Library / Laws / 113th / s / S. 744 / Reported in Senate
II
Calendar No. 80
113th CONGRESS
1st Session
S. 744
IN THE SENATE OF THE UNITED STATES
April 17 (legislative
day, April 16), 2013
Mr. Schumer (for
himself, Mr. McCain,
Mr. Durbin, Mr.
Graham, Mr. Menendez,
Mr. Rubio, Mr.
Bennet, and Mr. Flake)
introduced the following bill; which was read twice and referred to the
Committee on the
Judiciary
May 28, 2013
Reported, under authority of the order of the Senate of
May 23, 2013, by Mr. Leahy, with an
amendment
Strike out all after the enacting clause and insert
the part printed in italic
A BILL
To provide for comprehensive immigration reform and for
other purposes.
1.
Short title; table of
contents
(a)
Short
title
This Act may be cited
as the Border Security, Economic
Opportunity, and Immigration Modernization Act.
(b)
Table of
contents
The table of contents for this Act is as follows:
Sec. 1. Short title; table of
contents.
Sec. 2. Statement of congressional
findings.
Sec. 3. Effective date
triggers.
Sec. 4. Southern Border Security
Commission.
Sec. 5. Comprehensive Southern Border
Security Strategy and Southern Border Fencing Strategy.
Sec. 6. Comprehensive Immigration Reform
Trust Fund.
Sec. 7. Reference to the
Immigration and Nationality
Act.
Sec. 8. Definitions.
TITLE I—Border
Security
Sec. 1101. Definitions.
Sec. 1102. Additional U.S. Customs and
Border Protection officers.
Sec. 1103. National Guard support to
secure the Southern border.
Sec. 1104. Enhancement of existing
border security operations.
Sec. 1105. Border security on certain
Federal land.
Sec. 1106. Equipment and
technology.
Sec. 1107. Access to emergency
personnel.
Sec. 1108. Southwest Border region
prosecution initiative.
Sec. 1109. Interagency
collaboration.
Sec. 1110. SCAAP
reauthorization.
Sec. 1111. Use of force.
Sec. 1112. Training for border security
and immigration enforcement officers.
Sec. 1113. Department of Homeland
Security Border Oversight Task Force.
Sec. 1114. Immigration
ombudsman.
Sec. 1115. Reports.
Sec. 1116. Severability.
TITLE II—Immigrant
visas
Subtitle A—Registration and adjustment
of registered provisional immigrants
Sec. 2101. Registered provisional
immigrant status.
Sec. 2102. Adjustment of status of
registered provisional immigrants.
Sec. 2103. The DREAM Act.
Sec. 2104. Additional
requirements.
Sec. 2105. Criminal penalty.
Sec. 2106. Grant program to assist
eligible applicants.
Sec. 2107. Conforming amendments to the
Social Security Act.
Sec. 2108. Government contracting and
acquisition of real property interest.
Sec. 2109. Long-term legal residents of
the Commonwealth of the Northern Mariana Islands.
Sec. 2110. Rulemaking.
Sec. 2111. Statutory
construction.
Subtitle B—Agricultural Worker
Program
Sec. 2201. Short title.
Sec. 2202. Definitions.
Chapter 1—Program for earned status
adjustment of agricultural workers
SUBCHAPTER A—Blue card
status
Sec. 2211. Requirements for blue card
status.
Sec. 2212. Adjustment to permanent
resident status.
Sec. 2213. Use of
information.
Sec. 2214. Reports on blue
cards.
Sec. 2215. Authorization of
appropriations.
SUBCHAPTER B—Correction of social
security records
Sec. 2221. Correction of social security
records.
Chapter 2—Nonimmigrant agricultural visa
program
Sec. 2231. Nonimmigrant classification
for nonimmigrant agricultural workers.
Sec. 2232. Establishment of nonimmigrant
agricultural worker program.
Sec. 2233. Transition of H-2A worker
program.
Sec. 2234. Reports to Congress on
nonimmigrant agricultural workers.
Chapter 3—Other provisions
Sec. 2241. Rulemaking.
Sec. 2242. Reports to
Congress.
Sec. 2243. Effective date.
Subtitle C—Future
immigration
Sec. 2301. Merit-based points track
one.
Sec. 2302. Merit-based track
two.
Sec. 2303. Repeal of the diversity visa
program.
Sec. 2304. World-wide levels and
recapture of unused immigrant visas.
Sec. 2305. Reclassification of spouses
and minor children of lawful permanent residents as immediate
relatives.
Sec. 2306. Numerical limitations on
individual foreign states.
Sec. 2307. Allocation of immigrant
visas.
Sec. 2308. V nonimmigrant
visas.
Sec. 2309. Fiancée and fiancé child
status protection.
Sec. 2310. Equal treatment for all
stepchildren.
Sec. 2311. International adoption
harmonization.
Sec. 2312. Relief for orphans, widows,
and widowers.
Sec. 2313. Discretionary authority with
respect to removal, deportation or inadmissibility of citizen and resident
immediate family members.
Sec. 2314. Waivers of
inadmissibility.
Sec. 2315. Continuous
presence.
Sec. 2316. Global health care
cooperation.
Sec. 2317. Extension and improvement of
the Iraqi special immigrant visa program.
Sec. 2318. Extension and improvement of
the Afghan special immigrant visa program.
Sec. 2319. Elimination of sunsets for
certain visa programs.
Subtitle D—Conrad State 30 and physician
access
Sec. 2401. Conrad State 30
Program.
Sec. 2402. Retaining physicians who have
practiced in medically underserved communities.
Sec. 2403. Employment protections for
physicians.
Sec. 2404. Allotment of Conrad 30
waivers.
Sec. 2405. Amendments to the procedures,
definitions, and other provisions related to physician immigration.
Subtitle E—Integration
Sec. 2501. Definitions.
Chapter 1—Citizenship and New
Americans
SUBCHAPTER A—Office of Citizenship and
New Americans
Sec. 2511. Office of Citizenship and New
Americans.
SUBCHAPTER B—Task Force on New
Americans
Sec. 2521. Establishment.
Sec. 2522. Purpose.
Sec. 2523. Membership.
Sec. 2524. Functions.
Chapter 2—Public-private
partnership
Sec. 2531. Establishment of United
States Citizenship Foundation.
Sec. 2532. Funding.
Sec. 2533. Purposes.
Sec. 2534. Authorized
activities.
Sec. 2535. Council of
directors.
Sec. 2536. Powers.
Sec. 2537. Initial Entry, Adjustment,
and Citizenship Assistance Grant Program.
Sec. 2538. Pilot program to promote
immigrant integration at State and local levels.
Sec. 2539. Naturalization
ceremonies.
Chapter 3—Funding
Sec. 2541. Authorization of
appropriations.
Chapter 4—Reduce barriers to
naturalization
Sec. 2551. Waiver of English requirement
for senior new Americans.
Sec. 2552. Filing of applications not
requiring regular internet access.
TITLE III—Interior
enforcement
Subtitle A—Employment Verification
System
Sec. 3101. Unlawful employment of
unauthorized aliens.
Sec. 3102. Increasing security and
integrity of social security cards.
Sec. 3103. Increasing security and
integrity of immigration documents.
Sec. 3104. Responsibilities of the
Social Security Administration.
Sec. 3105. Improved prohibition on
discrimination based on national origin or citizenship status.
Sec. 3106. Rulemaking.
Subtitle B—Protecting United States
workers
Sec. 3201. Protections for victims of
serious violations of labor and employment law or crime.
Sec. 3202. Employment Verification
System Education Funding.
Sec. 3203. Directive to the United
States Sentencing Commission.
Sec. 3204. Confidentiality for victims
of crime.
Subtitle C—Other provisions
Sec. 3301. Funding.
Sec. 3302. Effective date.
Sec. 3303. Mandatory exit
system.
Sec. 3304. Identity-theft resistant
manifest information for passengers, crew, and non-crew onboard departing
aircraft and vessels.
Sec. 3305. Profiling.
Subtitle D—Asylum and refugee
provisions
Sec. 3401. Time limits and efficient
adjudication of genuine asylum claims.
Sec. 3402. Refugee family
protections.
Sec. 3403. Clarification on designation
of certain refugees.
Sec. 3404. Asylum determination
efficiency.
Sec. 3405. Stateless persons in the
United States.
Sec. 3406. U visa
accessibility.
Sec. 3407. Representation at overseas
refugee interviews.
Subtitle E—Shortage of immigration court
resources for removal proceedings
Sec. 3501. Shortage of immigration court
personnel for removal proceedings.
Sec. 3502. Improving immigration court
efficiency and reducing costs by increasing access to legal
information.
Sec. 3503. Office of Legal Access
Programs.
Sec. 3504. Codifying Board of
Immigration Appeals.
Sec. 3505. Improved training for
immigration judges and Board Members.
Sec. 3506. Improved resources and
technology for immigration courts and Board of Immigration Appeals.
Subtitle F—Prevention of trafficking in
persons and abuses involving workers recruited abroad
Sec. 3601. Definitions.
Sec. 3602. Disclosure.
Sec. 3603. Prohibition on
discrimination.
Sec. 3604. Recruitment fees.
Sec. 3605. Registration.
Sec. 3606. Bonding
requirement.
Sec. 3607. Maintenance of
lists.
Sec. 3608. Amendment to the Immigration
and Nationality Act.
Sec. 3609. Responsibilities of Secretary
of State.
Sec. 3610. Enforcement
provisions.
Sec. 3611. Rule of
construction.
Sec. 3612. Regulations.
Subtitle G—Interior
enforcement
Sec. 3701. Criminal street
gangs.
Sec. 3702. Banning habitual drunk
drivers from the United States.
Sec. 3703. Sexual abuse of a
minor.
Sec. 3704. Illegal entry.
Sec. 3705. Reentry of removed
alien.
Sec. 3706. Penalties related to
removal.
Sec. 3707. Reform of passport, visa, and
immigration fraud offenses.
Sec. 3708. Combating schemes to defraud
aliens.
Sec. 3709. Inadmissibility and removal
for passport and immigration fraud offenses.
Sec. 3710. Directives related to
passport and document fraud.
Sec. 3711. Inadmissible
aliens.
Sec. 3712. Organized and abusive human
smuggling activities.
Sec. 3713. Preventing criminals from
renouncing citizenship during wartime.
Sec. 3714. Diplomatic security
service.
Sec. 3715. Secure alternatives
programs.
Sec. 3716. Oversight of detention
facilities.
Sec. 3717. Procedures for bond hearings
and filing of notices to appear.
Sec. 3718. Sanctions for countries that
delay or prevent repatriation of their nationals.
Sec. 3719. Gross violations of human
rights.
TITLE IV—Reforms to
nonimmigrant visa programs
Subtitle A—Employment-based nonimmigrant
visas
Sec. 4101. Market-based H–1B visa
limits.
Sec. 4102. Employment authorization for
dependents of employment-based nonimmigrants.
Sec. 4103. Eliminating impediments to
worker mobility.
Sec. 4104. STEM Education and
Training.
Subtitle B—H–1B visa fraud and abuse
protections
Chapter 1—H–1B Employer Application
Requirements
Sec. 4211. Modification of application
requirements.
Sec. 4212. Requirements for admission of
nonimmigrant nurses in health professional shortage areas.
Sec. 4213. New application
requirements.
Sec. 4214. Application review
requirements.
Chapter 2— Investigation and Disposition
of Complaints Against H–1B Employers
Sec. 4221. General modification of
procedures for investigation and disposition.
Sec. 4222. Investigation, working
conditions, and penalties.
Sec. 4223. Initiation of
investigations.
Sec. 4224. Information
sharing.
Chapter 3—Other protections
Sec. 4231. Posting available positions
through the Department of Labor.
Sec. 4232. H–1B government authority and
requirements.
Sec. 4233. Requirements for information
for H–1B and L nonimmigrants.
Sec. 4234. Filing fee for H–1B-dependent
employers.
Sec. 4235. Providing premium processing
of employment-based visa petitions.
Sec. 4236. Technical
correction.
Sec. 4237. Application.
Subtitle C—L visa fraud and abuse
protections
Sec. 4301. Prohibition on outplacement
of L nonimmigrants.
Sec. 4302. L employer petition
requirements for employment at new offices.
Sec. 4303. Cooperation with Secretary of
State.
Sec. 4304. Limitation on employment of L
nonimmigrants.
Sec. 4305. Filing fee for L
nonimmigrants.
Sec. 4306. Investigation and disposition
of complaints against L nonimmigrant employers.
Sec. 4307. Penalties.
Sec. 4308. Prohibition on retaliation
against L nonimmigrants.
Sec. 4309. Reports on L
nonimmigrants.
Sec. 4310. Application.
Sec. 4311. Report on L blanket petition
process.
Subtitle D—Other nonimmigrant
visas
Sec. 4401. Nonimmigrant visas for
students.
Sec. 4402. Classification for specialty
occupation workers from free trade countries.
Sec. 4403. E–visa reform.
Sec. 4404. Other changes to nonimmigrant
visas.
Sec. 4405. Treatment of nonimmigrants
during adjudication of application.
Sec. 4406. Nonimmigrant elementary and
secondary school students.
Subtitle E—JOLT Act
Sec. 4501. Short titles.
Sec. 4502. Premium
processing.
Sec. 4503. Encouraging Canadian tourism
to the United States.
Sec. 4504. Retiree visa.
Sec. 4505. Incentives for foreign
visitors visiting the United States during low peak seasons.
Sec. 4506. Visa waiver program enhanced
security and reform.
Sec. 4507. Expediting entry for priority
visitors.
Sec. 4508. Visa processing.
Subtitle F—Reforms to the H–2B Visa
Program
Sec. 4601. Extension of returning worker
exemption to H–2B numerical limitation.
Sec. 4602. Other requirements for H–2B
employers.
Sec. 4603. Nonimmigrants participating
in relief operations.
Sec. 4604. Nonimmigrants performing
maintenance on common carriers.
Subtitle G—W nonimmigrant
visas
Sec. 4701. Bureau of Immigration and
Labor Market Research.
Sec. 4702. Nonimmigrant classification
for W nonimmigrants.
Sec. 4703. Admission of W nonimmigrant
workers.
Subtitle H—Investing in new venture,
entrepreneurial startups, and technologies
Sec. 4801. Nonimmigrant INVEST
visas.
Sec. 4802. INVEST immigrant
visa.
Sec. 4803. Administration and
oversight.
2.
Statement of
congressional findings
Congress makes the following
findings:
(1) The passage of
this Act recognizes that the primary tenets of its success depend on securing
the sovereignty of the United States of America and establishing a coherent and
just system for integrating those who seek to join American society.
(2) We have a right,
and duty, to maintain and secure our borders, and to keep our country safe and
prosperous. As a nation founded, built and sustained by immigrants we also have
a responsibility to harness the power of that tradition in a balanced way that
secures a more prosperous future for America.
(3) We have always
welcomed newcomers to the United States and will continue to do so. But in
order to qualify for the honor and privilege of eventual citizenship, our laws
must be followed. The world depends on America to be strong — economically,
militarily and ethically. The establishment of a stable, just and efficient
immigration system only supports those goals. As a nation, we have the right
and responsibility to make our borders safe, to establish clear and just rules
for seeking citizenship, to control the flow of legal immigration, and to
eliminate illegal immigration, which in some cases has become a threat to our
national security.
(4) All parts of this
Act are premised on the right and need of the United States to achieve these
goals, and to protect its borders and maintain its sovereignty.
3.
Effective date
triggers
(a)
Definitions
In
this section:
(1)
Commission
The
term Commission means the Southern Border Security Commission
established pursuant to section 4.
(2)
Comprehensive
southern border security strategy
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 high risk border sectors.
(3)
Effective
control
The term effective control means the ability
to achieve and maintain, in a Border Patrol sector—
(A) persistent
surveillance; and
(B) an effectiveness
rate of 90 percent or higher.
(4)
Effectiveness
rate
The effectiveness rate, in the case of a border
sector, is the percentage calculated by dividing the number of apprehensions
and turn backs in the sector during a fiscal year by the total number of
illegal entries in the sector during such fiscal year.
(5)
High risk border
sector
The term high risk border sector means a
border sector in which more than 30,000 individuals were apprehended during the
most recent fiscal year.
(6)
Southern
border
The term Southern border means the
international border between the United States and Mexico.
(7)
Southern border
fencing strategy
The term Southern Border Fencing
Strategy means the strategy established by the Secretary pursuant to
section 5(b) that identifies where fencing, including double-layer fencing,
should be deployed along the Southern border.
(b)
Border security
goal
The Department's border security goal is to achieve and
maintain effective control in high risk border sectors along the Southern
border.
(c)
Triggers
(1)
Processing of
applications for registered provisional immigrant status
Not
earlier than the date upon which the Secretary has submitted to Congress the
Notice of Commencement of implementation of the Comprehensive Southern Border
Security Strategy and the Southern Border Fencing Strategy under section 5 of
this Act, the Secretary may commence processing applications for registered
provisional immigrant status pursuant to section 245B of the Immigration and
Nationality Act, as added by section 2101 of this Act.
(2)
Adjustment of
status of registered provisional immigrants
(A)
In
general
Except as provided in subparagraph (B), the Secretary may
not adjust the status of aliens who have been granted registered provisional
immigrant status, except for aliens granted agriculture card status under
section 2201 of this Act or described in section 245D(b) of the Immigration and
Nationality Act, until the Secretary, after consultation with the Comptroller
General of the United States, submits to the President and Congress a written
certification that—
(i) the Comprehensive
Southern Border Security Strategy has been submitted to Congress and is
substantially deployed and substantially operational;
(ii) the Southern
Border Fencing Strategy has been submitted to Congress, implemented, and is
substantially completed;
(iii) the Secretary
has implemented a mandatory employment verification system to be used by all
employers to prevent unauthorized workers from obtaining employment in the
United States; and
(iv) the Secretary 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.
(B)
Exception
The
Secretary shall permit registered provisional immigrants to apply for an
adjustment to lawful permanent resident status if—
(i)
(I) litigation or a force
majeure has prevented one or more of the conditions described in clauses (i)
through (iv) of subparagraph (A) from being implemented; or
(II) the
implementation of subparagraph (A) has been held unconstitutional by the
Supreme Court of the United States or the Supreme Court has granted certiorari
to the litigation on the constitutionality of implementation of subparagraph
(A); and
(ii) 10 years have
elapsed since the date of the enactment of this Act.
(d)
Waiver of legal
requirements necessary for improvement at borders
Notwithstanding
any other provision of law, the Secretary is authorized to waive all legal
requirements that the Secretary determines to be necessary to ensure
expeditious construction of the barriers, roads, or other physical tactical
infrastructure needed to fulfill the requirements under this section. Any
determination by the Secretary under this section shall be effective upon
publication in the Federal Register.
(e)
Federal court
review
(1)
In
general
The district courts of the United States shall have
exclusive jurisdiction to hear all causes or claims arising from any action
undertaken, or any decision made, by the Secretary under subsection (d). A
cause of action or claim may only be brought alleging a violation of the
Constitution of the United States. The court does not have jurisdiction to hear
any claim not specified in this paragraph.
(2)
Time for filing
complaint
If a cause or claim under paragraph (1) is not filed
within 60 days after the date of the contested action or decision by the
Secretary, the claim shall be barred.
(3)
Appellate
review
An interlocutory or final judgment, decree, or order of
the district court may be reviewed only upon petition for a writ of certiorari
to the Supreme Court of the United States.
4.
Southern Border
Security Commission
(a)
Establishment
If
Secretary certifies that the Department has not achieved effective control in
all high risk border sectors during any fiscal year beginning before the date
that is 5 years after the date of the enactment of this Act, not later than 60
days after the date of the certification there shall be established a
commission to be known as the Southern Border Security
Commission (referred to in this section as the
Commission).
(b)
Composition
(1)
In
general
The Commission shall be composed of—
(A) 2 members who
shall be appointed by the President;
(B) 2 members who
shall be appointed by the President pro tempore of the Senate, of which—
(i) 1 shall be
appointed upon the recommendation of the leader in the Senate of the political
party that is not the political party of the President; and
(ii) 1 shall be
appointed upon the recommendation of the leader in the Senate of the other
political party;
(C) 2 members who
shall be appointed by the Speaker of the House of Representatives, of
which—
(i) 1 shall be
appointed upon the recommendation of the leader in the House of Representatives
of the political party that is not the political party of the President;
and
(ii) 1 shall be
appointed upon the recommendation of the leader in the House of Representatives
of the other political party; and
(D) 4 members,
consisting of 1 member from each of the States along the Southern border, who
shall be—
(i) the Governor of
such State; or
(ii) appointed by the
Governor of each such State.
(2)
Qualification
for appointment
Appointed members of the Commission shall be
distinguished individuals noted for their knowledge and experience in the field
of border security at the Federal, State, or local level.
(3)
Time of
appointment
The appointments required by paragraph (1) shall be
made not later than 60 days after the Secretary makes a certification described
in subsection (a).
(4)
Chair
At
the first meeting of the Commission, a majority of the members of the
Commission present and voting shall elect the Chair of the Commission.
(5)
Vacancies
Any
vacancy of the Commission shall not affect its powers, but shall be filled in
the manner in which the original appointment was made.
(6)
Rules
The
Commission shall establish the rules and procedures of the Commission which
shall require the approval of at least 6 members of the Commission.
