enactment, the allocation of immigrant visas will be amended as
follows: (1) the cap on immigrant visas to adult unmarried sons
and daughters will be 35 percent of the worldwide family-
sponsored level; (2) caps on immigrant visas for married sons
and daughters of U.S. citizens who are 31 years of age and
under at the time of filing will be 25 percent of the worldwide
family-sponsored level; (3) caps on immigrant visas for
unmarried sons and daughters of legal permanent residents will
be 40 percent of the worldwide family-based level. This section
strikes the availability of immigrant visas for siblings of
U.S. citizens.
Employment-Based Visas. This section exempts the following
categories from the annual numerical limits on employment-based
immigrants: derivative beneficiaries of employment-based
immigrants; immigrants of extraordinary ability in the
sciences, arts, education, business or athletics; outstanding
professors and researchers; multinational executives and
managers; doctoral degree holders in STEM fields; physicians
who have completed the foreign residency requirements or have
received a waiver; and immigrants who have earned a master's
degree or higher in a field of STEM from an accredited U.S.
institution of higher education and have an offer of employment
in a related field, if the qualifying degree was earned in the
five years immediately before the petition was filed.
EB-2 Visas. This section allocates 40 percent of the
worldwide level of employment-based visas to members of the
professions holding advanced degrees or their equivalent whose
services are sought in the sciences, arts, professions, or
business by an employer in the United States (including certain
aliens with foreign medical degrees). The Secretary may waive
the job offer requirement if it is in the national interest,
and shall waive the requirement for physicians serving patients
who reside in a shortage area if the alien's work is in the
public interest. These physicians must meet certain
requirements before their status can be adjusted to lawful
permanent residence. This section eliminates labor
certification requirement for hiring advanced degree holders in
STEM fields from a U.S. university who are applying under the
EB-2 category.
EB-3, EB-4, and EB-5 Visas. This section increases the
percentage of employment visas for skilled workers,
professionals, and other professionals to 40 percent (the EB-3
category), increases the percentage of employment visas for
certain special immigrants to 10 percent (the EB-4 category),
and increases visas for those who foster employment creation to
10 percent (raising the EB-5 cap from 10,000 to 14,000). The
numbers may roll down among those categories.
Naturalization of Employees of Certain National Security
Facilities. Under this section, a person who is employed in a
research capacity at a Federal national security, science and
technology laboratory or agency for one year longer may be
naturalized without regard to typical residency requirements,
if other background investigation and other requirements are
met.
Section 2308. Inclusion of communities adversely affected by a
recommendation of the Defense Base Closure and Realignment
Commission as targeted employment areas.
This section provides that a Targeted Employment Area for
the purpose of the EB-5 visa includes ``any community adversely
affected by a recommendation of the Defense Base Closure and
Realignment Commission.''
Section 2309. V Nonimmigrant Visa
This section amends the V nonimmigrant visa status to be
available to: those with approved petitions as the unmarried
son or daughter of a U.S. citizen or of a lawful permanent
resident, and to the married son or daughter of a U.S. citizen
who is 31 years of age or under; or the sibling of a U.S.
citizen or the married son or daughter of a U.S. citizen who is
over 31 years of age. The Secretary may issue work
authorization to those admitted under a V visa based on a
pending family sponsored petition. A V visa terminates 30 days
after the visa petition or adjustment of status is denied.
Siblings and married sons and daughters of U.S. citizens over
31 years of age may not be authorized to work after being
admitted on a V visa and may only be admitted for up to 90
days. This change is effective on the first day of the first
fiscal year beginning after the date of enactment. V visas are
subject to the public charge requirement. They do not have
access to subsidies and they are not subject to the mandate
under the Affordable Care Act.
Section 2310. Fiance child status protection
This section amends K visa eligibility to include the
fiances of lawful permanent residents. It also clarifies that
children who are adjusting with their parents from a fiance
visa to a family visa are included and provides certain age-out
protections for the children of those being admitted as a
fiance. It provides that for purposes of both the visa petition
and the adjustment application, the age of the dependent child
is determined at the time the petition is filed.
Section 2311. Equal treatment for all step children
This section harmonizes the definition of stepchildren with
other children under the Immigration and Nationality Act by
including the definition of stepchildren as those who are 21
years of age and younger.
Section 2312. International Adoption Harmonization
This section amends the adoption age requirements to allow
children under the age of 18 to be adopted. It also harmonizes
adoptions between Hague Convention and Non-Hague Convention
countries.
Section 2313. Relief for orphans, widows, and widowers
This section allows aliens who were excluded, deported,
removed, or departed voluntarily before enactment based solely
upon their lack of classification as an immediate relative due
to the death of such citizen or resident to be eligible to
apply for parole into the United States pursuant to the
Secretary's discretionary authority. This section allows
spouses of deceased U.S. citizens to apply for naturalization
after three years of lawful permanent resident status.
This section allows for the adjudication of an immigrant
visa application as if the death had not occurred for a widow
or orphan of a qualifying relative who died before the
completion of the immigrant visa processing. This section also
preserves the eligibility of these individuals for any waivers
based on their relationship to the qualifying relative as if
the death had not occurred and recognizes that the death of the
qualifying relative is the functional equivalent to hardship.
It removes the physical presence requirement under 204(l).
Section 2314. Discretionary authority with respect to removal,
deportation or inadmissibility of citizen and resident
immediate family members
This section grants immigration judges discretion to
terminate removal proceedings or waive inadmissibility with
respect to a request for admission in cases where the judge or
officer determines that removal or a finding of inadmissibility
is against the public interest, would result in hardship to the
alien's U.S. citizen or permanent resident parent, spouse, or
child, or the judge determines the alien is prima facie
eligible for naturalization. This waiver is not available to
individuals who are subject to removal or who are inadmissible
based on certain criminal and national security grounds.
Section 2315. Waivers of inadmissibility
This section makes inapplicable the unlawful presence
inadmissibility grounds at 212 (a)(9)(B) to individuals who are
the beneficiaries of an approved H nonimmigrant visa petition;
initially entered the United States prior to age 16; and have
earned a bachelor's degree or higher from a U.S. institution.
This section allows those who are parents of U.S. citizens
or lawful permanent residents to be eligible to apply for a
waiver for unlawful presence and strikes ``extreme'' from the
hardship standard.
This section requires false claims to citizenship to be
``knowing'' and exempts children and individuals who are
incapable of making a ``knowing'' claim due to mental
disabilities. This section creates a waiver for
misrepresentations and false claims to citizenship based on
extreme hardship to the alien or the alien's citizen or legal
permanent resident parent, spouse, son, or daughter. It also
creates a waiver for VAWA self-petitioners if waivers would
result in significant hardship to the alien or a parent or
child of the alien.
Section 2316. Continuous presence
This section states that any period of continuous residence
or continuous physical presence shall be deemed to end on the
date that a notice to appear is filed with the Executive Office
for Immigration Review (EOIR).
Section 2317. Global health care cooperation
This section requires the Secretary of Homeland Security to
allow lawful permanent residents who are physicians or health
workers to reside in a candidate country as designated by the
Secretary of State and be considered physically present and
continuously resident in a State in the United States, for
purposes of meeting the naturalization requirements.
An individual who seeks to enter the United States for the
purpose of performing labor as a physician or other health care
worker is inadmissible unless the individual submits to the
Secretary of Homeland Security or the Secretary of State an
attestation that he or she is not seeking to enter the United
States for such purpose during any period in which the
individual has an outstanding obligation to the government of
the individual's country of origin or residence. The Secretary
of Homeland Security can waive a finding of inadmissibility
subject to certain constraints.
Section 2318. Extension and improvement of the Iraqi Special Immigrant
Visa Program
This section extends and improves the Iraqi Special
Immigrant Visa program. It provides that any unused balance of
principal SIVs available in Fiscal Years 2008 through 2012 may
be carried forward and provided through the end of Fiscal Year
2018; and that employment ``by or on behalf of the U.S.
Government in Iraq'' includes employment by a media or
nongovernmental organization headquartered in the United States
or an organization or entity closely associated with the U.S.
mission in Iraq that has received U.S. Government funding
through an official and documented contract, award, grant, or
cooperative agreement. It further requires improvement in the
processing of Iraqi SIV applications so that a determination is
made within six months from the date of application; and it
provides a review process for Iraqis whose visa applications
are denied.
Section 2319. Extension and improvement of the Afghan Special Immigrant
Visa Program
This section extends and improves the Afghan Special
Immigration Visa program. It increases the number of principal
Afghan SIVs from 1,500 to 5,000 for Fiscal Years 2014 through
2018, giving the Afghan program parity with the Iraqi SIV
program. It further provides that any unused balance of
principal SIVs available in Fiscal Years 2009 through 2013 may
be carried forward and provided through the end of Fiscal Year
2019. The section provides SIVs for parents and siblings of
principal applicants who are in danger, and requires
improvement in the processing of Afghan SIV applications so
that a determination is made within six months from the date of
application. It also provides a review process for Afghans
whose visa applications are denied.
Section 2320. Elimination of sunsets for certain visa programs
This section eliminates sunsets for the Special Immigrant
Nonminister Religious Worker Program, and the EB-5 Regional
Center Program.
Section 2321. Special immigrant status for certain surviving spouses
and children
This section creates a new special immigrant provision for
surviving spouses and children of an employee of the U.S.
Government who is killed abroad in the line of duty if the
employee had performed faithful service for a total of 15 years
or more, and the principal officer of the Foreign Service
establishment in his or her discretion recommends granting
special immigrant status and the Secretary of State approves
his recommendation. This section takes effect beginning on
January 31, 2013, and is retroactive.
Section 2322. Reunification of certain families of Filipino Veterans of
World War II
This section allows individuals who are the sons or
daughters of a U.S. citizen and whose parents were naturalized
under Section 405 of the Immigration Act of 1990 or Section
1001 of the Second War Powers Act to receive green cards
without regard to the numerical limits governing immigrant
visas.
SUBTITLE D--CONRAD STATE 30 PROGRAM
Section 2401. Conrad State 30 Program
This section eliminates the sunset clause for the Conrad
State 30 Program.
Section 2402. Retaining physicians who have practiced in medically
underserved communities
This section exempts alien physicians who have completed
service requirements in underserved areas from the annual
numeric limits on employment-based immigrant visas. It also
exempts the physicians' spouses and children from these limits.
Section 2403. Employment protections for physicians
This section creates certain employment protections for
alien physicians working in underserved areas who agree to work
under certain conditions after having completed graduate
medical training in the United States on J-1 visas. Employment
contracts for alien physicians must specify the maximum number
of on-call hours per week; indicate whether the contracting
facility or organization will pay for the alien's malpractice
insurance premiums; describe all of the individual's work
locations; and may not include a non-compete provision.
This section also allows physicians who are denied a Conrad
30 J-1 waiver because the program has been filled to get an
extension of J-1 status for up to six months to pursue another
waiver. Work authorization is available once the new J-1 waiver
application is submitted. This provision also permits dual
intent for J-1 doctors.
Section 2404. Allotment of Conrad 30 waivers
This section allots an increase to 35 waivers for any state
that uses 90 percent of the waivers available to it in a given
fiscal year, as long as at least five waivers were used in the
previous fiscal year. All states are allotted an additional
five waivers for each subsequent fiscal year if the same
conditions are met. Any increase in allotments shall be
maintained indefinitely, subject to constraints.
Section 2405. Amendments to the procedures, definitions, and other
provisions related to physician immigration
This section establishes dual intent is established for
physicians seeking graduate medical training and allowable visa
status is created for physicians fulfilling waiver requirements
in medically underserved areas. This section clarifies national
interest waivers with respect to practice, geographic area, and
the five-year service requirement. Short-term work
authorization is allowed for physicians completing their
residencies.
SUBTITLE E--INTEGRATION
Section 2501. Definitions
This section defines key terms used in this subtitle.
Section 2511. Office of Citizenship and New Americans
This section renames the Office of Citizenship in USCIS to
``Office of Citizenship and New Americans.'' The office shall
be headed by the ``Chief of the Office of Citizenship and New
Americans.'' The Office's new responsibilities include
providing general leadership, consultation, and coordination of
immigrant integration programs across the Federal Government
and with State and local entities; setting goals and indicators
and measuring progress; and engaging government and non-
governmental stakeholders. The functions of the new Office
shall take effect one year after the date of enactment of this
Act.
Section 2521. Task Force on New Americans
The Secretary shall establish a Task Force on New
Americans, which shall be fully functional not later than 18
months after the date of the enactment of this Act.
Section 2522. Purpose
This section stipulates that the Task Force will coordinate
Federal program and policy response to integration issues and
advise and assist the Secretary of Homeland Security in
integration policy.
Section 2523. Membership
The Task Force shall be comprised of 13 Federal agency
officials or their designees and shall be chaired by the
Secretary of Homeland Security. Members include the Secretary
of the Treasury, the Attorney General, the Secretary of
Commerce, the Secretary of Labor, the Secretary of Health and
Human Services, the Secretary of Housing and Urban Development,
the Secretary of Transportation, the Secretary of Education,
the Director of the Office of Management and Budget, the
Administrator of the Small Business Administration, the
Director of the Domestic Policy Council and the Director of the
National Economic Council.
Section 2524. Functions
This section establishes that the Task Force shall meet at
the call of the Chair, provide a coordinated Federal response
to integration issues, liaise with their respective agencies,
and provide recommendations no later than 18 months after Task
Force is established.
Section 2531. Establishment of a United States Citizenship Foundation
This section authorizes the Secretary of Homeland Security
to establish a nonprofit corporation, called the ``United
States Citizenship Foundation.''
Section 2532. Funding
This section authorizes the United States Citizen
Foundation (``Foundation'') to solicit, accept, and make gifts
of money and other property.
Section 2533. Purposes
The purpose of the Foundation is to expand citizenship
preparation programs for permanent residents; to provide direct
assistance for aliens seeking provisional immigrant status,
legal permanent resident status, or naturalization as a U.S.
citizen; and to coordinate immigrant integration with State and
local entities.
Section 2534. Authorized activities
This section defines the authorized activities of the
Foundation to include making United States citizenship
instructions and naturalization application services accessible
to low-income and other underserved permanent resident
populations.
Section 2535. Council of Directors
This section establishes Council of Directors to be
comprised of the Director of USCIS, the Chief of the Office of
Citizenship and New Americans, and 10 Directors from national
community-based organizations. Authorizes the Council to
appoint an Executive Director to manage day-to-day operations.
Section 2536. Powers
This section defines the authorized powers of the Executive
Director.
Section 2537. Initial Entry, Adjustment, and Citizenship Assistance
Grant Program
This section authorizes the Secretary of Homeland Security
through the Director of USCIS to award Initial Entry,
Adjustment, and Citizenship Assistance (IEACA) grants to
eligible public or private, nonprofit organizations. It defines
the use of funds to include the design and implementation of
programs that provide direct assistance to aliens who are
preparing an initial application for Registered Provisional
Immigrant status or agricultural card status, aliens seeking to
adjust their status to Legal Permanent Resident (LPR), and
legal permanent residents seeking to naturalize. Grant programs
should assist applicants in the application process, rights and
responsibilities of U.S. citizenship, English as a second
language, and civics.
Section 2538. Pilot Program to promote immigrant integration at State
and local levels
This section provides that the Chief of the Office of
Citizenship and New Americans may award grants on a competitive
basis to States and local governments or other qualifying
entities to carry out programs to integrate new immigrants. A
State or local government or other qualifying entity must
submit an application including a proposal to meet integration
objectives set forth in this Subtitle, the number of new
immigrants in the applicant's jurisdiction; and a description
of the challenges in introducing and integrating new immigrants
into the State or local community. Priority will be given to
entities who use matching funds from non-Federal sources;
demonstrate collaboration with public and private entities; and
are one of the 10 States with the highest rate of foreign-born
residents or that have experienced a large increase in the
population of immigrants during the most recent 10-year period.
The section defines activities as those used to introduce
and integrate new immigrants into the State, including
improving English language skills, improving access to
workforce training program, teaching U.S. history and civics,
teaching financial literacy, and engaging receiving
communities. Each grant recipient shall submit an annual report
to the Office of Citizenship and New Americans. The Chief shall
also conduct an annual evaluation of each grant program.
Section 2539. Naturalization ceremonies
This section mandates that the Chief implement a strategy
to enhance the public awareness of naturalization ceremonies.
Section 2541. Authorization of appropriations
This section authorizes the appropriation of $10,000,000
for the five-year period ending on September 30, 2018, in
addition to any amounts otherwise made available to the Office.
It further authorizes the appropriation of $100,000,000 for the
five-year period ending on September 30, 2018, for the two
grant programs and to implement the naturalization ceremony
strategy.
Section 2551. Waiver of english requirement for senior new americans
This section adds a provision to waive the English language
and civics and history requirements under INA Section 312(a)
for any person older than 65 years of age who has been living
in the United States for periods totaling at least five years
after being lawfully admitted for permanent residence. It also
waives the English language requirement for certain other
persons aged 50 years and older who have been living in the
United States for extensive periods of 15 to 20 years, and
permits the Secretary, on a case-by-case basis, to waive the
civics and history requirement for a person over 60 years of
age who has been living in the United States for periods
totaling at least 10 years after being lawfully admitted for
permanent residence.
Section 2552. Filing of applications not requiring regular internet
access
This section prohibits the Secretary of Homeland Security
from requiring an applicant or petitioner for permanent
residence or citizenship to file any application
electronically, or requiring access to a customer account. This
provision ceases to be effective on October 1, 2020, after
which DHS must notify the Committees on the Judiciary in the
House and Senate of such intention.
Section 2553 Permissible use of assisted housing by battered immigrants
This section makes public housing available to certain
qualified battered immigrants.
TITLE III--INTERIOR ENFORCEMENT
Section 3101. Unlawful employment of aliens (setting up the mandatory
E-Verify system)
New Sec.274A(a)--Making Employment of Unauthorized Aliens
Unlawful. This title amends existing law that provides for the
limited use of E-Verify, modernizing the system and eventually
making its use mandatory for all U.S. employers. It provides
that it is unlawful for an employer to hire, recruit, or refer
for a fee an alien knowing that the alien is unauthorized to
work in the United States, or to continue to employ such an
alien. It will now also be unlawful for an employer to hire,
recruit, or refer for a fee an alien without complying with the
new E-Verify program, as set forth in (c) and (d) of this
section. (Penalties--both civil and criminal--appear later in
this Title.) This includes the employment of an alien who is
hired through a contract, subcontract, or an exchange when the
employer knew the alien to be unauthorized for work. An
employer may rely on a State employment agency's referral of an
employee when the agency has certified its compliance with E-
Verify.
Good faith defense. A good faith defense is available when
an employer, person, or entity can establish good faith
compliance with the requirements set forth in subsection
(c)(1)-(4) and those set forth in subsection (d) (see below).
Generally, an employer is considered to have complied with a
requirement under this subsection, notwithstanding a technical
or procedural failure to meet such requirement, if there was a
good faith attempt to comply with the requirement. After the
date on which an employer is required to use E-Verify, the
employer will be presumed to have acted with knowledge in
hiring an alien who lacks work authorization if such employer
failed to use E-Verify.
Workforce and labor protections. All rights and remedies
required under Federal, State, or local law relating to
workplace rights, including back pay, are available to an alien
despite the employee's unauthorized status or the employer or
employee's failure to comply with E-Verify's requirements.
Reinstatement is available to individuals who are authorized to
work in the United States at the time relief is ordered or
effectuated, or who lost employment-authorized status due to
the unlawful acts of the employer.
New Section 274A(b)--Definitions. Key terms are defined. An
``employer'' includes any person or entity, including Federal,
State and local governments, an agent or a System service
provider acting on behalf of an employer, that hires, employs,
recruits, or refers for a fee an individual for employment that
is not casual, sporadic, irregular, or intermittent employment
as defined by the Secretary.
New Section 274A(c)--Document Verification Requirements.
Employers must examine designated documents in order to
ascertain the identity and employment authorization of new
hires, and must attest (under oath) that they have in fact
examined such documents. Forms for this attestation will be
available by paper, by telephone, and electronically. The
Secretary of DHS shall make public on the USCIS website the
documents, and pictures of the documents, that must be used for
employment verification. An employer is in compliance with
these provisions if the employer has followed applicable
regulations in good faith, and a reasonable person could
conclude that the documentation presented is genuine and
reflects the identity of the applicant.
Acceptable documents. An employee must present one of the
following to establish identity and employment-authorized
status: a U.S. passport or passport card, a document that is
issued to an alien lawfully admitted for permanent residence,
or a valid document showing work-authorized status with a
photograph of the bearer and security features, an enhanced
driver's license that meets the requirements of REAL ID and is
certified for use by the Secretary, or a foreign passport
accompanied by a form indicating work authorization status
(this list is set forth in subparagraph 274A (c)(1)(C)).
Alternatively, an employee may present one form of
identification showing identity (a complying driver's license
not described above, a voter registration card, a document that
complies with the requirements of the Intelligence Reform and
Terrorism Prevention Act of 2004, or alternatives established
by the Secretary for those under 18 years of age such as an
attestation by a parent or guardian) (subparagraph (c)(1)(D));
and one form of identification showing employment authorization
(a Social Security Account Number card, other than one that is
not valid for work authorization, or any other document
identified by the Secretary and published in the Federal
Register that evidences employment authorized status, if such
documentation contains security features) (subparagraph
(c)(1)(E)).
Identity authentication mechanism. In addition to verifying
the documents described above, the employer must also use an
identity authentication mechanism, after it becomes available,
to verify the identity of each individual the employer seeks to
hire. There are two such mechanisms: the photo tool, which will
allow an employer to match the photo on certain Government-
issued documents with a photo maintained by USCIS in an
electronic database (subclause (c)(1)(F)(iii)); or additional
security measures to adequately verify the identity of an
individual, which the Secretary shall develop to incorporate
the most up-to-date technological advances (subclause
(c)(1)(F)(iv)).
Individual attestation. Upon commencing employment, an
individual must attest under penalty of perjury that he or she
is authorized to work in the United States, on a form
prescribed by DHS, and must provide his or her Social Security
Account Number.
Retention of verification records. An employer must save
authorization records for three years after hiring an
individual or one year after termination, whichever is later.
These forms may be retained electronically. The Secretary may
promulgate regulations concerning the copying and retention of
such documents.
Penalties. An employer who fails to comply with
requirements may be penalized as set forth in Subsection
274A(e), below.
Civil rights protections. Nothing in this section may be
construed to diminish existing civil rights protected by
Federal law. An employer shall use the E-Verify system without
regard to race, color, religion, sex, national origin or,
unless specifically permitted in this section, to citizenship
status.
No national identification cards. Nothing in this section
may be construed to authorize, directly or indirectly, the
issuance, use, or establishment of a national identification
card.
New Section 274A(d)--Employment Verification System. This
subsection provides for the creation of the Employment
Verification System. The Department of Homeland Security, in
consultation with the Commissioner of Social Security, must
establish the System, and create processes to monitor the use
and misuse of the system, including error rates, speed, and
misuse of the system for discriminatory purposes.
Notification and direct access for individuals. The
Department of Homeland Security shall create a process so that
individuals can have direct access to their own case histories
in E-Verify, shall develop protocols to notify individuals when
their names have been processed through E-Verify, and shall
establish a process for individuals to notify the Secretary of
potential fraud.
Employer participation requirements. Different categories
of employer must participate as follows:
(A) Federal Government employers. Federal Government
employers who are not already participating in the system shall
participate in E-Verify beginning 90 days after the enactment
of this law.
(B) Federal contractors. Federal contractors shall
participate as provided in the final rule that currently
requires their participation, or any modification of it.
(C) Critical infrastructure. Beginning one year after
regulations are implemented, the Secretary may direct certain
critical-infrastructure related employers to use E-Verify to
the extent necessary to protect the infrastructure (pursuant to
regulations). These employers will be provided with 90 days
notice.
(D) Employers with more than 5,000 employees. Not later
than two years after regulations are published that implement
E-Verify, employers with more than 5,000 employees shall use
the System for new hires and those with expiring employment
authorization documents.
(E) Employers with more than 500 employees. Not later than
three years after regulations are published to implement E-
Verify, employers with more than 500 employees shall use the
System for new hires and those with expiring employment
authorization documents.