(c)
Duties
The
Commission's primary responsibility shall be making recommendations to the
President, the Secretary, and Congress on policies to achieve and maintain the
border security goal specified in section 3(b) by achieving and
maintaining—
(1) the capability to
engage in, and to engage in, persistent surveillance in high risk border
sectors along the Southern border; and
(2) an effectiveness
rate of 90 percent or higher in all high risk border sectors along the Southern
border.
(d)
Report
Not
later than 180 days after the end of the 5-year period described in subsection
(a), the Commission shall submit to the President, the Secretary, and Congress
a report setting forth specific recommendations for policies for achieving and
maintaining the border security goals specified in subsection (c). The report
shall include, at a minimum, recommendations for the personnel, infrastructure,
technology, and other resources required to achieve and maintain an
effectiveness rate of 90 percent or higher in all high risk border
sectors.
(e)
Travel
expenses
Members of the Commission shall be allowed travel
expenses, including per diem in lieu of subsistence rates authorized for
employees of agencies under subchapter I of chapter 57 of title 5, United
States Code, while away from their homes or regular places of business in the
performance of services for the Commission.
(f)
Administrative
support
The Secretary shall provide the Commission such staff and
administrative services as may be necessary and appropriate for the Commission
to perform its functions. Any employee of the executive branch of Government
may be detailed to the Commission without reimbursement to the agency of that
employee and such detail shall be without interruption or loss of civil service
or status or privilege.
(g)
Comptroller
General review
The Comptroller General of the United States shall
review the recommendations in the report submitted under subsection (d) in
order to determine—
(1) whether any of the
recommendations are likely to achieve effective control in all high risk border
sectors;
(2) which
recommendations are most likely to achieve effective control; and
(3) whether such
recommendations are feasible within existing budget constraints.
(h)
Termination
The
Commission shall terminate 30 days after the date on which the report is
submitted under subsection (d).
5.
Comprehensive
Southern Border Security Strategy and Southern Border Fencing Strategy
(a)
Comprehensive
Southern Border Security Strategy
(1)
In
general
Not later than 180 days after the date of the enactment
of this Act, the Secretary shall submit a strategy, to be known as the
Comprehensive Southern Border Security Strategy, for achieving
and maintaining effective control between the ports of entry in all high risk
border sectors along the Southern border, to—
(A) the
Committee on Homeland Security and
Governmental Affairs of the Senate;
(B) the
Committee on Homeland Security of the House of
Representatives;
(C) the
Committee on Appropriations of the
Senate;
(D) the
Committee on Appropriations of the House of
Representatives; and
(E) the Comptroller
General of the United States.
(2)
Elements
The
Comprehensive Southern Border Security Strategy shall specify—
(A) the priorities
that must be met for the strategy to be successfully executed;
(B) the capabilities
that must be obtained to meet each of the priorities referred to in
subparagraph (A), including—
(i) surveillance and
detection capabilities developed or used by the Department of Defense to
increase situational awareness; and
(ii) the requirement
for stationing sufficient Border Patrol agents and Customs and Border
Protection officers at and between ports of entry along the Southern border;
and
(C) the resources,
including personnel, infrastructure, and technology that must be procured and
successfully deployed to obtain the capabilities referred to in subparagraph
(B), including—
(i) fixed, mobile, and
agent portable surveillance systems; and
(ii) unarmed, unmanned
aerial systems and unarmed, fixed-wing aircraft and necessary and qualified
staff and equipment to fully utilize such systems.
(3)
Additional
elements regarding execution
The Comprehensive Southern Border
Security Strategy shall describe—
(A) how the resources
referred to in paragraph (2)(C) will be properly aligned with the priorities
referred to in paragraph (2)(A) to ensure that the strategy will be
successfully executed;
(B) the interim goals
that must be accomplished to successfully implement the strategy; and
(C) the schedule and
supporting milestones under which the Department will accomplish the interim
goals referred to in subparagraph (B).
(4)
Implementation
(A)
In
general
The Secretary shall commence the implementation of the
Comprehensive Southern Border Security Strategy immediately after submitting
the strategy under paragraph (1).
(B)
Notice of
commencement
Upon commencing the implementation of the strategy,
the Secretary shall submit a notice of commencement of such implementation
to—
(i) Congress;
and
(ii) the Comptroller
General of the United States.
(5)
Semiannual
reports
(A)
In
general
After the Comprehensive Southern Border Security Strategy
is submitted under paragraph (1),the Secretary shall submit, not later than May
15 and November 15 of each year, a report on the status of the Department's
implementation of the strategy to—
(i) the
Committee on Homeland Security and
Governmental Affairs of the Senate;
(ii) the
Committee on Homeland Security of the House of
Representatives;
(iii) the
Committee on Appropriations of the
Senate; and
(iv) the
Committee on Appropriations of the House of
Representatives.
(B)
Elements
Each
report submitted under subparagraph (A) shall include—
(i) a detailed
description of the steps the Department has taken, or plans to take, to execute
the strategy submitted under paragraph (1), including the progress made toward
achieving the interim goals and milestone schedule established pursuant to
subparagraphs (B) and (C) of paragraph (3);
(ii) a detailed
description of—
(I) any impediments
identified in the Department's efforts to execute the strategy;
(II) the actions the
Department has taken, or plans to take, to address such impediments; and
(III) any additional
measures developed by the Department to measure the state of security along the
Southern border; and
(iii) for each Border
Patrol sector along the Southern border—
(I) the effectiveness
rate for each individual Border Patrol sector and the aggregated effectiveness
rate;
(II) the number of
recidivist apprehensions, sorted by Border Patrol sector; and
(III) the recidivism
rate for all unique subjects that received a criminal consequence through the
Consequence Delivery System process.
(b)
Southern Border
Fencing Strategy
(1)
Establishment
Not
later than 180 days after the date of the enactment of this Act, the Secretary
shall establish a strategy, to be known as the Southern Border Fencing
Strategy, to identify where fencing, including double-layer fencing,
infrastructure, and technology should be deployed along the Southern
border.
(2)
Submittal
The
Secretary shall submit the Southern Border Fencing Strategy to Congress and the
Comptroller General of the United States for review.
(3)
Notice of
commencement
Upon commencing the implementation of the Southern
Border Fencing Strategy, the Secretary shall submit a notice of commencement of
the implementation of the Strategy to Congress and the Comptroller General of
the United States.
6.
Comprehensive
Immigration Reform Trust Fund
(a)
Comprehensive
Immigration Reform Trust Fund
(1)
Establishment
There
is established in the Treasury a separate account, to be known as the
Comprehensive Immigration Reform Trust Fund (referred to in this section as the
Trust Fund), consisting of—
(A) amounts
transferred from the general fund of the Treasury under paragraph (2)(A);
and
(B) proceeds from the
fees described in paragraph (2)(B).
(2)
Deposits
(A)
Initial
funding
On the later of the date of the enactment of this Act or
October 1, 2013, $6,500,000,000 shall be transferred from the general fund of
the Treasury to the Trust Fund.
(B)
Start-up
costs
On the later of the date of the enactment of this Act or
October 1, 2013, $100,000,000 is hereby appropriated from the general fund of
the Treasury, to remain available until September 30, 2015, to the Department
to pay for one-time and startup costs necessary to implement this Act,
(C)
Ongoing
funding
In addition to the funding described in subparagraph (A),
the following amounts shall be deposited in the trust fund:
(i)
Electronic
travel authorization system fees
75 percent of the fees collected
under section 217(h)(3)(B) of the Immigration and Nationality Act (8 U.S.C.
1187(h)(3)).
(ii)
J–1 visa
mitigation fees
Mitigation fees collected from employers who
employ aliens described in section 101(a)(15)(J) of the Immigration and
Nationality Act (8 U.S.C. 1101(a)(15)(J)) through the Summer Work Travel
Program.
(iii)
H–1B visa
fees
Fees collected from employers hiring nonimmigrants described
in section 101(a)(15)(H)(i)(b) of the Immigration and Nationality Act (8 U.S.C.
1101 (a)(15)(H)(i)(b)).
(iv)
L–1 visa
fees
Fees collected under section 214(c)(12) of the Immigration
and Nationality Act (8 U.S.C. 1184(c)(12) from employers hiring a nonimmigrant
described in section 101(a)(15)(L) of such Act (8 U.S.C.
1101(a)(15)(L)).
(v)
H–2B visa
fees
Fees collected from employers hiring nonimmigrants described
in section 101(a)(15)(H)(ii)(b) of the Immigration and Nationality Act (8
U.S.C. 1101 (a)(15)(H)(i i)(b)) in the amount of $500 under section 214 of the
Immigration and Nationality Act (8 U.S.C. 1184).
(vi)
F–1 visa
fees
Fees collected for nonimmigrants admitted under section
101(a)(15)(F)(i) of the Immigration and Nationality Act (8 U.S.C.
1101(a)(15)(F)(i)) in the amount of $500 under section 214 of the Immigration
and Nationality Act (8 U.S.C. 1184)
(vii)
Visitor visa
fees
Amend Section 214 to add a $5 fee for visitor visas
101(a)(15)(B).
(viii)
Merit system
green card fees
Include the fee charged in the document to get a
merit system green card.
(ix)
Other
aliens
An alien who is allocated a visa under section 211 shall
pay a fee of $1,500.
(x)
Penalty
Penalties
collected from applicants for provisional immigrant status under section
245B(c)(9)(C) of the Immigration and Nationality Act, as added by section 2101
of this Act.
(xi)
H-1b
nonimmigrant dependent employer fees
Fees collected under section
423(a)(2).
(xii)
H–1B
outplacement fee
Fees collected under section 212(n)(1)(F)(ii) of
the Immigration and Nationality Act, as amended by section 4201(d).
(xiii)
L
nonimmigrant dependent employer fees
Fees collected under section
435(a)(2).
(xiv)
Retiree visa
fees
Fees collected under section 101(a)(15)(Y) of the
Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(Y)).
(xv)
Nonimmigrants
performing maintenance on common carriers
Fees collected under
subsection (z) of section 214 of the Immigration and Nationality Act (8 U.S.C.
1184), as added by section 4604.
(3)
Use of
funds
(A)
Initial
funding
Of the amounts transferred to the Trust Fund pursuant to
paragraph (2)(A)—
(i) $3,000,000,000
shall be made available to the Secretary, during the 5-year period beginning on
the date of the enactment of this Act, to carry out the Comprehensive Southern
Border Security Strategy;
(ii) $2,000,000,000
shall be made available to the Secretary, during the 10-year period beginning
on the date of the enactment of this Act, to carry out programs, projects, and
activities recommended by the Commission pursuant to section 4(c) to achieve
and maintain the border security goal specified in section 3(b); and
(iii) $1,500,000,000
shall be made available to the Secretary, during the 5-year period beginning on
the date of the enactment of this Act, to procure and deploy additional fencing
in high-risk border sectors in accordance with the Southern Border Fencing
Strategy established pursuant to section 5(b).
(B)
Ongoing
funding
Of the amounts deposited into the Trust Fund pursuant to
paragraph (2)(B)—
(i) $50,000,000 shall
be available during each of the fiscal years 2014 through 2018 to carry out the
activities described in section 1104(a)(1); and
(ii) $50,000,000 shall
be available during each of the fiscal years 2014 through 2018 to carry out the
activities described in section 1104(b).
(b)
Limitation on
collection
No fee described in paragraph (2)(B) may be collected
under this Act except to the extent that the expenditure of the fee to pay the
costs of activities and services for which the fee is imposed is provided for
in advance in an appropriations Act.
(c)
Receipts
collected as offsetting receipts
Notwithstanding section 3302 of
title 31, United States Code, any fee collected under this Act—
(1) shall be credited
as offsetting collections to the Trust Fund;
(2) shall be available
for expenditure only to pay the costs of activities and services authorized
from the Trust Fund; and
(3) shall remain
available until expended.
(d)
Determination of
budgetary effects
(1)
Emergency
designation for congressional enforcement
In the Senate, amounts
made available under this section are designated as an emergency requirement
pursuant to section 403(a) of S. Con. Res. 13 (111th Congress), the concurrent
resolution on the budget for fiscal year 2010.
(2)
Emergency
designation for statutory PAYGO
Amounts made available under this
section are designated as an emergency requirement under section 4(g) of the
Statutory Pay-As-You-Go Act of 2010 (Public Law 111–139; 2 U.S.C.
933(g)).
7.
Reference to the
Immigration and Nationality
Act
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 (8 U.S.C. 1101 et seq.).
8.
Definitions
In this Act:
(1)
Department
Except
as otherwise provided, the term Department means the Department of
Homeland Security.
(2)
Secretary
Except
as otherwise provided, the term Secretary means the Secretary of
Homeland Security.
I
Border
Security
1101.
Definitions
In this title:
(1)
Rural,
high-trafficked areas
The term rural, high-trafficked
areas means rural areas through which drugs and undocumented aliens are
routinely smuggled, as designated by the Commissioner of U.S. Customs and
Border Protection.
(2)
Southern
border
The term Southern border means the
international border between the United States and Mexico.
(3)
Southwest border
region
The term Southwest border region means the
area in the United States that is within 100 miles of the Southern
border.
1102.
Additional
U.S. Customs and Border Protection officers
(a)
In
general
Not later than
September 30, 2017, the Secretary shall increase the number of trained U.S.
Customs and Border Protection officers by 3,500, compared to the number of such
officers as of the date of the enactment of this Act. The Secretary shall make
progress in increasing such number of officers during each of the fiscal years
2014 through 2017.
(b)
Construction
Nothing
in subsection (a) may be interpreted to preclude the Secretary from reassigning
or stationing U.S. Customs and Border protection officers and agents from the
Northern border to the Southern border.
(c)
Funding
There
are authorized to be appropriated, from the Comprehensive Immigration Reform
Trust Fund established under section 6(a)(1), such sums as may be necessary to
carry out this section.
1103.
National Guard
support to secure the Southern border
(a)
In
general
With the approval of the Secretary of Defense, the
Governor of a State may order any units or personnel of the National Guard of
such State to perform operations and missions under section 502(f) of title 32,
United States Code, in the Southwest Border region for the purposes of
assisting U.S. Customs and Border Protection in securing the Southern
border.
(b)
Assignment of
operations and missions
(1)
In
general
National Guard units and personnel deployed under
subsection (a) may be assigned such operations and missions specified in
subsection (c) as may be necessary to secure the Southern border.
(2)
Nature of
duty
The duty of National Guard personnel performing operations
and missions described in paragraph (1) shall be full-time duty under title 32,
United States Code.
(c)
Range of
operations and missions
The operations and missions assigned
under subsection (b) shall include the temporary authority—
(1) to construct
fencing, including double-layer and triple-layer fencing;
(2) to increase
ground-based mobile surveillance systems;
(3) to deploy
additional unmanned aerial systems and manned aircraft sufficient to maintain
continuous surveillance of the Southern Border;
(4) to deploy and
provide capability for radio communications interoperability between U.S.
Customs and Border Protection and State, local, and tribal law enforcement
agencies;
(5) to construct
checkpoints along the Southern border to bridge the gap to long-term permanent
checkpoints; and
(6) to provide
assistance to U.S. Customs and Border Protection, particularly in rural,
high-trafficked areas, as designated by the Commissioner of U.S. Customs and
Border Protection.
(d)
Materiel and
logistical support
The Secretary of Defense shall deploy such
materiel and equipment and logistical support as may be necessary to ensure
success of the operations and missions conducted by the National Guard under
this section.
(e)
Exclusion from
National Guard personnel strength limitations
National Guard
personnel deployed under subsection (a) shall not be included in—
(1) the calculation to
determine compliance with limits on end strength for National Guard personnel;
or
(2) limits on the
number of National Guard personnel that may be placed on active duty for
operational support under section 115 of title 10, United States Code.
1104.
Enhancement of
existing border security operations
(a)
Border crossing
prosecutions
(1)
In
general
The Secretary, acting through the Commissioner, U.S.
Customs and Border Protection, shall—
(A) increase the
number of border crossing prosecutions in the Tucson Sector of the Southwest
Border region to up to 210 prosecutions per day by increasing the funding
available for—
(i) attorneys and
administrative support staff in the Tucson United States Attorney
Office;
(ii) support staff and
interpreters in the Tucson Court Clerks Office;
(iii) pre-trial
services;
(iv) activities of the
Tucson Federal Public Defenders Office; and
(v) additional
marshals in the Tucson United States Marshals Office to perform intake,
coordination, transportation, and court security; and
(B) reimburse State,
local, and tribal law enforcement agencies for any detention costs related to
the border crossing prosecutions carried out pursuant to subparagraph
(A).
(2)
Additional
magistrate judges to assist with increased caseload
The chief
judge of the United States District Court for the District of Arizona is
authorized to appoint additional full-time magistrate judges, who, consistent
with the Constitution and laws of the United States, shall have the authority
to hear cases and controversies in the judicial district in which the
respective judges are appointed.
(3)
Funding
There
are authorized to be appropriated, from the Comprehensive Immigration Reform
Trust Fund established under section 6(a)(1), such sums as may be necessary to
carry out this subsection.
(b)
Operation
Stonegarden
(1)
In
general
The Federal Emergency Management Agency shall enhance law
enforcement preparedness and operational readiness along the borders of the
United States through Operation Stonegarden. The amounts available under this
paragraph are in addition to any other amounts otherwise made available for
Operation Stonegarden. Not less than 90 percent of the amounts made available
under section 5(a)(3)(B)(ii) shall be allocated for grants and reimbursements
to law enforcement agencies in the States in the Southwest Border region for
personnel, overtime, travel, and other costs related to illegal immigration and
drug smuggling in the Southwest Border region.
(2)
Funding
There
are authorized to be appropriated, from the amounts made available under
section 6(a)(3)(A)(i), such sums as may be necessary to carry out this
subsection.
(c)
Infrastructure
improvements
(1)
Border patrol
stations
The Secretary shall—
(A) construct
additional Border Patrol stations in the Southwest Border region that U.S.
Border Patrol determines are needed to provide full operational support in
rural, high-trafficked areas; and
(B) analyze the
feasibility of creating additional Border Patrol sectors along the Southern
border to interrupt drug trafficking operations.
(2)
Forward
operating bases
The Secretary shall enhance the security of the
Southwest Border region by—
(A) establishing
additional permanent forward operating bases for the Border Patrol, as
needed;
(B) upgrading the
existing forward operating bases to include modular buildings, electricity, and
potable water; and
(C) ensuring that
forward operating bases surveil and interdict individuals entering the United
States unlawfully immediately after such individuals cross the Southern
border.
(3)
Authorization of
appropriations
There is authorized to be appropriated for each of
fiscal years 2014 through 2018 such sums as may be necessary to carry out this
subsection.
1105.
Border
security on certain Federal land
(a)
Definitions
In
this section:
(1)
Federal
lands
The term Federal lands includes all land under
the control of the Secretary concerned that is located within the Southwest
border region in the State of Arizona along the international border between
the United States and Mexico.
(2)
Secretary
concerned
The term Secretary concerned means—
(A) with respect to
land under the jurisdiction of the Secretary of Agriculture, the Secretary of
Agriculture; and
(B) with respect to
land under the jurisdiction of the Secretary of the Interior, the Secretary of
the Interior.
(b)
Support for
border security needs
To achieve effective control of Federal
lands—
(1) the Secretary
concerned, notwithstanding any other provision of law, shall authorize and
provide U.S. Customs and Border Protection personnel with immediate access to
Federal lands for security activities, including—
(A) routine motorized
patrols; and
(B) the deployment of
communications, surveillance, and detection equipment;
(2) the security
activities described in paragraph (1) shall be conducted, to the maximum extent
practicable, in a manner that the Secretary determines will best protect the
natural and cultural resources on Federal lands; and
(3) the Secretary
concerned may provide education and training to U.S. Customs and Border
Protection on the natural and cultural resources present on individual Federal
land units.
(c)
Programmatic
environmental impact statement
(1)
In
general
After implementing subsection (b), the Secretary, in
consultation with the Secretaries concerned, shall prepare and publish in the
Federal Register a notice of intent to prepare a programmatic environmental
impact statement in accordance with the National Environmental Policy Act of
1969 (42 U.S.C. 4321 et seq.) to analyze the impacts of the activities
described in subsection (b).
(2)
Effect on
processing application and special use permits
The pending
completion of a programmatic environmental impact statement under this section
shall not result in any delay in the processing or approving of applications or
special use permits by the Secretaries concerned for the activities described
in subsection (b).
(3)
Amendment of
land use plans
The Secretaries concerned shall amend any land use
plans, as appropriate, upon completion of the programmatic environmental impact
statement described in subsection (b).
(4)
Scope of
programmatic environmental impact statement
The programmatic
environmental impact statement described in paragraph (1)—
(A) may be used to
advise the Secretary on the impact on natural and cultural resources on Federal
lands; and
(B) shall not control,
delay, or restrict actions by the Secretary to achieve effective control on
Federal lands.
(d)
Intermingled
State and private land
This section shall not apply to any
private or State-owned land within the boundaries of Federal lands.
1106.
Equipment and
technology
(a)
Enhancements
The
Commissioner of U.S. Customs and Border Protection, working through U.S. Border
Patrol, shall—
(1) deploy additional
mobile, video, and agent-portable surveillance systems, and unmanned aerial
vehicles in the Southwest Border region as necessary to provide 24-hour
operation and surveillance;
(2) operate unarmed
unmanned aerial vehicles along the Southern border for 24 hours per day and for
7 days per week;
(3) deploy unarmed
additional fixed-wing aircraft and helicopters along the Southern
border;
(4) acquire new
rotocraft and make upgrades to the existing helicopter fleet; and
(5) increase horse
patrols in the Southwest Border region.