(F) Agricultural Employment. Not later than four years
after regulations are published to implement E-Verify,
employers of employees performing agricultural employment shall
use the System for new hires and those with expiring
authorization documents.
(G) All employers. Not later than four years after
regulations are published that implement E-Verify, all other
employers must use the System for new hires and those with
expiring employment authorization documents.
(H) Tribal government employers. Rule-making on E-Verify
should consider the effects of the program on federally
recognized Indian tribes and tribal members and consult with
Indian tribes. These employers shall be required to use the
System to verify new hires and those with expiring employment
authorization documents no later than five years after the
general regulations are published to implement E-Verify.
(I) Immigration law violators. An employer who has been
found to have violated this law may be required to participate
in the System if it is not otherwise required. An employer who
is found to have committed pattern and practice violations may
be required to use E-Verify for existing hires as well.
Voluntary participation in E-Verify is permitted. Failure
to participate in the system when participation is legally
required shall constitute a civil violation.
Procedures for participants in the System. Employers will
be required to register with E-Verify before using it. The
Secretary may require employers to undergo training, which
shall be made available electronically on the USCIS website if
practicable. The employer shall notify employees that it is
using E-Verify and that information may be used for immigration
enforcement purposes and may not be used to discriminate or
take adverse action against the individual. The employer shall
also obtain and record in a manner specified by DHS the
employee's Social Security Number, proof of citizenship or
noncitizen nationality, and other information that DHS might
require.
Seeking confirmation--timing and limitations. An employer
shall use the system to confirm the identity and status of any
individual beginning on the date that an offer is accepted, and
no later than three business days after the date on which
employment begins, or in a time established by the Department
of Homeland Security. An employer may not make employment or
training contingent on E-Verify confirmation. If an individual
has a limited period of employment authorized status,
reverification of the person's status must be completed no more
than three business days after the last day of such period.
Notification of confirmation, nonconfirmation, or a further
action notice. The Department of Homeland Security shall
provide employers with notice of confirmation, nonconfirmation,
or a ``further action notice'' (notice that further action is
required to verify the identity or work eligibility of an
individual). DHS shall directly notify the individual and the
employer of a nonconfirmation or further action notice by
email, mail, text message, phone, or other direct
communication. It shall also provide the applicant with
information about filing an administrative appeal.
Confirmation of an individual's identity and work
authorization shall be provided at the time of the inquiry, or
not later than three days after the inquiry. The confirmation
shall be recorded in a manner specified by the Department of
Homeland Security.
In the event of a further action notice, the employer shall
notify the employee of the notice and any procedures specified
by DHS for addressing the notice not later than three business
days after receipt of the notice, or during a reasonable time
that DHS may establish. The individual shall affirmatively
acknowledge in writing receipt of the notice. If the individual
refuses to acknowledge the notice or acknowledges that he or
she will not contest the further action notice, the employer
shall notify the Department of Homeland Security.
Contesting a further action notice. Not later than 10
business days after receiving a further action notice, the
individual shall contact the appropriate Federal agency and, if
DHS requires, appear in person to verify his or her identity
and employment eligibility using a secondary identification
procedure. If a further action notice is not contested or not
acknowledged within the time period specified by DHS, a
nonconfirmation shall be issued, and the employer shall record
the nonconfirmation and terminate the individual's employment.
Unless an extension is granted by DHS, after considering the
impact on the employer and the need of the individual to
provide additional evidence, E-Verify shall provide a
confirmation or nonconfirmation not later than 10 business days
after the individual contests the further action notice. The
Department of Homeland Security may establish procedures for
reexamining confirmations or nonconfirmations in the event that
subsequent information is received.
An employer may not terminate or take adverse action
against an individual solely because of a failure of an
individual to have his or her identity and employment
eligibility confirmed, until (1) a final nonconfirmation has
been issued; (2) if a further action notice was contested, the
period to appeal has expired; or (3) if an appeal before an
administrative law judge has been filed, the nonconfirmation
has been upheld or the appeal has been withdrawn or dismissed.
Nonconfirmations and appeals. Not later than three business
days after an employer receives a nonconfirmation notice, the
employer must notify the applicant and provide information
about appeals and a hearing and attest (through the E-Verify
system) that notification has been made. The individual must
acknowledge receipt of the notice in a manner prescribed by the
Department of Homeland Security.
Consequences of nonconfirmation. If an employer has
received a nonconfirmation for an employee, employment shall be
terminated when the time has expired for filing an
administrative appeal and for requesting a hearing before an
administrative law judge. If the employer does not terminate
the employee, a rebuttable presumption is created that the
employer hired an alien knowing that he or she was not
authorized to work. This presumption does not apply to criminal
prosecutions. If an individual does file an administrative
appeal or seeks review by an administrative law judge, the
employer shall not terminate the individual prior to resolution
of the appeal unless DHS terminates the stay of the
nonconfirmation. The Director of USCIS shall submit a weekly
report to the Assistant Secretary of ICE that includes the name
and information of employees who received a final
nonconfirmation and the contact information of their current
employer.
Obligations to respond to queries and provide additional
information. Employers are obligated to respond to inquiries by
the Department of Justice's Office of Special Counsel for
Immigration-Related Unfair Employment Practices (OSC) within
the time frame during which records are required to be
maintained, if the inquiry relates to the functioning,
accuracy, or possible misuse of the System. Failure to comply
constitutes a violation of the employer's obligation to comply
with the requirements governing the E-Verify system.
Individuals may also be required to take further action to
address questions identified by DHS regarding the documents
relied on for verification. If the Secretary or Commissioner
submits questions regarding an individual, the employer has
three business days to notify the individual and must record
the date and manner of the notification and receive
acknowledgement of receipt from the individual.
Rulemaking. DHS shall implement regulations to implement
and clarify use of the system, and to prevent misuse,
discrimination, fraud, identity theft, or threats to
confidentiality.
Designated agents. DHS shall certify, on an annual basis,
third-party vendors to perform verification queries on behalf
of employers under certain circumstances.
Requirement to provide information. This section
establishes a multi-agency campaign to provide and distribute
information about E-Verify. It authorizes $40 million for each
Fiscal Year 2014 through 2016 for this program.
Authority to modify the information requirements of the E-
Verify system. DHS, in consultation with the Social Security
Administration (SSA) Commissioner, may, through notice and
comment rulemaking, modify the information requirements for
both employee and employers, and procedures to be followed.
Self-verification. DHS, in consultation with the
Commissioner of the Social Security Administration, shall
establish procedures for self-verification in a secure manner,
and for employees to update their information.
Employer Protection from liability. An employer shall not
be liable for any employment-related action taken with respect
to a job applicant or employee on good-faith reliance on
information provided by the System.
Administrative appeals, stays, and review for error. An
individual who is notified of a nonconfirmation has 10 business
days to file an administrative appeal of such nonconfirmation
with the SSA (if the appeal is based on records maintained by
the Commissioner), or with the Department of Homeland Security.
An individual who fails to timely contest a further action
notice shall be denied review. An individual who files an
administrative appeal shall receive a stay, unless the appeal
is frivolous, filed for the purposes of delay, or time has run
out. The Department of Homeland Security and the SSA
Commissioner shall develop procedures for assessing evidence,
which shall be filed within 10 business days of the date the
appeal is filed. Appeals shall be resolved within 20 business
days after the evidence and argument have been submitted.
Filing deadlines may be extended for good cause in order to
ensure accurate resolution of an appeal. Appeals shall be based
on a preponderance of the evidence standard, and no damages,
fees, or costs may be awarded in this process.
Review by Administrative Law Judge and remedies. Not later
than 30 days after an administrative review is rendered, an
individual may file for a review of the decision with an
administrative law judge (ALJ) within the Department of
Justice. This shall result in an automatic stay of the
nonconfirmation. The Department of Homeland Security shall
promulgate regulations for appeals, and the ALJ shall have the
power to terminate a stay of nonconfirmation if the appeal is
frivolous or dilatory, take evidence, subpoena witnesses and
evidence, and enter a decision. The respondent to a complaint
filed under this paragraph is either the Secretary or the
Commissioner of Social Security, but the complaint must also be
served on the Attorney General.
An order by an ALJ may be appealed, as detailed below. The
order shall uphold or reverse the final determination and may
order lost wages or other appropriate remedies. The employer
may be ordered to pay the individual lost wages and reasonable
costs and fees if the nonconfirmation was due to the employer's
gross negligence or intentional misconduct. If the cause was
government negligence, lost wages and costs and fees may be
awarded.
Lost wages shall be calculated based on wage rate and work
schedule and determined by the amount of time since employment
was terminated, minus mitigation stemming from other employment
or reinstatement. No lost wages will be awarded for any time
spent out of employment-authorized status. An ALJ determination
may be appealed by an individual who is adversely affected by
an order within 45 days of entry of the order to the U.S. Court
of Appeals for the circuit in which the violation allegedly
occurred.
Management of the E-Verify system. The Department of
Homeland Security shall establish, manage, and modify the
System. The System shall be designed to maximize reliability,
ease of use, accuracy, privacy and security. The E-Verify
system shall also be subject to audits for misuse, fraud,
anomalies, accuracy, and privacy. The Department of Homeland
Security shall conduct interviews to audit the system. Accuracy
audits shall be conducted each year and the error rate shall be
reported. In any year the system has an error rate higher than
0.3 percent, the civil penalty for certain first-time
violations by an employer may not exceed $1,000.
Any person, including a private third-party vendor, who
retains document verification or system data as required by
law, shall implement a security program to protect such data,
which shall be accessible only to authorized personnel. Third-
party vendors who retain document verification must also
provide for backup and recovery of records and provide for
employee training. Authorized personnel must be registered with
the E-Verify system.
Available facilities. The Department of Homeland Security
shall make appropriate arrangements for employers and
employees, including remote hires, who are unable to access the
System to use other electronic and telephonic formats and/or
Federal Government facilities or public facilities to use E-
Verify.
Responsibilities of the Secretary. The Department of
Homeland Security shall maintain a reliable method for
verifying identification, document validity, authorization
status, and all information that is necessary to the system.
The Department of Homeland Security shall establish and develop
a photo tool system for authenticating digital photographs (as
described above). Audits shall be authorized and used to
administer and enforce the immigration laws.
Identity fraud protection. To prevent identity fraud, DHS
and the SSA shall establish a program to provide a reliable,
secure method for an individual to suspend or limit the use of
his or her Social Security Number or other identifying
information by E-Verify. This shall include procedures for
identifying and protecting against multiple or suspicious use.
A monitoring and compliance unit will help to administer this
program. The Department of Homeland Security and SSA shall
establish a program by which parents can suspend or limit the
use of a Social Security Number or other information of a minor
under their care. The Department of Homeland Security and SSA
shall also establish procedures for identifying Social Security
Account Numbers that are subject to unusual multiple use or are
otherwise suspected or determined to have been compromised by
identity fraud.
Civil rights and civil liberties assessment. The Department
of Homeland Security shall conduct regular assessments of the
System, and employers and other entities shall respond to such
assessments. The Officer for Civil Rights and Civil Liberties
of the Department of Justice shall review the result and
recommend to the Secretary any changes necessary to improve the
civil rights and civil liberties protections of the System.
Grants to States. This section authorizes $250 million to
help States to develop and share driver's license information
in a manner that complies with the E-Verify photo tool.
Passports. The Secretary of State shall provide DHS access
to passport and visa information as needed to confirm an
employee's identity through E-Verify. The Commissioner, the
Secretary and the Secretary of State shall update their
information in a manner that promotes maximum accuracy and
shall provide for prompt correction of erroneous information.
Limitation on use of the System. Records and data assembled
for E-Verify may not be used for any purpose other than for
employment verification or to ensure appropriate use of the
System.
Annual report by DHS. Not later than 18 months after the
publication of regulations that implement E-Verify, DHS shall
issue a report on accuracy of responses, challenges to small
employers, the rate of employer noncompliance in various
categories of use of E-Verify, and the use of the appeals
process by employees. The assessment shall also include the
rate of employee noncompliance and document fraud, and an
assessment of the amount of time taken for various stages of
the E-Verify process.
Annual GAO study and report. Not later than 18 months after
the publication of implementing regulations, the Comptroller
General shall undertake a study to evaluate the security,
accuracy, and privacy of E-Verify. This report shall take into
account the impact of E-Verify on employees and employers.
New 274A(e)--Compliance Provisions. The Department of
Homeland Security shall establish procedures for the filing of
complaints and conducting of investigations for potential
violations of the prohibition against the knowing hire of
aliens who are unauthorized to work, and against employers who
illegally require employees to post employment bonds (see
below). The Office of Special Counsel (OSC) shall be notified
of such violations. Immigration officers may conduct
investigations under this section, and compel evidence and
witnesses by subpoena. The Department of Homeland Security, in
cooperation with the Commissioner and the Attorney General,
shall establish a Joint Employment Fraud Task Force.
If there is reasonable cause to believe there has been a
civil violation of this section, DHS shall issue a written
notice of its intention to issue a claim for a monetary fine or
other penalty. The notice shall describe the violation and the
material facts supporting it, and give the employer a
reasonable opportunity to respond. The employer's response is
due within 60 days, and the employer may also request a hearing
before an ALJ. If no hearing is requested, the order shall be
final and not subject to appeal.
Civil penalties. An employer who hires an alien whom he or
she knows to be unauthorized, or fails to comply with the
requirements of E-Verify, shall pay a civil penalty of between
$3,500 and $7,500 for each violation. Second-time offenders
shall pay between $5,000 and $15,000 for each violation;
subsequent offenders shall pay between $10,000 and $25,000 for
each violation. The Department of Homeland Security may
establish enhanced penalties after the E-Verify system is fully
established for failures to query E-Verify and for violations
of wages, hours, and workplace health and safety. Violations
that constitute failure to comply with the System, other than a
minor or inadvertent failure, shall result in civil penalties
of not less than $500 nor more than $2,000 for each violation;
between $1,000 and $4,000 for second-time offenses; and $2,000
to $8,000 for subsequent violators. The Department of Homeland
Security may impose additional penalties, including cease and
desist orders and compliance plans. Criminal penalties are set
forth in new 274A(k) and (l), described below.
The employer's compliance history, the existence of a
compliance program, the size and sophistication of the
employer, and the voluntary disclosure of violations may be
considered by both DHS and administrative law judges, where
applicable, to reduce penalties. Penalties may only be dropped
below the statutory minimum where there has been no previous
penalty. Penalties assessed under the antidiscrimination part
of the INA that are for actions that are also a violation of E-
Verify shall mitigate penalties under this section.
If DHS has reasonable cause to believe that an employer has
failed to comply with this section, DHS may require that an
employer certify compliance or institute a compliance program,
through methods established by The Department of Homeland
Security. This shall not apply until DHS has certified to
Congress that E-Verify is established and made mandatory for
all employers.
Review of final determinations. A petition for review must
be filed within 30 days with the judicial circuit for the
employer's principal place of business at the time of the final
penalty determination. The Department of Homeland Security and
the Attorney General must be served in such a proceeding. The
Court of Appeals shall conduct a de novo review of the
administrative record on which the final determination was
based. Any administrative remedies established by regulation
must first be exhausted. The Attorney General, upon request by
DHS, may bring a civil action to enforce penalties and
compliance upon the employer once a final determination has
been issued.
If any employer liable for a fee or penalty fails to
fulfill his obligation as to liability, a lien may be filed on
all property.
The Attorney General shall have jurisdiction to adjudicate
administration proceedings under this subsection (e) in
accordance with Administrative Procedure Act requirements.
New 274A(f)--Penalties for requiring indemnity bond. This
subsection prohibits an employer from requiring an individual
to post an indemnity bond for any liability arising from this
section relating to the hiring of an individual. Employers
shall be subject to a $10,000 penalty for each such violation.
New 274A(g)--Penalties for government contractors. An
employer who is a Federal contractor shall be subject to
debarment (of up to three years) if he or she is shown to have
violated the criminal provisions of this section (through
conviction) or has committed more than three civil violations.
An administrative determination of liability shall not be
reviewable in a debarment proceeding. Inadvertent violations of
recordkeeping or verification requirements shall not be counted
towards determining whether an employer is a repeat violator of
this section. Contractors may also continue to be subject to
contractual liability related to use of E-Verify.
New 274A(h)--Preemption. This section preempts State or
local laws and ordinances relating to the hiring, continued
employment, or status verification of unauthorized aliens,
creating a consistent framework for all employers. There is an
exception for States and localities to exercise their authority
over business licensing and similar laws to penalize businesses
that fail to use the System.
New 274A(i)--Deposit of amounts received. Civil penalties
shall be deposited into the Comprehensive Immigration Reform
Trust Fund.
New 274A(j)--Challenges to the validity of the system.
Challenges shall be brought in the U.S. District Court for the
District of Columbia and shall be limited to this section's
constitutionality, and the compliance of DHS with the
Administrative Procedures Act with regard to regulations. All
such challenges must be brought within 180 days of the
effective date of the challenged section or regulation.
New 274A(k)--Criminal penalties and injunctions for pattern
and practice violations. An employer who engages in a pattern
and practice of hiring a worker knowing that the worker is
unauthorized to work, or who fails to comply with the System,
shall be fined no more than $10,000 per unauthorized worker,
imprisoned for not more than two years, or both. The maximum
term for any offense that is a criminal violation of the U.S.
Code shall be enhanced by five years if it is part of a pattern
and practice of violation involving the aforesaid conduct. The
Department of Homeland Security may bring an action requesting
a temporary or permanent injunction of such activity.
New 274A(l)--Criminal penalties for unlawful and abusive
employment. Any employer who knowingly employs 10 or more
aliens who are not authorized to work in a 12-month period, and
violates certain labor and employment conditions, shall be
fined and/or imprisoned not more than 10 years. Any person who
attempts or conspires to commit these offenses will be punished
in the same manner as a person who commits the offense.
Section 3101(b)--Report on the use of E-Verify in the agriculture
industry
Not later than 18 months after date of enactment, DHS shall
submit to Congress a report that fully assesses the
functionality of E-Verify with respect to the agriculture
industry.
Section 3101(c)--Report on the impact of the system on employers
Not later than 18 months after date of enactment, DHS shall
submit to Congress a report on the impact of E-Verify on small
business and on business in general.
Section 3101(d)--GAO Study of impact on employees and employers
The Government and Accountability Office (GAO) shall
conduct a broad report on the effects of the E-Verify system
and submit the report to Congress no later than four years
after date of enactment.
Section 3101(e)--Repeal of pilot program
The E-Verify pilot program is repealed.
Section 3102. Increasing security and integrity of social security
cards
The SSA Commissioner shall begin work to issue fraud-
resistant, wear-resistance, and identify theft-resistant Social
Security cards no later than 180 days after enactment, and
complete this work no later than five years after enactment.
Replacement cards shall be limited to three per year and 10
for the life of the individual, subject to reasonable
exceptions for compelling circumstances established by the
Department of Homeland Security. Any person who knowingly
possesses or uses a Social Security Account Number or card,
knowing that the number on the card was fraudulently or falsely
obtained from the SSA; knowingly and falsely represents someone
else's Social Security Number to be his; knowingly buys or
sells a Social Security Number or card; knowingly alters,
counterfeits, or forges a card or number; or knowingly uses,
distributes, or transfers a Social Security Number or card,
knowing it to be forged or altered, shall be punished by up to
five years in prison.
Under proper circumstances, records from the Social
Security Administration may be disclosed to Federal law
enforcement agencies.
Section 3103. Increasing security and integrity of immigration
documents
The Department of Homeland Security shall submit to
Congress no later than one year after enactment a report on the
feasibility, advantages, and disadvantages of including
biometric information, in addition to a photograph, on each
employment authorization document it issues.
Section 3104. Responsibilities of the Social Security Administration
The Social Security Administration shall have the
responsibilities of establishing a reliable and secure way to
identify users of E-Verify and of running a secure system.
Social Security information shall not be relayed to employers.
Section 3105. Improved prohibition on discrimination based on national
origin or citizenship status
This section amends the current anti-discrimination
provisions in the INA that make it an unfair immigration-
related employment practice to discriminate based on national
origin or citizenship status with respect to hiring,
verification under E-Verify, and discharging. Certain
exceptions are maintained for preference based on citizenship
that is otherwise required by law. This section specifically
defines an unfair immigration-related employment practice to
include, in addition to discrimination based on nationality and
citizenship status, the use of E-Verify to illegally discharge
an employee, the use of E-Verify for an unauthorized purpose,
the use of E-Verify to deny employment benefits, the
requirement of self-verification as a condition of employment,
the failure to provide notice under E-Verify as required by
law, and the granting of access to the system by an
unauthorized individual. It is also an unfair immigration-
related employment practice to threaten, coerce, or retaliate
against an individual for exercising their rights under this
section or because an individual plans to file a charge.
An employer's request for additional documents other than
those required by law, or refusal to honor documents, is also
an unfair employment practice. It is also an unfair employment
practice for an employer, if required to by law, to fail to
provide employment documentation, including wages and hours, to
an employee upon request. Additionally, an individual who is
authorized to be employed in the United States may not be
denied a professional, commercial, or business license on the
basis of immigration status.
The U.S. Equal Employment Opportunity Commission (EEOC) may
refer all matters alleging immigration-related unfair
employment practices, including those added by this law, to the
Special Counsel for Immigration-Related Unfair Employment
Practices at the U.S. Department of Justice (``OSC'').
An authorization of $40 million for each Fiscal Year 2014
through 2016 is provided. This section also increases
applicable fines. For discriminatory practices, fines range
from $2,000 to $5,000 for each violation, $4,000 to $10,000 for
second-time offenders, and $8,000 to $25,000 for multiple-time
offenders. For unfair employment practices related to the
misuse of E-Verify, the use and abuse of document verification,
and retaliation and intimidation, the fines range from $500 to
$2,000.
Section 3106. Rulemaking
Not later than one year after the date of enactment, DHS
and the Attorney General shall publish interim regulations
pursuant to their obligations. Within a reasonable time after
publication of the interim regulations, DHS and the Attorney
General shall publish final regulations.
Section 3107. Office of the Small Business and Employee Advocate
The Department of Homeland Security shall establish within
USCIS an Office of the Small Business and Employee Advocate
(OSBEA) to assist small businesses comply with I-9 and E-Verify
requirements. The office will inform small businesses about the
verification practices required by INA Section 274A, assist in
dealing with nonconfirmation notices, advise on penalties for
violations, and propose changes to the administrative process.
The OSBEA shall also make recommendations to Congress. OSBEA
may also issue assistance orders if a small business or
individual is suffering significant hardship as a result of
employment verification laws or meets other requirements set
forth in regulations. Assistance orders may require the
Secretary to determine if an employee is authorized to work or
to abate any penalty that OSBEA determines is arbitrary,
capricious, or disproportionate to the underlying defense.
SUBTITLE B--PROTECTING UNITED STATES WORKERS
Section 3201. Protections for victims of serious violations of labor
and employment law or crime
This section expands U visa eligibility for victims of
serious labor violations. To qualify for a U visa, a worker
must have suffered physical or mental abuse, or be a victim of
criminal activity described below or of a covered violation.
The alien must be helpful, or have been helpful, to a
prosecutor or designated agency investigating certain criminal
activity including stalking, child abuse of a minor, elder
abuse, sexual exploitation, fraud in foreign labor contracting,
or serious work place abuse, exploitation, or violation of
whistleblower protections.
An alien may work in the United States if he or she has
filed an application for a U visa or is a material witness to a
bona fide claim or proceeding resulting from a covered
violation.
Anyone who makes a false claim under this section is
subject to a fine of up to $1,000.
When a workplace claim, as defined in this subsection,
results in an enforcement action, any aliens arrested or
detained and who are necessary to an investigation shall not be
removed until the agency has an opportunity to interview the
aliens.
Section 3202. Employment Verification System Education Account
Penalties under this title shall be deposited in the
Comprehensive Immigration Reform Trust Fund and made available
to DHS for employer and employee education.
Section 3203. Directive to the U.S. Sentencing Commission
The U.S. Sentencing Commission is directed to amend
existing penalties for crimes that involve this Title, and
related crimes if they also involve violations of the INA, the
Fair Labor Standards Act, or similar criminal conduct.