(b)
Authorization of
appropriations
In addition to amounts otherwise authorized to be
appropriated, there is authorized to be appropriated to U.S. Customs and Border
Protection such sums as may be necessary to carry out subsection (a) during
fiscal years 2014 through 2018.
1107.
Access to
emergency personnel
(a)
Southwest border
region emergency communications grants
(1)
In
general
The Secretary, in consultation with the governors of the
States in the Southwest Border region, shall establish a 2-year grant program,
to be administered by the Secretary, to improve emergency communications in the
Southwest Border region.
(2)
Eligibility for
grants
An individual is eligible to receive a grant under this
subsection if the individual demonstrates that he or she—
(A) regularly resides
or works in the Southwest Border region;
(B) is at greater risk
of border violence due to the lack of cellular service at his or her residence
or business and his or her proximity to the Southern border.
(3)
Use of
grants
Grants awarded under this subsection may be used to
purchase satellite telephone communications systems and service that—
(A) can provide access
to 9–1–1 service; and
(B) are equipped with
global positioning systems.
(4)
Authorization of
appropriations
There is authorized to be appropriated such sums
as may be necessary to carry out the grant program established under this
subsection.
(b)
Interoperable
communications for law enforcement
(1)
Federal law
enforcement
There are authorized to be appropriated, to the
Department, the Department of Justice, and the Department of the Interior,
during the 5-year period beginning on the date of the enactment of this Act,
such sums as may be necessary—
(A) to purchase,
through a competitive procurement process, P25-compliant radios, which may
include a multi-band option, for Federal law enforcement agents working in the
Southwest Border region in support of the activities of U.S. Customs and Border
Protection and U.S. Immigration and Customs Enforcement, including law
enforcement agents of the Drug Enforcement Administration, the Bureau of
Alcohol, Tobacco, Firearms and Explosives, the Department of the Interior, and
the Forest Service; and
(B) to upgrade,
through a competitive procurement process, the communications network of the
Department of Justice to ensure coverage and capacity, particularly when
immediate access is needed in times of crisis, in the Southwest Border region
for appropriate law enforcement personnel of the Department of Justice
(including the Drug Enforcement Administration and the Bureau of Alcohol,
Tobacco, Firearms and Explosives), the Department (including U.S. Immigration
and Customs Enforcement and U.S. Customs and Border Protection), the United
States Marshals Service, other Federal agencies, the State of Arizona, tribes,
and local governments.
(2)
State and local
law enforcement
(A)
Authorization of
appropriations
There is authorized to be appropriated to the
Department of Justice, during the 5-year period beginning on the date of the
enactment of this Act, such sums as may be necessary to purchase, through a
competitive procurement process, P25-compliant radios, which may include a
multi-band option, for State and local law enforcement agents working in the
Southwest Border region.
(B)
Access to
Federal spectrum
If a State, tribal, or local law enforcement
agency in the Southwest Border region experiences an emergency situation that
necessitates immediate communication with the Department of Justice, the
Department, the Department of the Interior, or any of their respective
subagencies, such law enforcement agency shall have access to the spectrum
assigned to such Federal agency for the duration of such emergency
situation.
1108.
Southwest
Border region prosecution initiative
(a)
Reimbursement to
State and local prosecutors for federally initiated criminal
cases
The Attorney General shall reimburse State, county, tribal,
and municipal governments for costs associated with the prosecution and
pre-trial detention of Federally initiated criminal cases declined by local
offices of the United States Attorneys.
(b)
Authorization of
appropriations
There is authorized to be appropriated such sums
as may be necessary to carry out subsection (a) during fiscal years 2014
through 2018 .
1109.
Interagency
collaboration
The Assistant
Secretary of Defense for Research and Engineering shall collaborate with the
Under Secretary of Homeland Security for Science and Technology to identify
equipment and technology used by the Department of Defense that could be used
by U.S. Customs and Border Protection to improve the security of the Southern
border by—
(1) detecting border
tunnels;
(2) detecting the use
of ultralight aircraft;
(3) enhancing wide
aerial surveillance; and
(4) otherwise
improving the enforcement of such border.
1110.
SCAAP
reauthorization
Section
241(i)(5)(C) (8 U.S.C. 1231(i)(5)) is amended by striking 2011
and inserting 2015.
1111.
Use of
force
Not later than 180 days
after the date of the enactment of this Act, the Secretary, in consultation
with the Assistant Attorney General for the Civil Rights Division of the
Department of Justice, shall issue policies governing the use of force by all
Department personnel that—
(1) require all
Department personnel to report each use of force; and
(2) establish
procedures for—
(A) accepting and
investigating complaints regarding the use of force by Department
personnel;
(B) disciplining
Department personnel who violate any law or Department policy relating to the
use of force; and
(C) reviewing all uses
of force by Department personnel to determine whether the use of force—
(i) complied with
Department policy; or
(ii) demonstrates the
need for changes in policy, training, or equipment.
1112.
Training for
border security and immigration enforcement officers
(a)
In
general
The Secretary shall
ensure that U.S. Customs and Border Protection officers, U.S. Border Patrol
officers, U.S. Immigration and Customs Enforcement agents, and agriculture
specialists stationed within 100 miles of any land or marine border of the
United States or at any United States port of entry receive appropriate
training, which shall be prepared in collaboration with the Assistant Attorney
General for the Civil Rights Division of the Department of Justice, in—
(1) identifying and
detecting fraudulent travel documents;
(2) civil,
constitutional, human, and privacy rights of individuals;
(3) the scope of
enforcement authorities, including interrogations, stops, searches, seizures,
arrests, and detentions;
(4) the use of force
policies issued by the Secretary pursuant to section 1111;
(5) immigration laws,
including screening, identifying, and addressing vulnerable populations, such
as children, victims of crime and human trafficking, and individuals fleeing
persecution or torture;
(6) social and
cultural sensitivity toward border communities;
(7) the impact of
border operations on communities; and
(8) any particular
environmental concerns in a particular area.
(b)
Training for
border community liaison officers
The Secretary shall ensure that
border communities liaison officers in Border Patrol sectors along the
international borders between the United States and Mexico and between the
United States and Canada receive training to better—
(1) act as a liaison
between border communities and the Office for Civil Rights and Civil Liberties
of the Department and the Civil Rights Division of the Department of
Justice;
(2) foster and
institutionalize consultation with border communities;
(3) consult with
border communities on Department programs, policies, strategies, and
directives; and
(4) receive Department
performance assessments from border communities.
1113.
Department of
Homeland Security Border Oversight Task Force
(a)
Establishment
(1)
In
general
There is established an independent task force, which
shall be known as the Department of Homeland Security Border Oversight Task
Force (referred to in this section as the DHS Task
Force).
(2)
Duties
The
DHS Task Force shall—
(A) review and make
recommendations regarding immigration and border enforcement policies,
strategies, and programs that take into consideration their impact on border
communities;
(B) recommend ways in
which the Border Communities Liaison Offices can strengthen relations and
collaboration between communities in the border regions and the Department, the
Department of Justice, and other Federal agencies that carry out such policies,
strategies, and programs;
(C) evaluate how the
policies, strategies, and programs of Federal agencies operating along the
international borders between the United States and Mexico and between the
United States and Canada protect the due process, civil, and human rights of
border residents, visitors, and migrants at and near such borders; and
(D) evaluate and make
recommendations regarding the training of border enforcement personnel
described in section 1112.
(3)
Membership
(A)
In
general
The DHS Task Force shall be composed of 26 members,
appointed by the President, who have expertise in migration, local crime
indices, civil and human rights, community relations, cross-border trade and
commerce, quality of life indicators, or other pertinent experience, of
whom—
(i) 11 members shall
be from the Northern border region and shall include—
(I) 2 local government
elected officials;
(II) 2 local law
enforcement official;
(III) 2 civil rights
advocates;
(IV) 1 business
representative;
(V) 1 higher education
representative;
(VI) 1 representative
of a faith community; and
(VII) 2
representatives of U.S. Border Patrol; and
(ii) 15 members shall
be from the Southern border region and include—
(I) 3 local government
elected officials;
(II) 3 local law
enforcement officials;
(III) 3 civil rights
advocates;
(IV) 2 business
representatives;
(V) 1 higher education
representative;
(VI) 1 representative
of a faith community; and
(VII) 2
representatives of U.S. Border Patrol.
(B)
Nongovernmental
appointees
Individuals appointed as members of the DHS Task Force
may not be employed by the Federal Government.
(C)
Term of
service
Members of the Task Force shall be appointed for the
shorter of—
(i) 3 years; or
(ii) the life of the
DHS Task Force.
(D)
Chair, vice
chair
The members of the DHS Task Force shall elect a Chair and a
Vice Chair from among its members, who shall serve in such capacities for the
life of the DHS Task Force or until removed by the majority vote of at least 14
members.
(b)
Operations
(1)
Hearings
The
DHS Task Force may, for the purpose of carrying out its duties, hold hearings,
sit and act, take testimony, receive evidence, and administer oaths.
(2)
Recommendations
The
DHS Task Force may make findings or recommendations to the Secretary related to
the duties described in subsection (a)(2).
(3)
Response
Not
later than 180 days after receiving the findings and recommendations from the
DHS Task Force under paragraph (2), the Secretary shall issue a response that
describes how the Department has addressed, or will address, such findings and
recommendations.
(4)
Information from
federal agencies
The Chair, or 16 members of the DHS Task Force,
may request statistics relating to the duties described in subsection (a)(2)
directly from any Federal agency, which shall, to the extent authorized by law,
furnish such information, suggestions, estimates, and statistics directly to
the DHS Task Force.
(5)
Compensation
Members
of the DHS Task Force shall serve without pay, but shall be reimbursed for
reasonable travel and subsistence expenses incurred in the performance of their
duties.
(c)
Report
Not
later than 2 years after its first meeting, the DHS Task Force shall submit a
final report to the President, Congress, and the Secretary that
contains—
(1) findings with
respect to the duties of the DHS Task Force; and
(2) recommendations
regarding border and immigration enforcement policies, strategies, and
programs, including—
(A) a recommendation
as to whether the DHS Task Force should continue to operate; and
(B) a description of
any duties the DHS Task Force should be responsible for after the termination
date described in subsection (e).
(d)
Authorization of
appropriations
There are authorized to be appropriated such sums
as may be necessary to carry out this section for each of the fiscal years 2014
through 2017.
(e)
Sunset
The
DHS Task Force shall terminate operations 60 days after the date on which the
DHS Task Force submits the report described in subsection (c).
1114.
Immigration
ombudsman
(a)
In
general
Section 452 of the Homeland Security Act (6 U.S.C. 272)
is amended—
(1) by amending the
section heading to read as follows:
452.
Department of
Homeland Security Immigration
Ombudsman
;
(2) in subsection (a),
by striking Citizenship and Immigration Services Ombudsman and
inserting DHS Immigration Ombudsman;
(3) in subsection
(c)(2), by striking Director of the Bureau of Citizenship and
Immigration Services and inserting Director, U.S. Citizenship
and Immigration Services, the Assistant Secretary, U.S. Immigration and Customs
Enforcement, the Commissioner, U.S. Customs and Border
Protection;
(4) in subsections
(d)(4) and (f), by striking Director of the Bureau of Citizenship and
Immigration Services each place such term appears and inserting
Director, U.S. Citizenship and Immigration Services, the Assistant
Secretary, U.S. Immigration and Customs Enforcement, and the Commissioner, U.S.
Customs and Border Protection;
(5) in subsection (f),
by striking director each place such term appears and inserting
official; and
(6) by striking
the Bureau of Citizenship and Immigration Services each place it
appears and inserting U.S. Citizenship and Immigration Services, U.S.
Immigration and Customs Enforcement, or U.S. Customs and Border
Protection.
(b)
Clerical
amendment
The table of contents in section 1 of the Homeland
Security Act (6 U.S.C. 101 et seq.) is amended by striking the item relating to
section 452 and inserting the following:
Sec. 452. Department of Homeland
Security Immigration
Ombudsman.
.
1115.
Reports
(a)
Report on
certain border matters
The
Secretary shall submit a report to the Committee on Homeland Security and Governmental Affairs
of the Senate and the Committee on Homeland Security of the House of
Representatives that sets forth—
(1) the effectiveness
rate (as defined in section 2(a)(4)) for each Border Patrol sector along the
Northern border and the Southern border;
(2) the number of
miles along the Southern border that is under persistent surveillance;
(3) the monthly wait
times per passenger, including data on averages and peaks, for crossing the
Southern border, and the staffing of such border crossings; and
(4) the allocations at
each port of entry along the Southern border.
(b)
Report on
interagency collaboration
The
Under Secretary of Defense for Acquisition, Technology, and Logistics and the
Under Secretary of Homeland Security for Science and Technology shall jointly
submit a report on the results of the interagency collaboration under section
1109 to—
(1) the
Committee on Armed Services of the
Senate;
(2) the
Committee on Homeland Security and
Governmental Affairs of the Senate;
(3) the
Committee on Armed Services of the House of
Representatives; and
(4) the
Committee on Homeland Security of the House of
Representatives.
1116.
Severability
If any provision of this Act or any
amendment made by this Act, or any application of such provision or amendment
to any person or circumstance, is held to be unconstitutional, the remainder of
the provisions of this Act and the amendments made by this Act and the
application of the provision or amendment to any other person or circumstance
shall not be affected.
II
Immigrant
visas
A
Registration and
adjustment of registered provisional immigrants
2101.
Registered
provisional immigrant status
(a)
Authorization
Chapter
5 of title II (8 U.S.C. 1255 et seq.) is amended by inserting after section
245A the following:
245B.
Adjustment of status of eligible entrants
before December 31, 2011, to that of registered provisional immigrant
(a)
In
general
Notwithstanding any other provision of law, the Secretary
of Homeland Security (referred to in this section as the
Secretary), after conducting the national security and law
enforcement clearances required under subsection (c)(8), may grant registered
provisional immigrant status to an alien who—
(1) meets the
eligibility requirements set forth in subsection (b);
(2) submits a
completed application before the end of the period set forth in subsection
(c)(3); and
(3) has paid the fee
required under subsection (c)(10)(A) and the penalty required under subsection
(c)(10)(C), if applicable.
(b)
Eligibility
requirements
(1)
In
general
An alien is not eligible for registered provisional
immigrant status unless the alien establishes, by a preponderance of the
evidence, that the alien meets the requirements set forth in this
subsection.
(2)
Physical
presence
(A)
In
general
The alien—
(i) shall be
physically present in the United States on the date on which the alien submits
an application for registered provisional immigrant status;
(ii) shall have been
physically present in the United States on or before December 31, 2011;
and
(iii) shall have
maintained continuous physical presence in the United States from December 31,
2011, until the date on which the alien is granted status as a registered
provisional immigrant under this section.
(B)
Break in
physical presence
(i)
In
general
Except as provided in clause (ii), an alien who is absent
from the United States without authorization after the date of the enactment of
this section does not meet the continuous physical presence requirement set
forth in subparagraph (A)(iii).
(ii)
Exception
An
alien who departed from the United States after December 31, 2011 will not be
considered to have failed to maintain continuous presence in the United States
if the alien's absences from the United States are brief, casual, and innocent
whether or not such absences were authorized by the Secretary.
(3)
Grounds for
ineligibility
(A)
In
general
Except as provided in subparagraph (B), an alien is
ineligible for registered provisional immigrant status if the Secretary
determines that the alien—
(i) has a conviction
for—
(I) an offense
classified as a felony in the convicting jurisdiction (other than a State or
local offense for which an essential element was the alien's immigration status
or a violation of this Act);
(II) an aggravated
felony (as defined in section 101(a)(43) at the time of the conviction);
(III) 3 or more
misdemeanor offenses (other than minor traffic offenses or State or local
offenses for which an essential element was the alien's immigration status or a
violation of this Act) if the alien was convicted on different dates for each
of the 3 offenses;
(IV) any offense under
foreign law, except for a purely political offense, which, if the offense had
been committed in the United States, would render the alien inadmissible under
section 212(a) (excluding the paragraphs set forth in clause (ii)) or removable
under section 237(a), except as provided in paragraph (3) of section
237(a);
(V) unlawful voting
(as defined in section 237(a)(6));
(ii) is admissible
under section 212(a), except that in determining an alien’s
admissibility—
(I) paragraphs (4),
(5), (7), and (9)(B) of section 212(a) shall not apply;
(II) subparagraphs
(A), (C), (D), (F), and (G) of section 212(a)(6) and paragraphs (9)(C) and
(10)(B) of section 212(a) shall not apply unless based on the act of unlawfully
entering the United States after the date of the enactment of the
Border Security, Economic Opportunity, and
Immigration Modernization Act; and
(III) paragraphs
(6)(B) and (9)(A) of section 212(a) shall not apply unless the relevant conduct
began on or after the date on which the alien files an application for
registered provisional immigrant status under this section;
(iii) the Secretary
knows or has reasonable grounds to believe, is engaged in or is likely to
engage after entry in any terrorist activity (as defined in section
212(a)(3)(B)(iv)); or
(iv) was, on the date
on which this Act was introduced in the Senate—
(I) an alien lawfully
admitted for permanent residence;
(II) an alien admitted
as a refugee under section 207 or granted asylum under section 208; or
(III) an alien who,
according to the records of the Secretary or the Secretary of State, is
lawfully present in the United States in any nonimmigrant status (other than an
alien considered to be a nonimmigrant solely due to the application of section
244(f)(4) or the amendment made by section 702 of the Consolidated Natural
Resources Act of 2008 (Public Law 110–229)), notwithstanding any unauthorized
employment or other violation of nonimmigrant status.
(B)
Waiver
(i)
In
general
The Secretary may waive the application of subparagraph
(A)(i)(III) or any provision of section 212(a) that is not listed in clause
(ii) on behalf of an alien for humanitarian purposes, to ensure family unity,
or if such a waiver is otherwise in the public interest. Any discretionary
authority to waive grounds of inadmissibility under section 212(a) conferred
under any other provision of this Act shall apply equally to aliens seeking
registered provisional status under this section.
(ii)
Exceptions
The
discretionary authority under clause (i) may not be used to waive—
(I) subparagraph (B),
(C), (D)(ii), (E), (G), (H), or (I) of section 212(a)(2);
(II) section
212(a)(3);
(III) subparagraph
(A), (C), (D), or (E) of section 212(a)(10); or
(IV) with respect to
misrepresentations relating to the application for registered provisional
immigrant status, section 212(a)(6)(C)(i).
(C)
Conviction
explained
For purposes of this paragraph, the term
conviction does not include a judgment that has been expunged, set
aside, or the equivalent.
(D)
Rule of
construction
Nothing in this paragraph may be construed to
require the Secretary to commence removal proceedings against an alien.
(4)
Applicability of
other provisions
Sections 208(d)(6) and 240B(d) shall not apply
to any alien filing an application for registered provisional immigrant status
under this section.
(5)
Dependent spouse
and children
(A)
In
general
Notwithstanding any other provision of law, the Secretary
shall classify the spouse or child of a registered provisional immigrant as a
registered provisional immigrant dependent if the spouse or child—
(i) is physically
present in the United States—
(I) on the date on
which the registered provisional immigrant is granted such status; and
(II) on or before
December 30, 2012;
(ii) meets all of the
eligibility requirements set forth in this subsection, other than the
requirements of clause (ii) or (iii) of paragraph (2).
(B)
Effect of
termination of legal relationship
If the spousal or parental
relationship between an alien who is granted registered provisional immigrant
status under this section and the alien’s child is terminated, the spouse or
child may apply for classification as a registered provisional immigrant
dependent if the termination of the relationship with such parent was due to
death, divorce, or otherwise connected to domestic violence, notwithstanding
subsection (c)(3).
(C)
Effect of
disqualification of parent
If the application of a spouse or
parent for registered provisional immigrant status is terminated or revoked,
the husband, wife, or child of that spouse or parent shall be eligible to apply
for registered provisional immigrant status independent of the parent
notwithstanding subsection (c)(3).
(c)
Application
procedures
(1)
In
general
An alien, or the dependent spouse or child of such alien,
who meets the eligibility requirements set forth in subsection (b) may apply
for status as a registered provisional immigrant or a registered provisional
immigrant dependent, as applicable, by submitting a completed application form
to the Secretary during the application period set forth in paragraph (3), in
accordance with the final rule promulgated by the Secretary under the
Border Security, Economic Opportunity, and
Immigration Modernization Act. An applicant for registered
provisional immigrant status shall be treated as an applicant for
admission.
(2)
Payment of
taxes
(A)
In
general
An alien may not file an application for registered
provisional immigrant status under paragraph (1) unless the applicant has
satisfied any applicable Federal tax liability.
(B)
Definition of
applicable federal tax liability
In this paragraph, the term
applicable Federal tax liability means all Federal income taxes
assessed in accordance with section 6203 of the Internal Revenue Code of
1986.
(C)
Demonstration of
compliance
An applicant may demonstrate compliance with this
paragraph by submitting appropriate documentation, in accordance with
regulations promulgated by the Secretary, in consultation with the Secretary of
the Treasury.
(3)
Application
period
(A)
Initial
period
Except as provided in subparagraph (B), the Secretary may
only accept applications for registered provisional immigrant status from
aliens in the United States during the 1-year period beginning on the date on
which the final rule is published in the Federal Register pursuant to paragraph
(1).