SUBTITLE C--OTHER PROVISIONS
Section 3301. Funding
This section appropriates $1 billion to set up the new E-
Verify system. Such appropriations will be used in the first
five years to increase the number of ICE agents to administer
the system. The money shall also be used for all improvements
to the system, including those used to guard against identity
fraud, misuse of the system, and the security and privacy of
the system. Money is also authorized to be used by the Social
Security Administration.
Section 3302. Effective date
Except as otherwise indicated, the effective date for the
provisions of this section and amendments thereto is the date
of enactment.
Section 3303. Mandatory exit system
The Department of Homeland Security shall fully implement
an interoperable database to provide for current and immediate
access to information in law enforcement systems to determine
whether to issue a visa. All databases that process information
on aliens shall be integrated and provided to ICE, CBP, USCIS,
DOJ, and the Department of State. Machine-readable passports,
visas, and other travel documents shall be mandatory no later
than December 31, 2015.
Biometric exit data program. No later than two years after
the date of enactment, DHS will establish a mandatory biometric
exit data system at the 10 highest volume airports in the
United States, and will issue a report in three years analyzing
its effectiveness. Absent intervening Congressional action, in
six years DHS shall establish a biometric exit system at all
Core 30 international airports in the United States. In six
years, DHS shall submit a plan to Congress for the expansion of
the biometric exit system to major sea and land ports based on
the performance of the program described above and projected
costs.
Integration and Interoperability. The Department of
Homeland Security shall fully integrate all data on aliens,
which are maintained by ICE, CBP, USCIS, DOJ Executive Office
of Immigration Review, and DOS Bureau of Consular Affairs. The
Department of Homeland Security shall implement an
interoperable electronic data system to provide access to
information that is relevant to whether to issue a visa or the
admissibility or deportability of an alien to Federal law
enforcement agencies and the intelligence community.
Information Sharing. The Department of Homeland Security
shall report to the appropriate Federal law enforcement agency,
intelligence agency, national security agency, or component of
DHS any alien who has not departed the country when he or she
was legally required to do so.
Section 3304. Identity-theft resistant manifest on departing aircraft
and vessels
This section provides that an appropriate official for each
commercial aircraft or vessel departing from the United States
for international travel shall ensure transmission to CBP of
identity-theft resistant departure manifest information
covering alien passengers. This information shall be
transmitted to a data center. Exceptions are made for military
personnel traveling as passengers aboard chartered aircraft.
Carriers may not themselves use this system. There shall be
appropriated $500,000,000 to reimburse carriers for their
reasonable actual expenses in carrying out their duties under
this section.
Section 3305. Profiling
In making law enforcement decisions, covered DHS personnel
may not consider race or ethnicity unless a specific suspect
description exists. However, in conducting activities in
connection with a specific investigation, Federal law
enforcement officers may consider race and ethnicity only to
the extent that there is trustworthy information, relevant to
the locality or time frame, that links persons of a particular
race or ethnicity to an identified criminal incident, scheme,
or organization. In addition, DHS must conduct a study on law
enforcement activity which will inform the promulgation of
relevant regulations.
Section 3306. Enhanced penalties for certain drug offenses on Federal
lands
This section enhances penalties for certain drug offenses
that take place on Federal property, including the cultivation
of controlled or hazardous substances, destruction of land
resources, use of booby traps, and use of firearms. It also
establishes the aggravated penalty of cultivating marijuana on
Federal lands (not to exceed 10 years in prison) and mandates
that these penalties be served consecutively with any term of
imprisonment for the underlying offense of manufacturing and
distributing a controlled substance.
SUBTITLE D--ASYLUM AND REFUGEE PROTECTIONS
Section 3401. Time limits and efficient adjudication of genuine asylum
claims
This section eliminates the one-year deadline for filing an
asylum claim, helping to reduce needless litigation. All asylum
seekers will still need to meet the criteria for proving a
genuine and meritorious asylum claim.
Section 3402. Refugee family protections
Under current law, spouses and children of refugees and
asylees may accompany or join the principal applicant. This
section provides similar protections for the children of
children and accompanying spouses. This prevents refugees and
asylees from having to choose between family members, and
accounts for children who are the product of child rape in
refugee camps.
Section 3403. Clarification on designation of certain refugees
This section terminates the processing of Amerasian refugee
claims after the passage of the bill. Additionally, in order to
process groups of refugees in cases of humanitarian
emergencies, this section clarifies that the President, in
consultation with the Secretary of State, may designate certain
high-need groups as refugees and adopt efficient processes for
adjudicating their claims. Each individual applicant would
still need to qualify and pass the necessary security checks
and be subject to the annual limit on refugees. This section
incorporates those who have been protected under the Lautenberg
Amendment, inter alia, Jewish and evangelical Christian
individuals from the former Soviet Union and religious
minorities from Iran.
Section 3404. Asylum determination efficiency
This section gives expert, trained asylum officers initial
jurisdiction over an asylum claim after credible fear is shown
rather than automatically referring asylum seekers to a judge
for lengthy and costly court proceedings. After conducting the
necessary review, the asylum officer could grant asylum or
refer the case to an immigration judge for removal proceedings.
Section 3405. Stateless persons in the United States
This section would allow the small number of individuals in
the United States, who have no nationality through no fault of
their own, to apply for lawful status if they are not
inadmissible under criminal or security grounds.
Section 3406. U visa accessibility
The current U visa cap is raised from 10,000 to 18,000,
with no more than 3,000 to be made available for victims of a
covered violation described in Section 3201, above.
Section 3407. Work authorization while applications for U and T visas
are pending
This section grants U and T visa applicants the right to an
employment authorization document (EAD) if no decision on their
case is made within 180 days.
Section 3408. Representation at overseas refugee interviews
This section permits refugee applicants overseas to be
represented by attorneys or accredited representatives. It also
gives additional rights to applicants to have their case
reviewed and imposes additional requirements on reviewing
officers to document the basis for a decision.
Section 3409. Law enforcement and national security checks
This section requires a mandatory background check,
including biographic and biometric data, for those seeking
refugee or asylum status.
Section 3410. Tibetan refugee assistance
This section, which creates the ``Tibetan Refugee Act of
2013,'' grants 5,000 immigrant visas per year for three years
beginning on October 1, 2013, to natives of Tibet (including
their children and grandchildren) who have been continuously
residing in India or Nepal since before the date of enactment.
Preference is given to those not resettled in India or Nepal
who are most likely to be resettled successfully in the United
States.
Section 3411. Termination of asylum of refugee status
Any alien who is granted asylum or refugee status under the
INA, who, without good cause as determined by the Secretary,
returns to the country of persecution or feared persecution,
shall have his or her refugee or asylum status terminated. The
Secretary also has authority to waive this basis for
termination if the alien establishes good cause for the return.
Cubans are exempted.
Section 3412. Asylum clock
This section ensures that applicants for asylum are granted
employment authorization 180 days after applying for asylum.
SUBTITLE E--SHORTAGE OF IMMIGRATION COURT RESOURCES FOR REMOVAL
PROCEEDINGS
Section 3501. Shortage of Immigration Court personnel for removal
proceedings
This section increases the number of immigration court
judges to address the significant backlog of cases before our
immigration courts. The number of immigration court judges is
increased by 75 per year for the next three fiscal years, and
the number of Board of Immigration Appeals personnel is
increased by 30 per year for next three fiscal years.
Section 3502. Improving Immigration Court efficiency and reducing costs
by increasing access to legal information
This section clarifies that the Attorney General has
authority to appoint counsel in certain removal proceedings to
help ensure that these proceedings are more expeditious and
cost-effective. This section helps ensure that incompetent and
particularly vulnerable individuals--including unaccompanied
alien children and those with serious mental disabilities--will
have some legal assistance, thereby reducing frivolous appeals
and claims.
Aliens shall have the right to receive a complete copy of
all relevant documents in possession of DHS (known as their
``A-file.'').
Section 3503. Office of access to legal program
This section codifies the existing Legal Orientation
Program (LOP) for immigration detainees, which was established
by the Department of Justice's Executive Office for Immigration
Review in 2002. The LOP provides detainees with basic
information about their rights and responsibilities, helping to
make immigration proceedings more efficient and cost effective.
Section 3504. Codifying existing Board of Immigration Appeals and right
to appeal
This section codifies the Board of Immigration Appeals
(BIA), which is the reviewing body for immigration judge
decisions but has never been codified under the law. The
section emphasizes the importance of thorough reviews and
written opinions that provide guidance to immigration judges
and help reduce the number of further appeals.
Section 3505. Improved training for Immigration Judges and Board
Members
This section ensures that immigration judges have
appropriate training and continuing education programs. Funding
for these programs shall be appropriated from the CIR Trust
Fund.
Section 3506. Improved resources and technology for the Immigration
Courts and Board of Immigration Appeals
This section helps ensure that immigration judges are
provided with updated reference materials, practice manuals,
sufficient recording systems, transcription services, and
adequate interpreters. Funding shall be appropriated from the
CIR Trust Fund.
Section 3507. Transfer of responsibility for trafficking protections
This section requires leftover funds from HHS and its
Office of Refugee Resettlement (ORR) under the William
Wilberforce Trafficking Victims Protection Reauthorization Act
of 2008 to be transferred to the Department of Justice to carry
out functions set forth in that bill.
SUBTITLE F--PREVENTION OF TRAFFICKING IN PERSONS AND ABUSES INVOLVING
WORKERS RECRUITED ABROAD
Section 3601. Definitions
This section defines foreign labor contractor and foreign
labor contracting activity.
Section 3602. Disclosure
Any person who engages in foreign labor contracting shall
make certain disclosures to workers in English as well as the
workers' languages, including but not limited to the identity
and addresses of employers, assurances and terms of conditions,
and the visas' length, type, cost, the terms and conditions
under which the visas may be renewed, and a clear statement of
any expenses associated with securing or renewing the visas.
This section requires labor contractors to explain to a worker
that no significant additional requirements or changes may be
made to the original contract signed by the worker without at
least 24 hours to consider such changes and the specific
consent of the worker, obtained voluntarily and without threat
of penalty, and any significant changes made to the original
contract that do not comply with this section shall be a
violation of the law.
Section 3603. Prohibition on discrimination
This section establishes that an employer or a foreign
labor contractor cannot discriminate based on a worker's race,
color, creed, sex, national origin, religion, age, or
disability. The standards of existing Federal law shall apply.
Section 3604. Recruitment fees
This section prohibits any foreign contractor from charging
fees (including visa fees, processing fees, transportation
fees, legal expenses, placement fees, and other costs) to a
worker for any foreign labor contracting activity.
Section 3605. Registration
This section authorizes Department of Labor regulations to
certify foreign labor contractors for creation of a national
registry that is publicly available and current. Further, this
section requires registration of all foreign labor contractors
and their employees. All employers must notify DOL of the
foreign labor contractors that they use, a description of the
services used, whether the contractor will receive any
compensation, and if so, who is paying for the services. It
also exempts employers who directly hire their own foreign
employees. The Department of Labor shall promulgate regulations
to establish electronic processing for the investigation and
approval of applications for a certificate of registration of
foreign labor.
Section 3606. Bonding requirement
Foreign labor contractors must post a bond in an amount
sufficient to ensure the ability of the foreign labor
contractor to discharge its responsibilities under the visa
program and ensure protection of workers, including workers'
wages.
Section 3607. Maintenance of lists
The Secretary shall maintain lists of foreign labor
contractors registered under this section, along with
information about their location, recruitment, and visa usage.
Section 3608. Amendment to Immigration and Nationality Act
Certain types of visas cannot be issued until the consular
officer has provided to the applicant a copy of the pamphlet
required by the William Wilberforce Trafficking Victims
Protection Reauthorization Act of 2008, in the applicant's
language.
Section 3609. Responsibilities of the Secretary of State
The Secretary of State shall make sure that each diplomatic
mission has a person who is responsible for receiving
information about violations and share that information with
DOJ, DOL, or any other relevant federal agency. Certain non-
personally identifiable information about visa users shall be
made public by the Secretary.
Section 3610. Enforcement provisions
This section provides for a DOL complaint and enforcement
process to be developed through regulations, a safe harbor for
employers using DOL-registered foreign labor contractors, and
civil actions by DOL to seek remedial action and/or damages for
workers.
It also expands liability for abuses against foreign
workers beyond foreign labor contractors to cover their
ultimate employers as well. This section also provides workers
with a right of action against an employer. Complaints must be
filed within three years after the date on which the violation
occurred or the employee became aware of the violation.
Section 3611. Detecting and preventing child trafficking
The Department of Homeland Security shall mandate the live
training of all CBP personnel who are likely to come in to
contact with unaccompanied alien children. Such training shall
incorporate the services of independent child welfare
professionals with expertise in culturally competent, trauma-
centered, and developmentally appropriate interviewing skills
to assist CBP in screening children attempting to enter the
United States.
Section 3612. Protecting child trafficking victims
This section requires all unaccompanied alien children in
immigration proceedings to be transported and placed in the
physical custody of the Office of Refugee Resettlement,
generally within 72 hours after their apprehension (absent
exceptional circumstances). Female officers must be
continuously present during the transfer of female detainees.
The Department of Homeland Security must hire child welfare
professionals in at least seven of the CBP stations with the
largest number of unaccompanied alien children. Those
professionals shall develop guidelines for treatment of
unaccompanied alien children in DHS custody, conduct screenings
of those children, notify DHS and ORR of children meeting the
notification and transfer requirements, interview adult
relatives accompanying unaccompanied alien children and provide
an initial family relationship and trafficking assessment and
recommendations to Office of Refugee Resettlement. They must
also ensure each child receives emergency medical care when
necessary; is properly clothed; and is provided with hygiene
products, linens, nutrition, a safe and sanitary living
environment, access to recreational programs if held for longer
than 24 hours, access to legal services, and access to phone
calls to family members.
The ORR shall submit final determinations on family
relationships to DHS which shall consider such adult relatives
for community-based support alternatives to detention. The
Department of Homeland Security must submit an annual report on
unaccompanied minors beginning 18 months after bill enactment.
The Department of Homeland Security must notify ORR of an
unaccompanied child within 48 hours after encountering the
child and must ensure that such children are provided an
interview with a child welfare professional, an orientation,
and notice of their rights under immigration law, including the
right to relief from removal, the right to counsel, and
relevant complaint mechanisms to report abuse. The Department
of Homeland Security shall ensure that the orientation and
notice be provided in the five most common languages spoken by
unaccompanied children.
The Administrator of the U.S. Agency for International
Development (USAID), in conjunction with DHS, HHS, DOJ,
international organizations and nongovernmental organizations
in the United States, shall develop a multi-year program to
develop and implement best practices and sustainable program in
the United States and within the country of return to ensure
the safe and sustainable repatriation and reintegration of
unaccompanied alien children (UAC). Annual reports on this
process must be provided to the Judiciary Committees.
Appropriations as necessary will be made.
Section 3613. Rule of construction
Nothing in this subtitle shall be construed to preempt or
alter any other rights or remedies, including causes of action,
available under any other Federal or State law.
Section 3614. Regulations
The Secretary, in consultation with the Secretary of Labor,
shall prescribe regulations to implement this subtitle and to
develop policies and procedures on protections against
trafficking in the recruitment of workers abroad.
SUBTITLE G--INTERIOR ENFORCEMENT
Section 3701. Criminal street gangs
This section renders inadmissible and deportable any alien
convicted of an offense for which an element was active
participation in a street gang (as defined in 18 USC 512(a)),
including individuals applying for RPI status. The section also
renders inadmissible any alien who is applying for RPI status,
or any alien who is outside the United States, and is applying
for an immigration benefit, whom DHS determines has since the
age of 18 knowingly and willingly participated in a criminal
street gang. The section further provides for a waiver in cases
where the alien was not convicted of gang-related offenses, if
DHS determines that the alien renounced any association with
the gang, is otherwise admissible, and is not a threat to the
security of the United States.
Section 3702. Banning habitual drunk drivers from the United States
This section renders inadmissible and deportable any alien
convicted of three offenses occurring on separate dates related
to driving under the influence or driving while intoxicated.
For deportation, at least one of the convictions must occur
post-enactment. Further, the section makes conviction for a
third drunk driving offense an aggravated felony. The provision
takes effect on the date of enactment of the bill. It applies
only if one of the convictions takes place after enactment of
the bill.
Section 3703. Sexual abuse of a minor
This section expands the evidence that can be considered
regarding the age of the victim in establishing ``sexual abuse
of a minor'' to include ``credible evidence extrinsic to the
record of conviction.'' The section contains a prospective
effective date, applying only to convictions on or after the
date of enactment.
Section 3704. Illegal entry
This section modifies the INA's illegal entry provision by
providing higher maximum penalties for aliens convicted of
illegal entry who have a serious criminal record. It provides
for increased civil penalties for aliens over the age of 18 who
are apprehended illegally entering or attempting to enter the
United States.
Section 3705. Reentry of removed alien
This section provides higher maximum penalties for aliens
convicted of illegal reentry who have a sufficiently serious
criminal record. In addition, this section provides that an
alien who illegally reenters must generally serve the remainder
of any criminal sentence pending against him at the time of
deportation, with no reduction for parole or supervised release
unless the defendant affirmatively establishes that DHS has
expressly consented to his reentry or that he is prima facie
eligible for protection from removal. This section also
contains an exception from aiding and abetting crimes for
legitimate emergency humanitarian assistance.
Section 3706. Penalties related to removal
This section increases monetary penalties for owners and
operators of vessels and aircraft for failing to detain known
alien stowaways or permitting such aliens to land in the United
States except where authorized by the Secretary of Homeland
Security. However, it contains exceptions for instances where
the owner or operator acts without compensation to provide
humanitarian assistance to the stowaway.
Section 3707. Reform of passport, visa, and immigration fraud offenses
This section amends the criminal code and expands penalties
pertaining to passport, visa, and document-related fraud.
Specifically, this section addresses the following categories:
(1) trafficking in passports (i.e., knowingly forging,
counterfeiting, altering, or falsely making three or more
passports); (2) false statements in an application for a
passport (i.e., knowingly making any false statement or
misrepresentation in an application for a U.S. passport); (3)
schemes to defraud aliens (i.e., knowingly executing a scheme,
in connection with any matter that is authorized by federal
immigration laws to defraud any person); (4) misuse or attempts
to misuse a passport (i.e., knowingly using any passport issued
or designed for the use of another); (5) immigration and visa
fraud (i.e., knowingly and without lawful authority producing,
issuing or transferring three or more immigration documents).
The section adds enhanced penalties if the crime was committed
to facilitate an act of terrorism or drug trafficking.
Section 3708. Combating schemes to defraud aliens
This section requires the Secretary of Homeland Security
and the Attorney General to promulgate rules to identify
persons assisting aliens (other than immediate family) who
submit written materials related to immigration benefits. It
also requires any person who receives compensation in providing
such assistance to sign a form as a preparer and provide
identifying information.
The section authorizes the Attorney General to commence a
civil action to enjoin any fraudulent immigration service
provider from continuing to provide services that substantially
interfere with the proper administration of the immigration
laws or from continuing to willfully misrepresent his legal
authority to provide representation. An immigration service
provider is a non-attorney who is compensated for assisting
aliens under the immigration laws.
Section 3709. Inadmissibility and removal for passport and immigration
fraud offenses
This section renders inadmissible and removable any alien
convicted of a passport or visa violation under Chapter 75 of
Title 18. Section 209(c) provides that these amendments apply
to conduct occurring on or after the date of enactment. It also
states that nothing contained within the chapter will be
construed to prohibit any lawfully authorized investigative,
protective, or intelligence activity, or any activity under
Title V of the Organized Crime Control Act.
Section 3710. Directives related to passport and document fraud
This section directs the United States Sentencing
Commission to promulgate or amend the sentencing guidelines
related to passport fraud offenses where appropriate, including
for newly created offenses under this Act, to reflect the
serious nature of such offenses. It also directs the Attorney
General to write prosecution guidelines for individuals
eligible for certain forms of immigration relief.
Section 3711. Inadmissible aliens
This section closes a loophole allowing aliens to avoid the
bar on reentry by aliens ordered removed by unlawfully
remaining in the United States. Specifically, Section 212(a)
provides that the bar on admissibility applies to aliens who
seek admission ``not later than'' five years (or 10, or 20, as
the case may be) after the date of removal, in contrast to the
current law's bar on admissibility for aliens who seek
admission ``within'' five years (or 10, or 20, as the case may
be) of the date of removal. Section 212(b) renders ineligible
for future discretionary relief any alien who absconds after
receiving a final order of removal. The bar applies until the
alien leaves the United States and for 10 years after. However,
Section 212(b) also clarifies that such an alien remains
eligible for a motion to reopen to seek withholding of removal
under certain circumstances.
The section also renders inadmissible any alien convicted
of a crime of domestic violence, stalking, child abuse, child
neglect, or child abandonment who served at least one year
imprisonment or any alien who was convicted of more than one
such crime not arising out of a single scheme of criminal
misconduct. It further renders inadmissible any alien whom a
court determines engaged in criminal contempt of a protection
order issued for the purposes of preventing domestic violence.
It also contains an effective date on or after the date of
enactment of the Act.
Section 3712. Organized and abusive human smuggling activities
This section prohibits anyone acting for financial gain
from directing or participating in an effort to bring five or
more persons unlawfully into the United States. It provides for
enhanced penalties in more extreme cases such as violations
that result in serious bodily injury, death, bribery,
corruption, or which involve 10 or more persons.
The section also makes it a crime to transmit to another
person the location, movement, or activities of law enforcement
agents while intending to further a federal crime relating to
U.S. immigration; to destroy, alter, or damage any physical or
electronic device the Federal Government employs to control the
border or any port of entry; or to construct any device
intending to defeat, circumvent, or evade any such device. The
section provides for an enhanced penalty if the person uses or
carries a firearm in furtherance of the crime. It also
prohibits the carrying or use of a firearm during and in
relation to any alien smuggling crime.
Section 3713. Preventing criminals from renouncing citizenship during
wartime
This section strikes language allowing for U.S. citizens to
renounce their citizenship during times of war.
Section 3714. Diplomatic Security Service
This section authorizes Special Agents of the State
Department and the Foreign Service to investigate identity
theft, document fraud, peonage, slavery, and Federal offenses
committed within the special maritime and territorial
jurisdiction of the United States, except where it relates to
military bases.
Section 3715. Secure alternative programs
This section directs the Secretary of Homeland Security to
establish secure alternatives programs in each Field Office to
ensure appearances at immigration proceedings and for the
public safety. It also requires the Secretary to contract with
nongovernmental community-based organizations to coordinate a
continuum or supervision mechanisms and options to be applied
on a case-by-case basis. With exceptions, the Secretary may use
secure alternative programs to maintain custody over any alien
detained under the INA, except for aliens detained under
section 236A (aliens who pose a threat to national security).
Section 3716. Oversight of detention facilities
This section requires the Secretary to conduct regular
inspections of Federal, State, and local facilities used to
hold individuals under the authority of ICE for compliance with
applicable detention standards. It also provides for additional
routine oversight and requires the Secretary to seek input from
nongovernmental organizations on detention facilities.
The section requires that compliance with DHS standards be
deemed a material term in any new contract or agreement
executed with detention facilities. It also requires the same
for any contract or agreement that will not be renegotiated
within 180 days of the effective date of the Act, and imposes
meaningful financial penalties upon facilities that fail to
comply with applicable detention standards issued by the
Secretary.
The Secretary shall report to Congress no later than June
30 of each year on inspection and oversight of detention
facilities.
Section 3717. Procedures for bond hearings and filing of notices to
appear
This section modifies the procedures for custody hearings
by requiring the Secretary to serve the relevant charging
document upon the immigration court and the alien within 72
hours and by requiring the Secretary to immediately decide
whether the alien will be released or retained in custody and
to serve the alien notice of the decision within 72 hours. For
certain aliens, the immigration judge will review the custody
determination de novo and order continued detention if
reasonable alternatives will not assure the appearance of the
alien at further proceedings and if the safety of any other
person and the community may be at risk. The Attorney General
must provide review every 90 days if the alien remains in
custody.
Solitary confinement shall be limited to situations in
which such confinement is necessary to control a threat to
detainees, staff, or the security of a facility; to discipline
an alien for a serious disciplinary infraction; or for good
order during the last 24 hours before an alien is released.
Solitary confinement is limited to the briefest term and under
the least restrictive conditions practicable and consistent
with the rationale for placement and with the progress achieved
by the alien. Children may not be held in solitary confinement.
Individuals placed in solitary for reason of mental incapacity
or for their own protection may not be detained involuntarily
in solitary confinement for more than 15 days unless DHS
determines that any less restrictive alternative is more likely
than not to cause greater harm to the individual. The
Department of Homeland Security may not rely solely on an
individual's age, physical disability, sexual orientation,
gender identity, race, or religion in determining whether to
use solitary confinement. Persons in solitary confinement shall
receive three or more doctors' visits per week. Those detained
for long periods of time shall have their cases reviewed in a
timely manner. Disciplinary segregation is limited.
Section 3718. Sanctions for countries that delay or prevent
repatriation of their nationals
The Secretary of State, upon notification from the
Secretary of Homeland Security, shall order consular officers
in foreign countries to discontinue granting visas to foreign
representatives under Section 101(a)(15)(G) of the INA when the
Secretary of Homeland Security determines that the government
of a foreign country denies or unreasonably delays accepting
the return of their citizens, subjects, nationals, or
residents.
Section 3719. Gross violations of human rights
This section provides that any alien who planned, ordered,
assisted, aided and abetted, committed, or otherwise
participated, in the commission of torture, extrajudicial
killing under color of law of any foreign nation, a war crime,
or a widespread or systematic attack directed against a
civilian population, as well as related activity, shall be
inadmissible. Those who have committed a widespread or
systematic attack on civilians or genocide are also denied
admission.
Section 3720. Reporting and record keeping requirements relating to the
detention of aliens
The Department of Homeland Security shall maintain
information on detention mandated by this section and shall
submit reports to Congress. The Department of Homeland
Security, EOIR, the Director of ICE, and the Director of USCIS
shall develop a shared database, or other system that allows
for the databases of ICE, EOIR, and USCIS to develop a shared
database relating to detained aliens. Until the database is
operational, DHS shall track the case outcomes of each
detainee.
The database shall maintain the basis in law for the
alien's detention, the place where the alien was apprehended,
the location where ICE detains the alien until the alien is
removed from custody, the gender and age of each detained alien
in the custody of ICE, the number of days the alien is
detained, the immigration charges being pursued, the status of
the alien's removal proceedings, and each date on which the
proceedings progress between stages and the events that have
occurred after the alien received a final administrative or
order of removal. It shall also include internal custody
determinations of ICE, the risk assessment results, and the
reason for the alien's release. The Department of Homeland
Security shall provide similar information about detained
individuals awaiting removal.
Section 3721. Powers of Immigration Officers and employees at sensitive
locations
This section applies to enforcement actions by officers and
agents of ICE and CBP at sensitive locations including
hospitals and clinics; schools; organizations assisting victims
of crime or abuse; organizations assisting children, pregnant
women, victims of crime or abuse, or individuals with mental or
physical disabilities; houses of worship; or other places DHS
specifies. Enforcement actions may not take place at a
``sensitive location'' except under exigent circumstances and
if prior approval is obtained from a supervisor. Officers in
such cases must act discretely and make every effort to limit
the time at the location. This does not apply to apprehensions
at or near a land or sea border where an individual is being
transferred to a hospital or healthcare provider.
Immigration and Customs Enforcement and CBP must ensure
that employees receive annual training on compliance with this
section. Annual reports must be provided regarding enforcement
actions at sensitive locations.
SUBTITLE H--PROTECTION OF CHILDREN AFFECTED BY IMMIGRATION ENFORCEMENT
Section 3801 Short title
This section establishes the ``Humane Enforcement and Legal
Protections for Separated Children Act.''
Section 3802. Definitions
This section defines key terms, including ``children'' as
individuals under 18 years of age and ``parents'' as a
biological or adoptive parent whose rights have not been
relinquished or terminated. It defines a ``detention facility''
to include any Federal, State or local facility or privately
owned detention facility, including facilities that hold
individuals under a contract with Immigration and Customs
Enforcement.
Section 3803. Apprehension procedures for immigration related
activities
In any enforcement action, DHS shall as soon as possible,
but generally not later than two hours after an enforcement
action, inquire whether an individual is a parent or primary
caregiver of a child in the United States and provide such
individuals with the opportunity to make a minimum of two phone
calls to arrange for the care of such child. The Department of
Homeland Security shall also provide contract information for
child welfare agencies and family courts in the child's area,
as well as consulates, attorneys, and legal service providers
who may provide help. The Department of Homeland Security shall
notify child welfare agencies if the caregiver is unable to
make care arrangements or the child is in imminent risk of
serious harm. The Department of Homeland Security shall ensure
that its personnel do not compel or request children to
interpret or translate for interviews of their parents as part
of an immigration enforcement action. The Department of
Homeland Security shall ensure that any parent of a child in
the United States is not transferred from his or her area of
apprehension until the person has made arrangements for the
care of the child or, if such arrangements can't be made, is
informed of the care arrangements for the child. The parent
should be placed in a detention facility proximate either to
the location of apprehension or to the individual's habitual
place of residence.
Section 3804. Access to children, state and local courts, child welfare
agencies and Consular Officials
At all detention facilities, DHS shall prominently post
information on the protections of this subtitle and information
on potential eligibility for parole or release. The Department
of Homeland Security shall ensure that individuals who are
detained by DHS and are the parents of children in the United
States are permitted regular phone calls and contact visits
with their children. Such individuals shall also be provided
with contact information for and granted telephone calls to
child welfare agencies and family courts and shall also be
permitted to participate fully in all family court proceedings
impacting their right to custody of their children. The
Department of Homeland Security shall ensure individuals are
able to fully comply with all family court or child welfare
agency orders impacting custody of their children. The
Department of Homeland Security shall also provide access to
U.S. passport applications for the purpose of obtaining travel
documents for such individuals' children. Such individuals
shall be afforded timely access to notary public services to
help children apply for passports or for executing guardianship
or other agreements to ensure the safety of their children and
granted enough time before removal to obtain documents on
behalf of their children if the children will accompany them on
their return to their country of origin. Where it would not
impact public safety or national security, DHS shall facilitate
the ability of parents and caregivers to share information
regarding travel arrangements with their consulate, children,
welfare agencies, or other caregivers prior to the person's
departure from the United States.
Section 3805. Mandatory training
The Department of Homeland Security and other agencies
shall develop training on the protections provided by the
sections above to all DHS personnel, cooperating entities,
detention facilities, and others who are likely to come into
contact with individuals who are parents or primary caregivers
of children in the United States.
Section 3806. Rulemaking
Not later than 180 days after the enactment of this Act,
the Secretary shall promulgate regulations to implement the two
previous sections of this Act.
Section 3807. Severability
TITLE IV--REFORMS TO NONIMMIGRANT WORKER PROGRAMS
SUBTITLE A--EMPLOYMENT-BASED NONIMMIGRANT VISAS
Section 4101. Market-based H-1B Visa limits
This section amends INA Section 214(g) by creating a new H-
1B cap of 115,000 for the first fiscal year beginning after the
date of enactment. That base number may fluctuate between
115,000 and 180,000 depending on market conditions.
The cap may increase under the following circumstances: if
the cap is hit before day 45, then 20,000 more slots will be
made available beginning on day 46; if the cap is hit between
day 46 and day 60, then 15,000 slots will be made available
beginning on day 61; if the cap is hit between day 61 and day
90, then 10,000 slots will be made available beginning on day
91; if the cap is hit between day 91 and day 275, then 5,000
slots will be made available beginning on day 276.
The cap may decrease under the following circumstances: if
the number of approved petitions is between 5,000 and 9,999
fewer than the base allocation for that fiscal year, then the
base will decrease for the next year by 5,000; if the number of
approved petitions is between 10,000 and 14,999 fewer than the
base allocation for that fiscal year, then the base will
decrease for the next year by 10,000; if the number of approved
petitions is between 15,000 and 19,999 fewer than the base
allocation for that fiscal year, then the base will decrease
for the next year by 15,000; if the number of approved
petitions is more than 20,000 fewer than the base allocation
for that fiscal year, then the base will decrease for the next
year by 20,000.
The cap cannot increase when the unemployment rate in the
``Management, Professional, and Related Occupations'' sector,
as published by the Bureau of Labor Statistics each month,
averages 4.5 percent or greater in the prior year.
The current additional allocation of 20,000 visas for
advanced degree recipients from U.S. universities is changed to
apply solely to STEM advanced degree graduates from U.S.
universities, and is increased from 20,000 to 25,000.
The Secretary of Homeland Security must publish data on the
Internet that summarizes petition adjudication information for
each fiscal year and must publish the annual limit in the
Federal Register no later than March 2 prior to the start of
the fiscal year.
Section 4102. Employment authorization for dependents of employment-
based nonimmigrants
This section amends INA Section 214(c) to permit spouses of
L-visa and H-1B holders to work. The Secretary of Homeland
Security may deny work authorizations to spouses of H-1B
holders if they are nationals of a foreign country that does
not permit reciprocal employment of spouses of U.S. workers.
Section 4103. Eliminating impediments to worker mobility
Section 4103(a) codifies policy that a prior approval for
an H-1B or L-1 nonimmigrant petition involving the same
employer and foreign national should be given deference in the
context of an extension request, absent: (1) material error
with regard to the previous petition approval; (2) a
substantial change in circumstances; or (3) new information
that adversely impacts the eligibility of the petitioner or the
beneficiary. The Secretary of Homeland Security continues to
have discretion to deny an extension.
Section 4103(b) amends INA Section 214(n) by providing
that, in the event of early termination of an employment
relationship of an H-1B nonimmigrant, there is a 60 day grace
period in which the individual is regarded as in lawful H-1B
status in order to find new employment. If an unemployed H-1B
nonimmigrant finds new employment during this 60-day period, he
or she will remain in lawful status during such time as his or
her petition is pending to extend, change, or adjust their
status to reflect this new employment.
Section 4103(c) amends INA Section 222(c) by explicitly
allowing visa revalidation in the United States to be permitted
for aliens admitted under INA Sections 101(a)(15)(A), (E), (G),
(H), (I), (L), (N), (O), (P), (R), or (W) if the alien is
otherwise eligible for such status and qualifies for an
interview waiver pursuant to Section 222(h)(1) of the INA and
Section 4103(d) of this bill. Section 4103(d) amends INA
Section 222(h)(1) to provide for waiver of consular interviews
for low-risk applicants.
Section 4104. STEM education and training
Section 4104(a) amends INA Section 212(a)(5)(A) by
establishing a new $1,000 fee to be submitted with permanent
labor certification applications for employment-based green
cards. Fees collected under this section will be deposited into
a newly-created STEM Education and Training Account contained
in INA Section 286(w). A set percentage of this money shall be
available for low-income students enrolled in STEM programs of
study, directed through programs that serve minorities, women,
and other underrepresented populations in the STEM fields.
Money shall also be made available for veterans workforce
investment and the establishment of ``American Dream''
accounts.
The section also amends the existing STEM education account
in INA Section 286(s) to permit funds to be used for loan
forgiveness and to fund STEM programs for low-income students,
minority students, and women.
Section 4105. H-1B and L Visa fees
This section requires the collection of an additional fee
for an H-1B or L visa petition, of $1,250 for employers with 25
or fewer employees, and $2,500 for employers with more than 25
employees. Those fees are to be placed into the CIR Trust Fund
to fund the cost of this Act.
SUBTITLE B--H-1B VISA FRAUD AND ABUSE PROVISIONS
Section 4211. Modification of application requirements
Wage requirements. Section 4211(a)(1) provides that ``H-1B
dependent employers'' must pay each H-1B worker at least a
Level 2 wage (an ``H-1B dependent employer'' is defined in
subsection 4211(e) based on the percentage of H-1B
nonimmigrants in their workforce). The Department of Labor is
required to create a three-tiered wage system to be used in
such determinations (Section 4211(a)(2)). The first level
constitutes the mean wage of the lowest two-thirds of wages
surveyed, but in no case less than 80 percent of the mean of
the wages surveyed. The second level constitutes the mean of
the wages surveyed. The third level constitutes the mean of the
highest two-thirds of wages surveyed. The Department of Labor
is required to provide a four-level wage survey for
educational, nonprofit, research, and governmental entities.
When a professional athlete is paid according to league rules
or regulations, the wages paid are not considered as adversely
affecting similarly-employed U.S. workers.
H-2B nonimmigrants must be paid either the actual wage paid
to similarly-employed U.S. workers or the prevailing wage for
the occupation in the area of employment, whichever is higher.
The prevailing wage is determined by the best information
available which may include a collective bargaining agreement
(CBA); if a CBA is not applicable, data from the Bureau of
Labor Statistics (BLS); or, if BLS data is unavailable, a
private survey.
Internet job posting requirement. Section 4211(b) provides
that employers who intend to file an H-1B petition must first
advertise the job opening on a new Department of Labor jobs
website. The job description must include the wage ranges;
terms of employment; minimum qualification requirements; how to
apply; the title and description of the position, including the
location where the work will be performed; and the name, city,
and zip code of the employer. The advertisement must run for 30
calendar days.
Non-displacement. Section 4211(c) provides that an ``H-1B
skilled worker dependent employer'' must demonstrate that they
did not displace and would not displace a U.S. worker within
the period of 90 days before or after the filing of a visa
petition (an ``H-1B skilled worker dependent employer'' is
defined as an employer for which H-1B nonimmigrants comprise
more than 15 percent of their workforce in O*Net Job Zones 4
and 5). An ``H-1B dependent employer'' must demonstrate that
they did not displace and would not displace a U.S. worker
within the period of 180 days before or 180 days after the
filing of an H-1B visa petition. In addition, no public
employer may displace a Federal, State, or local employee, or a
public school K-12 teacher with an H-1B nonimmigrant. No
employer of any type may displace an American worker with the
intent to hire an H-1B worker to replace that American worker.
Recruitment. Section 4211(c)(2) requires that all employers
must take good faith steps to recruit U.S. workers for the
occupational classification for which the nonimmigrant is
sought, using procedures that meet industry-wide standards and
offering compensation that is at least as great as that offered
to H-1B nonimmigrants. All employers must advertise on an
Internet website maintained by the Department of Labor. An H-1B
skilled worker dependent employer has further requirements, and
must hire an equally or better qualified American who applies
for the job.
Outplacement. All employers that are not H-1B dependent
must pay a $500 fee to place an H-1B nonimmigrant employee at
the site of another employer. H-1B dependent employers are
prohibited from placing an H-1B nonimmigrant at the site of a
third-party and from outsourcing, leasing, or otherwise
contracting for the services or placement of an H-1B
nonimmigrant employee. An H-1B dependent employer is exempt
from the prohibition on outplacement if the employer is a
nonprofit institution of higher education, a nonprofit research
organization, or primarily a health care business and is
petitioning for a physician, nurse, or a physical therapist.
Such employer must also pay the $500 fee. Those fees are to be
placed into the CIR Trust Fund Account to fund the cost of this
Act.
Intending Immigrants Not Counted Towards H-1B or L-Visa
Dependency. Intending immigrants are not counted as H-1B or L
nonimmigrants for the purposes of determining whether an
employer is an H-1B dependent company or a L visa dependent
company. Intending immigrants are defined as persons for whom
their employer has started the green card process, including
those for whom an Immigrant Petition for Alien Worker (Form I-
140) or Application to Register Permanent Residence or Adjust
Status (Form I-485) has been filed. However, employers may only
take advantage of this counting rule if the employer has
actually filed immigrant status petitions for not less than 90
percent of current employees for whom the company filed labor
certifications in the previous year.
Section 4212. Requirements for admission of nonimmigrant nurses in
health professional shortage areas
This section reinstates and permanently authorizes the H-1C
nonimmigrant category for foreign nurses who will work in
medically under-served areas, which had expired in 2009. H-1C
nurses may be admitted for three years and may extend their
status once for an additional three-year period. No more than
300 H-1C nurses may be admitted per fiscal year.
Section 4213. New application requirements
Employers may not hire an H-1B nonimmigrant if they
advertise for the position in a way that appears to seek only
H-1B nonimmigrant workers or those working pursuant to Optional
Practical Training at the expense of U.S. workers.
Under a new Section 212(n)(1)(I), employers with 50 or more
employees in the United States are not able to petition for new
or additional H-1B or L workers if their U.S. workforce was
comprised of more than 75 percent H-1B or L workers in Fiscal
Year 2015, 65 percent in Fiscal Year 2016, or 50 percent H-1B
or L workers in Fiscal Years 2017 and thereafter. The workforce
calculation does not include H-1B and L workers who are
``intending immigrants,'' as described above. The provision
does not include employers who are nonprofit institutions of
higher education or nonprofit research organizations described
in Internal Revenue Code Section 501(c)(3).
Employers are required to submit annual reports to the IRS
that include Form W-2 Wage and Tax Statements for each H-1B
nonimmigrant employed for the previous year, under a new INA
Section 212(n)(1)(J).
Section 4214. Application review requirements
The Department of Labor has expanded authority to review
labor condition applications (LCAs) for fraud,
misrepresentation, or obvious inaccuracies rather than ``only
for completeness,'' and has up to 14 days to certify an LCA,
increased from the current seven-day period.
Section 4221. General modification of procedures for investigation and
disposition
This section extends the statute of limitations for
investigations of H-1B violations from 12 months to 24 months
from the time an alleged incident takes place. It also removes
the requirement that investigations may be initiated only if
there is ``reasonable cause to believe'' that a violation
exists. The section creates a dedicated toll-free number and
Internet website for the submission of H-1B complaints.
The Secretary of Labor is directed to conduct annual
compliance audits of each employer with more than 100 employees
in the United States if their workforces are composed of more
than 15 percent H-1B non-immigrants, and may conduct voluntary
surveys of employer compliance and audits of H-1B employers.
Findings shall be made available to the public.
Section 4222. Investigation, working conditions, and penalties
This section generally expands the circumstances in which
fines may be issued for new provisions such as the rule barring
participation in the H-1B or L visa program by certain
employers based on the percentages of their H-1B workers, the
prohibition of advertisements targeting H-1B/Optional Practical
Training (OPT) workers, and the W-2 IRS filing requirements.
Fines of up to $2,000 (increased from $1,000) may be imposed
for substantial failures to meet conditions, and fines of up to
$10,000 (increased from $5,000) may be imposed for willful
failures to meet conditions or for a willful misrepresentation
of facts. In all instances, employers are liable to employees
harmed by the violation for back wages and benefits.
Section 4223. Initiation of investigations
This section amends provisions authorizing the Secretary of
Labor to investigate compliance with H-1B requirements,
including by eliminating the need for there to be ``reasonable
cause'' to suspect non-compliance before the Secretary
commences the investigation. The section permits complaints
from anonymous sources, and allows DOL employees themselves to
file complaints. The provision provides that a complaint must
be filed within 24 months of an alleged incident, up from the
current 12 month timeframe.
Section 4224. Information sharing
U.S. Citizenship and Immigration Services must provide any
information disclosed in its adjudication process that reveals
that an employer is not complying with H-1B visa program
requirements. The Department of Labor may initiate and conduct
an investigation based on this information.
To notify American workers of potential job openings, this
section requires DOL to facilitate the posting of job
advertisements from H-1B employers on the Internet website of
the State labor or workforce agency for the State in which the
position will be primarily located.
Section 4225. Transparency of high-skilled immigration programs
The new Bureau of Immigration and Labor Market Research
shall submit an annual report to Congress providing data on H-
1B beneficiaries and employers. This includes data on which
employers are dependent employers and the qualifications of
immigrants hired on H-1B visas. A similar report on L-1s is to
be prepared annually. An additional annual report is to be
prepared describing the methods employers are using to meet the
good faith recruiting requirements.
Section 4231. Posting available positions through the Department of
Labor
Within 90 days of enactment, the Secretary of Labor must
establish a searchable website for posting positions as
required for H-1B advertisements, and provide notice when the
site is operational. The advertising requirement does not take
effect until 30 days after the date the website becomes
operational.
Section 4232. Requirements for information for H-1B and L nonimmigrants
Individuals receiving H-1B or L-1 visas or immigration
benefits must be provided with a brochure outlining employer
obligations and employee rights.
Section 4233. Filing fee for H-1B dependent employers
This section provides that for each fiscal year beginning
in Fiscal Year 2015, a fee of $5,000 is imposed for companies
employing more than 50 workers in the United States if between
30 and 50 percent of their workforces are H-1B or L-1
nonimmigrants. From 2015 to 2017, the fee is $10,000 for
similarly-sized companies where between 50 and 75 percent of
their workforces are H-1B or L-1 nonimmigrants. The provision
exempts ``intending immigrants'' from the calculation (i.e.,
does not include them in the numerator of the equation).
Section 4234. Providing premium processing of employment-based
petitions
This section requires availability of premium processing
for employment-based immigrant petitions and related
administrative appeals.
Section 4235. Technical correction
This section corrects a typographical error created by the
``Irish Peace Process Cultural and Training Program Act of
1998.''
Section 4236. Application
This section clarifies that Subtitle B is applicable to
applications filed on or after the date of enactment and shall
not apply to existing employees of employers who file petitions
for renewals or extension. It further provides that the non-
displacement and recruitment requirements set forth in Section
4211(c) shall not apply to any application or petition filed by
an employer on behalf of an existing employee.
Section 4237. Portability for beneficiaries of immigrant petitions
This section changes the adjustment portability rules.
Regardless of whether an employer withdraws a green card
petition, the petition shall remain valid with respect to a new
job if the beneficiary changes jobs or employers after the
petition is approved and the new job is the same or a similar
occupation for which the petition was approved. Current law
requires the petition to be pending 180 days before portability
kicks in. The employer's legal obligation with respect to the
petition terminates at the time the beneficiary changes jobs or
employers.
In addition, aliens who have H-1B status, and their
spouses, are eligible for an employment authorization document
permitting work with any employer if an application for
adjustment of status is pending on their behalf or if they have
filed their own petition for adjustment of status.
SUBTITLE C--L VISA FRAUD AND ABUSE PROTECTIONS
Section 4301. Prohibition on outplacement of L nonimmigrants
This section prohibits outplacement of L-1 nonimmigrants to
another employer unless the nonimmigrant is supervised and
controlled by the petitioning employer, not placed in what is
essentially an arrangement for hire, and pays a $500 fee. An L-
1 dependent employer (more than 15 percent of its employees on
L-1 visas) may not outplace at all. The $500 fee shall go to
the STEM Education and Training Account established under
Section 286(w).
Section 4302. L Employer petition requirements for employment at new
offices
This section limits the approval of a new office L-1
petition to 12 months, and adds a new requirement that the
petition can be approved only if the beneficiary of the
application has not been the beneficiary of two or more new
office L-1 petitions during the preceding two years. In
addition, for approval of the petition, the petitioner must
show an adequate business plan, sufficient physical premises to
carry out the business, and sufficient financial ability to
commence doing business immediately upon approval of the
petition. This section also creates a detailed list of evidence
that must be provided to obtain approval of an extension of a
new office L-1 petition. Finally, this section provides the
Secretary of Homeland Security with the discretionary authority
to grant approval of a new office L-1 petition without all of
the required evidence if justified by extraordinary
circumstances.
Section 4303. Cooperation with the Secretary of State
The Secretary of Homeland Security must work cooperatively
with the Secretary of State to verify the continued existence
of a company.
Section 4304. Limitation on employment of L nonimmigrants
This section amends INA Section 214(c)(2), providing that
employers with 50 or more employees in the United States are
not able to petition for new or additional H-1B or L workers if
their workforce is comprised of more than 75 percent H-1B or L
workers in Fiscal Year 2015, 65 percent in Fiscal Year 2016, or
50 percent H-1B or L workers in Fiscal Years 2017 and
thereafter. The workforce calculation does not include H-1B and
L visa holders who are intending immigrants. The provision does
not include in the definition of employers nonprofit
institutions of higher education or nonprofit research
organizations described in IRC Section 501(c)(3).
Section 4305. Filing fee for L nonimmigrants
This section provides that for each fiscal year beginning
in 2014, a fee of $5,000 per petition shall be imposed on
companies hiring L nonimmigrants if they employ more than 50
workers in the United States and between 30 and 50 percent of
their workforces are H-1B or L nonimmigrants. From 2015 to
2017, the fee is $10,000 for similarly-sized companies for whom
between 50 and 75 percent of their workforces are H-1B or L
nonimmigrants. The provision exempts ``intending immigrants''
from the calculation (i.e., does not include them in the
numerator of the equation). The provision does not include
nonprofit institutions of higher education or nonprofit
research organizations described in IRC Section 501(c)(3) in
the definition of employers.