(B)
Extension
If
the Secretary determines, during the initial period described in subparagraph
(A), that additional time is required to process applications for registered
provisional immigrant status or for other good cause, the Secretary may extend
the period for accepting applications for such status for an additional 18
months.
(4)
Application
form
(A)
Required
information
The application form referred to in paragraph (1)
shall collect such information as the Secretary determines necessary and
appropriate.
(B)
Family
application
The Secretary shall establish a process through which
an alien may submit a single application under this section on behalf of the
alien, his or her spouse, and his or her children, who are residing in the
United States.
(C)
Interview
The
Secretary may interview applicants for registered provisional immigrant status
under this section to determine whether they meet the eligibility requirements
set forth in subsection (b).
(5)
Aliens
apprehended before or during the application period
If an alien
who is apprehended during the period beginning on the date of the enactment of
the Border Security, Economic Opportunity,
and Immigration Modernization Act and the end of the application
period described in paragraph (3) appears prima facie eligible for registered
provisional immigrant status, to the satisfaction of the Secretary, the
Secretary—
(A) shall provide the
alien with a reasonable opportunity to file an application under this section
during such application period; and
(B) may not remove the
individual until a final administrative determination is made on the
application.
(6)
Eligibility
after departure
(A)
In
general
An alien who departed from the United States while
subject to an order of exclusion, deportation, or removal, or pursuant to an
order of voluntary departure and who is outside of the United States, or who
has reentered the United States illegally after December 31, 2011 without
receiving the Secretary's consent to reapply for admission under section
212(a)(9), shall not be eligible to file an application for registered
provisional immigrant status.
(B)
Waiver
The
Secretary, in the Secretary's sole and unreviewable discretion, may waive the
application of subparagraph (A) on behalf of an alien if the alien—
(i) is the spouse or
child of a United States citizen or lawful permanent resident;
(ii) is the parent of
a child who is a United States citizen or lawful permanent resident;
(iii) meets the
requirements set forth in clause (ii) and (iii) of section 245D(b)(1)(A);
or
(iv) meets the
requirements set forth in section 245D(b)(1)(A)(ii), is 16 years or older on
the date on which the alien applies for registered provisional immigrant
status, and was physically present in the United States for an aggregate period
of not less than 3 years during the 6-year period immediately preceding the
date of the enactment of the Border Security,
Economic Opportunity, and Immigration Modernization Act.
(C)
Eligibility
Notwithstanding
subsection (b)(2), section 241(a)(5), or a prior order of exclusion,
deportation, or removal, an alien described in subparagraph (B) who is
otherwise eligible for registered provisional immigrant status may file an
application for such status.
(7)
Suspension of
removal during application period
(A)
Protection from
detention or removal
A registered provisional immigrant may not
be detained by the Secretary or removed from the United States, unless—
(i) the Secretary
determines that—
(I) such alien is, or
has become, ineligible for registered provisional immigrant status under
subsection (b)(3); or
(II) the alien's
registered provisional immigrant status has been revoked under subsection
(d)(2).
(B)
Aliens in
removal proceedings
Notwithstanding any other provision of this
Act—
(i) if the Secretary
determines that an alien, during the period beginning on the date of the
enactment of this section and ending on the last day of the application period
described in paragraph (3), is in removal, deportation, or exclusion
proceedings before the Executive Office for Immigration Review and is prima
facie eligible for registered provisional immigrant status under this
section—
(I) the Secretary
shall provide the alien with the opportunity to file an application for such
status; and
(II) upon motion by
the Secretary and with the consent of the alien or upon motion by the alien,
the Executive Office for Immigration Review shall—
(aa) terminate such
proceedings without prejudice to future proceedings on any basis; and
(bb) provide the alien
a reasonable opportunity to apply for such status; and
(ii) if the Executive
Office for Immigration Review determines that an alien, during the application
period described in paragraph (3), is in removal, deportation, or exclusion
proceedings before the Executive Office for Immigration Review and is prima
facie eligible for registered provisional immigrant status under this
section—
(I) the Executive
Office of Immigration Review shall notify the Secretary of such determination;
and
(II) if the Secretary
does not dispute the determination of prima facie eligibility within 7 days
after such notification, the Executive Office for Immigration Review, upon
consent of the alien, shall—
(aa) terminate such
proceedings without prejudice to future proceedings on any basis; and
(bb) permit the alien
a reasonable opportunity to apply for such status.
(C)
Treatment of
certain aliens
(i)
In
general
If an alien who meets the eligibility requirements set
forth in subsection (b) is present in the United States and has been ordered
excluded, deported, or removed, or ordered to depart voluntarily from the
United States under any provision of this Act—
(I) notwithstanding
such order or section 241(a)(5), the alien may apply for registered provisional
immigrant status under this section; and
(II) if the alien is
granted such status, the alien shall file a motion to reopen the exclusion,
deportation, removal, or voluntary departure order, which motion shall be
granted unless 1 or more of the grounds of ineligibility is established by
clear and convincing evidence.
(ii)
Limitations on
motions to reopen
The limitations on motions to reopen set forth
in section 240(c)(7) shall not apply to motions filed under clause
(i)(II).
(D)
Period pending
adjudication of application
(i)
In
general
During the period beginning on the date on which an alien
applies for registered provisional immigrant status under paragraph (1) and the
date on which the Secretary makes a final decision regarding such application,
the alien—
(I) may receive
advance parole to reenter the United States if urgent humanitarian
circumstances compel such travel;
(II) may not be
detained by the Secretary or removed from the United States unless the
Secretary makes a prima facie determination that such alien is, or has become,
ineligible for registered provisional immigrant status under subsection
(b)(3);
(III) shall not be
considered unlawfully present for purposes of section 212(a)(9)(B); and
(IV) shall not be
considered an unauthorized alien (as defined in section 274A(h)(3)).
(ii)
Evidence of
application filing
As soon as practicable after receiving each
application for registered provisional immigrant status, the Secretary shall
provide the applicant with a document acknowledging the receipt of such
application.
(iii)
Continuing
employment
An employer who knows that an alien employee is an
applicant for registered provisional immigrant status or will apply for such
status once the application period commences is not in violation of section
274A(a)(2) if the employer continues to employ the alien pending the
adjudication of the alien employee's application.
(iv)
Effect of
departure
Section 101(g) shall not apply to an alien
granted—
(I) advance parole
under clause (i)(I) to reenter the United States; or
(II) registered
provisional immigrant status.
(8)
Security and law
enforcement clearances
(A)
Biometric and
biographic data
The Secretary may not grant registered
provisional immigrant status to an alien or an alien dependent spouse or child
under this section unless such alien submits biometric and biographic data in
accordance with procedures established by the Secretary.
(B)
Alternative
procedures
The Secretary shall provide an alternative procedure
for applicants who cannot provide the standard biometric data required under
subparagraph (A) because of a physical impairment.
(C)
Clearances
(i)
Data
collection
The Secretary shall collect, from each alien applying
for status under this section, biometric, biographic, and other data that the
Secretary determines to be appropriate—
(I) to conduct
national security and law enforcement clearances; and
(II) to determine
whether there are any national security or law enforcement factors that would
render an alien ineligible for such status.
(ii)
Prerequisite
The
required clearances described in clause (i)(I) shall be completed before the
alien may be granted registered provisional immigrant status.
(9)
Duration of
status and extension
(A)
In
general
The initial period of authorized admission for a
registered provisional immigrant—
(i) shall remain valid
for 6 years unless revoked pursuant to subsection (d)(2); and
(ii) may be extended
for additional 6-year terms if—
(I) the alien remains
eligible for registered provisional immigrant status;
(II) the alien meets
the employment requirements set forth in subparagraph (B); and
(III) such status was
not revoked by the Secretary for any reason.
(B)
Employment or
education requirement
Except as provided in subparagraphs (D) and
(E) of section 245C(b)(3), an alien may not be granted an extension of
registered provisional immigrant status under this paragraph unless the alien
establishes that, during the alien's period of status as a registered
provisional immigrant, the alien—
(i)
(I) was regularly employed
throughout the period of admission as a registered provisional immigrant,
allowing for brief periods lasting not more than 60 days; and
(II) is not likely to
become a public charge (as determined under section 212(a)(4)); or
(ii) is able to
demonstrate average income or resources that are not less than 100 percent of
the Federal poverty level throughout the period of admission as a registered
provisional immigrant.
(C)
Payment of
taxes
An applicant may not be granted an extension of registered
provisional immigrant status under subparagraph (A)(ii) unless the applicant
has satisfied any applicable Federal tax liability in accordance with paragraph
(2).
(10)
Fees and
penalties
(A)
Standard
processing fee
(i)
In
general
Aliens who are 16 years of age or older and are applying
for registered provisional immigrant status under paragraph (1), or for an
extension of such status under paragraph (9)(A)(ii), shall pay a processing fee
to the Department of Homeland Security in an amount determined by the
Secretary.
(ii)
Recovery of
costs
The processing fee authorized under clause (i) shall be set
at a level that is sufficient to recover the full costs of processing the
application, including any costs incurred—
(I) to adjudicate the
application;
(II) to take and
process biometrics;
(III) to perform
national security and criminal checks, including adjudication;
(IV) to prevent and
investigate fraud; and
(V) to administer the
collection of such fee.
(iii)
Authority to
limit fees
The Secretary, by regulation, may—
(I) limit the maximum
processing fee payable under this subparagraph by a family, including spouses
and unmarried children younger than 21 years of age; and
(II) exempt defined
classes of individuals, including individuals described in section 245B(c)(13),
from the payment of the fee authorized under clause (i).
(B)
Deposit and use
of processing fees
Fees collected under subparagraph
(A)(i)—
(i) shall be deposited
into the Comprehensive Immigration Reform Trust Fund established under section
6(a)(1) of the Border Security, Economic
Opportunity, and Immigration Modernization Act; and
(ii) may be used for
the purposes set forth in section 6(a)(3)(B) of such Act.
(C)
Penalty
(i)
Payment
In
addition to the processing fee required under subparagraph (A), aliens not
described in section 245D who are 21 years of age or older and are filing an
application under this subsection shall pay a $1,000 penalty to the Department
of Homeland Security.
(ii)
Installments
The
Secretary shall establish a process for collecting payments required under
clause (i) that—
(I) requires the alien
to pay $500 in conjunction with the submission of an application under this
subsection for registered provisional immigrant status; and
(II) allows the
remaining $500 to be paid in periodic installments that shall be completed
before the alien may be granted an extension of status under paragraph
(9)(A)(ii).
(iii)
Deposit
Penalties
collected pursuant to this subparagraph shall be deposited into the
Comprehensive Immigration Reform Trust Fund established under section 6(a)(1)
of the Border Security, Economic Opportunity,
and Immigration Modernization Act.
(11)
Adjudication
(A)
Failure to
submit sufficient evidence
The Secretary shall deny an
application submitted by an alien who fails to submit—
(i) requested initial
evidence, including requested biometric data; or
(ii) any requested
additional evidence by the date required by the Secretary.
(B)
Amended
application
An alien whose application for registered provisional
immigrant status is denied under subparagraph (A) may file an amended
application for such status to the Secretary if the amended application—
(i) is filed within
the application period described in paragraph (3); and
(ii) contains all the
required information and fees that were missing from the initial
application.
(12)
Evidence of
registered provisional immigrant status
(A)
In
general
The Secretary shall issue documentary evidence of
registered provisional immigrant status to each alien whose application for
such status has been approved.
(B)
Documentation
features
Documentary evidence provided under subparagraph
(A)—
(i) shall be
machine-readable and tamper-resistant, and shall contain a digitized
photograph;
(ii) shall, during the
alien’s authorized period of admission, and any extension of such authorized
admission, serve as a valid travel and entry document for the purpose of
applying for admission to the United States;
(iii) may be accepted
during the period of its validity by an employer as evidence of employment
authorization and identity under section 274A(b)(1)(B);
(iv) shall indicate
that the alien is authorized to work in the United States for up to 3 years;
and
(v) shall include such
other features and information as may be prescribed by the Secretary.
(13)
Daca
recipients
Unless the Secretary determines that an alien who was
granted Deferred Action for Childhood Arrivals (referred to in this paragraph
as DACA) pursuant to the Secretary’s memorandum of June 15,
2012, has engaged in conduct since the alien was granted DACA that would make
the alien ineligible for registered provisional immigrant status, the Secretary
may grant such status to the alien if renewed national security and law
enforcement clearances have been completed on behalf of the alien.
(d)
Terms and
conditions of registered provisional immigrant status
(1)
Conditions of
registered provisional immigrant status
(A)
Employment
Notwithstanding
any other provision of law, including section 241(a)(7), a registered
provisional immigrant shall be authorized to be employed in the United States
while in such status.
(B)
Travel outside
the united states
A registered provisional immigrant may travel
outside of the United States and may be admitted, if otherwise admissible, upon
returning to the United States without having to obtain a visa if—
(i) the alien is in
possession of—
(I) valid, unexpired
documentary evidence of registered provisional immigrant status that complies
with subsection (c)(12); or
(II) a travel
document, duly approved by the Secretary, that was issued to the alien after
the alien's original documentary evidence was lost, stolen, or
destroyed;
(ii) the alien's
absence from the United States did not exceed 180 days, unless the alien's
failure to timely return was due to extenuating circumstances beyond the
alien's control;
(iii) the alien meets
the requirements for an extension as described in subclauses (I) and (III) of
paragraph (9)(A); and
(iv) the alien
establishes that the alien is not inadmissible under subparagraph (A)(i),
(A)(iii), (B), or (C) of section 212(a)(3).
(C)
Admission
An
alien granted registered provisional immigrant status under this section shall
be considered to have been admitted and lawfully present in the United States
in such status as of the date on which the alien’s application was
filed.
(D)
Clarification of
status
An alien granted registered provisional immigrant
status—
(i) is lawfully
admitted to the United States; and
(ii) may not be
classified as a nonimmigrant or as an alien who has been lawfully admitted for
permanent residence.
(2)
Revocation
(A)
In
general
The Secretary may revoke the status of a registered
provisional immigrant at any time after providing appropriate notice to the
alien, and after the exhaustion or waiver of all applicable administrative
review procedures under section 245E(c), if the alien—
(i) no longer meets
the eligibility requirements set forth in subsection (b);
(ii) knowingly used
documentation issued under this section for an unlawful or fraudulent purpose;
or
(iii) was absent from
the United States—
(I) for any single
period longer than 180 days in violation of the requirements set forth in
paragraph (1)(B)(ii); or
(II) for more than 180
days in the aggregate during any calendar year, unless the alien's failure to
timely return was due to extenuating circumstances beyond the alien's
control.
(B)
Additional
evidence
In determining whether to revoke an alien's status under
subparagraph (A), the Secretary may require the alien—
(i) to submit
additional evidence; or
(ii) to appear for an
interview.
(C)
Invalidation of
documentation
If an alien’s registered provisional immigrant
status is revoked under subparagraph (A), any documentation issued by the
Secretary to such alien under subsection (c)(12) shall automatically be
rendered invalid for any purpose except for departure from the United
States.
(3)
Ineligibility
for public benefits
An alien who has been granted registered
provisional immigrant status under this section is not eligible for any Federal
means-tested public benefit (as such term is defined in section 403 of the
Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (8
U.S.C. 1613)).
(4)
Treatment of
registered provisional immigrants
A noncitizen granted registered
provisional immigrant status under this section shall be considered lawfully
present in the United States for all purposes while such noncitizen remains in
such status, except that the noncitizen—
(A) is not entitled to
the premium assistance tax credit authorized under section 36B of the Internal
Revenue Code of 1986;
(B) shall be subject
to the rules applicable to individuals not lawfully present that are set forth
in subsection (e) of such section; and
(C) shall be subject
to the rules applicable to individuals not lawfully present that are set forth
in section 1402(e) of the Patient Protection and Affordable Care Act (42 U.S.C.
18071).
(5)
Assignment of
social security number
(A)
In
general
The Commissioner of Social Security, in coordination with
the Secretary, shall implement a system to allow for the assignment of a Social
Security number and the issuance of a Social Security card to each alien who
has been granted registered provisional immigrant status under this
section.
(B)
Use of
information
The Secretary shall provide the Commissioner of
Social Security with information from the applications filed by aliens granted
registered provisional immigrant status under this section and such other
information as the Commissioner determines to be necessary to assign a Social
Security account number to such aliens. The Commissioner may use information
received from the Secretary under this subparagraph to assign Social Security
account numbers to such aliens and to administer the programs of the Social
Security Administration. The Commissioner may maintain, use, and disclose such
information only as permitted under section 552a of title 5, United States Code
(commonly known as the Privacy Act of 1974) and other applicable Federal
laws.
(e)
Dissemination of information on registered
provisional immigrant program
As soon as practicable after the date of
the enactment of the Border Security,
Economic Opportunity, and Immigration Modernization Act, the
Secretary, in cooperation with entities approved by the Secretary, and in
accordance with a plan adopted by the Secretary, shall broadly disseminate, in
the most common languages spoken by aliens who would qualify for registered
provisional immigrant status under this section, to television, radio, print,
and social media to which such aliens would likely have access—
(1) the procedures for applying for such
status;
(2) the terms and conditions of such status;
and
(3) the eligibility requirements for such
status.
.
(b)
Enlistment in
the armed forces
Section 504(b)(1) of title 10, United States
Code, is amended by adding at the end the following:
(D) An alien who has
been granted registered provisional immigrant status under section 245B of the
Immigration and Nationality
Act.
.
2102.
Adjustment of
status of registered provisional immigrants
(a)
In
general
Chapter 5 of title II
(8 U.S.C. 1255 et seq.) is amended by inserting after section 245B, as added by
section 2101 of this title, the following:
245C.
Adjustment of status of registered
provisional immigrants
(a)
In
general
Subject to section 245E(d) and section 2302(c)(3) of the
Border Security, Economic Opportunity, and
Immigration Modernization Act, the Secretary of Homeland Security
(referred to in this section as the Secretary) may adjust the
status of a registered provisional immigrant to that of an alien lawfully
admitted for permanent residence if the registered provisional immigrant
satisfies the eligibility requirements set forth in subsection (b).
(b)
Eligibility
requirements
(1)
Registered
provisional immigrant status
(A)
In
general
The alien was granted registered provisional immigrant
status under section 245B and remains eligible for such status.
(B)
Continuous
physical presence
The alien establishes, to the satisfaction of
the Secretary, that the alien was not continuously absent from the United
States for more than 180 days in any calendar year during the period of
admission as a registered provisional immigrant, unless the alien's absence was
due to extenuating circumstances beyond the alien's control.
(C)
Maintenance of
waivers of admissibility
The grounds of inadmissibility set forth
in section 212(a) that were previously waived for the alien or made
inapplicable under section 245B(b) shall not apply for purposes of the alien’s
adjustment of status under this section.
(D)
Pending
revocation proceedings
If the Secretary has notified the
applicant that the Secretary intends to revoke the applicant’s registered
provisional immigrant status under section 245B(d)(2)(A), the Secretary may not
approve an application for adjustment of status under this section unless the
Secretary makes a final determination not to revoke the applicant’s
status.
(2)
Payment of
taxes
(A)
In
general
An applicant may not file an application for adjustment
of status under this section unless the applicant has satisfied any applicable
Federal tax liability.
(B)
Definition of
applicable federal tax liability
In subparagraph (A), the term
applicable Federal tax liability means all assessed Federal income
taxes since the date on which the applicant was authorized to work in the
United States as a registered provisional immigrant under section
245B(a).
(C)
Compliance
The
applicant may demonstrate compliance with subparagraph (A) by submitting such
documentation as the Secretary, in consultation with the Secretary of the
Treasury, may require by regulation.
(3)
Employment or
education requirement
(A)
In
general
Except as provided in subparagraphs (D) and (E), an alien
applying for adjustment of status under this section shall establish that,
during his or her period of status as a registered provisional immigrant, he or
she—
(i)
(I) was regularly employed
throughout the period of admission as a registered provisional immigrant,
allowing for brief periods lasting not more than 60 days; and
(II) is not likely to
become a public charge (as determined under section 212(a)(4)); or
(ii) can demonstrate
average income or resources that are not less than 125 percent of the Federal
poverty level throughout the period of admission as a registered provisional
immigrant.
(B)
Evidence of
employment
(i)
Documents
An
alien may satisfy the employment requirement under subparagraph (A)(i) by
submitting, to the Secretary, records that—
(I) establish, by the
preponderance of the evidence, compliance with such employment requirement;
and
(II) have been
maintained by the Social Security Administration, the Internal Revenue Service,
or any other Federal, State, or local government agency.
(ii)
Other
documents
An alien who is unable to submit the records described
in clause (i) may satisfy the employment or education requirement under
subparagraph (A) by submitting to the Secretary at least 2 types of reliable
documents not described in clause (i) that provide evidence of employment or
education, including—
(I) bank
records;
(II) business
records;
(III) employer
records;
(IV) records of a
labor union, day labor center, or organization that assists workers in
employment;
(V) sworn affidavits
from nonrelatives who have direct knowledge of the alien's work or education,
that contain—
(aa) the name,
address, and telephone number of the affiant;
(bb) the nature and
duration of the relationship between the affiant and the alien; and
(cc) other
verification or information;
(VI) remittance
records; and
(VII) school records
from institutions described in subparagraph (D).
(iii)
Additional
documents and restrictions
The Secretary may—
(I) designate
additional documents that may be used to establish compliance with the
requirement under subparagraph (A); and
(II) set such terms
and conditions on the use of affidavits as may be necessary to verify and
confirm the identity of any affiant or to otherwise prevent fraudulent
submissions.