Section 4306. Investigation and disposition of complaints against L
nonimmigrant employers
This section provides the Secretary of Homeland Security
with the authority to conduct compliance investigations of L-1
employers. The Secretary can withhold the identity of the party
providing information regarding potential violations, and is
required to create a system to receive complaints regarding
noncompliance. This section sets a requirement that complaints
must be received within 24 months of the alleged violation in
order to conduct an investigation. Prior to commencing an
investigation, the Secretary must inform the L-1 employer of
the intent to conduct an investigation and permit the employer
to respond to the allegations. If a violation is found, the
employer is permitted to have a hearing on the finding of a
violation within 120 days of the finding, and a decision on the
violation must be made within 120 days of the hearing.
Penalties can be assessed in accordance with Section 4307 if
there is a finding of a violation, and there is no judicial
review of the finding of a violation.
This section also requires the Secretary of Homeland
Security to conduct annual compliance audits of employers with
more than 100 employees who employ more than 15 percent of
their employees in L-1 status. The Secretary must also make
available to the public a report describing the general
findings of the audits under this section.
Section 4307. Penalties
The Department of Homeland Security shall impose
administrative remedies, including civil monetary penalties up
to $2000 per violation and one-year program debarment, if a
violation is found. If the violation constitutes a material
misrepresentation or a willful failure to comply, the fine can
be up to $10,000 and the period of program debarment is at
least two years.
Section 4308. Prohibition on retaliation against L nonimmigrants
This section prohibits any retaliatory action against a job
applicant, current employee or former employee for reporting
what is reasonably believed to be a violation of L-1
provisions.
Section 4309. Reports on L nonimmigrants
This section requires reports to the Judiciary Committees
of the House and Senate with data on petitions filed, approved,
denied, withdrawn and awaiting action.
Section 4310. Application
All amendments made by this subtitle shall apply to
applications filed on or after the date of enactment.
Section 4311. Report on L blanket petition process
Not later than six months after the date of enactment, the
Inspector General of the Department of Homeland Security is
required to submit a report to listed committees in Congress on
the efficiency and reliability of the process for reviewing
blanket petitions, including whether the process includes
adequate safeguards against fraud and abuse.
SUBTITLE D--OTHER NONIMMIGRANT VISAS
Section 4401. Nonimmigrant visas for students
This section amends INA Section 214(b) to allow for dual
intent for F-1 students and dependents where the principal is
engaged in a full course of study at an established academic
institution approved by the Department of Homeland Security. F-
1 students living in Canada and Mexico commuting into the
United States are also covered. This section also extends dual
intent to the following nonimmigrant visa categories: E, F-1,
F-2, H-1B, H-1C, L, O, P, V, and W. This section will not take
effect until real-time transmission of data from the Student
and Exchange Visitor Information System (SEVIS) to databases
used by CBP is effective. The Department of Homeland Security
will have 120 days after enactment to achieve this. The
Secretary of Homeland Security is also prohibited from issuing
F and M visas until this certification of real-time
transmission of data has been issued.
Section 4402. Classification for specialty occupation workers from free
trade countries
This section includes bilateral investment treaties and
free trade agreements along with treaties of commerce and
navigation. It allows specialty occupation workers to enter the
United States pursuant to a free trade agreement provided that
Department of Labor wage and related attestations are met, with
a limit of 5,000 per fiscal year for each country.
In addition, a new E-6 nonimmigrant visa is created for
people coming from sub-Saharan African countries under Section
104 of the African Growth and Opportunity Act or countries
designated under the Caribbean Basin Economic Recovery Act.
Individuals are eligible if they are coming to perform services
as employees and have at least a high school education or its
equivalent. There is an annual cap of 10,500 for all
nationalities covered under the E-6 program.
Section 4403. E visa reform
This section amends Section 101(a)(15)(E)(iii) to create
10,500 annual visas for individuals who are nationals of the
Republic of Ireland if they have at least a high school
education or have, within five years, at least two years of
work experience in an occupation requiring two years of
training and experience. This section also provides
nonimmigrant visa waiver grounds for Irish nationals seeking
these E-3 visas.
Section 4404. Other changes to nonimmigrant visas
This section expands employment portability under INA
Section 214(n) to holders of O-1 visas (i.e., visas issued to
temporary foreign workers of extraordinary ability). This
section allows O-1 visa holders to accept new employment upon
the filing of a new petition by the prospective employer. It
also amends INA Section 214(c)(3) to waive the consultation
requirement for O-1 visa holders seeking entry for motion
picture or television production who seek readmission within
three years after date of consultation issued in connection
with previous admission, so long as previous consultations were
favorable or raised no objection.
Section 4405. Treatment of nonimmigrants during adjudication of
application
This section provides that nonimmigrants granted employment
authorization pursuant to subsections A (foreign government
officials), E (treaty traders and investors), G (foreign
government officials at international organizations), H
(temporary workers), I (foreign media representatives), J
(exchange visitors), L (intracompany transferees), O (workers
of extraordinary ability), P (athletes and entertainers), Q
(international cultural exchange visitors) and R (religious
workers) of INA Section 101(a)(15), or under INA Section 214(e)
(Trade NAFTA (TN) workers from Canada and Mexico), and under
any other sections the Secretary of Homeland Security may
prescribe by regulation, are authorized to continue employment
with the same employer while the employer's or authorizing
agent's application or petition for an extension of stay
remains pending.
Section 4406. Nonimmigrant elementary and secondary students
This section deletes the requirement that elementary and
secondary public school students on F-1 student visas may only
attend a public secondary school for a period not exceeding 12
months. Such students are required to reimburse the local
educational agency under existing law.
Section 4407. J-1 Visa exchange visitor program fee
A $500 fee must be paid by the employer to the State
Department for each nonimmigrant admitted under the Summer Work
Travel Program. This fee shall be deposited in the CIR Trust
Fund established by the bill.
Section 4408. J Visa Eligibility for speakers of certain foreign
languages
This section creates a new J-1 category for persons coming
to the United States to perform any type of work involving
specialized knowledge or skill, including teaching on a full-
time or part-time basis, that requires proficiency in a
language spoken as a native language in countries of which
fewer than 5,000 nationals were lawfully admitted for permanent
residence in the United States in the previous year. The
Department of State must publish a list of the eligible
countries annually.
Section 4409. F-1 visa fee
A $100 fee is imposed on each F-1 student admitted. This
fee is deposited in the CIR Trust Fund established by the bill.
Section 4410. Pilot program for remote nonimmigrant visa interviews
This section requires the Department of State to establish
a pilot program for processing visitor visas using secure
remote videoconferencing technology as a method for conducting
any required in-person interview of applicants. Within 90 days
of the termination of the pilot program, the State Department
shall submit a written report to Congress that describes the
results of the program and recommendations for whether the
program should be continued, including based on security
concerns.
Section 4411. Providing consular officers with access to all terrorist
databases and requiring heightened scrutiny of applications for
admission from persons listed on terrorist databases
Under this section, consular offices have access to all
terrorism records and databases maintained by any agency or
department to determine whether an applicant for admission
poses a security threat to the United States. The head of such
an agency may withhold such records if necessary to prevent the
unauthorized disclosure of information that clearly identifies
or might permit the identification of intelligence or sensitive
law enforcement sources, methods, or activities.
The Department of State shall require every alien applying
for admission to submit to biographic and biometric screening
to determine whether the alien's name or biometric information
is listed in any terror watch list or database maintained by
any agency or department of the United States.
No person shall be granted a visa if the alien's name is
listed on any watch list unless screening of the application
against screening systems reveals no potentially pertinent
links to terrorism; the consular officer submits the
application for further review to the Secretary of State; and
the heads of other relevant agencies (including DHS), and the
Secretary of State in consultation with DHS, certifies the
alien is admissible to the United States.
Section 4412. Visa revocation information
If the Department of State or DHS revokes a visa, the fact
of the revocation must be immediately provided to relevant
consular officers, law enforcement, and terrorist screening
bases and a notice of the revocation shall be posted to all DHS
port inspectors and to all consular officers.
Section 4413. Status for certain battered spouses and children
This section creates a new INA Section 106 entitled
``Relief for Abused Derivative Aliens.'' An ``abused derivative
alien'' is a person who is the spouse or child admitted under a
blue card status in this bill who has been subjected to battery
or extreme cruelty by such principal alien. The Department of
Homeland Security can grant or extend status for an abused
derivative alien for the period for which the principal alien
was initially admitted or a period of three years. The
Department of Homeland Security may also grant extensions,
employment authorization, and adjust to permanent residency if
DHS determines the alien's continued presence in the United
States is justified on humanitarian grounds, to ensure family
unity, or is otherwise in the public interest and the status
under which the principal alien was admitted would have
potentially allowed for eventual adjustment of status.
Termination of the relationship with the principal alien
does not affect the status of an abused derivative alien.
Section 4414. Nonimmigrant crewmen landing temporarily in Hawaii
This section allows a nonimmigrant crewman to land
temporarily in Hawaii and return to Hawaii, Guam, or the
Commonwealth of the Northern Mariana Islands after having
departed such port, even if the ship has not stopped at a
foreign port.
Section 4415. Treatment of Compact of Free Association Migrants
This section makes citizens of the Compact of Free
Association States (COFA), lawfully residing in the United
States, eligible for Medicaid.
SUBTITLE E--JOLT ACT
Section 4501. Short title
The subtitle may be cited as the ``Jobs Originated through
Launching Travel Act of 2013'' or the ``JOLT Act of 2013.''
Section 4502. Premium processing
This section provides that the Secretary of State shall
establish a pilot premium processing program for visa interview
appointments. Fees collected (which are in addition to normal
application fees) are nonrefundable and shall be deposited as
an offsetting collection to any Department of State
appropriation, to recover the costs of providing consular
services. The Secretary of State must submit a report to
Congress about the pilot program no later than 18 months after
enactment of the JOLT Act.
Section 4503. Encouraging Canadian tourism to the United States
This section allows admission as a visitor under INA
Section 101(a)(15)(B) for certain Canadian retirees and their
spouses for a period not to exceed 240 days during any single
365-day period. To be eligible, the applicant must be a
Canadian citizen at least 55 years of age; maintain a residence
in Canada; not be inadmissible under INA Section 212; not be
described in any ground of deportability under INA Section 237;
not be engaged in employment or labor for hire in the United
States; and not seek any form of assistance or benefit
described in section 403(a) of the Personal Responsibility and
Work Opportunity Reconciliation Act of 1996 (8 U.S.C. 1613(a)).
Maintenance of a residence in the United States shall not be
considered evidence of intent by the alien to abandon the
alien's residence in Canada.
Section 4504. Retiree visa
This section creates a new ``Z'' visa for retirees and
their spouses and children, if the retiree uses at least
$500,000 in cash to purchase one or more residences in the
United States, which each sold for more than 100 percent of the
most recent appraised value of such residence, as determined by
the property assessor in the city or county in which the
residence is located; maintains ownership of residential
property in the United States worth at least $500,000 during
the entire period the alien remains in the United States; and
resides for more than 180 days per year in a residence in the
United States that is worth at least $250,000.
Applicant must be at least 55-years-old; possess health
insurance coverage; not be inadmissible under INA Section 212;
reside in a qualifying residence in the United States for more
than 180 days per year; and not engage in employment in the
United States (except for employment that is directly related
to the management of the person's qualifying residential
property in the United States). Applicants are not eligible for
any form of assistance or benefit described in section 403(a)
of the Personal Responsibility and Work Opportunity
Reconciliation Act of 1996 (8 U.S.C. 1613(a)).
Section 4505. Incentives for foreign visitors visiting the United
States during low peak seasons
This section requires the Secretary of State to make
publically available data regarding the availability of visa
appointments for each visa processing post so that applicants
can identify periods of low demand, when wait times tend to be
lower.
Section 4506. Visa waiver program enhanced security and reform
This section allows the Secretary of Homeland Security, in
consultation with the Secretary of State, to designate any
country as part of the Visa Waiver Program, so long as the
country provides machine-readable passports and the visa
refusal rate and overstay rate for nationals of that country
were both under three percent in the previous fiscal year. The
Secretary of Homeland Security, in consultation with the
Secretary of State, also has the authority to waive the three
percent threshold requirements if the country meets all of the
other requirements, presents a low security risk, has a general
downward trend in visa refusal rates, participates in
counterterrorism efforts with the United States, and has a visa
refusal rate of less than ten percent.
This section also allows the Secretary of Homeland Security
to designate a visa waiver country into a period of
probationary status, after which time that country can be
removed from the Visa Waiver Program.
Hong Kong may participate in this program if it meets the
requirements of the program.
Section 4507. Expediting entry for priority visitors
This section allows the Secretary of Homeland Security to
include in trusted traveler programs individuals employed by
international organizations, selected by the Secretary, which
maintain strong working relationships with the United States.
Citizens of countries that are state sponsors of terrorism
cannot participate in such trusted traveler programs.
Section 4508. Visa processing
This section directs the Secretary of State to set a goal
for U.S. Consulates worldwide of interviewing 80 percent of all
nonimmigrant visa applicants within three weeks of receipt of
application, and to expand resources in China and Brazil to
keep visa appointment wait times under 15 days. This section
also requires a semi-annual report to Congress of the progress
toward reaching and maintaining these goals.
Section 4509. B-Visa fee
This section adds a $5 fee for all B-1 and B-2 visas. This
fee shall be deposited into the Immigration Trust Fund Account.
SUBTITLE F--REFORMS TO THE H-2B PROGRAM
Section 4601. Extension of returning worker exemption to H-2B numerical
limitation
This section expands the definition of ``returning worker''
who is not subject to the H-2B quota to include any worker who
has been an H-2B nonimmigrant during Fiscal Year 2013. This
provision shall expire after five years. The section also
expands the definitions of aliens who can obtain a P visa to
include ski instructors and snowboard instructors.
Section 4602. Other requirements for H-2B
This section requires H-2B employers to attest that they
will not displace a United States worker in the same
metropolitan statistical area where the H-2B worker will be
hired within the period beginning 90 days before the start date
and ending on the end date of the H-2B employment. H-2B
employers are also required to pay reasonable travel costs for
the H-2B worker to travel from the place of recruitment to the
place of employment and from the place of employment to the H-
2B worker's site of permanent residence or a subsequent
worksite. In addition, this section imposes a $500 fee for H-2B
temporary labor certifications, and requires that employers pay
that fee without reimbursement or deduction from wages of the
H-2B worker to pay the fee.
Section 4603. Executives and managers
This section modifies the business visitor rules to allow
admission of multinational executives and managers coming to
the United States for 90 days or less to oversee operations of
the U.S. company. In addition, employees of multinational
companies can be admitted as visitors for up to 180 days to
participate in leadership and development activities, even if
those activities will include productive work. Such employees
cannot receive remuneration from a U.S. source.
Section 4604. Honoraria
This section permits distinguished business visitors and
entertainment personnel to receive honoraria payments.
Section 4605. Nonimmigrants participating in relief operations
An alien coming as a nonimmigrant to participate in
critical infrastructure repairs or improvements may be admitted
under the B visa program for no more than 90 days, if the
nonimmigrant has been employed in a foreign country by one
employer for not less than one year prior to the date of
admission.
Section 4606. Nonimmigrants performing maintenance on common carriers
This section permits nonimmigrants who have specialized
knowledge and who come in the United States to perform
maintenance on common carriers for not more than 90 days, to
come on B visas if the nonimmigrant has been employed by one
employer for not less than one year in a foreign country. A fee
of $500 shall be charged.
SUBTITLE G--MARKET RESEARCH AND STATISTICS
Section 4701. Bureau of immigration and labor market research
This section establishes an independent statistical agency
called the Bureau of Immigration and Labor Market Research (the
``Bureau'') headed by a Commissioner that will be placed within
USCIS in the Department of Homeland Security. The Commissioner
shall be appointed by the President with the advice and consent
of the Senate.
The Bureau will devise a methodology to determine the
annual change to the cap for W nonimmigrants; supplement the
recruitment methods employers use to attract W nonimmigrants;
devise and publish a methodology to designate shortage
occupations by job zone (in O*Net Job Zones 1, 2, and 3);
conduct a survey every three months of the unemployment rate of
construction workers and the impact on such workers; study and
report to Congress on employment-based and immigrant and
nonimmigrant visa programs; make annual recommendations to
improve such programs; and carry out any functions necessary to
accomplish the abovementioned duties.
The Commissioner shall establish a methodology to designate
shortage occupations and the methodology will allow an employer
to ask the Commissioner if a particular occupation in a
particular area is a shortage occupation.
The employees of the Bureau shall have the expertise to
identify U.S. labor shortages in the United States and make
recommendations to the Commissioner on the impact of immigrant
and nonimmigrant aliens on U.S. labor markets.
At the request of the Commissioner, the Secretary of
Commerce, the Director of the Bureau of the Census, the
Secretary of Labor, and the Commissioner of the Bureau of Labor
Statistics shall provide data to the Commissioner, conduct
appropriate surveys, and assist the Commissioner in preparing
recommendations.
The Director of USCIS shall submit a budget to Congress
that the Bureau will need to carry out its duties and the U.S.
Comptroller General shall submit to Congress an audit of the
budget.
The Bureau is established by a $20 million appropriation
from the Treasury. Fees collected from those employers
participating in this program shall also be used to establish
and fund the Bureau. The Secretary may also establish other
fees related to the hiring of alien workers and use such fees
to fund the Bureau.
The new Bureau serves four main functions: (1) play a role
in determining the numbers for the annual cap of the new worker
visa; (2) declare shortage occupations; (3) expand the list of
real-world recruitment methods registered employers may use in
order to ensure the choices provided employers do not become
outdated; and (4) report on every aspect of the employment
immigration system and make yearly recommendations and reports
to Congress on how to reform these programs to make them work
best for the American economy.
Section 4702. Nonimmigrant classification for W nonimmigrants
This section creates a new nonimmigrant classification
under INA Section 101(a)(15)(W)(i) (8 U.S.C.
1101(a)(15)(W)(i)). The W visa holder is an alien having a
foreign residence who will come to the United States
temporarily to perform services or labor for a registered
employer in a registered position. The spouse and minor
children of the W visa holder are allowed to accompany or to
join and the spouse will be given work authorization for the
same period of admission as the principal W nonimmigrant is
allowed.
Section 4703. Admission of W nonimmigrant workers
A certified alien is eligible to be admitted to the United
States as a W nonimmigrant if hired by a registered employer
for employment in a registered position in a location that is
not in an excluded geographic location. The spouse and minor
children of the W visa holder may be admitted to the United
States for the same period of time and the spouse will be given
work authorization. The W nonimmigrant will apply to the
Secretary of State at a U.S. embassy or consulate in a foreign
country to be a certified alien. To be eligible, he or she
cannot be inadmissible; has to pass a criminal background
check; must agree to accept employment in the United States
only if it is in a registered position; and meet any other
criteria as established by the Secretary. He or she shall
report to his or her initial employment no later than 14 days
after first admitted to the United States.
A certified alien may be granted W nonimmigrant status for
an initial period of three years and may renew his or her
status for additional three year periods. He or she may not be
unemployed for more than 60 consecutive days and must depart
the United States if he or she is unable to obtain employment.
W visa holders can travel outside the United States and be
readmitted to the United States but cannot be readmitted for
longer than the initial period of admission.
An employer seeking to be a registered employer shall
submit an application to the Secretary with appropriate
documentation to demonstrate it is a bona fide employer with
the estimated number of W nonimmigrants it will seek to employ
each year, anticipated dates of employment, and a description
of the type of work to be performed. The Secretary may refer an
employer's application to the Secretary of Labor for potential
investigation if there is evidence of fraud. The Secretary of
Labor may audit any of these applications.
No employer may be approved to be a registered employer if
the Secretary determines after notice and an opportunity for a
hearing, that the employer has knowingly misrepresented a
material fact, knowingly made a fraudulent statement, or
knowingly failed to comply with the terms of such attestations;
or failed to cooperate in the audit process in accordance with
the regulations promulgated by the Secretary.
No employer may be approved to become a registered employer
if within three years prior to the date of application, it has
committed any hazardous occupation orders violations resulting
in injury or death under the child labor provisions contained
in Section 12; been assessed a civil money penalty for any
repeated or willful violation of the minimum wage provisions of
section six; or been assessed a civil money penalty for any
repeated or willful violation of the overtime provisions of
section seven (other than a repeated violation that is self-
reported) of the Fair Labor Standards Act of 1938 and any
applicable regulation.
No employer may be approved to become a registered employer
if within three years prior to the date of application, it
received a citation for a willful violation or repeated serious
violation involving injury or death of section five of the
Occupational Safety and Health Act of 1970 (OSHA).
An employer described above will be ineligible to be a
registered employer for a period determined by the Secretary
but no more than three years. An employer that has been
convicted of any offense involving human trafficking or a
violation of Chapter 77 of Title 18 of the United States Code
shall be permanently ineligible to become a registered
employer.
The Secretary shall approve applications to become
registered employers for a term of three years. An employer may
submit an application to renew its status as a registered
employer for additional three year periods. At the time an
employer's application is approved, such employer shall pay a
fee in an amount determined by the Secretary to be sufficient
to cover the costs of the registry of such employers. Each
registered employer shall submit to the Secretary an annual
report that demonstrates that the employer has provided the
wages and working conditions that the registered employer
agreed to provide its employees.
Each registered employer shall submit to the Secretary an
application to designate a position for which the employer is
seeking a W nonimmigrant as a registered position. Each
application will describe each such position and include an
attestation of the following: the number of employees of the
employer; the occupational category, as classified by the
Secretary of Labor, for which the registered position is
sought; and whether the occupation is a shortage occupation.
A secondary registry is also created for employers who want
to hire W visa holders who are already in the United States.
This secondary registry still requires registration of the
position as required above, but if they can prove they cannot
hire an American worker, they may hire a W visa holder.
Employers must attempt to hire W visa holders inside the
United States before bringing in workers located in other
countries.
The wages to be paid will be either the actual wage paid by
the employer to other employees with similar experience and
qualification or the prevailing wage level for the occupational
classification in the geographic area/metropolitan statistical
area of the employment, whichever is higher. This must be
included in the employer attestation.
The attestation will also attest that the working
conditions will not adversely affect the working conditions of
other workers employed in similar positions and that the
employer has carried out the required recruiting activities and
there is no qualified U.S. worker who has applied for the
position who is ready, willing, and able to fill such position
pursuant to the requirements outlined here.
The employer must also attest that there is not a strike,
lockout, or work stoppage or labor dispute in the area where
the W nonimmigrant will be employed. The employer also has to
attest that he or she has not laid off and will not lay off a
U.S. worker during the period beginning 90 days prior to and
ending 90 days after the date the employer designates the
registered position for which the W visa holder is sought
unless the employer has notified such U.S. worker of the
position and documented the legitimate reasons that such U.S.
worker is not qualified or available for the position.
The Secretary shall provide each registered employer whose
application is approved with a permit that includes the number
and description of such employer's approved registered
positions. The approval of a registered position is for a term
that begins on the date of such approval and ends the earlier
of either the date the employer's status as a registered
employer is terminated or three years after the date of such
approval or upon proper termination of the registered position
by the employer.
Recruitment. Each registered position shall be for a
position in an eligible occupation. A position may not be
registered unless the registered employer advertises the
position for 30 days, including the wage, range, location and
proposed start date; on the Internet website maintained by the
Secretary of Labor, and with the workforce agency of the State
where the position will be located, and carries out not less
than three of the additional recruiting activities described in
this section or any other recruitment activities determined to
be appropriate as added by the Commissioner.
Eligible and Ineligible Occupations. An occupation is an
eligible occupation if it is a Zone One, Two, or Three
occupation as defined in this section. An occupation may be
ineligible to be considered as a registered position if it
requires a bachelor's degree or higher or is an occupation that
requires the W nonimmigrant to perform work as a computer
operator, programmer, or repairer. The Secretary of Labor shall
publish the eligible occupations an on-going basis on a
publically available website.