(C)
Satisfaction of
employment requirement
An alien may not be required to satisfy
the employment requirements under this section with a single employer.
(D)
Education
permitted
An alien may satisfy the requirement under subparagraph
(A), in whole or in part, by providing evidence of full-time attendance
at—
(i) an institution of
higher education (as defined in section 102(a) of the Higher Education Act of
1965 (20 U.S.C. 1002(a)));
(ii) a secondary
school (as defined in section 9101 of the Elementary and Secondary Education
Act of 1965 (20 U.S.C. 7801));
(iii) an education,
literacy, or career training program (including vocational training) that is
designed to lead to placement in postsecondary education, job training, or
employment through which the alien is working toward such placement; or
(iv) an education
program assisting students either in obtaining a regular high school diploma or
its recognized equivalent under state law (including a certificate of
completion, certificate of attendance, or alternate award), or in passing a
General Educational Development exam or other equivalent State-authorized
exam.
(E)
Authorization of
exceptions and waivers
(i)
Exceptions based
on age or disability
The employment and education requirements
under this paragraph shall not apply to any alien who —
(I) is younger than 21
years of age on the date on which the alien files an application for the first
extension of the initial period of authorized admission as a registered
provisional immigrant;
(II) is at least 60
years of age on the date on which the alien files an application described in
subclause (II) or at least 65 years of age on the date on which the alien's
status is adjusted under this section; or
(III) has a physical
or mental disability (as defined in section 3(2) of the Americans with
Disabilities Act of 1990 (42 U.S.C. 12102(2))) or as a result of pregnancy if
such condition is evidenced by the submission of documentation prescribed by
the Secretary.
(ii)
Family
exceptions
The employment and education requirements under this
paragraph shall not apply to any alien who is a dependent registered
provisional immigrant under subsection (b)(5).
(iii)
Temporary
exceptions
The employment and education requirements under this
paragraph shall not apply during any period during which the alien—
(I) was on medical
leave, maternity leave, or other employment leave authorized by Federal law,
State law, or the policy of the employer;
(II) is or was the
primary caretaker of a child or another person who requires supervision or is
unable to care for himself or herself; or
(III) was unable to
work due to circumstances outside the control of the alien.
(iv)
Waiver
The
Secretary may waive the employment or education requirements under this
paragraph with respect to any individual alien who demonstrates extreme
hardship to himself or herself or to a spouse, parent, or child who is a United
States citizen or lawful permanent resident.
(4)
English
skills
(A)
In
general
Except as provided under subparagraph (C), a registered
provisional immigrant who is 16 years of age or older shall establish that he
or she—
(i) meets the
requirements set forth in section 312; or
(ii) is satisfactorily
pursuing a course of study, pursuant to standards established by the Secretary
of Education, in consultation with the Secretary, to achieve an understanding
of English and knowledge and understanding of the history and Government of the
United States, as described in section 312(a).
(B)
Relation to
naturalization examination
A registered provisional immigrant who
demonstrates that he or she meets the requirements set forth in section 312 may
be considered to have satisfied such requirements for purposes of becoming
naturalized as a citizen of the United States.
(C)
Exceptions
(i)
Mandatory
Subparagraph
(A) shall not apply to any person who is unable to comply with the requirements
under that subparagraph because of a physical or developmental disability or
mental impairment.
(ii)
Discretionary
The
Secretary may waive all or part of subparagraph (A) for a registered
provisional immigrant who is 70 years of age or older on the date on which an
application is filed for adjustment of status under this section.
(5)
Military
selective service
The alien shall provide proof of registration
under the Military Selective Service Act (50 U.S.C. App. 451 et seq.) if the
alien is subject to such registration.
(c)
Application
procedures
(1)
In
general
Beginning on the date described in paragraph (2), a
registered provisional immigrant, or a registered provisional immigrant
dependent, who meets the eligibility requirements set forth in subsection (b)
may apply for adjustment of status to that of an alien lawfully admitted for
permanent residence by submitting an application to the Secretary that includes
the evidence required, by regulation, to demonstrate the applicant's
eligibility for such adjustment.
(2)
Back of the
line
The status of a registered provisional immigrant may not be
adjusted to that of an alien lawfully admitted for permanent residence under
this section until after the Secretary of State certifies that immigrant visas
have become available for all approved petitions for immigrant visas that were
filed under sections 201 and 203 before the date of the enactment of the
Border Security, Economic Opportunity, and
Immigration Modernization Act.
(3)
Interview
The
Secretary may interview applicants for adjustment of status under this section
to determine whether they meet the eligibility requirements set forth in
subsection (b).
(4)
Security and law
enforcement clearances
The Secretary may not adjust the status of
a registered provisional immigrant under this section until renewed national
security and law enforcement clearances have been completed with respect to the
registered provisional immigrant, to the satisfaction of the Secretary.
(5)
Fees and
penalties
(A)
Processing
fees
(i)
In
general
The Secretary shall impose a processing fee on applicants
for adjustment of status under this section at a level sufficient to recover
the full cost of processing such applications, including costs associated
with—
(I) adjudicating the
applications;
(II) taking and
processing biometrics;
(III) performing
national security and criminal checks, including adjudication;
(IV) preventing and
investigating fraud; and
(V) the administration
of the fees collected.
(ii)
Authority to
limit fees
The Secretary, by regulation, may—
(I) limit the maximum
processing fee payable under this subparagraph by a family, including spouses
and children; and
(II) exempt other
defined classes of individuals from the payment of the fee authorized under
clause (i).
(iii)
Deposit and
use of fees
Fees collected under this subparagraph—
(I) shall be deposited
into the Comprehensive Immigration Reform Trust Fund established under section
6(a)(1) of the Border Security, Economic
Opportunity, and Immigration Modernization Act; and
(II) may be used for
the purposes set forth in section 6(a)(3)(B) of such Act.
(B)
Penalties
(i)
In
general
In addition to the processing fee required under
subparagraph (A) and the penalty required under section 245B(c)(6)(D), an alien
who was 21 years of age or older on the date on which the
Border Security, Economic Opportunity, and
Immigration Modernization Act was originally introduced in the
Senate and is filing an application for adjustment of status under this section
shall pay a $1,000 penalty to the Secretary unless the alien meets the
requirements under section 245D(b).
(ii)
Installments
The
Secretary shall establish a process for collecting payments required under
clause (i) through periodic installments.
(iii)
Deposit,
allocation, and spending of penalties
Penalties collected under
this subparagraph—
(I) shall be deposited
into the Comprehensive Immigration Trust Fund established under section 6(a)(1)
of the Border Security, Economic Opportunity,
and Immigration Modernization Act; and
(II) may be used for
the purposes set forth in section 6(a)(3)(B) of such
Act.
.
(b)
Limitation on
registered provisional immigrants
An alien admitted as a
registered provisional immigrant may only adjust status to an alien lawfully
admitted for permanent resident status under section 2302 of this Act.
(c)
Naturalization
Section
319 (8 U.S.C. 1430) is amended—
(1) in the section
heading, by striking and
employees of certain nonprofit organizations and
inserting , employees of
certain nonprofit organizations, and other long-term lawful
residents; and
(2) by adding at the
end the following:
(f) Any 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 upon compliance with all the requirements
under this title except the provisions of section 316(a)(1) if such person,
immediately preceding the date on which the person filed an application for
naturalization—
(1) has resided
continuously within the United States, after being lawfully admitted for
permanent residence, for at least 3 years;
(2) during the 3-year
period immediately preceding such filing date, has been physically present in
the United States for periods totaling at least 50 percent of such period;
and
(3) has resided within
the State or in the jurisdiction of the U.S. Citizenship and Immigration
Services field office in the United States in which the applicant filed such
application for at least 3
months.
.
2103.
The DREAM
Act
(a)
Short
title
This section may be
cited as the Development, Relief, and
Education for Alien Minors Act of 2013 or the
DREAM Act
2013.
(b)
Adjustment of
status for certain aliens who entered the United States as
children
Chapter 5 of title II (8 U.S.C. 1255 et seq.) is amended
by inserting after section 245C, as added by section 2102 of this title, the
following:
245D.
Adjustment of
status for certain aliens who entered the United States as children
(a)
Definitions
In this section:
(1)
Institution of
higher education
The term institution of higher
education has the meaning given such term in section 102 of the Higher
Education Act of 1965 (20 U.S.C. 1002), except that the term does not include
institutions described in subsection (a)(1)(C) of such section.
(2)
Secretary
The
term Secretary means the Secretary of Homeland Security.
(3)
Uniformed
services
The term Uniformed Services has the meaning
given the term uniformed services in section 101(a)(5) of title
10, United States Code.
(b)
Adjustment of
status for certain aliens who entered the united states as children
(1)
Requirements
(A)
In
general
The Secretary of Homeland Security may adjust the status
of a registered provisional immigrant to the status of a lawful permanent
resident if the immigrant demonstrates that he or she—
(i) has been a
registered provisional immigrant for at least 5 years;
(ii) was younger than
16 years of age on the date on which the alien initially entered the United
States;
(iii) has earned a
high school diploma or obtained a general education development certificate in
the United States;
(iv)
(I) has acquired a degree
from an institution of higher education or has completed at least 2 years, in
good standing, in a program for a bachelor's degree or higher degree in the
United States; or
(II) has served in the
Uniformed Services for at least 4 years and, if discharged, received an
honorable discharge; and
(v) has provided a
list of each secondary school (as that term is defined in section 9101 of the
Elementary and Secondary Education Act of 1965 (20 U.S.C. 7801)) that the alien
attended in the United States.
(B)
Hardship
exception
(i)
In
general
The Secretary may adjust the status of a registered
provisional immigrant to the status of a lawful permanent resident if the
alien—
(I) satisfies the
requirements under clauses (i), (ii), (iii), and (v) of subparagraph (A);
and
(II) demonstrates
compelling circumstances for the inability to satisfy the requirement under
subparagraph (A)(iv).
(C)
Citizenship
requirement
(i)
In
general
Except as provided in clause (ii), the Secretary may not
adjust the status of an alien to lawful permanent resident status under this
section unless the alien demonstrates that the alien satisfies the requirements
of section 312(a) of the Immigration and Nationality Act (8 U.S.C.
1423(a)).
(ii)
Exception
Clause
(i) shall not apply to an alien whose physical or developmental disability or
mental impairment prevents the alien from meeting the requirements such
section.
(D)
Submission of
biometric and biographic data
The Secretary may not adjust the
status of an alien to lawful permanent resident status unless the alien—
(i) submits biometric
and biographic data, in accordance with procedures established by the
Secretary; or
(ii) complies with an
alternative procedure prescribed by the Secretary, if the alien is unable to
provide such biometric data because of a physical impairment.
(E)
Background
checks
(i)
Requirement for
background checks
The Secretary shall utilize biometric,
biographic, and other data that the Secretary determines appropriate—
(I) to conduct
security and law enforcement background checks of an alien applying for lawful
permanent resident status under this section; and
(II) to determine
whether there is any criminal, national security, or other factor that would
render the alien ineligible for such status.
(ii)
Completion of
background checks
The Secretary may not adjust an alien's status
to the status of a lawful permanent resident under this subsection until the
security and law enforcement background checks required under clause (i) have
been completed with respect to the alien, to the satisfaction of the
Secretary.
(2)
Application for
lawful permanent resident status
(A)
In
general
A registered provisional immigrant seeking lawful
permanent resident status shall file an application for such status in such
manner as the Secretary of Homeland Security may require.
(B)
Adjudication
(i)
In
general
The Secretary shall evaluate each application filed by a
registered provisional immigrant under this paragraph to determine whether the
alien meets the requirements under paragraph (1).
(ii)
Adjustment of
status if favorable determination
If the Secretary determines
that the alien meets the requirements under paragraph (1), the Secretary shall
notify the alien of such determination and adjust the status of the alien to
lawful permanent resident status, effective as of the date of such
determination.
(iii)
Adverse
determination
If the Secretary determines that the alien does not
meet the requirements under paragraph (1), the Secretary shall notify the alien
of such determination.
(C)
Daca
recipients
The Secretary may adopt streamlined procedures for
applicants for adjustment to lawful permanent resident status under this
section who were granted Deferred Action for Childhood Arrivals (referred to in
this paragraph as DACA) pursuant to the Secretary’s memorandum
of June 15, 2012.
(3)
Treatment for
purposes of naturalization
(A)
In
general
An alien granted lawful permanent resident status under
this subsection shall be considered, for purposes of title III—
(i) to have been
lawfully admitted for permanent residence; and
(ii) to have been in
the United States as an alien lawfully admitted to the United States for
permanent residence during the period the alien was a registered provisional
immigrant.
(B)
Limitation on
application for naturalization
An alien may not apply for
naturalization while the alien is a registered provisional
immigrant..
.
(c)
Exemption from
numerical limitations
Section 201(b) (8 U.S.C. 1151(b)(1)) is
amended—
(1) by redesignating
subparagraph (E) as subparagraph (F); and
(2) by inserting after
subparagraph (D) the following:
(E) Aliens whose
status is adjusted to permanent resident status under section 245C or
245D.
.
(d)
Restoration of
State option To determine residency for purposes of higher education
(1)
Repeal
Section
505 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996
(8 U.S.C. 1623) is repealed.
(2)
Effective
date
The repeal under paragraph (1) shall take effect as if
included in the original enactment of the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (division C of Public Law 104–208).
2104.
Additional
requirements
(a)
In
general
Chapter 5 of title II
(8 U.S.C. 1255 et seq.) is amended by inserting after section 245C, as added by
section 2102 of this title, the following:
245E.
Additional
requirements relating to registered provisional immigrants and others
(a)
Disclosures
(1)
Prohibited
disclosures
Except as otherwise provided in this subsection, no
officer or employee of any Federal agency may—
(A) use the
information furnished in an application for lawful status under section 245B,
245C, or 245D for any purpose other than to make a determination on any
application by the alien for any immigration benefit or protection;
(B) make any
publication through which information furnished by any particular applicant can
be identified; or
(C) permit anyone
other than the sworn officers, employees, and contractors of such agency or of
another entity approved by the Secretary of Homeland Security to examine
individual applications that have been filed under either such section.
(2)
Required
disclosures
The Secretary shall provide the information furnished
in an application filed under section 245B, 245C, or 245D and any other
information derived from such furnished information to—
(A) a law enforcement
agency, intelligence agency, national security agency, component of the
Department of Homeland Security, court, or grand jury if such information is
requested by such entity, consistent with law, in connection with—
(i) a criminal
investigation or prosecution of any matter not related to the applicant’s
immigration status; or
(ii) a national
security investigation or prosecution; and
(B) an official
coroner for purposes of affirmatively identifying a deceased individual,
whether or not the death of such individual resulted from a crime.
(3)
Auditing and
evaluation of information
The Secretary may—
(A) audit and evaluate
information furnished as part of any application filed under section 245B,
245C, or 245D for purposes of identifying immigration fraud or fraud schemes;
and
(B) use any evidence
detected by means of audits and evaluations for purposes of investigating,
prosecuting, referring for prosecution, or denying or terminating immigration
benefits.
(b)
Employer
protections
(1)
Use of
employment records
Copies of employment records or other evidence
of employment provided by an alien or by an alien's employer in support of an
alien's application for registered provisional immigrant status under section
245B may not be used in a civil or criminal prosecution or investigation of
that employer under section 274A or the Internal Revenue Code of 1986 for the
prior unlawful employment of that alien regardless of the adjudication of such
application or reconsideration by the Secretary of Homeland Security of such
alien's prima facie eligibility determination. Employers that provide
unauthorized aliens with copies of employment records or other evidence of
employment pursuant to an application for registered provisional immigrant
status shall not be subject to civil and criminal liability pursuant to section
274A for employing such unauthorized aliens.
(2)
Limit on
applicability
The protections for employers and aliens under
paragraph (1) shall not apply if the aliens or employers submit employment
records that are deemed to be fraudulent.
(c)
Administrative
review
(1)
Exclusive
administrative review
Administrative review of a determination
respecting an application for status under section 245B, 245C, or 245D shall be
conducted solely in accordance with this subsection.
(2)
Administrative
appellate review
(A)
Establishment of
administrative appellate authority
The Secretary of Homeland
Security shall establish or designate an appellate authority to provide for a
single level of administrative appellate review of a determination with respect
to applications for, or revocation of, status under sections 245B, 245C, and
245D.
(B)
Single appeal
for each administrative decision
(i)
In
general
An alien in the United States whose application for
status under section 245B, 245C, or 245D has been denied or revoked may file
with the Secretary not more than 1 appeal of each decision to deny or revoke
such status.
(ii)
Notice of
appeal
A notice of appeal filed under this subparagraph shall be
filed not later than 90 days after the date of service of the decision of
denial or revocation, unless the delay was reasonably justifiable.
(C)
Review by
Secretary
Nothing in this paragraph may be construed to limit the
authority of the Secretary to certify appeals for review and final
administrative decision.
(D)
Denial of
petitions for dependents
Appeals of a decision to deny or revoke
a petition filed by a registered provisional immigrant pursuant to regulations
promulgated under section 245B to classify a spouse or child of such alien as a
registered provisional immigrant shall be subject to the administrative
appellate authority described in subparagraph (A).
(E)
Stay of
removal
Aliens seeking administrative review shall not be removed
from the United States until a final decision is rendered establishing
ineligibility for status under section 245B, 245C, or 245D.
(3)
Record for
review
Administrative appellate review under paragraph (2) shall
be de novo and based solely upon—
(A) the administrative
record established at the time of the determination on the application;
and
(B) any additional
newly discovered or previously unavailable evidence.
(4)
Unlawful
presence
During the period in which an alien may request
administrative review under this subsection, and during the period that any
such review is pending, the alien shall not be considered unlawfully
present in the United States for purposes of section
212(a)(9)(B).
(d)
Privacy and
civil liberties
(1)
In
general
The Secretary, in accordance with subsection (a)(1),
shall require appropriate administrative and physical safeguards to protect the
security, confidentiality, and integrity of personally identifiable information
collected, maintained, and disseminated pursuant to sections 245B, 245C, and
245D.
(2)
Assessments
Notwithstanding
the privacy requirements set forth in section 222 of the Homeland Security Act
(6 U.S.C. 142) and the E-Government Act of 2002 (Public Law 107–347), the
Secretary shall conduct a privacy impact assessment and a civil liberties
impact assessment of the legalization program established under sections 245B,
245C, and 245D during the pendency of the interim final regulations required to
be issued under section 2110 of the Border
Security, Economic Opportunity, and Immigration Modernization
Act.
.
(b)
Judicial
review
Section 242 (8 U.S.C.
1252) is amended—
(1) in subsection (a)(2)—
(A) in subparagraph (B), by inserting
the exercise of discretion arising under after no court
shall have jurisdiction to review;
(B) in subparagraph
(D), by striking raised upon a petition for review filed with an
appropriate court of appeals in accordance with this section;
(2) in subsection
(b)(2), by inserting or, in the case of a decision rendered under
section 245E(c), in the judicial circuit in which the petitioner
resides after proceedings; and
(3) by adding at the
end the following:
(h)
Judicial review
of eligibility determinations relating to status under chapter 5
(1)
Direct
review
If an alien's application under section 245B, 245C, or
245D is denied, or is revoked after the exhaustion of administrative appellate
review under section 245E(c), the alien may seek review of such decision, in
accordance with chapter 7 of title 5, United States Code, before the United
States district court for the district in which the person resides.
(2)
Status during
review
While a review described in paragraph (1) is
pending—
(A) the alien shall
not be deemed to accrue unlawful presence for purposes of section
212(a)(9);
(B) any unexpired
grant of voluntary departure under section 240B shall be tolled; and
(C) the court shall
have the discretion to stay the execution of any order of exclusion,
deportation, or removal.
(3)
Review after
removal proceedings
An alien may seek judicial review of a denial
or revocation of approval of the alien's application under section 245B, 245C,
or 245D in the appropriate United States court of appeal 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 under
paragraph (1).
(4)
Standard for
judicial review
(A)
Basis
Judicial
review of a denial, or revocation of an approval, of an application under
section 245B, 245C, or 245D shall be based upon the administrative record
established at the time of the review.
(B)
Authority to
remand
The reviewing court may remand a case under this
subsection to the Secretary of Homeland Security for consideration of
additional evidence if the court finds that—
(i) the additional
evidence is material; and
(ii) there were
reasonable grounds for failure to adduce the additional evidence before the
Secretary.
(C)
Scope of
review
Notwithstanding any other provision of law, judicial
review of all questions arising from a denial, or revocation of an approval, of
an application under section 245B, 245C, or 245D shall be governed by the
standard of review set forth in section 706 of title 5, United States
Code.
(5)
Remedial
powers
(A)
Jurisdiction
Notwithstanding
any other provision of law, the United States district courts shall have
jurisdiction over any cause or claim arising from a pattern or practice of the
Secretary of Homeland Security in the operation or implementation of the
Border Security, Economic Opportunity, and
Immigration Modernization Act, or the amendments made by such
Act, that is arbitrary, capricious, or otherwise contrary to law.
(B)
Scope of
relief
The United States district courts may order any
appropriate relief in a clause or claim described in subparagraph (A) without
regard to exhaustion, ripeness, or other standing requirements (other than
constitutionally-mandated requirements), if the court determines that—
(i) the resolution of
such cause or claim will serve judicial and administrative efficiency;
or
(ii) a remedy would
otherwise not be reasonably available or practicable.
(6)
Challenges to
the validity of the system
(A)
In
general
Except as provided in paragraph (5), any claim that
section 245B, 245C, 245D, or 245E or any regulation, written policy, or written
directive, issued or unwritten policy or practice initiated by or under the
authority of the Secretary of Homeland Security to implement such sections,
violates the Constitution of the United States or is otherwise in violation of
law is available exclusively in an action instituted in United States District
Court in accordance with the procedures prescribed in this paragraph.
(B)
Savings
provision
Except as provided in subparagraph (C), nothing in
subparagraph (A) may be construed to preclude an applicant under 245B, 245C, or
245D from asserting that an action taken or a decision made by the Secretary
with respect to the applicant's status was contrary to law.
(C)
Class
actions
Any claim described in subparagraph (A) that is brought
as a class action shall be brought in conformity with—
(i) the Class Action
Fairness Act of 2005 (Public Law 109–2); and
(ii) the Federal Rules
of Civil Procedure.
(D)
Preclusive
effect
The final disposition of any claim brought under
subparagraph (A) shall be preclusive of any such claim asserted by the same
individual in a subsequent proceeding under this subsection.
(E)
Exhaustion and
stay of proceedings
(i)
In
general
No claim brought under this paragraph shall require the
plaintiff to exhaust administrative remedies under section 245E(c).
(ii)
Stay
authorized
Nothing in this paragraph may be construed to prevent
the court from staying proceedings under this paragraph to permit the Secretary
to evaluate an allegation of an unwritten policy or practice or to take
corrective action. In determining whether to issue such a stay, the court shall
take into account any harm the stay may cause to the
claimant.
.
(c)
Rule of
construction
Section 244(h) shall not limit the authority of the
Secretary to adjust the status of an alien under section 245C or 245D of the
Immigration and Nationality Act, as added by this subtitle.
(d)
Effect of
failure to register on eligibility for immigration
benefits
Failure to comply with section 264.1(f) of title 8, Code
of Federal Regulations or with removal orders or voluntary departure agreements
based on such section for acts committed before the date of the enactment of
this Act shall not affect the eligibility of an alien to apply for a benefit
under the Immigration and Nationality Act (8 U.S.C. 1101 et seq.).
(e)
Clerical
amendment
The table of contents is amended by inserting after the
item relating to section 245A the following:
Sec. 245B. Adjustment of status of
eligible entrants before December 31, 2011, to that of registered provisional
immigrant.
Sec. 245C. Adjustment of status of
registered provisional immigrants.
Sec. 245D. Adjustment of status for
certain aliens who entered the United States as children.
Sec. 245E. Additional requirements
relating to registered provisional immigrants and
others.
.
2105.
Criminal
penalty
(a)
In
general
Chapter 69 of title
18, United States Code, is amended by adding at the end the following:
1430.
Improper use
of information relating to registered provisional immigrant
applications
Any person who
knowingly uses, publishes, or permits information described in section 245E(a)
of the Immigration and Nationality Act to be examined in violation of such
section shall be fined not more than
$10,000.
.
(b)
Deposit of
fines
All criminal penalties collected under section 1430 of
title 18, United States Code, as added by subsection (a), shall be deposited
into the Comprehensive Immigration Reform Trust Fund established under section
6(a)(1).
(c)
Clerical
amendment
The table of sections in chapter 69 of title 18, United
States Code, is amended by adding at the end the following:
1430. Improper use of information
relating to registered provisional immigrant
applications.
.
2106.
Grant program
to assist eligible applicants
(a)
Establishment
The
Secretary may establish, within U.S. Citizenship and Immigration Services, a
program to award grants, on a competitive basis, to eligible public or private
nonprofit organizations that will use the funding to assist eligible applicants
under section 245B, 245C, or 245D of the Immigration and Nationality Act by
providing them with the services described in subsection (c).
(b)
Eligible public
or private non-profit organization
The term eligible public
or private nonprofit means a nonprofit, tax-exempt organization,
including a community, faith-based or other immigrant-serving organization,
whose staff has demonstrated qualifications, experience, and expertise in
providing quality services to immigrants, refugees, persons granted asylum, or
persons applying for such statuses.
(c)
Use of
funds
Grant funds awarded under this section may be used for the
design and implementation of programs that provide—
(1) information to the
public regarding the eligibility and benefits of registered provisional
immigrant status authorized under section 245B of the Immigration and
Nationality Act, particularly individuals potentially eligible for such
status;
(2) assistance, within
the scope of authorized practice of immigration law, to individuals submitting
applications for registered provisional immigrant status, including—
(A) screening
prospective applicants to assess their eligibility for such status;
(B) completing
applications and petitions, including providing assistance in obtaining the
requisite documents and supporting evidence;
(C) applying for any
waivers for which applicants and qualifying family members may be eligible;
and
(D) providing any
other assistance that the Secretary or grantees consider useful or necessary to
apply for registered provisional immigrant status;
(3) assistance, within
the scope of authorized practice of immigration law, to individuals seeking to
adjust their status to that of an alien admitted for permanent residence under
section 245C of the Immigration and Nationality Act; and
(4) assistance, within
the scope of authorized practice of immigration law, and instruction, to
individuals—
(A) on the rights and
responsibilities of United States citizenship;
(B) in civics and
civics-based English as a second language; and
(C) in applying for
United States citizenship.
(d)
Source of grant
funds
(1)
Application
fees
The Secretary may use up to $50,000,000 from the
Comprehensive Immigration Reform Trust Fund established under section 6(a)(1)
to carry out this section.
(2)
Authorization of
appropriations
(A)
Amounts
authorized
In addition to the amounts made available under
paragraph (1), there are authorized to be appropriated such sums as may be
necessary for each of the fiscal years 2014 through 2018 to carry out this
section.
(B)
Availability
Any
amounts appropriated pursuant to subparagraph (A) shall remain available until
expended.
2107.
Conforming
amendments to the Social Security Act
(a)
Correction of
Social Security records
(1)
In
general
Section 208(e)(1) of the Social Security Act (42 U.S.C.
408(e)(1)) is amended—
(A) in subparagraph
(B)(ii), by striking or at the end;
(B) in subparagraph
(C), by striking the comma at the end and inserting a semicolon;
(C) by inserting after
subparagraph (C) the following:
(D) who is granted
status as a registered provisional immigrant under section 245B or 245D of the
Immigration and Nationality Act; or
(E) whose status is
adjusted to that of lawful permanent resident under section 245C of the
Immigration and Nationality Act,
;
and
(D) in the
undesignated matter at the end, by inserting , or in the case of an
alien described in subparagraph (D) or (E), if such conduct is alleged to have
occurred before the date on which the alien submitted an application under
section 245B of such Act for classification as a registered provisional
immigrant before the period at the end.
(2)
Effective
date
The amendments made by paragraph (1) shall take effect on
the first day of the tenth month that begins after the date of the enactment of
this Act.
(b)
State discretion
regarding termination of parental rights
(1)
In
general
A compelling reason
for a State not to file (or to join in the filing of) a petition to terminate
parental rights under section 475(5)(E) of the Social Security Act (42 U.S.C.
675(5)(E)) shall include—
(A) the removal of the parent from the United
States; or
(B) the involvement of the parent in (including
detention pursuant to) an immigration proceeding, unless the parent is unfit or
unwilling to be a parent of the child.
(2)
Conditions
Before a State may file to terminate the
parental rights under such section 475(5)(E)—
(A) the State (or the county or other political
subdivision of the State, as applicable) shall make reasonable efforts—
(i) to identify, locate, and contact, through
the diplomatic or consular offices of the country to which the parent was
removed or in which a parent or relative resides—
(I) any parent of the child who has been
removed from the United States; and
(II) if possible, any potential adult relative
of the child (as described in section 471(a)(29));
(ii) to notify such parent or relative of the
intent of the State (or the county or other political subdivision of the State,
as applicable) to file (or to join in the filing of) a petition referred to in
paragraph (1); or
(iii) to reunify the child with any such parent
or relative; and
(B) appropriate services have been provided
(and documented) to the parent or relative.
(3)
Conforming
amendment
Section 475(5)(E)(ii) of the Social Security Act (42
U.S.C. 675(5)(E)) is amended by inserting , including the reason set
forth in section 2107(b)(1) of the Border
Security, Economic Opportunity, and Immigration Modernization
Act after child.
(c)
Children
separated from parents and caregivers
(1)
State plan for
foster care and adoption assistance
Section 471(a) of the Social
Security Act (42 U.S.C. 671(a)) is amended—
(A) by amending
paragraph (19) to read as follows:
(19) provides that the
State shall consider giving preference to an adult relative over a nonrelated
caregiver when determining a placement for a child if—
(A) the relative
caregiver meets all relevant State child protection standards; and
(B) the standards
referred to in subparagraph (A) ensure that the immigration status alone of a
parent, legal guardian, or relative shall not disqualify the parent, legal
guardian, or relative from being a placement for a
child;
;
and
(B) in paragraph (32),
by striking and at the end;
(C) in paragraph (33),
by striking the period at the end and inserting ; and;
and
(D) by adding at the
end the following:
(34) provides that the
State shall—
(A) ensure that the
case manager for a separated child is capable of communicating in the native
language of such child and of the family of such child, or an interpreter who
is so capable is provided to communicate with such child and the family of such
child at no cost to the child or to the family of such child;
(B) coordinate with
the Department of Homeland Security to ensure that parents who wish for their
child to accompany them to their country of origin are given adequate time and
assistance to obtain a passport and visa, and to collect all relevant vital
documents, such as birth certificate, health, and educational records and other
information;
(C) coordinate with
State agencies regarding alternate documentation requirements for a criminal
records check or a fingerprint-based check for a caregiver that does not have
Federal or State-issued identification;
(D) preserve, to the
greatest extent possible, the privacy and confidentiality of all information
gathered in the course of administering the care, custody, and placement of,
and follow up services provided to, a separated child, consistent with the best
interest of such child, by not disclosing such information to other government
agencies or persons (other than a parent, guardian, or relative caregiver or
such child), except that the head of the State agency may disclose such
information, after placing a written record of the disclosure in the file of
the child—
(i) to a consular
official for the purpose of reunification of a child with a parent, legal
guardian, or relative caregiver who has been removed or is involved in an
immigration proceeding, unless the child has refused contact with, or the
sharing of personal or identifying information with, the government of his or
her country of origin;
(ii) when authorized
to do so by the child (if the child has attained 18 years of age) if the
disclosure is consistent with the best interest of the child; or
(iii) to a law
enforcement agency if the disclosure would prevent imminent and serious harm to
another individual; and
(E) not less
frequently than annually, compile, update, and publish a list of entities in
the State that are qualified to provide guardian and legal representation
services for a separated child, in a language such that a child can read and
understand.
.
(2)
Additional
information to be included in case plan
Section 475 of such Act
(42 U.S.C. 675) is amended—
(A) in paragraph (1),
by adding at the end the following:
(H) In the case of a
separated child with respect to whom the State plan requires the State to
provide services under section 471(a)(34)—
(i) the location of
the parent, guardian, or relative described in paragraph (9)(A) from whom the
child has been separated; and
(ii) a written record
of each disclosure to a government agency or person (other than such a parent,
guardian, or relative) of information gathered in the course of tracking the
care, custody, and placement of, and follow-up services provided to, the
child.
;
and
(B) by adding at the
end the following:
(9) The term
separated child means an individual who—
(A) has a parent,
legal guardian, or primary caregiver who has been—
(i) detained by a
Federal, State, or local law enforcement agency in the enforcement of an
immigration law; or
(ii) removed from the
United States as a result of a violation of such a law; and
(B) is in foster care
under the responsibility of a
State.
.
(3)
Effective
date
The amendments made by this subsection shall take effect on
the 1st day of the 1st calendar quarter that begins after the 1-year period
that begins on the date of the enactment of this Act.
2108.
Government
contracting and acquisition of real property interest
(a)
Exemption from
government contracting and hiring rules
(1)
In
general
A determination by a Federal agency to use a procurement
competition exemption under section 253(c) of title 41, United States Code, or
to use the authority granted in paragraph (2), for the purpose of implementing
this title and the amendments made by this title is not subject to challenge by
protest to the Government Accountability Office under sections 3551 and 3556 of
title 31, United States Code, or to the Court of Federal Claims, under section
1491 of title 28, United States Code. An agency shall immediately advise the
Congress of the exercise of the authority granted under this paragraph.
(2)
Government
contracting exemption
The competition requirement under section
253(a) of title 41, United States Code, 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—
(A) determines that
the waiver or modification is necessary; and
(B) submits an
explanation for such determination to the Committee on Homeland Security and Governmental Affairs
of the Senate and the Committee on Homeland Security of the House of
Representatives.
(3)
Hiring rules
exemption
Notwithstanding any other provision of law, 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. Nothing in chapter 71 of title 5, United States Code, shall affect
the authority of any Department of Homeland Security management official to
hire term, temporary limited or part-time employees under this
paragraph.
(b)
Authority to
waive annuity limitations
Section 824(g)(2)(B) of the Foreign
Service Act of 1980 (22 U.S.C. 4064(g)(2)(B)) is amended by striking
2009 and inserting 2017.
(c)
Authority to
acquire leaseholds
Notwithstanding any other provision of law,
the Secretary of Homeland Security may acquire a leasehold interest in real
property, and may provide in a lease entered into under this subsection for the
construction or modification of any facility on the leased property, if the
Secretary determines that the acquisition of such interest, and such
construction or modification, are necessary in order to facilitate the
implementation of this title and the amendments made by this title.
2109.
Long-term legal
residents of the Commonwealth of the Northern Mariana Islands
Section (6)(e) of the Joint Resolution
entitled A Joint Resolution to approve the Covenant to Establish
a Commonwealth of the Northern Mariana Islands in Political Union with the
United States of America, and for other purposes, approved
March 24, 1976 (48 U.S.C. 1806(e)), as added by section 702 of the Consolidated
Natural Resources Act of 2008 (Public Law 110–229; 122 Stat. 854), is amended
by adding at the end the following:
(6)
Special
provision regarding long-term residents of the commonwealth
(A)
CNMI-only
resident status
Notwithstanding paragraph (1), an alien described
in subparagraph (B) may, upon the application of the alien, be admitted as an
immigrant to the Commonwealth subject to the following rules:
(i) The alien shall be
treated as an immigrant lawfully admitted for permanent residence in the
Commonwealth only, including permitting entry to and exit from the
Commonwealth, until the earlier of the date on which—
(I) the alien ceases
to permanently reside in the Commonwealth; or
(II) the alien’s
status is adjusted under this paragraph or section 245 of the Immigration and
Nationality Act (8 U.S.C. 1255) to that of an alien lawfully admitted for
permanent residence in accordance with all applicable eligibility
requirements.
(ii) The Secretary of
Homeland Security shall establish a process for such aliens to apply for
CNMI-only permanent resident status during the 90-day period beginning on the
first day of the sixth month after the date of the enactment of this
paragraph.
(iii) Nothing in this
subparagraph may be construed to provide any alien status under this
subparagraph with public assistance to which the alien is not otherwise
entitled.
(B)
Aliens
described
An alien is described in this subparagraph if the
alien—
(i) is lawfully
present in the Commonwealth under the immigration laws of the United
States;
(ii) is otherwise
admissible to the United States under the Immigration and Nationality Act (8
U.S.C. 1101 et seq.);
(iii) resided
continuously and lawfully in the Commonwealth from November 28, 2009, through
the date of the enactment of this paragraph;
(iv) is not a citizen
of the Republic of the Marshall Islands, the Federated States of Micronesia, or
the Republic of Palau; and
(v)
(I) was born in the
Northern Mariana Islands between January 1, 1974 and January 9, 1978;
(II) was, on May 8,
2008, and continues to be as of the date of the enactment of this paragraph, a
permanent resident (as defined in section 4303 of title 3 of the Northern
Mariana Islands Commonwealth Code, in effect on May 8, 2008);
(III) is the spouse or
child (as defined in section 101(b)(1) of the Immigration and Nationality Act
(8 U.S.C. 1101(b)(1))), of an alien described in subclauses (I) or (II);
(IV) was, on May 8,
2008, an immediate relative (as defined in section 4303 of title 3 of the
Northern Mariana Islands Commonwealth Code, in effect on May 8, 2008, of a
United States citizen, notwithstanding the age of the United States citizen,
and continues to be such an immediate relative on the date of the application
described in subparagraph (A);
(V) resided in the
Northern Mariana Islands as a guest worker under Commonwealth immigration law
for at least 5 years before May 8, 2008 and is presently resident under CW-1
status; or
(VI) is the spouse or
child (as defined in section 101(b)(1) of the Immigration and Nationality Act
(8 U.S.C. 1101(b)(1))), of the alien guest worker described in subclause (V)
and is presently resident under CW-2 status.
(C)
Adjustment for
long term and permanent residents
Beginning on the date that is 5
years after the date of the enactment of the Border Security, Economic Opportunity, and Immigration
Modernization Act, an alien described in subparagraph (B) may
apply to receive an immigrant visa or to adjust his or her status to that of an
alien lawfully admitted for permanent
residence.
.
2110.
Rulemaking
(a)
In
general
Not later than 1 year
after the date of the enactment of this Act, the Secretary, the Attorney
General, and the Secretary of State separately shall issue interim final
regulations to implement this subtitle and the amendments made by this
subtitle, which shall take effect immediately upon publication in the Federal
Register.
(b)
Application
procedures; processing fees; documentation
The interim final
regulations issued under subsection (a) shall include—
(1) the procedures by
which an alien, and the dependent spouse and children of such alien may apply
for status under section 245B of the Immigration and Nationality Act, as added
by section 2101 of this Act, as a registered provisional immigrant or a
registered provisional immigrant dependent, as applicable, including the
evidence required to demonstrate eligibility for such status or to be included
in each application for such status;
(2) the criteria to be
used by the Secretary to determine—
(A) the maximum
processing fee payable under sections 245B(c)(10)(B) and 245C(c)(5)(A) of such
Act by a family, including spouses and unmarried children younger than 21 years
of age; and
(B) which individuals
will be exempt from such fees;
(3) the documentation
required to be submitted by the applicant to demonstrate compliance with
section 245C(b)(3) of such Act; and
(4) the procedures for
a registered provisional immigrant to apply for adjustment of status under
section 245C or 245D of such Act, including the evidence required to be
submitted with such application to demonstrate the applicant's eligibility for
such adjustment.
(c)
Exemption from
National Environmental Policy Act
Any decision by the Secretary concerning
any rulemaking action, plan, or program described in this section shall not be
considered to be a major Federal action subject to review under the National
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.).
2111.
Statutory
construction
Except as
specifically provided, nothing in this subtitle, or any amendment made by this
subtitle, 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.
B
Agricultural
Worker Program
2201.
Short
title
This subtitle may be
cited as the Agricultural Worker
Program Act of 2013.
2202.
Definitions
In this subtitle:
(1)
Blue card
status
The term blue card status means the status of
an alien who has been lawfully admitted into the United States for temporary
residence under section 2211.
(2)
Agricultural
employment
The term agricultural employment—
(A) subject to
subparagraph (B) has the meaning given such term in section 3 of the Migrant
and Seasonal Agricultural Worker Protection Act (29 U.S.C. 1802), without
regard to whether the specific service or activity is temporary or seasonal;
and
(B) includes farming
in all its branches, the cultivation and tillage of the soil, dairying, the
production, cultivation, growing, and harvesting of any agricultural or
horticultural commodities, the raising of livestock, bees, fur-bearing animals,
or poultry, and any practices (including any forestry or lumbering operations)
performed by a farmer or on a farm as an incident to, or in conjunction with,
such farming operations, including preparation for market, delivery to storage
or to market or to carriers for transportation to market.
(3)
Child
The
term child has the meaning given the term in section 101(b)(1) of
the Immigration and Nationality Act (8 U.S.C. 1101(b)(1)).
(4)
Employer
The
term employer means any person or entity, including any farm labor
contractor and any agricultural association, that employs workers in
agricultural employment.
(5)
Qualified
designated entity
The term qualified designated
entity means—
(A) a qualified farm
labor organization or an association of employers designated by the Secretary;
or
(B) any other entity
that the Secretary designates as having substantial experience, demonstrated
competence, and a history of long-term involvement in the preparation and
submission of application for adjustment of status under title II of the
Immigration and Nationality Act (8 U.S.C. 1151 et seq.).
(6)
Work
day
The term work day means any day in which the
individual is employed 5.75 or more hours in agricultural employment.
1
Program for earned
status adjustment of agricultural workers
A
Blue card
status
2211.
Requirements
for blue card status
(a)
Requirements for
blue card status
Notwithstanding any other provision of law, the
Secretary, after conducting the national security and law enforcement
clearances required under section 245B(c)(4), may grant blue card status to an
alien who—
(1)
(A) performed agricultural
employment in the United States for not fewer than 575 hours or 100 work days
during the 2-year period ending on December 31, 2012; or
(B) is the spouse or
child of an alien described in paragraph (1);
(2) submits a
completed application before the end of the period set forth in subsection
(b)(2); and
(3) is not ineligible
under paragraph (3) or (4) of section 245B(b) of the Immigration and
Nationality Act.
(b)
Application
(1)
In
general
An alien who meets the eligibility requirements set forth
in subsection (a)(1), may apply for blue card status and that alien’s spouse or
child may apply for agricultural worker status as a dependent, by submitting a
completed application form to the Secretary during the application period set
forth in paragraph (2) in accordance with the final rule promulgated by the
Secretary pursuant to subsection (f).