If a W nonimmigrant terminates employment in a registered
position or is terminated from such employment by the
registered employer, such employer may fill the vacancy by
hiring a certified alien, a W nonimmigrant, a U.S. worker or an
alien who has filed a petition for a visa.
Except as described below, a registered position shall be
approved by the Secretary for three years. A registered
position shall continue to be a registered position at the end
of three years if the W nonimmigrant hired for such position
has a pending petition for immigrant status filed by the
registered employer or remains with the same employer. Such
registered positions will terminate either on the date the
petition is approved or denied or on the date of the W
employee's termination of employment with the registered
employer.
Employer Fees. The employer will pay a registration fee to
be determined by the Secretary when the employer's application
for the registered position is approved. The fees collected
will be used to carry out this program. A registered employer
will pay an additional fee for each approved registered
position measured by a specific formula that considers the size
of the business and the proportion of non-U.S. workers in the
registered employee positions. These fees will be used to fund
the operations of the new Bureau of Immigration and Labor
Market Research described above.
Registered employers may not be required to pay an
additional fee if they are a small business with 25 or fewer
employees. No registered positions will be approved for
employers who are not small businesses and where 30 percent or
more of the employees are not U.S. workers.
Unemployment Rate. No W nonimmigrants may be hired for an
eligible occupation in a metropolitan statistical area that has
an unemployment rate that is more than 8.5 percent unless the
Commissioner identifies the occupation as a shortage occupation
or the Secretary approves the position under the safety valve
described below.
Two Six-month Segments. Beginning April 1, 2015, unless the
Secretary of Homeland Security extends the start date, the cap
for W visas will be split into two six-month segments in a
year. The annual cap on the maximum number of registered
positions that may be approved each year are limited for the
first four years: 20,000 for the first year; 35,000 the second
year; 55,000 the third year and 75,000 the fourth year. For
each year after the fourth year, the annual cap will be
calculated according to a statistical formula that takes the
following four factors into consideration: the rate of change
in the number of new job openings in the economy; the inverse
rate of change in the number of unemployed U.S. workers; the
percentage change the Bureau recommends the annual cap should
increase or decrease; and the percentage difference between the
number of W visas requested in the prior fiscal year compared
to the cap in the prior fiscal year.
Shortage Occupations. In addition to the number of
registered positions made available for a given year, the
Commissioner may make available an additional number of
registered positions for shortage occupations in a particular
geographical area. The Bureau's recommendations for determining
annual cap recommendations will be subject to notice and
comment and formal rulemaking.
Replacement Workers. In addition, certain positions that
are re-filled after a W nonimmigrant leaves and which are
filled by another W nonimmigrant will not count against the W
cap. Such registered employers who seek to fill these positions
must have tried to recruit available W nonimmigrants who are
not initial W nonimmigrants. Three recruiting steps (as opposed
to seven, see below) must be used to hire these workers. W
nonimmigrants who are not ``initial'' W workers will be paid
the wages applicable to the rest of the program.
Additional Positions. The Secretary has the authority to
make additional registered positions available for a specific
registered employer if the annual cap for registered positions
has been reached and none remain available for allocation. The
Secretary may also make additional positions available if that
registered employer is located in a metropolitan statistical
area that has an unemployment rate greater than eight and a
half percent (in other words, is banned from using the regular
numbers) or if the registered employer has carried out no less
than seven of the described recruiting activities and posts the
position for no less than 30 days on the Secretary of Labor's
Internet website and with the State workforce agency where the
position will be located.
A W nonimmigrant hired to perform an eligible occupation
pursuant to a special allocation of registered positions may
not be paid less than the greater amount of either the level
four wage set in the Foreign Labor Certification Data Center
Online Wage Library or the mean of the highest two-thirds of
wages surveyed for such occupation in that metropolitan
statistical area.
A registered position made available for a year under this
paragraph shall require the deduction of a visa number
available under the regular W visa cap in the subsequent year
or the earliest possible year for which a visa becomes
available again under the cap.
Half of the total number of registered positions will be
made available during the first six months of the year. The
rest will be used during the second six-month period.
For the first month of each six-month period, a registered
position may not be created in an occupation that is not a
shortage occupation unless the Commissioner has not designated
any shortage occupations that year. During the second, third,
and fourth months of each six-month period, one-third of the
number of registered positions allocated for such period shall
be approved only for a registered employer that is a small
business. Any remaining registered positions not allocated to
small businesses will be made available for any registered
employer during the last two months of each six-month period.
No more than 33 percent of the registered positions
available per year may be granted to perform work in a
construction occupation. The number of registered positions
granted to construction occupations may not exceed 15,000 per
year or 7,500 for any six-month period under any circumstances.
A registered employer may not hire a certified alien for a
registered position to perform work in a construction
occupation if the unemployment rate for construction
occupations in the corresponding occupational job zone in the
corresponding metropolitan statistical areas is more than eight
and a half percent. The unemployment rate will be determined by
using the most recent survey taken by the Bureau or if no
survey is available, by a recent, legitimate privately-
conducted survey.
Portability and Promotion. A W nonimmigrant who is admitted
to the United States by a registered employer may terminate
such employment for any reason and seek and accept employment
with another registered employer in any other registered
position within the terms and conditions of the W nonimmigrant
visa. A registered employer who has applied for a registered
position may promote the W nonimmigrant if such employee has
been employed with that employer for no less than twelve
months. Such a promotion will not increase the number of
registered positions for that employer.
Prohibitions on Outplacement. A registered employer may not
place, outsource, lease, or otherwise contract for the services
or placement of a W nonimmigrant employee with another employer
if more than 15 percent of the employees of the registered
employer are W nonimmigrants.
Waiver of Rights Prohibited. A W 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 U.S.
worker employed in a similar position with the employer because
of the alien's status as a W nonimmigrant. A W nonimmigrant may
not be required to waive any rights or protections under this
Act.
Prohibition on Treatment as Independent Contractors. A W
nonimmigrant is prohibited from being treated as an independent
contractor under any Federal or State law and no person
including an employer or labor contractor and any affiliated
persons may treat the W nonimmigrant as an independent
contractor. However, registered employers who operate as
independent contractors may hire W nonimmigrants.
Use of Fees. A fee related to the hiring of a W
nonimmigrant required to be paid by an employer under this Act
shall be paid by the employer and may not be deducted from the
wages or other compensation paid to a W nonimmigrant. The
employer is not responsible for the W nonimmigrant's cost of
round trip transportation from a certified alien's home to the
location of the registered position and the cost of obtaining a
foreign passport. An employer shall comply with all applicable
Federal, State, and local tax laws with respect to each W
nonimmigrant employed by the employer. Fees collected in this
section shall be used to carry out the W nonimmigrant program
and to fund the Bureau if any funds remain.
Whistleblower Protections. It is unlawful for an employer
of a W 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 discloses information to the employer or any
other person that the employee or former employee reasonably
believes demonstrates a violation of this section or cooperates
or seeks to cooperate in an investigation or other proceeding
concerning compliance with the requirements of this section.
Process and Enforcement. The Secretary shall establish a
process for the receipt, investigation, and disposition of
complaints with respect to the failure of a registered employer
to meet a condition of this section or the layoff or non-hiring
of a U.S. worker. The Secretary shall promulgate regulations
for the receipt, investigation, and disposition of complaints
by an aggrieved W nonimmigrant respecting a violation of this
section. No investigation or hearing shall be conducted on a
complaint concerning a violation unless the complaint was filed
within six months of the violation. The Secretary shall
determine within 30 days of the filing of the complaint if
there is reasonable cause to conduct an investigation and if
there is a reasonable basis to believe that a violation of this
section has occurred. If the Secretary decides there is a
reasonable basis, she shall issue notice to the interested
parties and offer an opportunity for a hearing on the complaint
within 60 days. After the hearing, the Secretary has 60 days to
make a finding on the matter awarding reasonable attorneys'
fees and costs to the prevailing party.
Civil Penalties. After notice and an opportunity for a
hearing, if the Secretary of Labor finds a violation of this
subsection, the Secretary may impose administrative remedies
and penalties including back wages, benefits, and civil
monetary penalties. The Secretary of Labor may also impose a
civil penalty for a violation of this subsection including a
fine up to $2,000 per affected worker for the first violation
and up to $4,000 for each subsequent violation. If the
violation is found to be willful, the fine can be up to $5,000
per affected worker. If the violation is found to be willful
and a U.S. worker was harmed, a fine up to $25,000 per
violation per affected worker may be assessed. The Secretary of
Labor may also impose a civil penalty for knowingly or
recklessly failing to comply with the terms of representations
made in petitions, applications, certifications, or
attestations under this section, or with labor recruiters of up
to $4,000 per affected worker. After the third offense of a
failure to comply the fine can increase to $5,000.
Criminal Penalties. Anyone who misrepresents the number of
full time employees or the number of employees who are U.S.
workers for the purpose of reducing a fee or avoiding the cap
shall be fined up to in accordance with title 18 of the United
States Code in an amount of $25,000 or imprisoned for not more
than one year or both.
Monitoring. United States Citizenship and Immigration
Services in the Department of Homeland Security will implement
a new electronic monitoring system modeled on the Student and
Exchange Visitor Information Systems (SEVIS, the tracking
system used by ICE to monitor foreign students) to monitor the
presence and employment of W nonimmigrants and their movement
from job to job. This new system will be coordinated with the
use of the employment verification system described in Section
274A(d) for greater efficiency.
SUBTITLE H--INVESTING IN NEW VENTURE, ENTREPRENEURIAL STARTUPS, AND
TECHNOLOGIES
Section 4801. Nonimmigrant invest visas
This section creates a new visa for immigrant entrepreneurs
who seek to start new businesses and create jobs in the United
States. Specifically, it creates a new, three-year nonimmigrant
visa for individuals who are able to secure at least $100,000
in investments from an accredited investor, venture capitalist,
startup accelerator, or government entity or combination of
entities. Alternatively, an individual can obtain a
nonimmigrant visa if he or she has a U.S. business that has
created at least three jobs and has generated at least $250,000
in annual revenue for the previous two years. The section also
creates a process for extending the nonimmigrant visa if the
entrepreneur's business meets certain jobs, investment, or
revenue thresholds.
Section 4802. Invest immigrant visa
This section creates a new ``EB-6'' immigrant visa category
for certain entrepreneurs. To qualify, the entrepreneur must
have maintained a valid nonimmigrant status for at least two
years and have created at least five jobs in the United States.
The entrepreneur must also have either secured at least
$500,000 investment or generated at least $750,000 in annual
revenue during the last two years.
For entrepreneurs with an advanced degree in STEM, the
individual must have maintained a valid nonimmigrant status for
at least two years, created at least four jobs in the United
States, and secured $500,000 in investments. In the
alternative, an entrepreneur with a STEM degree can obtain an
immigrant visa if he or she has maintained a valid nonimmigrant
status for at least two years, created at least three jobs, and
generated at least $500,000 in annual revenue for two years.
The immigrant visa is capped to 10,000 per year.
Section 4803. Administration and oversight
Not later than 16 months after the date of the enactment of
this Act, the Secretary, in consultation with the Secretary of
Commerce, the Administrator of the Small Business
Administration, and other relevant agencies shall promulgate
regulations. The Secretary has certain authority to adjust
certain dollar amounts in this section.
Section 4804. Permanent authorization of EB-5 Regional Center Program
This section makes the EB-5 Regional Center Pilot Program
permanent and makes several other reforms and improvements to
the program. Section 4804(a) repeals the existing pilot program
at Section 610 of the Departments of Commerce, Justice, and
State, the Judiciary, and Related Agencies Appropriations Act,
1993 (8 U.S.C. 1153 note).
Section 4804(b) places the EB-5 Regional Center Program in
INA Section 203(b)(5). This section provides a description of
the requirements for approval of a designated regional center.
The section establishes a preapproval procedure pursuant to
which a commercial enterprise associated with a regional center
may file a petition to have a business plan, investment
documents, and economic analysis preapproved by the Secretary.
Preapproval given under this section shall be binding for
purposes of the adjudication of immigrant investor petitions
affiliated with such investment opportunities, absent evidence
of fraud, misrepresentation, criminal misuse, or threat to
national security. This section also establishes a premium
processing option for immigrant investors seeking to invest in
such preapproved investment opportunities. The section sets out
annual financial reporting requirements for regional centers,
along with a range of sanctions for regional centers and
regional center operators that act in a manner inconsistent
with a regional center designation, or which file incomplete or
inaccurate financial statements. The section provides authority
to the Secretary of Homeland Security to ensure that
individuals involved in a regional center do not have criminal
or other disqualifying background information and provides the
Secretary with authority to terminate previously approved
regional centers. The section requires certification from
regional center operators that applicable securities laws are
being complied with. The section also permits consultation
between the Department of Homeland Security and the Department
of Commerce in relation to the immigrant investor program.
Section 4805. Conditional permanent resident status for certain
employment-based immigrants, spouses, and children
This section provides that spouses and children shall not
be required to file separate I-829 petitions if the principal
applicant includes family members in his or her I-829. If the
dependent obtains permanent residence after the date when the
principal files an I-829, the conditional basis of the
dependent shall be removed upon approval of the principal's
petition and the dependent's permanent residency will be
unconditional when approved. For alien investors in regional
centers, approved regional center financial statements shall
serve to demonstrate fulfillment of the job creation
requirements that all investors must meet under Section
203(b)(5).
Section 4806. EB-5 visa reforms
This section removes dependents from the EB-5 numerical
cap. At least 5,000 EB-5 visas are reserved for investment in
Targeted Employment Areas (TEA). Pursuant to this section,
Targeted Employment Area designations shall be valid for five
years and may be renewed for additional five-year periods if
the area continues to meet the definition of a high
unemployment or rural area. Individuals who invest in an
approved Targeted Employment Area, which later loses that
status, need not increase investment as a result.
This section provides authority for the Secretary of
Commerce to adjust the minimum required investment amount to
which an immigrant investor is subject. The section provides,
beginning in 2016 and in the absence of action by the Secretary
of Commerce, that the investment amounts required for EB-5
investors will adjust based on changes in the Consumer Price
Index. A new adjustment will occur every five years thereafter.
The section defines full-time employment and provides that
full-time employment may be measured in full-time equivalents,
including intermittent or seasonal employment opportunities and
construction jobs. ``Capital'' is defined to include all real,
personal or mixed assets, whether tangible or intangible, owned
or controlled by the investor, or held in trust for the benefit
of the investor, to which the investor has unrestricted access,
which shall be valued at the fair market value in U.S. dollars
at the time it is invested. ``High unemployment and poverty
area'' means an area consisting of a census tract or contiguous
census tracts that has an unemployment rate at least 150
percent of the national rate and includes at least one tract
with 20 percent of its residents living below the federal
poverty level, or is in a federal or state enterprise zone.
A ``rural area'' means any area outside a metropolitan
statistical area or within the outer boundary of any town with
more than 20,000 people or any town with fewer than 20,000
people in a state with fewer than 1,500,000 people. The new
definitions section applies to any applications filed on the
date that is one year after the date of enactment.
The section also provides that where a principal alien's
conditional permanent resident status is terminated under
Section 216A, the child of that alien will continue to be
considered a child should the principal alien file a new
petition under section 203(b)(5) within one year after such
termination.
This section provides authority to the Secretary to fix the
compensation of, and appoint, individuals with the expertise
necessary to administer the Regional Center Program. The
section permits the Secretary to delegate certain authority to
the Secretary of Commerce to evaluate commercial enterprise
business plans and investment documents, including
determinations concerning job creation. The section provides
authority governing the use of fees and provides that necessary
regulations may be adopted by the Secretary of Homeland
Security and the Secretary of Commerce.
The section permits an immigrant investor to file
concurrent petitions for classification under Section 203(b)(5)
and for adjustment of status to a conditional lawful permanent
resident.
Section 4807. Authorization of appropriations
This section authorizes appropriations for various sections
of the bill from the Trust Fund.
SUBTITLE I--STUDENT AND EXCHANGE VISITOR PROGRAM
Section 4901. Short title
The subtitle may be referred to as the ``Student Visa
Integrity Act.''
Section 4902. SEVIS and SEVP defined
The term SEVIS means the Student and Exchange Visitor
Information Systems of the Department of Homeland Security. The
term SEVP means the Student and Exchange Visitor Program of the
Department of Homeland Security.
Section 4903. Increased criminal penalties
This section establishes a maximum penalty of 15 years in
prison if a violator of 18 U.S.C. 1546(a) was an agent of an
educational institutions with respect to participation in
SEVIS.
Section 4904. Accreditation requirement
This section defines accredited for F-1 sponsorship as
being any program accredited by the Secretary of Education.
Section 4905. Other academic institutions
The Department of Homeland Security shall require
accreditation of academic institutions for F-1s if the
institution is not already required to be accredited under the
F-1 rules and an appropriate accrediting agency recognized by
the Department of Education is able to provide such
attestation. The Department of Homeland Security will have the
ability to waive the requirement for institutions waiting more
than a year for accreditation to be approved.
Section 4906. Penalties for failure to comply with SEVIS reporting
requirements
Institutions that do not comply may be fined and barred
from participation in the program.
Section 4907. Visa fraud
If DHS has ``reasonable suspicion'' that an owner of, or a
designated school official at, an approved institution of
higher education, an approved educational institution, or a
designated exchange visitor program has committed fraud or
attempted to commit fraud relating to SEVIS or if such owner or
designated school official is indicted for such fraud, DHS may
immediately suspend such certification without prior
notification and suspend such official's or such school's
access to SEVIS. A conviction of fraud shall lead to a
permanent disqualification from filing future petitions and
from having an ownership interest or a management role in any
U.S. educational institution that enrolls F or M students.
Section 4908. Background checks
Individuals cannot be designated school officers (DSOs) or
granted access to SEVIS unless the individual is a national of
the United States or a permanent resident and during the most
recent three-year period; the Department of Homeland Security
has conducted a background check on the individual and
determined the person has not been convicted of an immigration
violations and is not a national security risk; and the
individual has completed an online SEVIS training course.
Individuals may serve as interim DSOs while the background
check is going on. If the interim DSO does not successfully
complete the background check, DHS shall review each Form I-20
issued by the interim DSO. The Department of Homeland Security
may collect a fee from an approved school for each background
check conducted under this section. The section takes effect
one year after enactment.
Section 4909. Revocation of authority to issue Form I-20 of Flight
Schools Not Certified by the Federal Aviation Administration
The Department of Homeland Security shall prohibit any
flight school in the United States from accessing SEVIS or
issuing a Form I-20 to an alien seeking an F or M visa if the
school has not been certified by DHS and the Federal Aviation
Administration (FAA).
Section 4910. Revocation of accreditation
When an accrediting agency is required to notify the
Secretary of Education and the state licensing authority of the
final denial, withdrawal, suspension or termination of
accreditation of an institution pursuant to Section 496 of the
Higher Education Act of 1965, the agency shall notify DHS, and
DHS shall immediately withdraw the school from SEVP and
prohibit the school from accessing SEVIS.
Section 4911. Report on Risk assessment
Not later than 180 days after date of enactment, DHS shall
submit to Congress a report that contains a risk assessment
strategy for the issuance of I-20s.
Section 4912. Implementation of GAO recommendations
Within six months of enactment, DHS shall submit to the
Judiciary Committees of the House and Senate a report
describing the risks of Student and Exchange Visitor Program
(SEVP), and a process to allocate SEVP's resources based on
risk, quality control, and monitoring.
Section 4913. Implementation of SEVIS II
Within two years of enactment, DHS shall complete the
deployment of both phases of the second generation of the SEVIS
system.
IV. Congressional Budget Office Cost Estimate
The cost estimate provided by the Congressional Budget
Office pursuant to section 402 of the Congressional Budget Act
of 1974 was not available for inclusion in this report. The
estimate will be printed in either a supplemental report or the
Congressional Record when it is available.
V. Regulatory Impact Evaluation
In compliance with subsection (b) of paragraph 11 of rule
XXVI of the Standing Rules of the Senate, it is hereby stated
that the passage of S. 744 will require the promulgation of
regulations by the Department of Homeland Security, the
Department of Justice, the Department of Labor, the Department
of State, the Department of Commerce, the Department of
Agriculture, and the United States Sentencing Commission, in
consultation with the Department of Treasury, the Small
Business Administration, the Social Security Administration,
the Department of Defense, and other relevant Federal agencies
and departments, to carry out the provisions of the bill.
VI. Conclusion
Following 37 hours of debate over the course of three
weeks, and the disposition of 212 amendments, the Senate
Judiciary Committee reported S. 744, the Border Security,
Economic Opportunity, and Immigration Modernization Act, as
amended on a bipartisan vote of 13 to 5. The Committee has
approved legislation that will uphold the best values and
traditions of a Nation that was built upon immigration. The
bill will help reunite families, enrich our growing multi-
cultural society, contribute to our traditions of innovation
and invention, and give those who yearn to become Americans the
opportunity to become full and lawful participants in our
society and eventually to live as citizens of the United States
of America. The Senators who serve on the Senate Judiciary
Committee have laid a foundation for real and meaningful
progress for the country, and have delivered tremendous hope to
the millions of people who will benefit from these reforms. The
Committee commends this legislation to the Senate for its
thorough consideration and approval.
VII. Additional and Minority Views
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ADDITIONAL VIEWS FROM SENATOR HATCH
While I commend the committee for its productive work on
this legislation, I still have a number of concerns that I
believe need to be addressed in order to make this bill
workable. Indeed, though I supported reporting this legislation
out of the committee, there are some fundamental issues in this
legislation that need to be fixed before it is, in my view,
ready for final passage.
The major concerns I have with this legislation fall under
the jurisdiction of the Senate Finance Committee, of which I am
the Ranking Member. I filed amendments to address these issues,
and, while they were not addressed during the Judiciary
Committee's consideration of the bill, I have the assurances of
several authors of this legislation--including the Senator from
New York--that they will work with me to fix these problems
once the bill is on the floor.
There are at least four specific Finance Committee issues
that need to be addressed. First, the bill should stipulate
that federal dollars cannot be used for purposes that were not
contemplated under the 1996 federal welfare reform law. This
would ensure that federal welfare benefits are not paid to
individuals currently prohibited from receiving them.
Second, the bill should require immigrant applicants to
show that they have paid back taxes and continue to pay taxes
as a condition of their change in status. This would ensure
that immigrant applicants satisfy their lawful federal tax
obligations resulting from any period of their U.S. residency.
Third, the bill should apply a five-year waiting period for
tax credits and cost-sharing subsidies under the Affordable
Care Act for individuals going through the Blue Card or
registered provisional immigrant pathways. A similar five-year
waiting period already applies for legal immigrants to receive
benefits under other federal means-tested health programs like
Medicaid and the Children's Health Insurance Plan.
Fourth, the bill should prevent immigrant applicants from
claiming unauthorized earnings to gain eligibility for Social
Security coverage. This is essential to protecting the
integrity of the Social Security system.
Each of these issues represents an opportunity to improve
the underlying bill. I look forward to working with the authors
of the bill to address these concerns. Once again, while I
supported reporting this legislation out of the Judiciary
Committee, my continued support for the bill is contingent on
whether these vital matters are addressed in a reasonable and
productive way.
Orrin G. Hatch.
MINORITY VIEWS FROM SENATORS GRASSLEY, SESSIONS, LEE AND CRUZ
In 1986, the American people were promised that, in
exchange for granting amnesty to millions of individuals
illegally present in the United States, the border would be
secured and the laws enforced. These promises were never kept.
Unfortunately, S. 744 repeats these past mistakes and does very
little to deliver more than the same empty promises.
Our immigration system is broken. We are committed to
passing legislation that will provide a long-term solution to
enhance legal immigration while deterring illegal immigration.
We believe the Congress should pass legislation to secure our
borders, enhance national security, improve visa processes,
hold employers accountable, foster economic opportunities and
provide better legal immigration avenues for people who are
willing to work in the United States.
During the Senate Committee on the Judiciary's (Committee)
consideration of S. 744, common-sense amendments offering real
solutions were systematically rejected. Further, the bill's
already serious flaws were exacerbated by the adoption of
several amendments that significantly weaken current law,
hamstring law enforcement, increase costs, and further
complicate our legal immigration system. While some of the
amendments made necessary improvements, the core provisions of
the bill remain the same, leaving our borders unsecure and our
immigration system deeply dysfunctional.