(2)
Application
period
(A)
Initial
period
Except as provided in subparagraph (B), the Secretary may
only accept applications for blue card status from aliens in the United States
during the 1-year period beginning on the date on which the final rule is
published in the Federal Register pursuant to subsection (f).
(B)
Extension
If
the Secretary determines, during the initial period described in subparagraph
(A), that additional time is required to process applications for blue card
status or for other good cause, the Secretary may extend the period for
accepting applications for an additional 18 months.
(3)
Application
form
(A)
Required
information
The application form referred to in paragraph (1)
shall collect such information as the Secretary determines necessary and
appropriate.
(B)
Family
application
The Secretary shall establish a process through which
an alien may submit a single application under this section on behalf of the
alien, his or her spouse, and his or her children, who are residing in the
United States.
(C)
Interview
The
Secretary may interview applicants for blue card status to determine whether
they meet the eligibility requirements set forth in subsection (a)(1).
(4)
Aliens
apprehended before or during the application period
If an alien,
who is apprehended during the period beginning on the date of the enactment of
this Act and ending on the application period described in paragraph (2),
appears prima facie eligible for blue card status, the Secretary—
(A) shall provide the
alien with a reasonable opportunity to file an application under this section
during such application period; and
(B) may not remove the
individual until a final administrative determination is made on the
application.
(5)
Suspension of
removal during application period
(A)
Protection from
detention or removal
An alien granted blue card status may not be
detained by the Secretary or removed from the United States unless—
(i) such alien is, or
has become, ineligible for blue card status under subsection (a)(1)(C);
or
(ii) the alien’s blue
card status has been revoked under subsection (2).
(B)
Aliens in
removal proceedings
Notwithstanding any other provision of the
Immigration and Nationality Act (8 U.S.C. 1101 et seq.)—
(i) if the Secretary
determines that an alien, during the period beginning on the date of the
enactment of this section and ending on the last day of the application period
described in paragraph (2), is in removal, deportation, or exclusion
proceedings before the Executive Office for Immigration Review and is prima
facie eligible for blue card status under this section—
(I) the Secretary
shall provide the alien with the opportunity to file an application for such
status; and
(II) upon motion by
the Secretary and with the consent of the alien or upon motion by the alien,
the Executive Office for Immigration Review shall—
(aa) terminate such
proceedings without prejudice to future proceedings on any basis; and
(bb) provide the alien
a reasonable opportunity to apply for such status; and
(ii) if the Executive
Office for Immigration Review determines that an alien, during the application
period described in paragraph (2), is in removal, deportation, or exclusion
proceedings before the Executive Office for Immigration Review and is prima
facie eligible for blue card status under this section—
(I) the Executive
Office of Immigration Review shall notify the Secretary of such determination;
and
(II) if the Secretary
does not dispute the determination of prima facie eligibility within 7 days
after such notification, the Executive Office for Immigration Review, upon
consent of the alien, shall—
(aa) terminate such
proceedings without prejudice to future proceedings on any basis; and
(bb) permit the alien
a reasonable opportunity to apply for such status.
(C)
Treatment of
certain aliens
(i)
In
general
If an alien who meets the eligibility requirements set
forth in subsection (a) is present in the United States and has been ordered
excluded, deported, or removed, or ordered to depart voluntarily from the
United States under any provision of this Act—
(I) notwithstanding
such order or section 241(a)(5) of the Immigration and Nationality Act (8
U.S.C. 1231(a)(5)), the alien may apply for blue card status under this
section; and
(II) if the alien is
granted such status, the alien shall file a motion to reopen the exclusion,
deportation, removal, or voluntary departure order, which motion shall be
granted unless 1 or more of the grounds of ineligibility is established by
clear and convincing evidence.
(ii)
Limitations on
motions to reopen
The limitations on motions to reopen set forth
in section 240(c)(7) of the Immigration and Nationality Act (8 U.S.C.
1229a(c)(7)) shall not apply to motions filed under clause (i)(II).
(D)
Period pending
adjudication of application
(i)
In
general
During the period beginning on the date on which an alien
applies for blue card status under paragraph (1) and the date on which the
Secretary makes a final decision regarding such application, the alien—
(I) may receive
advance parole to reenter the United States if urgent humanitarian
circumstances compel such travel;
(II) may not be
detained by the Secretary or removed from the United States unless the
Secretary makes a prima facie determination that such alien is, or has become,
ineligible for blue card status under subsection (a)(1)(c);
(III) shall not be
considered unlawfully present for purposes of section 212(a)(9)(B) of the
Immigration and Nationality Act (8 U.S.C. 1182(a)(9)(B)); and
(IV) shall not be
considered an unauthorized alien (as defined in section 274A(h)(3) of the
Immigration and Nationality Act (8 U.S.C. 1324a(h)(3))).
(ii)
Evidence of
application filing
As soon as practicable after receiving each
application for blue card status, the Secretary shall provide the applicant
with a document acknowledging the receipt of such application.
(iii)
Continuing
employment
An employer who knows an alien employee is an
applicant for blue card status or will apply for such status once the
application period commences is not in violation of section 274A(a)(2) of the
Immigration and Nationality Act (8 U.S.C. 1324a(a)(2)) if the employer
continues to employ the alien pending the adjudication of the alien employee's
application.
(iv)
Effect of
departure
Section 101(g) of the Immigration and Nationality Act
(8 U.S.C. 1101(g)) shall not apply to an alien granted—
(I) advance parole
under clause (i)(I) to reenter the United States; or
(II) blue card
status.
(6)
Security and law
enforcement clearances
(A)
Biometric and
biographic data
The Secretary may not grant blue card status to
an alien or an alien dependent spouse or child under this section unless such
alien submits biometric and biographic data in accordance with procedures
established by the Secretary.
(B)
Alternative
procedures
The Secretary shall provide an alternative procedure
for applicants who cannot provide the standard biometric data required under
subparagraph (A) because of a physical impairment.
(C)
Clearances
(i)
Data
collection
The Secretary shall collect, from each alien applying
for status under this section, biometric, biographic, and other data that the
Secretary determines to be appropriate—
(I) to conduct
national security and law enforcement clearances; and
(II) to determine
whether there are any national security or law enforcement factors that would
render an alien ineligible for such status.
(ii)
Prerequisite
The
required clearances described in clause (i)(I) shall be completed before the
alien may be granted blue card status.
(7)
Duration of
status and extension
(A)
In
general
After the date that is 8 years after the date regulations
are published under this section, no alien may remain in blue card
status.
(B)
Extension
An
extension of blue card status may not be granted by the Secretary until renewed
national security and law enforcement clearances have been completed with
respect to the applicant, to the satisfaction of the Secretary.
(8)
Fees and
penalties
(A)
Standard
processing fee
(i)
In
general
Aliens who are 16 years of age or older and are applying
for blue card status under paragraph (2), or for an extension of such status,
shall pay a processing fee to the Department of Homeland Security in an amount
determined by the Secretary.
(ii)
Recovery of
costs
The processing fee authorized under clause (i) shall be set
at a level that is sufficient to recover the full costs of processing the
application, including any costs incurred—
(I) to adjudicate the
application;
(II) to take and
process biometrics;
(III) to perform
national security and criminal checks, including adjudication;
(IV) to prevent and
investigate fraud; and
(V) to administer the
collection of such fee.
(iii)
Authority to
limit fees
The Secretary, by regulation, may—
(I) limit the maximum
processing fee payable under this subparagraph by a family, including spouses
and unmarried children younger than 21 years of age; and
(II) exempt defined
classes of individuals from the payment of the fee authorized under clause
(i).
(B)
Deposit and use
of processing fees
Fees collected pursuant to subparagraph
(A)(i)—
(i) shall be deposited
into the Comprehensive Immigration Reform Trust Fund established under section
6(a)(1);
(ii) may be used for
the purposes set forth in section 6(a)(3)(B).
(C)
Penalty
(i)
Payment
In
addition to the processing fee required under subparagraph (A), aliens who are
21 years of age or older and are applying for blue card status under paragraph
(2) shall pay a $100 penalty to the Department.
(ii)
Deposit
Penalties
collected pursuant to clause (i) shall be deposited into the Comprehensive
Immigration Reform Trust Fund established under section 6(a)(1).
(9)
Adjudication
(A)
Failure to
submit sufficient evidence
The Secretary shall deny an
application submitted by an alien who fails to submit—
(i) requested initial
evidence, including requested biometric data; or
(ii) any requested
additional evidence by the date required by the Secretary.
(B)
Amended
application
An alien whose application for blue card status is
denied under subparagraph (A) may file an amended application for such status
to the Secretary if the amended application—
(i) is filed within
the application period described in paragraph (2); and
(ii) contains all the
required information and fees that were missing from the initial
application.
(10)
Evidence of
blue card status
(A)
In
general
The Secretary shall issue documentary evidence of blue
card status to each alien whose application for such status has been
approved.
(B)
Documentation
features
Documentary evidence provided under subparagraph
(A)—
(i) shall be
machine-readable and tamper-resistant, and shall contain a digitized
photograph;
(ii) shall, during the
alien’s authorized period of admission, and any extension of such authorized
admission, serve as a valid travel and entry document for the purpose of
applying for admission to the United States;
(iii) may be accepted
during the period of its validity by an employer as evidence of employment
authorization and identity under section 274A(b)(1)(B) of the Immigration and
Nationality Act (8 U.S.C. 1324a(b)(1)(B)); and
(iv) shall include
such other features and information as the Secretary may prescribe.
(c)
Terms and
conditions of blue card status
(1)
Conditions of
blue card status
(A)
Employment
Notwithstanding
any other provision of law, including section 241(a)(7) of the Immigration and
Nationality Act (8 U.S.C. 1231(a)(7)), an alien with blue card status shall be
authorized to be employed in the United States while in such status.
(B)
Travel outside
the united states
An alien with blue card status may travel
outside of the United States and may be admitted, if otherwise admissible, upon
returning to the United States without having to obtain a visa if—
(i) the alien is in
possession of—
(I) valid, unexpired
documentary evidence of blue card status that complies with subsection (b)(11);
or
(II) a travel document
that has been approved by the Secretary and was issued to the alien after the
alien’s original documentary evidence was lost, stolen, or destroyed;
(ii) the alien’s
absence from the United States did not exceed 180 days, unless the alien’s
failure to timely return was due to extenuating circumstances beyond the
alien’s control; and
(iii) the alien
establishes that the alien is not inadmissible under subparagraph (A)(i),
(A)(iii), (B), or (C) of section 212(a)(3) of the Immigration and Nationality
Act (8 U.S.C. 1182(a)(3)).
(C)
Admission
An
alien granted blue card status shall be considered to have been admitted in
such status as of the date on which the alien’s application was filed.
(D)
Clarification of
status
An alien granted blue card status—
(i) is lawfully
admitted to the United States; and
(ii) may not be
classified as a nonimmigrant or as an alien who has been lawfully admitted for
permanent residence.
(2)
Revocation
(A)
In
general
The Secretary may revoke blue card status at any time
after providing appropriate notice to the alien, and after the exhaustion or
waiver of all applicable administrative review procedures under section 245E(c)
of the Immigration and Nationality Act, as added by section 2104(a) of this
Act, if the alien—
(i) no longer meets
the eligibility requirements described in subsection (a)(1)(C);
(ii) knowingly used
documentation issued under this section for an unlawful or fraudulent purpose;
or
(iii) was absent from
the United States for—
(I) any single period
longer than 180 days in violation of the requirement under paragraph
(1)(B)(ii); or
(II) for more than 180
days in the aggregate during any calendar year, unless the alien’s failure to
timely return was due to extenuating circumstances beyond the alien’s
control.
(B)
Additional
evidence
(i)
In
general
In determining whether to revoke an alien’s status under
subparagraph (A), the Secretary may require the alien—
(I) to submit
additional evidence; or
(II) to appear for an
interview.
(ii)
Effect of
noncompliance
The status of an alien who fails to comply with any
requirement imposed by the Secretary under clause (i) shall be revoked unless
the alien demonstrates to the Secretary’s satisfaction that such failure was
reasonably excusable.
(C)
Invalidation of
documentation
If an alien’s blue card status is revoked under
subparagraph (A), any documentation issued by the Secretary to such alien under
subsection (b)(11) shall automatically be rendered invalid for any purpose
except for departure from the United States.
(3)
Ineligibility
for public benefits
An alien who has been granted blue card
status is not eligible for any Federal means-tested public benefit (as such
term is defined in section 403 of the Personal Responsibility and Work
Opportunity Reconciliation Act of 1996 (8 U.S.C. 1613).
(4)
Treatment of
blue card status
A noncitizen granted blue card status shall be
considered lawfully present in the United States for all purposes while such
noncitizen remains in such status, except that the noncitizen—
(A) is not entitled to
the premium assistance tax credit authorized under section 36B of the Internal
Revenue Code of 1986;
(B) shall be subject
to the rules applicable to individuals who are not lawfully present set forth
in subsection (e) of such section; and
(C) shall be subject
to the rules applicable to individuals who are not lawfully present set forth
in section 1402(e) of the Patient Protection and Affordable Care Act (42 U.S.C.
18071(e)).
(5)
Adjustment to
registered provisional immigrant status
The Secretary may adjust
the status of an alien who has been granted blue card status to the status of a
registered provisional immigrant under section 245B if the Secretary determines
that the alien is unable to fulfill the agricultural service requirement set
forth in section 2212(a)(1).
(d)
Record of
employment
(1)
In
general
Each employer of an alien granted blue card status shall
annually provide—
(A) a written record
of employment to the alien; and
(B) a copy of such
record to the Secretary of Agriculture.
(2)
Civil
penalties
(A)
In
general
If the Secretary finds, after notice and an opportunity
for a hearing, that an employer of an alien granted blue card status has
knowingly failed to provide the record of employment required under paragraph
(1) or has provided a false statement of material fact in such a record, the
employer shall be subject to a civil penalty in an amount not to exceed $500
per violation.
(B)
Limitation
The
penalty under subparagraph (A) for failure to provide employment records shall
not apply unless the alien has provided the employer with evidence of
employment authorization provided under subsection (c).
(C)
Deposit of civil
penalties
Civil penalties collected under this paragraph shall be
deposited in the Comprehensive Immigration Reform Trust Fund established under
section 6(a)(1).
(3)
Termination of
obligation
The obligation under paragraph (1) shall terminate on
the date that is 8 years after the date of the enactment of this Act.
(e)
Rulemaking
Not
later than 1 year after the date of the enactment of this Act, the Secretary,
in consultation with the Secretary of Agriculture, shall issue final
regulations for granting blue card status under this section.
2212.
Adjustment to
permanent resident status
(a)
In
general
Except as provided in subsection (b), and not earlier
than 5 years after the date of the enactment of this Act, the Secretary shall
adjust the status of an alien granted blue card status to that of an alien
lawfully admitted for permanent residence if the Secretary determines that the
following requirements are satisfied:
(1)
Qualifying
employment
Except as provided in paragraph (3), the alien—
(A) during the 8-year
period beginning on the date of the enactment of this Act, performed not less
than 100 work days of agricultural employment during each of 5 years; or
(B) during the 5-year
period beginning on the date of the enactment of this Act, performed not less
than 150 work days of agricultural employment during each of 3 years.
(2)
Evidence
An
alien may demonstrate compliance with the requirement under paragraph (1) by
submitting—
(A) the record of
employment described in section 2211(e);
(B) documentation that
may be submitted under subsection (e)(5); or
(C) any other
documentation designated by the Secretary for such purpose.
(3)
Extraordinary
circumstances
(A)
In
general
In determining whether an alien has met the requirement
under paragraph (1), the Secretary may credit the alien with not more than 12
additional months of agricultural employment in the United States to meet such
requirement if the alien was unable to work in agricultural employment due
to—
(i) pregnancy,
disabling injury, or disease that the alien can establish through medical
records;
(ii) illness, disease,
or other special needs of a child that the alien can establish through medical
records;
(iii) severe weather
conditions that prevented the alien from engaging in agricultural employment
for a significant period of time; or
(iv) termination from
agricultural employment, if the Secretary determines that—
(I) the termination
was without just cause; and
(II) the alien was
unable to find alternative agricultural employment after a reasonable job
search.
(B)
Effect of
determination
A determination under subparagraph (A)(iv), with
respect to an alien, shall not be conclusive, binding, or admissible in a
separate or subsequent judicial or administrative action or proceeding between
the alien and a current or prior employer of the alien or any other
party.
(4)
Application
period
The alien applies for adjustment of status before the
alien's agricultural card status expires.
(5)
Fine
The
alien pays a fine of $400 to the Secretary, which shall be deposited into the
Comprehensive Immigration Reform Trust Fund established under section
6(a)(1).
(b)
Grounds for
denial of adjustment of status
(1)
In
general
The Secretary may not adjust the status of an alien
granted blue card status if the alien—
(A) is no longer
eligible for blue card status; or
(B) failed to perform
the qualifying employment requirement under subsection (a)(1), considering any
amount credited by the Secretary under subsection (a)(3).
(2)
Maintenance of
waivers of inadmissibility
The grounds of inadmissibility set
forth in section 212(a) of the Immigration and Nationality Act (8 U.S.C.
1182(a)) that were previously waived for the alien or made inapplicable shall
not apply for purposes of the alien’s adjustment of status under this
section.
(3)
Pending
revocation proceedings
If the Secretary has notified the
applicant that the Secretary intends to revoke the applicant’s blue card
status, the Secretary may not approve an application for adjustment of status
under this section unless the Secretary makes a final determination not to
revoke the applicant’s status.
(4)
Payment of
taxes
(A)
In
general
An applicant may not file an application for adjustment
of status under this section unless the applicant has satisfied any applicable
Federal tax liability.
(B)
Compliance
The
applicant may demonstrate compliance with subparagraph (A) by submitting such
documentation as the Secretary, in consultation with the Secretary of the
Treasury, may require by regulation.
(c)
Spouses and
children
Notwithstanding any other provision of law, the
Secretary shall grant permanent resident status to the spouse or child of an
alien whose status was adjusted under subsection (a) if—
(1) the spouse or
child applies for such status;
(2) the principal
alien includes the spouse and children in an application for adjustment of
status to that of a lawful permanent resident; and
(3) the spouse or
child is not ineligible under section 245B(b)(3).
(d)
Numerical
limitations do not apply
(1)
In
general
The numerical limitations under sections 201 and 202 of
the Immigration and Nationality Act (8 U.S.C. 1151 and 1152) shall not apply to
the adjustment of aliens to lawful permanent resident status under this
section.
(2)
Conforming
amendment
Section 201(b)(1) is amended by adding at the end the
following:
(F) Aliens granted
lawful permanent resident status under section
245B.
.
(e)
Submission of
applications
(1)
Interview
The
Secretary may interview applicants for adjustment of status under this section
to determine whether they meet the eligibility requirements set forth in this
section.
(2)
Fees
(A)
In
general
Applicants for adjustment of status under this section
shall pay a processing fee to the Secretary in an amount that will ensure the
recovery of the full costs of adjudicating such applications, including—
(i) the cost of taking
and processing biometrics;
(ii) expenses relating
to prevention and investigation of fraud; and
(iii) costs relating
to the administration of the fees collected.
(B)
Authority to
limit fees
The Secretary, by regulation—
(i) may limit the
maximum processing fee payable under this paragraph by a family, including
spouses and unmarried children younger than 21 years of age; and
(ii) may exempt
individuals described in section 245B(c)(10) of the Immigration and Nationality
Act, as added by section 2201 of this Act, and other defined classes of
individuals from the payment of the fee under subparagraph (A).
(3)
Disposition of
fees
(A)
In
general
All fees collected under paragraph (1)(A) shall be
deposited as offsetting receipts into the Comprehensive Immigration Reform
Trust Fund established under section 6(a)(1).
(B)
Use of fees for
application processing
Amounts deposited into the Comprehensive
Immigration Reform Trust Fund pursuant to subparagraph (A) shall remain
available to the Secretary until expended for processing applications for
agriculture card status or for adjustment of status under this section or
section 2211.
(4)
Documentation of
work history
(A)
Burden of
proof
An alien applying for blue card status under this section
or for adjustment of status under subsection (a) has provided evidence that the
alien has worked the requisite number of hours or days required under section
2211(a)(1) or subsection (a)(3), as applicable.
(B)
Timely
production of records
If an employer or farm labor contractor
employing such an alien has kept proper and adequate records respecting such
employment, the alien’s burden of proof under subparagraph (A) may be met by
securing timely production of those records under regulations to be promulgated
by the Secretary.
(C)
Sufficient
evidence
An alien may meet the burden of proof under subparagraph
(A) to establish that the alien has performed the days or hours of work
referred to in subparagraph (A) by producing sufficient evidence to show the
extent of that employment as a matter of just and reasonable inference.
(f)
Limitation on
access to information
Files and records collected or compiled by
a qualified designated entity for the purposes of this section are
confidential. The Secretary may not have access to such a file or record
relating to an alien without the consent of the alien, except as allowed by a
court order issued pursuant to subsection (g).
(g)
Confidentiality
of information
Except as otherwise provided in this section, the
Secretary or any other official or employee of the Department may not—
(1) use information
furnished by the applicant pursuant to an application filed under this
subtitle, the information provided by an applicant to a qualified designated
entity, or any information provided by an employer or former employer for any
purpose other than to make a determination on the application or for imposing
the penalties described in subsection (h);
(2) make any
publication in which the information furnished by any particular individual can
be identified; or
(3) permit a person
other than a sworn officer or employee of the Department or, with respect to
applications filed with a qualified designated entity, that qualified
designated entity, to examine individual applications.