Real reform is what Americans deserve, and what we have a
responsibility to deliver. Therefore, we were left with no
choice but to oppose the bill. Given the enormous scope of this
legislation and the long list of problems with the bill, we
state here the primary reasons we were compelled to oppose S.
744.
Legalization Before Border Security
The bill grants legal status for people here illegally as
soon as the Secretary for Homeland Security (Secretary) submits
a ``plan'' to secure the border--not when the border is
actually secured. The bill requires the Secretary, within 6
months of the bill being signed into law, to submit a
``Comprehensive Southern Border Security Strategy'' as well as
a ``Southern Border Fencing Strategy.'' After those so-called
plans are submitted to Congress, the Secretary can start
processing applications to legalize the estimated 11 million
people that are in the United States. The result is that the
undocumented population receives Registered Provisional
Immigrant (RPI) status after a mere plan is submitted.
RPI status is more than probation. RPI status is
legalization.
After the Secretary notifies Congress that she believes her
plan has been accomplished, newly legalized immigrants
(Registered Provision Immigrants or RPIs) are given a path to
obtain green cards and a special path to citizenship.
No one disputes that S. 744 provides legalization first and
enforcement later. Without ensuring adequate border security
and interior enforcement, the cycle is destined to repeat
itself.
The bill offers more of what the American people are used
to from Washington: plans, commissions, studies, and gimmicks.
The border security plans written by the Secretary need only be
``substantially'' completed and implemented a decade down the
road before green cards are distributed to millions of people.
Despite attempts to improve the triggers, they remain
inefficient and ineffective.
During markup, the Democrat majority and the bill's
sponsors voted down every attempt to mandate meaningful control
of our borders--including provisions required by current law,
and even those included in the failed 2007 immigration bill. An
amendment to require the Secretary to certify to Congress that
she has maintained effective control over the entire southern
border for 6 months before legalization begins was rejected.\1\
An amendment to require objective metrics for determining
border security was defeated.\2\ Amendments to significantly
increase border security personnel, assets, and completion of
border fencing were rejected.\3\ Finally, an amendment to
retain current law and to maintain 100 percent operational
control of the border as defined in the Secure Fence Act was
also voted down.\4\
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Under the Secure Fence Act of 2006, Congress required that
the entire border should be 100% operationally controlled by
the Department of Homeland Security. This was also the metric
the Senate used as a trigger in the 2007 immigration bill.
Under current law, operational control means the prevention of
all unlawful entries into the United States, including entries
by terrorists, other unlawful aliens, instruments of terrorism,
narcotics, and other contraband. S. 744 substantially weakens
current law by only requiring the southern border to be ``90%
effectively secured.''
Furthermore, S. 744 weakens the ability of Congress to have
a say in the border security plans put together by the
Executive Branch. Who is going to ensure that the strategy the
Secretary submits is sufficient, thoughtful, and feasible? What
if the strategy she submits lacks sufficient detail, or does
not address issues that agents in the field are concerned
about? Congress has to hold the Secretary accountable. Congress
should vote on the strategies. An amendment to require fast
tracked Congressional approval of the Secretary's border
security plan and her assessment of its completion was
rejected.\5\
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The bill also substantially weakens current law mandating a
biometric entry/exit system at all ports of entry (air, land,
and sea). In 1993, when the first World Trade Center bombing
occurred, Congress required the Executive Branch to develop a
system to track the entries and exits of all foreign nationals.
Despite the fact that this biometric entry/exit system has been
mandated in six different statutes dating back to 1996 and
recommended by the 9/11 Commission, administration after
administration has dismissed the need to implement an effective
entry-exit system. An amendment to retain current law and
control the flow of people coming and going was rejected on
several occasions.\6\ Instead, the bill provides for a non-
biometric exit system, which is easily circumvented through
fraud, and only provides the exit system at air and sea ports.
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The bottom line is that this bill provides for
legalization, but does not secure the border. The triggers in
this bill are meaningless hurdles that allow for the immediate
processing and granting of initial RPI status. The result is de
facto amnesty because these individuals will be admitted
lawfully into the United States. Once these immigrants are no
longer ``undocumented,'' the urgency to meet existing
enforcement deadlines will dissipate. Moreover, legalizing the
current undocumented population before our borders are secure
assures that this bill will only cause another buildup of
undocumented individuals. The American people and those
individuals who have rightfully waited their turn in line and
gained citizenship deserve better than the approach set forth
by this bill.
Legalization Pitfalls and Loopholes
Time and time again, we have been told that S. 744 will
allow people here illegally to register and ``earn'' legal
status, then become contributing members of society. However,
the bill fails to address just how to prevent a continued
influx of individuals who will replace those currently ``living
in the shadows.''
Remarkably, the bill virtually suspends enforcement during
the two and a half year legalization application period, and
prohibits law enforcement from detaining or removing anyone
claiming eligibility, without any requirement to prove that
they are, in fact, eligible. Law enforcement is even required
to inform those here illegally about legalization and give them
the opportunity to apply. Under the bill, undocumented
immigrants already here can apply for and receive RPI status
even if they have committed document fraud, provided false
statements to authorities, and absconded court-ordered removal
proceedings.
During this time, there is an ``enforcement holiday,''
limiting the ability of enforcement officers to detain or
remove any individual who merely claims eligibility for RPI
status, regardless of whether there is proof to back up that
claim.
Perhaps the ``enforcement holiday'' would only be mildly
concerning if we were dealing with individuals who had only
violated civil immigration laws. Unfortunately, the bill
extends to those with criminal records. This includes
individuals who have gang affiliations, felony arrests, and
multiple misdemeanor criminal convictions. Moreover, the bill
permits individuals who attain RPI status to continue criminal
behavior, so long as their behavior and subsequent convictions
remain below the eligibility threshold. In fact, S. 744 goes
even further and provides the Secretary waiver authority in
order to dismiss misdemeanor criminal convictions for purposes
of determining eligibility for RPI status.
Further, the bill does not limit those outside the country
from applying for RPI status. The bill states that individuals
who have previously been deported or otherwise removed from the
country are ineligible for RPI status. However, one need only
turn a few pages to discover the Secretary has sole and
unreviewable discretion to waive this provision and permit
large classes of individuals to apply for RPI status. Another
waiver is provided that allows individual aliens who have been
removed, or reentered illegally, to apply for status if they
are fortunate enough to have a relative who does, in fact,
qualify for RPI status. This weakens and undermines current
law, where Congress has already declared that individuals who
reenter illegally are not entitled to immigration benefits.
Amendments to prohibit those ordered removed, those
currently in removal proceedings, and those who have absconded
and failed to show up for removal proceedings from applying or
being granted legal status were voted down.\7\ An amendment to
prohibit spousal abusers, child abusers, drunk drivers, and
other serious criminals from obtaining legal status was also
rejected.\8\
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The process for obtaining RPI status is ripe for abuse and
potentially encourages crafty behavior for individuals to game
the system. Under the bill, individuals applying for RPI status
are permitted to file numerous amended applications in the
event their initial application is denied for failure to
complete properly or provide required documentation. In
practice, one could continue to file numerous amended
applications, knowing each application is incomplete, resulting
in a perpetual limbo where an individual can remain here for an
indeterminate time without any possibility of removal.
Another area of potential abuse permits otherwise
ineligible individuals to remain indefinitely in the United
States. Sections 2104, 2105, and 2212 combine to provide for a
stay of removal until a newly created administrative appellate
review process of the application has been exhausted. One need
only imagine the vast loophole created that will allow
ineligible applicants to remain in the United States pending a
typically extremely lengthy review process. Moreover, this,
like the other provisions discussed above, provides an
incentive for ineligible applicants to file for relief. When
combined with a never ending application process and an
expansive, time consuming appeals process, individuals can
remain here for years without ever obtaining RPI status, and
without any fear of removal.
We tried to close loopholes and strengthen the legalization
program through amendments. For example, an amendment to
require a person here illegally who applies for legal status to
disclose his or her previous identity theft and the social
security numbers used, and allow for agencies to notify
rightful assignees was rejected.\9\ An amendment to remove
``sworn affidavits'' from the list of documents that RPIs may
use to satisfy the employment requirement for obtaining a green
card was also rejected.\10\ Amendments to require illegal
immigrants to pay back taxes before receiving legal status, to
clarify eligibility for the child tax credit, and to limit the
earned income tax credit were voted down.\11\ An amendment to
provide that individuals who have been unlawfully present in
the United States are ineligible for federal, state, or local
means-tested welfare benefits was also rejected.\12\ Finally,
an amendment to ensure that all applications could be filed
electronically, and that the Secretary develop a detection and
deterrence plan against benefits fraud was voted down.\13\
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S. 744 provides many avenues for people here illegally to
receive taxpayer funded assistance in filing their applications
for legalization. First, the bill creates a $50 million grant
program for nonprofit organizations to: 1) inform the public
regarding the legalization program; 2) screen individuals to
ascertain their eligibility; 3) assist people here illegally in
submitting applications for RPI status and waivers; and 4)
assist individuals with regard to the rights and
responsibilities of U.S. citizenship, including civics and
English requirements, and how to apply for citizenship. Second,
S. 744 allows the government to create a new public-private
partnership called the United States Citizenship Foundation.
The focus of this new Foundation is to expand citizenship
preparation programs, and to coordinate immigrant integration
with state and local entities. U.S. Citizenship and Immigration
Services already perform many of the same functions, rendering
it redundant. Combined, these grants and this new foundation
expand the role of government and expend unnecessary funds from
the already stretched resources of the American people.
Congress Should Legislate, Not Delegate
We are concerned that the bill provides unfettered and
unchecked authority to the Executive Branch, and mainly to the
Secretary. On almost every other page, there is language that
allows the Secretary to waive certain provisions of law. The
Secretary may define terms as she sees fit. In many cases, the
discretion is unreviewable, both by the American people and by
other branches of government.
The Secretary has $8.3 billion immediately at her disposal
with no accountability to Congress, no parameters on how
taxpayer funding will be spent, and no assurance that the
funding will be repaid to the Treasury as the authors intend.
As drafted, S. 744 permits the Secretary to provide legal
status to millions of people here illegally simply after the
mere submission of a border security and fencing strategy. The
bill gives almost sole discretion over the plans and
implementation of these strategies without any input from
Congress. Will a Secretary who believes that the border is
stronger than ever before be willing to make it stronger? Will
a Secretary who does not believe a biometric exit system is
feasible ensure that a mandated system is put in place? Will a
Secretary who does not believe anything should stand in the way
of legalization ensure that the triggers are achieved?
The application period for people to apply for RPI Status
is estimated to take 12 months. However, the Secretary has the
authority to extend that time period an additional 18 months.
In addition to unilaterally determining how long the
application period should last, the Secretary can waive fees
and penalties for anybody and everybody that applies.
Additionally, the Secretary can excuse certain behavior and
determine what documentation or evidence is acceptable.
If passed, S. 744 will give unlimited power to the
Executive Branch to define the terms and conditions of
enforcement actions against people here unlawfully. Certain
companies can be exempt from the employment verification
participation requirement. The Secretary of State has the
authority to limit in-person interviews of visa applicants
abroad, and the Secretary of Homeland Security is not required
to interview anyone that applies for RPI Status. The proponents
of the bill claim that more manpower will be provided for, but
it allows the Executive Branch to determine if 3,500 new
Customs and Border Protection Officers will be assigned to the
border or customs responsibilities.
The unfettered grant of waiver authority is further
illustrated by a section that provides the Secretary and
Immigration Judges to waive certain crimes that would otherwise
make an individual ineligible for legal status. This broad
grant of power undermines the immigration laws and creates
serious problems. Immigration Judges and the Secretary are
essentially granted prosecutorial discretion to allow an
inadmissible individual, who may also be in removal
proceedings, to remain in the country if failure to do so is
``against the public interest or would result in hardship to
the alien's'' family. It is hard to imagine any situation where
some type of ``hardship'' would not be present. This provision
leads us down a path with many unknown consequences that have
not been examined.
With regard to the future flow and legal guestworker
program, the Executive Branch has the ability to change the
number of ``W'' nonimmigrants allowed into the United States.
Again, without input from Congress, the administration can
determine how many workers, what types of workers, and how
employers are monitored through the program.
There are hundreds of examples of waivers, grants of
discretion, and authorities for the Executive Branch to define
our immigration laws. Simply stated, S. 744 provides too much
discretion to the Executive Branch with little or no oversight
and effectively passes responsibility from Congress to the
Executive Branch to implement it by Administrative fiat.
Weakening of Criminal Law and Enforcement Efforts
One of the major reasons why immigration is a subject of
significant public interest is the failure of the federal
government to enforce existing law. Eleven million people have
unlawfully entered the country or overstayed their visa because
the federal government did not deter them or take action to
remove them. S. 744 significantly weakens current criminal laws
and will hinder the ability of law enforcement to protect
Americans from criminal undocumented aliens.
Enforcement of the immigration laws has been lax and
increasingly selective in the last few years. As a result,
States have been forced to deal with the criminal activity that
surrounds the flow of people here illegally. They have stepped
up efforts to control the effects of illegal immigration within
their borders. The States should be able to protect their
people and stem the lawlessness within their borders. Yet, time
and again, this administration has denied them the opportunity
and tried to stop them.
Despite the name of title III, ``Interior Enforcement,''
the reality is that the bill does almost nothing to strengthen
and enhance our interior enforcement efforts. It does nothing
to encourage federal, state and local law enforcement efforts
to apprehend and detain illegal aliens who pose a risk to our
communities. It ignores sanctuary cities, and effectively sends
a signal to states with enforcement-minded laws that they have
no authority to control their own borders.
Unfortunately, the bill fails states and local
jurisdictions even more. Nothing in the bill would enable the
States to control their own borders when the federal government
does not. Nothing in the bill would enhance federal-state
cooperation in enforcing immigration laws against people who
are in the country illegally. The federal government will
continue to look the other way as millions of new people enter
the country illegally. Meanwhile, the bill gives the States no
new authority to act when the federal government refuses to
act. Unfortunately, an amendment to accommodate a state or
local's request for federal assistance through the 287(g)
program was rejected.\14\
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Proponents of S. 744 claim that the bill includes the
single largest increase in immigration enforcement in American
history. They say that mandatory electronic employment
verification is the solution to future illegal immigration.
Yet, it's concerning that S. 744 delays for years the
implementation of a mandatory electronic employment
verification system, through which 99.7 percent of all work
eligible employees are confirmed immediately today. As drafted,
the bill gives some employers a free pass in participating,
while some employers will not be required to use the system for
at least six years after enactment. An amendment to require
implementation of the new system within 18 months for all
employers was rejected.\15\ Another amendment to delay the
preemption of all state E-Verify laws until the new system is
fully implemented was also rejected.\16\
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Another concern that fell on deaf ears during Committee
consideration of S. 744 was the dangerous and unnecessary
change to existing criminal law. While the bill does increase
the punishment in several cases, it also increases the
thresholds required for actions to constitute a crime.
Under current law, it is a misdemeanor for a foreign
national to unlawfully attempt to enter the United States.
Section 3704 removes ``attempting to enter the United States''
as a crime. Therefore, under the bill, a person here illegally
can attempt to cross the border as many times as he likes
without any consequences, taxing already limited resources.
Only when the illegal alien successfully enters the United
States will he be charged with a crime. This does not deter
illegal aliens from crossing the border nor does it punish an
existing criminal act. Instead, it will likely encourage
illegal immigration.
Section 3704 weakens existing law by punishing persons only
if they have already been convicted of 3 or more misdemeanors
on different days. Therefore, under the bill, an illegal alien
can commit many more than 3 misdemeanors, as long as he is
convicted of them all on the same day. This will undoubtedly
lead to additional crimes that go unpunished and undeterred by
these dangerous changes to existing law.
Additionally, Section 3705 of the bill only punishes
illegal aliens who are removed from the country three or more
times. Effectively, it gives a pass to all aliens who come into
the country three times before they are caught and removed
those three times. Consequently, the bill encourages an illegal
immigrant to attempt, or even cross the border up to three
times before any serious consequence will be administered. We
are concerned that this encourages, rather than discourages
illegal behavior.
Section 3707 weakens the current law regarding passport
fraud. Under the bill, only those who make and distribute
illegal passports three or more times will be charged with a
crime. As a result, the bill gives a pass to criminals,
including possible terrorists, to make illegal passports
multiple times before being punished under the law.
S. 744 would also allow a person to knowingly purchase
materials for making illegal passports, but only charge the
person with a crime if ten or more passports are made. So,
effectively this bill would weaken current law by allowing the
knowing purchase of materials to make illegal passports. Why
does the bill allow a person to knowingly break the law, but
not punish them for it? Purchasing and collecting the materials
to make a fraudulent passport is just as harmful a crime as
actually making the illegal fake passports.
This section of the bill also tries to remove criminal
liability from users of illegal passports and immigration
documents. This is unwise, dangerous, and does very little to
stop illegal activity. If there is not a market for illegal
documents, there would be no makers of illegal documents. We
are concerned that this bill as written will encourage the
making of fraudulent documents threatening our national
security and weakening our security at the borders and points
of entry.
The purpose of the federal criminal code is to punish
criminal activity and to deter illegal behavior. However, this
bill fails to achieve both of those goals. An amendment would
have reinstated current law for these provisions ensuring we do
not create a situation where illegal entry and document fraud
run rampant, but it was rejected.\17\
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\17\Grassley43.
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We are also concerned that the bill is weak on foreign
national criminal street gang members. The bill creates a
convoluted and useless process for determining when foreign
national members of criminal street gangs are admissible.
Section 3701 requires that the Department of Homeland Security
must prove that a foreign national is a member of a criminal
street gang, has a prior felony conviction for drug trafficking
or violent crime, and that they have knowledge that the gang is
continuing to commit crime and that the individual has acted to
further gang activity. Even if this near impossible standard is
met, the bill would allow the Secretary to waive the foreign
national through the immigration process if the foreign
national merely renounced his association with the criminal
gang, even if the foreign national meets all the above
criteria. Simply stated, this provision will undoubtedly allow
more criminal street gang members admission into the country
despite their continued or known association with dangerous
criminal street gangs.
Current law already states that foreign nationals who have
federal felony drug trafficking or felony violent crime
convictions are subject to deportation or are inadmissible to
the United States. Section 3701 will not be used, then, because
it is easier to prove that someone is a convicted drug
trafficker, than to prove they are both a drug trafficker and
gang member.
This legislation is dangerous and represents a serious blow
to national security. Criminal street gangs are plagues on
communities, but are particularly dangerous to immigrant
communities, often times praying on recent immigrants to
further their criminal activities that include drug
trafficking, prostitution, sex trafficking, and other violent
crimes.
An amendment was offered that would have protected the
United States from dangerous foreign nationals by expanding the
number of serious crimes that prevented admissibility or
allowed deportation of foreign nationals.\18\ That amendment
also shifted the burden of proof onto the foreign national to
prove he is not a danger to the community and is not in a
criminal gang--similar to a provision in existing law requiring
the burden be placed on suspected terrorists to prove to the
Secretary that they are, in fact, not terrorists. This
amendment would also have corrected the unnecessary provision
granting the Secretary the ability to issue a waiver; instead
it gives discretion to immigration judges to determine if the
foreign national is a danger to the community. This amendment
was unfortunately rejected along a party-line vote of the
Committee, notwithstanding the Committee members recognizing
the importance of the issue and the dangers created by the new
loopholes the bill has created for foreign national gang
members.
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\18\Grassley45.
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With regard to domestic violence, we are pleased that the
bill makes domestic violence an inadmissible offense. Current
law already makes domestic violence an offense for which an
alien can be removed, so this change is long overdue. However,
the bill makes it harder for an immigrant to be inadmissible
for the same crime for which he can be removed. Under the bill,
an undocumented immigrant must have served at least one year in
prison for domestic violence to be inadmissible. This one-year
prison requirement is not the same standard for removing an
abuser, thus potentially allowing such individuals to remain in
the country.
We are also deeply concerned that this bill makes it harder
for the government to detain people here unlawfully, including
even serious criminals. Section 3717 places new, onerous
burdens on the government when it detains undocumented
immigrants, including those who have committed serious crimes
and are aggravated felons. The current Administration is
already releasing criminal aliens without just cause. In
February 2013, the Department released 622 illegal aliens who
had been convicted of crimes, including 32 with multiple felony
convictions.\19\
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\19\http://www.foxnews.com/politics/2013/05/16/ice-admits-hundreds-
illegal-immigrants-with-criminal-records-released/.
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S. 744 also fails to protect the safety of the American
people by not addressing the Supreme Court decision in Zadvydas
v. Davis, 533 U.S. 678 (2001). This holding has hindered
detention operations of the federal government. In Zavydas, the
Court held that immigrants admitted to the United States that
are subsequently ordered removed could not be detained for more
than 6 months if the government is unable show that there is a
likelihood of removal in the reasonable future. Four years
later, in Clark v. Martinez, 543 U.S. 371 (2005), the Supreme
Court extended the decision to people here illegally as well.
As a result, the Departments of Justice and Homeland Security
have had no choice but to release thousands of dangerous,
violent foreign nationals into our neighborhoods.
These decisions have a serious impact on public safety. If
the Department of Homeland Security cannot obtain travel
documents or if the country of origin refuses to take back
their nationals, then the U.S. Government has no recourse
except to release the individual. As a result, dangerous
persons are allowed to go free into the community and cause
harm. For example, six years ago, a Vietnamese immigrant was
ordered deported after serving time in prison for armed robbery
and assault. He was never removed because these Supreme Court
decisions handicapped federal authorities. Immigration
officials could not deport him without the cooperation of the
Vietnamese government which declined to cooperate. When
released, the individual purportedly killed five people in a
San Francisco home in March 2012.
This is a real problem with serious consequences. There are
many other criminal aliens that warrant deportation that were
subsequently released because of these decisions. According to
statistics provided by the Department of Homeland Security,
there are many countries that are not cooperating or that take
longer to repatriate their nationals. Countries like Iran,
Pakistan, China, Somalia and Liberia are on their list. These
decisions have placed a stranglehold on enforcement operations,
yet S. 744 does nothing to address this issue.
While S. 744 fails to acknowledge the need to enhance
enforcement efforts, amendments that further undermine law
enforcement were accepted by the committee. For example, one
amendment would prohibit Border Patrol from returning illegal
border crossers to Mexico during nighttime hours absent certain
circumstances.\20\ Another amendment would limit enforcement
actions at certain locations, including college campuses and
hospitals, essentially turning public places into sanctuary
shelters.\21\
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\20\Coons2.
\21\Blumenthal8.
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Immigration enforcement officials told Congress and the
committee that agents in the field were handicapped from
enforcing the laws on the books. This bill does little to
nothing to help; rather it further undermines their efforts and
diminishes the responsibilities they swore to uphold.
Finally, S. 744 facilitates fraud in our immigration
system, undermines identity theft protections, and does very
little to hold perpetrators accountable. The Committee failed
to include an amendment that would criminalize the use of a
social security number when the immigrant knows the number is
not his own, but does not specifically know the number belongs
to another individual.\22\ This amendment would have fixed the
holding in the Supreme Court case Flores-Figueroa. In effect,
the government must prove that the thief knew he or she is
stealing a real person's identity, not just creating what he or
she believes is a fake document. Identity theft is a horrible
crime. It effectively robs an honest American of his or her
good name and credit. It is even worse when the identity is
that of a minor child who has their social security number
stolen for years, only to learn about the identity theft when
they apply for a job, college, or a loan. Unfortunately, the
amendment to fix this problem was rejected.
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\22\Grassley34.
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National Security Concerns
While proponents of S. 744 contend that the bill will make
America safer, we have concerns that the bill will put public
safety and the homeland at risk. The bill contains extremely
dangerous national security loopholes, including the inability
of the U.S. government to share information with foreign
governments about immigrants who have had their status revoked.
An amendment to preserve the ability of law enforcement to
access critical national security and public safety information
and to authorize the Secretary of State to share limited
information with a foreign government, while protecting
legitimate privacy interests, was rejected.\23\
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\23\Cornyn5.
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As previously noted, under S. 744, the Secretary of State
has the authority to limit in-person interviews of visa
applicants abroad, and the Secretary of Homeland Security is
not required to interview anyone that applies for Registered
Provisional Immigrant Status. We learned a valuable lesson
after September 11, 2001, because the hijackers were not
interviewed and applications were rubber-stamped. An amendment
to require aliens who may be a threat to national security to
submit to an in-person interview with a consular officer when
applying for a visa was voted down.\24\
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\24\Sessions13.
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We also learned that there are gaping holes in the student
visa process, yet the committee rejected attempts to delay the
expansion of the student visa program until the tracking system
in place was improved.\25\
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\25\Grassley68.
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An amendment to clarify the authority of the Secretary of
Homeland Security and the Secretary of State to refuse or
revoke visas when in the national interest, as was the case
with the Christmas Day bomber, was also rejected.\26\
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\26\Sessions15.
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S. 744 does not address the concerns brought to the surface
by recent events like the Boston terrorist bombing. We are
profoundly troubled with the lack of concern about lessons that
can be learned from the failings of the immigration process,
which may have contributed to recent events like the Boston
terrorist bombing. We need to understand and address these
failures before proceeding with some of the provisions in this
bill, especially the asylum and student visa expansion
measures. Putting revised procedures in place before gaining
understanding of what does not work in our current system is
not good stewardship of the trust the People have placed in us.
Our nation's security is at risk and we cannot ignore it. We
need to understand what is wrong with the system to prevent
events like the Boston Bombing from happening again. However,
an amendment to delay an expansion of asylum and student visa
programs until there has been a coordinated review detailing
the intelligence and immigration failures of the Boston
Marathon terrorist attack was ultimately rejected.\27\
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\27\Grassley52.
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Our national security must be a paramount concern with any
immigration reform. Eliminating weaknesses in our system,
including along the border and in the interior, would make our
nation safer. Regrettably, this bill falls short of this goal.
Unnecessary Expansion of Judicial Review, Burdensome Court Procedures,
Frivolous Litigation, and Increased Costs for the American Taxpayer
This bill and its amendments raise important concerns over
the expansion of judicial review and access to United States
courts in immigration cases, the imposition of burdensome court
procedures, and the encouragement of frivolous litigation, all
which implicate the unnecessary use of taxpayer dollars.
We are concerned that the bill gives unnecessarily broad
judicial review of the denial of any application, which would
necessarily create a litany of litigation and undermine the
enforcement of our immigration laws. Any denial of RPI status
can be reviewed in any district court and circuit court
throughout the country. Applicants can challenge anything with
respect to their application and can appeal their case through
the various levels of review at the Department of Homeland
Security and within the federal court system. This broad review
is unnecessary because a review process already exists within
DHS. Currently, an individual may appeal a denied application
to the Department's Administrative Appeals Unit for a
completely new review of the application. Unlimited access to
the federal courts only allows for another unnecessary and
costly bite at the apple.
In addition, we are concerned that the bill treats these
reviews as a right rather than a discretionary benefit.
Consequently, the federal courts will be inundated with
petitions for review if the Secretary denied even a small
portion of the millions of applications that will be filed
under RPI, the Agricultural Blue-Card program, and other visa
programs. The Judicial Conference of the United States has
expressed its serious concerns over the increased workload for
the federal court system looming in this bill.
S. 744 also encourages individuals with meritless
applications to take advantage of the review system for one
important benefit: an undocumented immigrant who applies for
RPI status cannot be deported or detained so long as their
application is pending with the Department, and in some
circuits, the federal court system. The timeframe of the
pending appeal could span a decade. The addition of class
action lawsuits to the workload of the courts only amplifies
the delays, and the potential for court interference if the
Secretary dares to deny RPI status to an individual. One need
not even exhaust administrative remedies in order to file a
class action lawsuit under the bill. We are concerned that this
will result in tying the system completely in knots and render
the Department unable to reasonably administer the legalization
program.
Class actions are particularly troublesome under the bill,
as Section 2104 specifically authorizes such litigation over
any ``regulation, written policy, or written directive, issue
or unwritten policy or practice initiated by or under the
authority of the Secretary of Homeland Security.'' We are
concerned the harmful effect of this provision will be that
lawyers will be able to use federal funding to file class
action lawsuits against the government any time they believe a
particular policy or action of the Department of Homeland
Security was not lenient enough or did not give their clients
everything they desired. An amendment to address concerns with
the scope of federal court review and class actions was
rejected.\28\
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\28\Grassley 17.
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In addition, Section 3502 of the bill creates a right to
counsel at taxpayer expense for people who are here illegally
and in immigration proceedings, including a right to counsel
for ``aliens considered particularly vulnerable when compared
to other aliens in removal proceedings.'' Currently, there is
no right to counsel for people who are here illegally.
Immigrants have a right to obtain counsel, but not for counsel
to be provided to them at taxpayer expense. Yet, the bill
provides the Attorney General with the sole and unreviewable
discretion to appoint counsel to any alien in removal
proceedings. Such a broad standard gives the Attorney General
almost unlimited power to appoint these aliens counsel at the
taxpayers' expense.
Moreover, Section 2212 allows for the Legal Services
Corporation (``LSC'') to provide legal services to aliens for
various issues, including their application for ``blue card''
status as agricultural workers under Section 2211, grievances
against employers for the same agricultural workers under
Section 2232, and any Title III, Subtitle F claims, which may
entail a broad array of civil rights, employment, or class
action claims. The LSC is a federally funded nonprofit that
provides legal services for low-income Americans. Extending
these federal dollars to provide for noncitizens immigration
services is unprecedented and unwarranted given the
increasingly high costs.
Adding to these costs, Section 3503 directs the Attorney
General to establish an Office of Legal Access Programs to
educate aliens of their legal rights and available procedures
under United States immigration law within five days of their
arrival, as well as establish other programs to assist
immigrants. We are concerned that these programs will just
facilitate the filing of lawsuits.
We strongly believe that the taxpayer should not have to
pay for these legal counsel expenses. These costs have never
been borne by the American taxpayer, and we are deeply
concerned that these unprecedented provisions will increase
delay and meritless litigation, not reduce it. Undocumented
individuals already have a number of options in order to obtain
legal help in their immigration proceedings. For example, there
are a number of grant programs that provide legal assistance to
illegal immigrants in immigration proceedings. Law firms have
pro bono programs and law schools have legal clinics where
attorneys and law students provide legal services to people who
are here illegally.
Even under the current system, more and more illegal
immigrants are getting legal representation in immigration
court. In 2012, 56 percent of aliens were represented in the
immigration courts, which is an increase from 45 percent in
2009.\29\ Also, 79 percent of aliens were represented on appeal
in 2012 before the Board of Immigration Appeals.\30\ For those
aliens who are not represented in immigration court, the
immigration judges under current policies take extra care and
spend additional time to make sure that the individual
understands the proceedings and his or her rights and
responsibilities under the law.\31\
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\29\Department of Justice, Executive Office for Immigration Review,
FY 2012 Statistical Yearbook, at Figure 9.
\30\Department of Justice, Executive Office for Immigration Review,
FY 2012 Statistical Yearbook, at Figure 30.
\31\Department of Justice, Executive Office for Immigration Review,
FY 2012 Statistical Yearbook, at G1.
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Further, under Section 3501, the bill mandates that the
Attorney General increase the total number of immigration
judges, support staff, staff attorneys and other positions in
the immigration courts. However, it is not clear how the bill
sponsors came up with the numbers contained in the bill, or
what the effect of the legislation will be on the workload of
the immigration court system. In fact, it is possible that the
effect of the legislation will be to reduce the workload of the
immigration court system--at least initially--because RPI
applicants cannot be removed.
As stewards of the taxpayer dollar, we strongly believe
that there should be an informed determination as to what the
impact of this bill is on the immigration caseload and how many
people are actually necessary to do the job. There should not
be a mandate of specific numbers of hires in the bill before
that information is available.
We are concerned that the bill adopts a number of
provisions that impose burdensome procedures on the immigration
system. For example, Section 3717 of the bill provides that the
Department of Homeland Security can only request a period of up
to 72 hours before a bond hearing must occur. If this
artificial timeframe is not met, an alien would have to be
released, even if DHS is trying to obtain critical evidence.
Current immigration court procedures already take into account
that illegal immigrants should receive a bond hearing
expeditiously.\32\ The failure to appear rate for aliens
released on bond in immigration court has risen from 22 percent
in 2009 to 29 percent in 2012. We are concerned that this
provision will cause people in removal proceedings to be
released on bond to not appear for their hearings, thus posing
a serious public safety risk.
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\32\Department of Justice, Immigration Court Practice Manual, at
125.
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Moreover, this provision requires that Immigration Judges
hold bond hearings every 90 days for any alien in custody, even
if there are no changes in circumstances and even if the alien
is the reason for the delay in getting the case resolved. Under
current law, a person receives a bond hearing if there is a
change in circumstances. We are concerned that this requirement
will clog the immigration courts with an unprecedented number
of unnecessary bond hearings and result in a drain of
resources. An amendment to address concerns with these
unworkable bond hearing requirements was rejected.\33\
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\33\Grassley47.
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Another costly drain of resources results from the high
number of aliens from noncontiguous countries (``Other Than
Mexico'' or OTM) that illegally cross our southern border. The
total cost for the U.S. to place these individuals in court
proceedings and remove them to their respective countries is
necessarily far greater than the removal of aliens in the
Mexican population. We are concerned that the bond requirement
for these individuals is too low and does not serve as a
sufficient deterrent against entering this country via Mexico.
As of April 2, 2013, the OTM numbers on the southwest border
were up 67 percent from Fiscal Year 2012 to Fiscal Year
2013.\34\ We know that some of the OTMs include terrorists who
enter the U.S. via the southern border. Secretary Napolitano
has testified before Congress to that fact.\35\ We also know
that a majority of OTMs fail to appear for their immigration
proceedings and simply disappear into the United States.
Increasing bonds for these nationals would deter absconders,
assist CBP and ICE in covering detention and removal costs, or
at minimum, provide a disincentive to cross. An amendment to
increase the minimum bond of aliens who are OTMs from $1,500 to
$5,000 was narrowly defeated.
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\34\Border Patrol Daily Report from April 2, 2013.
\35\House Committee on Homeland Security hearing ``Understanding
the Homeland Threat Landscape,'' July 25, 2012.
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Finally, we are also concerned with Section 3504's
requirement that the Board of Immigration Appeals produce
written opinions addressing all issues raised--regardless of
whether they are relevant or have any effect on the outcome of
a case. These requirements will just make the decision-making
process more time-consuming and burdensome, as well as increase
backlog problems. We are concerned that these requirements will
also encourage litigation and make it easier to file frivolous
appeals in federal court.
Overall, this bill is a handout for immigration lawyers,
providing numerous avenues for individuals to bring lawsuits
and opening up the already-burdened district courts to run of
the mill immigration cases. This will inevitably flood and bog
down the system. Moreover, the bill imposes burdensome and
unnecessary procedures that will just frustrate enforcement of
our immigration laws. Rather than bogging down the system with
litigation and unworkable requirements, we should be enhancing
the ability of our law enforcement community to administer the
immigration laws.
Conclusion
This bill has a long way to go to meet the demands of the
American people. Serious considerations must be given to the
bill's shortcomings, including but not limited to the cost, the
lack of border security, the unlimited and unreviewable
discretion to the Executive Branch, the ramifications to
national security, the ability to hold perpetrators of fraud
and abuse accountable, and the weakening of criminal law.
More importantly, S. 744 does not fix our legal immigration
system. Everyone acknowledges that our legal immigration system
needs improving. This bill takes a step forward in creating a
merit-based system, but backhandedly provides some favoritism
to low skilled and family based connections. It complicates our
legal immigration system by creating even more categories of
visas and reducing transparency through a series of exemptions
from visa caps.
Further, S. 744 provides a special path to citizenship for
people who intentionally broke our laws even before the borders
are secured. The Committee rejected an amendment that would
have allowed immigrants here illegally to obtain legal status--
to come out of the shadows and work legally--but not to be
eligible for citizenship.\36\ The bill proponents said that
citizenship is essential to reform; indeed, a senior Democrat
confessed, ``If we don't have a path to citizenship, there is
no reform.''
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\36\Cruz3.
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Rewarding those here illegally with citizenship is not
reforming our immigration system. The special path to
citizenship provided in this bill is unfair to millions of
legal immigrants who follow the law. Furthermore, combined with
weak border and interior enforcement measures in this bill,
this special path to citizenship only encourages more illegal
immigration.
At the end of the day, we must ask ourselves if the bill
will solve the problem once and for all. One way to measure
that is by ensuring that we are tough on people who enter the
country after the law is passed. Amendments to signal a zero-
tolerance policy for future lawbreakers were defeated, sending
a clear message that enforcement measures will be lax in the
years ahead. ``Reform'' is not a word to throw around loosely
to sell this product to the American people; it must truly
achieve reform so that future generations do not have to deal
with the same problems as this Congress.
S. 744 fails to deliver anything more than the same empty
promises Washington has been making for 30 years. The last
thing this country needs right now is another 1,000 plus page
bill that, like Obamacare, was negotiated behind closed doors
with special interests.
We want immigration reform to pass, but only if it actually
fixes the broken system, rather than allowing the problems to
grow and fester. For these reasons, we could not support the
bill in its current form.
Charles E. Grassley.
Jeff Sessions.
Mike Lee.
Ted Cruz.
MINORITY VIEWS FROM SENATORS GRASSLEY AND SESSIONS
S. 744 Fails To Adequately Protect American Workers and Neglects To
Hold Employers Who Use the H-1B and L Visa Programs Accountable
In 2008, the United States Citizenship and Immigration
Services (USCIS) highlighted the fraud in the H-1B visa program
and found that some employers who use the program violate the
law in various ways. The agency's Benefit Fraud and Compliance
Assessment has highlighted the rampant fraud and abuse that is
taking place in the program. The internal report by USCIS
showed a 20% violation rate of a random sample of H-1B
petitions. People weren't working where they were supposed to.
Documents were forged. Foreign workers weren't being paid what
they were promised. Job duties were significantly different
from the position description listed in their application to
the Department of Labor. Site visits established that the
reported business locations were non-existent, there was no
evidence of daily business activity, the business locations
were unable to support the number of employees claimed, or
there was no evidence that the employers ever intended for the
beneficiaries to fill the actual jobs offered. According to the
report, ``In one instance, the position described on the
petition and [Labor Condition Application] was that of a
business development analyst. However, when USCIS conducted its
review, the petitioner stated the H-1B beneficiary would be
working in a laundromat doing laundry and maintaining washing
machines.''
Too often, the fraud and abuse is disavowed by proponents
of the program because they falsely see the demand for these
visas increase year after year. Yet, they fail to ignore that
some companies petition for thousands of foreign workers and
that the top ten companies that use the program swallow up over
50% of the supply of available visas. Consider the data from
fiscal year 2012.\1\
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\1\Analysis by Ron Hira, Professor, Rochester Institute of
Technology. Mr. Hira used I-129 data by employer, USCIS, fiscal 2012.
------------------------------------------------------------------------
FY 12 H-1B
Rank Employer Initial
Petitions
------------------------------------------------------------------------
1.................................. Cognizant............. 9281
2.................................. Tata.................. 7469
3.................................. Infosys............... 5600
4.................................. Wipro................. 4304
5.................................. Accenture............. 4037
6.................................. HCL America........... 2070
7.................................. Tech Mahindra SATYAM.. 1963
8.................................. IBM & IBM India....... 1846
9.................................. Larsen & Toubro....... 1932
10................................. Deloitte.............. 1668
11................................. Microsoft............. 1497
12................................. Patni................. 1260
13................................. Syntel................ 1161
14................................. Intel................. 812
15................................. Amazon.Com............ 773
16................................. Qualcomm.............. 729
17................................. Google................ 646
18................................. PricewaterhouseCoopers 599
19................................. Synechron............. 572
20................................. Mphasis............... 569
------------------------------------------------------------------------
Too often, the easy answer has been to increase the annual
caps on the H-1B visa program and allow more foreign workers to
enter and work here. There's also been a push against
protections for American workers who, we believe, are
disadvantaged, displaced, and underpaid because of the program.
Under current law, an employer wishing to bring in a
foreign worker under the H-1B visa program must apply to the
Department of Labor and state that: (1) the employer will offer
the alien the prevailing wage (or actual wage if that is
higher); (2) the employer will provide working conditions that
will not adversely affect the working conditions of similarly
employed workers; and (3) there is no strike or lockout. The
application must specify the number of workers sought, the
occupational classification, wage rates and conditions under
which the alien will be employed.
Under current law, only some employers must attest that
they cannot find qualified American workers before petitioning
for a foreign worker. These are called H-1B dependent
employers. H-1B dependent employers are defined under current
law, and again in this bill as employers that have a certain
number of H-1B visa holders. For example, a company is H-1B
dependent if that employer has more than 51 total employees and
of those, at least 15% are H-1B nonimmigrants. These employers
have to take good faith steps to recruit U.S. workers and offer
the job to a U.S. worker who is equally or better qualified.
These employers must also attest that they did not or will not
displace a U.S. worker within 90 days of applying.
Under current law, the Secretary of Labor reviews the labor
condition applications ONLY for completeness and obvious
inaccuracies. The Secretary is required to provide the
certification, thus creating a rubber-stamping process. The
Secretary, despite indicators of fraud or misrepresentation, is
required to approve the labor condition application.
S. 744 takes the right step forward by increasing worker
protections for Americans and providing more authority to the
Executive Branch to investigate fraud. Unfortunately, the bill
is slanted to ensure that only H-1B dependent employers undergo
more scrutiny. All employers who bring in H-1B visa holders
should be held to the same standard. All employers, not just
some, should be required to make a good faith effort to recruit
U.S. workers. All employers, not just some, should be required
to offer the job to a U.S. worker who is equally or better
qualified. All employers, not just some, should be required to
attest that they did not or will not displace a U.S. worker
within 180 days of applying for an H-1B worker.
S. 744 includes a so-called ``market-based escalator'' that
allows the numerical cap to fluctuate based on demand. It's a
complicated cap that the agency won't be able to execute. The
cap goes up if businesses apply for the annual allotment of
visas in the first few weeks or months of a new fiscal year.
S. 744 attempts to address the concern that employers are
able to bring in foreign workers without looking at American
workers first. It says that an employer must take good faith
steps to recruit U.S. workers, and the employers have to
advertise the job on a Department of Labor website. However,
the bill states that only some employers must offer the job to
any U.S. worker that is equally or better qualified, setting up
a different standard for employers.
However, the bill also includes a generous, unnecessary,
and lucrative carve-out for H-1B dependent employers by
allowing them to forego counting ``intending immigrants'' in
their workforce numbers. Because the bill intends to have dual
standards in place for employers, H-1B dependent employers who
want to get around the worker protections, wage requirements,
and displacement rules simply can apply for green cards for
their foreign workers and not have to meet the standards in
law. The committee rejected an amendment eliminating this
carve-out, which would have ensured that all employers are
playing on a level playing field.\2\
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The bill also includes a provision that allows employers to
outplace L-1 visa holders with other employers at a minimal
cost. The underlying bill requires that when an L-visa holder
is outplaced at a client site, the client must attest that no
employee has been displaced 90 days before or after they import
the L visa holder. But, for a mere $500, under the bill as
drafted, it's acceptable if companies don't attest to this.
Groups that represent American workers have opposed S. 744.
The International Federation of Professional and Technical
Engineers, a branch of the AFL-CIO which represents 90,000
engineers opposes the bill in its current form saying,
``Hundreds of thousands of foreign STEM workers will enter the
United States each year for the sole purpose of working in jobs
that Americans would normally do.'' They say that ``the bill
fails miserably in fixing the worker abuses inherent in the
program.''
The Communications Workers of America, which represents
700,000 men and women in the telecommunications industry, said
that S. 744 will ``create preferential treatment for foreign
born workers.'' They further criticized efforts to dilute the
requirement that employers offer the job to any United States
worker who applies, and is equally or better qualified for the
job for which the nonimmigrant is sought. The Communications
Workers of American also said, ``We can spend millions to
educate a STEM workforce but without employers willing to hire
these U.S. STEM workers, our work is for naught.''
We tried to prevent the dilution of worker protections and
require employers to be on equal footing when it comes to
hiring H-1B visa holders. The committee rejected an amendment
on two occasions that would have ensured that employers make a
good faith
effort to recruit U.S. workers and to hire U.S. workers that
are equally or better qualified than a foreign worker.\3\
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S. 744 as drafted states that H-1B dependent employers
would be required to offer level two wages to an H-1B
nonimmigrant. The Secretary of Labor would survey employers to
determine the prevailing wage for each occupational
classification. The responses to those surveys would then allow
the Secretary to determine three levels that are commensurate
with experience, education and level of supervision. Level two
wages are the ``mean'' of wages surveyed. An amendment that
would require all employers, not just H-1B dependent employers,
to pay the new level two wage to H-1B visa holders was
rejected.\4\
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The committee also rejected an amendment that would sunset,
after five years, the provision that authorizes unlimited green
cards for STEM advanced degree graduates if there are fewer
American students graduating in STEM fields in United States
higher educational institutions than were enrolled in such
fields on the date of the enactment of this Act.\5\
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Earlier in the year, the Judiciary Committee heard
testimony from Dr. Karen Panetta, Professor of Electrical and
Computer Engineering and Director of the Simulation Research
Laboratory at Tufts University. She discussed how offshoring
companies dominate the H-1B program, and that their global
hiring is 70% men. She said, ``In the United States, where
outsourcing companies get more than half of the capped H-1B
visas, the ratio is more like 85% men.'' She implied that very
few women get H-1B visas, but also that women were being pushed
out of STEM fields. The committee rejected an amendment that
would have provided more protections for high-skilled female
workers.\6\ The amendment would have prohibited all employers
from displacing women 180 days before or after they apply for a
foreign worker, the same 180-day standard that H-1B dependent
employers would abide by under S. 744.
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Finally, the committee voted down an attempt to hold all
employers accountable by allowing the Secretary of Labor to
conduct random audits on employers who use the H-1B visa
program.\7\ Random audits will serve as a deterrent against
companies that want to misuse the program. If an employer is
hiring foreign nationals, they should be held accountable, and
if they're not doing anything wrong, they have nothing to fear.
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The H-1B program has served and could again serve a
valuable purpose if used properly. However, it's being misused
and abused. It's failing the American worker and is not
fulfilling the original purpose that Congress intended when it
created it. Reforms are needed to put integrity back into the
program and to ensure that American workers and students are
given every chance to fill high-skilled jobs in this country.
Charles E. Grassley.
Jeff Sessions.
MINORITY VIEWS FROM SENATORS GRASSLEY, SESSIONS AND LEE
S. 744 Creates Additional, Permanent Article III Judgeships in a
Haphazard Fashion Rather Than Addressing the Unlimited Judicial Review
Allowed Under the Bill
Creation of Additional Article III Judgeships--Section 1104
of the bill creates eight new Article III judgeships and
converts two temporary judgeships to permanent. The eight new
Article III judgeships are in the following districts: the
Eastern District of California (3); Arizona (2); the Western
District of Texas (2); and, the Southern District of Texas (1).
The conversions of two temporary judgeships to permanent
Article III judgeships are in the following districts: Arizona
(1); and, the Central District of California (1). While we
recognize that these districts have higher caseload statistics
according to the Administrative Office of the U.S. Courts, we
continue to believe that we should not be expanding judgeships
in some districts when we have other districts where the
caseloads are low and getting lower. A far more efficient
allocation of government resources would be to offset any
increase in judgeships in districts with higher caseloads, with
a decrease in judgeships in those districts with exceptionally
low caseloads. Moreover, part of the justification for the new
judgeships offered by the amendment's authors, was that as a
result of the underlying legislation, district courts in the
border states will be inundated with petitions for review of
the Secretary's decisions. If true, the answer should not be to
expand the judiciary in a haphazard fashion, but instead to
address the underlying issue, which is the unlimited judicial
review the bill creates for the new legalization and other visa
programs.
Charles E. Grassley.
Jeff Sessions.
Mike Lee.
VIII. Changes to Existing Law Made by the Bill, as Reported
In compliance with paragraph 12 of Rule XXVI of the
Standing Rules of the Senate, the Committee finds that it is
necessary to dispense with the requirement of paragraph 12 to
expedite the business of the Senate.