(h)
Penalties for
false statements in applications
(1)
Criminal
penalty
Any person who—
(A) files an
application for blue card status under section 2211 or an adjustment of status
under this section and knowingly and willfully falsifies, conceals, or covers
up a material fact or makes any false, fictitious, or fraudulent statements or
representations, or makes or uses any false writing or document knowing the
same to contain any false, fictitious, or fraudulent statement or entry;
or
(B) creates or
supplies a false writing or document for use in making such an
application,
shall be fined in accordance with
title 18, United States Code, imprisoned not more than 5 years, or both.
(2)
Inadmissibility
An
alien who is convicted of a crime under paragraph (1) shall be deemed
inadmissible to the United States on the ground described in section
212(a)(6)(C)(i) of the Immigration and Nationality Act (8 U.S.C.
1182(a)(6)(C)(i)).
(3)
Deposit
Fines
collected under paragraph (1) shall be deposited into the Comprehensive
Immigration Reform Trust Fund established under section 6(a)(1).
(i)
Eligibility for
legal services
Section 504(a)(11) of the Departments of Commerce,
Justice, and State, the Judiciary, and Related Agencies Appropriations Act,
1996 (Public Law 104–134; 110 Stat. 1321–55) may not be construed to prevent a
recipient of funds under the Legal Services Corporation Act (42 U.S.C. 2996 et
seq.) from providing legal assistance directly related to an application for
blue card status under section 2211 or an adjustment of status under this
section.
2213.
Use of
information
Beginning not
later than the first day of the application period described in section
2211(c)(1), the Secretary, in cooperation with qualified designated entities,
shall broadly disseminate information respecting the benefits that aliens may
receive under this subchapter and the requirements that an alien is required to
meet to receive such benefits.
2214.
Reports on
blue cards
Not later than
September 30, 2013, and annually thereafter for the next 8 years, the Secretary
shall submit a report to Congress that identifies, for the previous fiscal
year—
(1) the number of
aliens who applied for blue card status;
(2) the number of
aliens who were granted blue card status;
(3) the number of
aliens who applied for an adjustment of status pursuant to section 2212(a);
and
(4) the number of
aliens who received an adjustment of status pursuant section 2212(a).
2215.
Authorization
of appropriations
There are
authorized to be appropriated to the Secretary such sums as may be necessary to
implement this subpart, including any sums needed for costs associated with the
initiation of such implementation, for fiscal years 2013 and 2014.
B
Correction of
social security records
2221.
Correction of
social security records
(a)
In
general
Section 208(e)(1) of the Social Security Act (42 U.S.C.
408(e)(1)) is amended—
(1) in subparagraph
(B)(ii), by striking or at the end;
(2) in subparagraph
(C), by inserting or at the end;
(3) by inserting after
subparagraph (C) the following:
(D) who is granted
blue card status under the Agricultural
Worker Program Act of
2013,
;
and
(4) by striking
1990. and inserting 1990, or in the case of an alien
described in subparagraph (D), if such conduct is alleged to have occurred
before the date on which the alien was granted blue card status under section
2211(a) of the Agricultural Worker Program
Act of 2013..
(b)
Effective
date
The amendments made by subsection (a) shall take effect on
the first day of the seventh month that begins after the date of the enactment
of this Act.
2
Nonimmigrant
agricultural visa program
2231.
Nonimmigrant
classification for nonimmigrant agricultural workers
Section 101(a)(15) of the Immigration and
Nationality Act (8 U.S.C. 1101(a)(15)) is amended—
(1) in subparagraph
(U), by striking or at the end;
(2) in subparagraph
(V), by striking the period at the end and inserting ; or;
and
(3) by adding at the
end the following:
(W) an alien having a
residence in a foreign country who is coming to the United States for a
temporary period—
(iii)
(I) to perform services or
labor in agricultural employment and who has a written contract that specifies
the wages, benefits, and working conditions of such full-time employment in an
agricultural occupation with a designated agricultural employer for a specified
period of time;
(II) who meets the
requirements under section 218A for a nonimmigrant visa described in this
clause; and
(III) with respect to
whom the Secretary of Agriculture has notified the Secretary of Homeland
Security and the Secretary of State that the intending employer has accepted
the terms and conditions of such employment for such a nonimmigrant; or
(iv)
(I) to perform services or
labor in agricultural employment and who has an offer of full-time employment
in an agricultural occupation from a designated agricultural employer for such
employment and is not described in clause (i);
(II) who meets the
requirements under section 218A for a nonimmigrant visa described in this
clause; and
(III) with respect to
whom the Secretary of Agriculture has notified the Secretary of Homeland
Security and the Secretary of State that the intending employer has accepted
the terms and conditions of such employment for such a
nonimmigrant.
.
2232.
Establishment
of nonimmigrant agricultural worker program
(a)
In
general
Chapter 2 of title II of the Immigration and Nationality
Act (8 U.S.C. 211 et seq.) is amended by adding at the end the
following:
218A.
Nonimmigrant
agricultural worker program
(a)
Definitions
In
this section and in section 101(a)(15)(W):
(1)
Agricultural
employment
The term agricultural employment—
(A) subject to
subparagraph (B) has the meaning given such term in section 3 of the Migrant
and Seasonal Agricultural Worker Protection Act (29 U.S.C. 1802), without
regard to whether the specific service or activity is temporary or seasonal;
and
(B) includes farming
in all its branches, the cultivation and tillage of the soil, dairying, the
production, cultivation, growing, and harvesting of any agricultural or
horticultural commodities, the raising of livestock, bees, fur-bearing animals,
or poultry, and any practices (including any forestry or lumbering operations)
performed by a farmer or on a farm as an incident to, or in conjunction with,
such farming operations, including preparation for market, delivery to storage
or to market or to carriers for transportation to market.
(2)
At-will
agricultural worker
The term at-will agricultural
worker means an alien present in the United States pursuant to section
101(a)(15)(W)(iv).
(3)
Blue
card
The term blue card means an employment
authorization and travel document issued to an alien granted blue card status
under section 2211(a) of the Agricultural Job
Opportunities, Benefits, and Security Act of 2013.
(4)
Contract
agricultural worker
The term contract agricultural
worker means an alien present in the United States pursuant to section
101(a)(15)(W)(iii).
(5)
Designated
agricultural employer
The term designated agricultural
employer means an employer who is registered with the Secretary of
Agriculture pursuant to subsection (e)(1).
(6)
Electronic job
registry
The term Electronic Job Registry means the
Electronic Job Registry of a State workforce agency (or similar successor
registry).
(7)
Employer
Except
as otherwise provided, the term employer means any person or
entity, including any farm labor contractor and any agricultural association,
that employs workers in agricultural employment.
(8)
Nonimmigrant
agricultural worker
The term nonimmigrant agricultural
worker mean a nonimmigrant described in clause (iii) or (iv) of section
101(a)(15)(W).
(9)
Program
The
term Program means the Nonimmigrant Agricultural Worker Program
established under subsection (b).
(10)
Secretary
Except
as otherwise specifically provided, the term Secretary means the
Secretary of Agriculture.
(11)
United States
worker
The term United States worker means an
individual who—
(A) is a national of
the United States; or
(B) is an alien
who—
(i) is lawfully
admitted for permanent residence;
(ii) is admitted as a
refugee under section 207;
(iii) is granted
asylum under section 208;
(iv) holds an blue
card; or
(v) is an immigrant
otherwise authorized by this Act or by the Secretary of Homeland Security to be
employed in the United States.
(b)
Requirements
(1)
Employer
An
employer may not employ an alien for agricultural employment under the Program
unless such employer is a designated agricultural employer and complies with
the terms of this section.
(2)
Worker
An
alien may not be employed for agricultural employment under the Program unless
such alien is a nonimmigrant agricultural worker and complies with the terms of
this section.
(c)
Numerical
limitation
(1)
First 5 years of
program
(A)
In
general
Subject to paragraph (2), the worldwide level of visas
for nonimmigrant agricultural workers for the fiscal year during which the
first visa is issued to a nonimmigrant agricultural worker and for each of the
following 4 fiscal years shall be equal to—
(i) 112,333;
and
(ii) the numerical
adjustment made by the Secretary for such fiscal year in accordance with
paragraph (2).
(B)
Quarterly
allocation
The annual allocation of visas described in
subparagraph (A) shall be evenly allocated between the 4 quarters of the fiscal
year unless the Secretary determines that an alternative allocation would
better accommodate the seasonal demand for visas. Any unused visas in a quarter
shall be added to the allocation for the subsequent quarter of the same fiscal
year.
(C)
Effect of 2nd or
subsequent designated agricultural employer
A nonimmigrant
agricultural worker who has a valid visa issued under this section that counted
against the allocation described in subparagraph (A) shall not be recounted
against the allocation if the worker is petitioned for by a subsequent
designated agricultural employer.
(2)
Annual
adjustments for first 5 years of program
(A)
In
general
The Secretary, after reviewing relevant evidence
submitted by agricultural producers and organizations representing agricultural
workers, may increase or decrease, as appropriate, the worldwide level of visas
under paragraph (1) for each of the 5 fiscal years referred to in paragraph (1)
based on the following factors:
(i) A demonstrated
shortage of agricultural workers.
(ii) The level of
unemployment and underemployment of agricultural workers during the preceding
fiscal year.
(iii) The number of
applications for blue card status.
(iv) The number of
blue card visa applications approved.
(v) The number of
nonimmigrant agricultural workers sought by employers during the preceding
fiscal year.
(vi) The estimated
number of United States workers, including blue card workers, who worked in
agriculture during the preceding fiscal year.
(vii) The number of
nonimmigrant agricultural workers issued a visa in the most recent fiscal year
who remain in the United States in compliance with the terms of such
visa.
(viii) The number of
United States workers who accepted jobs offered by employers using the
Electronic Job Registry during the preceding fiscal year.
(ix) Any growth or
contraction of the United States agricultural industry that has increased or
decreased the demand for agricultural workers.
(x) Any changes in the
real wages paid to agricultural workers in the United States as an indication
of a shortage or surplus of agricultural labor.
(B)
Notification;
implementation
The Secretary shall notify the Secretary of
Homeland Security of any change to the worldwide level of visas for
nonimmigrant agricultural workers. The Secretary of Homeland Security shall
implement such changes.
(C)
Emergency
procedures
The Secretary shall establish, by regulation,
procedures for immediately adjusting an annual allocation under paragraph (1)
for severe labor shortages, as determined by the Secretary.
(3)
Sixth and
subsequent years of program
The Secretary, in consultation with
the Secretary of Labor, shall establish the worldwide level of visas for
nonimmigrant agricultural workers for each fiscal year following the fiscal
years referred to in paragraph (1) after considering appropriate factors,
including—
(A) a demonstrated
shortage of agricultural workers;
(B) the level of
unemployment and underemployment of agricultural workers during the preceding
fiscal year;
(C) the number of
applications for blue card status;
(D) the number of blue
card visa applications approved;
(E) the number of
nonimmigrant agricultural workers sought by employers during the preceding
fiscal year;
(F) the estimated
number of United States workers, including blue card workers, who worked in
agriculture during the preceding fiscal year;
(G) the number of
nonimmigrant agricultural workers issued a visa in the most recent fiscal year
who remain in the United States in compliance with the terms of such
visa;
(H) the number of
United States workers who accepted jobs offered by employers using the
Electronic Job Registry during the preceding fiscal year;
(I) any growth or
contraction of the United States agricultural industry that has increased or
decreased the demand for agricultural workers; and
(J) any changes in the
real wages paid to agricultural workers in the United States as an indication
of a shortage or surplus of agricultural labor.
(d)
Requirements for
nonimmigrant agricultural workers
(1)
Eligibility for
nonimmigrant agricultural worker status
(A)
In
general
An alien is not eligible to be admitted to the United
States as a nonimmigrant agricultural worker if the alien—
(i) violated a
material term or condition of a previous admission as a nonimmigrant
agricultural worker during the most recent 3-year period (other than a contract
agricultural worker who voluntarily abandons his or her employment before the
end of the contract period or whose employment is terminated by the employer
for cause);
(ii) has not obtained
successful clearance of any security and criminal background checks required by
the Secretary of Homeland Security or any other examination required under this
Act; or
(iii)
(I) departed from the
United States while subject to an order of exclusion, deportation, or removal,
or pursuant to an order of voluntary departure; and
(II)
(aa) is outside of the
United States; or
(bb) has reentered the
United States illegally after December 31, 2012 without receiving consent to
the alien's reapplication for admission under section 212(a)(9).
(B)
Waiver
The
Secretary may waive the application of subparagraph (A)(iii) on behalf of an
alien if the alien—
(i) is the spouse or
child of a United States citizen or lawful permanent resident;
(ii) is the parent of
a child who is a United States citizen or lawful permanent resident;
(iii) meets the
requirements set forth in clause (ii) or (iii) of section 245D(b)(1)(A);
or
(iv)
(I) meets the requirements
set forth in section 245D(b)(1)(A)(ii);
(II) is 16 years or
older on the date on which the alien applies for nonimmigrant agricultural
status; and
(III) was physically
present in the United States for an aggregate period of not less than 3 years
during the 6-year period immediately preceding the date of the enactment of
this section.
(2)
Term of stay for
nonimmigrant agricultural workers
(A)
In
general
(i)
Initial
admission
A nonimmigrant agricultural worker may be admitted into
the United States in such status for an initial period of 3 years.
(ii)
Renewal
A
nonimmigrant agricultural worker may renew such worker's period of admission in
the United States for 1 additional 3-year period.
(B)
Break in
presence
A nonimmigrant agricultural worker who has been admitted
to the United States for 2 consecutive periods under subparagraph (A) is
ineligible to renew the alien's nonimmigrant agricultural worker status until
such alien—
(i) returns to a
residence outside the United States for a period of not less than 3 months;
and
(ii) seeks to reenter
the United States under the terms of the Program as a nonimmigrant agricultural
worker.
(3)
Loss of
status
(A)
In
general
An alien admitted as a nonimmigrant agricultural worker
shall be ineligible for such status and shall be required to depart the United
States if such alien—
(i) after the
completion of his or her contract with a designated agricultural employer, is
not employed in agricultural employment by a designated agricultural employer;
or
(ii) is an at-will
agricultural worker and is not continuously employed by a designated
agricultural employer in agricultural employment as an at-will agricultural
worker.
(B)
Exception
Subject
to subparagraph (C), a nonimmigrant agricultural worker has not violated
subparagraph (A) if the contract agricultural worker is not employed in
agricultural employment for a period not to exceed 60 days.
(C)
Waiver
Notwithstanding
subparagraph (B), the Secretary of Homeland Security may waive the application
of clause (i) or (ii) of subparagraph (A) for a nonimmigrant agricultural
worker who was not employed in agricultural employment for a period of more
than 60 days if such period of unemployment was due to—
(i) the injury of such
worker; or
(ii) a natural
disaster declared by the Secretary.
(D)
Tolling of
employment requirement
A nonimmigrant agricultural worker may
leave the United States for up to 60 days in any fiscal year while in such
status. During the period in which the worker is outside of the United States,
the 60-day limit specified in subparagraph (B) shall be tolled.
(4)
Portability of
status
(A)
Contract
agricultural workers
(i)
In
general
Except as provided in clause (ii), an alien who entered
the United States as a contract agricultural worker may—
(I) seek employment as
a nonimmigrant agricultural worker with a designated agricultural employer
other than the designated agricultural employer with whom the employee had a
contract described in section 101(a)(15)(W)(ii)(I); and
(II) accept employment
with such new employer after the date the contract agricultural worker
completes such contract.
(ii)
Voluntary
abandonment; termination for cause
A contract agricultural worker
who voluntarily abandons his or her employment before the end of the contract
period or whose employment is terminated for cause by the employer—
(I) may not accept
subsequent employment with another designated agricultural employer without
first departing the United States and reentering pursuant to a new offer of
employment; and
(II) is not entitled
to the 75 percent payment guarantee described in subsection (e)(4)(B).
(iii)
Termination by
mutual agreement
The termination of an employment contract by
mutual agreement of the designated agricultural employer and the contract
agricultural worker shall not be considered voluntary abandonment for purposes
of clause (ii).
(B)
At-will
agricultural workers
An alien who entered the United States as an
at-will agricultural worker may seek employment as an at-will agricultural
worker with any other designated agricultural employer referred to in section
101(a)(15)(W)(iii)(I).
(5)
Prohibition on
geographic limitation
A nonimmigrant visa issued to a
nonimmigrant agricultural worker—
(A) shall not limit
the geographical area within which such worker may be employed;
(B) shall not limit
the type of agricultural employment such worker may perform; and
(C) may restrict such
worker to employment with designated agricultural employers.
(6)
Treatment of
spouses and children
A spouse or child of a nonimmigrant
agricultural worker—
(A) shall not be
entitled to visa or other immigration status by virtue of the relationship of
such spouse or child to such worker; and
(B) may be provided
status as a nonimmigrant agricultural worker if the spouse or child is
independently qualified for such status.
(e)
Employer
requirements
(1)
Designated
agricultural employer status
(A)
Registration
requirement
Each employer seeking to employ nonimmigrant
agricultural workers shall register for designated agricultural employer status
by submitting to the Secretary, through the Farm Service Agency in the
geographic area of the employer or electronically to the Secretary, a
registration that includes—
(i) the employer's
employer identification number; and
(ii) a registration
fee, in an amount determined by the Secretary.
(B)
Criteria
The
Secretary shall grant designated agricultural employer status to an employer
who submits an registration for such status that includes—
(i) documentation that
the employer is engaged in agriculture;
(ii) the estimated
number of nonimmigrant agricultural workers the employer will need each
year;
(iii) the anticipated
periods during which the employer will need such workers; and
(iv) documentation
establishing need for a specified agricultural occupation or
occupations.
(C)
Designation
(i)
Registration
number
The Secretary shall assign each employer that meets the
criteria established pursuant to subparagraph (B) with a designated
agricultural employer registration number.
(ii)
Term of
designation
Each employer granted designated agricultural
employer status under this paragraph shall retain such status for a term of 3
years.
(D)
Assistance
In
carrying out the functions described in this subsection, the Secretary may work
through the Farm Service Agency, or any other agency in the Department of
Agriculture—
(i) to assist
agricultural employers with the registration process under this paragraph by
providing such employers with—
(I) technical
assistance and expertise;
(II) internet access
for submitting such applications; and
(III) a nonelectronic
means for submitting such registrations; and
(ii) to provide
resources about the Program, including best practices and compliance related
assistance and resources or training to assist in retention of such workers to
agricultural employers.
(E)
Deposit of
registration fee
All registration fees collected under
subparagraph (A)(ii) shall be deposited in the Comprehensive Immigration Reform
Trust Fund established under section 6(a)(1) of the
Border Security, Economic Opportunity, and
Immigration Modernization Act.
(2)
Nonimmigrant
agricultural worker petition process
(A)
In
general
Not later than 45 days before the date on which
nonimmigrant agricultural workers are needed, a designated agricultural
employer seeking to employ such workers shall submit a petition to the
Secretary of Homeland Security that includes the employer’s designated
agricultural employer registration number.
(B)
Attestation
An
application submitted under subparagraph (A) shall include an attestation of
the following
(i) the number of
named or unnamed nonimmigrant agricultural workers the designated agricultural
employer is seeking to employ during the applicable period of
employment;
(ii) the total number
of contract agricultural workers and of at-will agricultural workers the
employer will require for each occupational category;
(iii) the anticipated
period, including expected beginning and ending dates, during which such
employees will be needed;
(iv) evidence of
contracts or written disclosures of employment terms and conditions in
accordance with the Migrant and Seasonal Agricultural Worker Protection Act (29
U.S.C. 1801 et seq.), which have been provided to the nonimmigrant agricultural
workers, or a sample of such contract or disclosure for unnamed workers;
(v) the information
submitted to the State workforce agency pursuant to paragraph (3)(A)(i);
(vi) the record of
United States workers described in paragraph (3)(A)(iv) on the date of the
request;
(vii) evidence of
offers of employment made to United States workers as required under paragraph
(3)(B); and
(viii) that the
employer has complied with the conditions pursuant to (4)(A) and (4)(B).
(C)
Employment
authorization when changing employers
Nonimmigrant agricultural
workers in the United States who are identified in a petition submitted
pursuant to subparagraph (A) and are in lawful status may commence employment
with their designated agricultural employer after such employer has submitted
such petition to the Secretary of Homeland Security.
(3)
Employment of united states
workers
(A)
Recruitment
(i)
Filing a job offer with the local office of
the state workforce agency
Not later than 60 days before the date on
which the employer desires to employ a nonimmigrant agricultural worker, the
employer shall submit the job posting for such worker to the local office of
the State workforce agency where the job site is located and authorize the
posting of the job opportunity on America’s Job Bank or other
Electronic Job Registry for a period of 45 days. Nothing in this clause may be
construed to require the employer to file an interstate job order under section
653.500 of title 20, Code of Federal Regulations.
(ii)
Construction
Nothing
in clause (i) may be construed to cause a listing referred to in clause (i) to
be treated as an interstate job order under section 653.500 of title 20, Code
of Federal Regulations (or similar successor regulation).
(iii)
Record of
united states workers
An employer shall keep a record of all
eligible, able, willing, and qualified United States workers who apply for
agricultural employment with the employer for the agricultural employment for
which the nonimmigrant agricultural nonimmigrant workers are sought.
(B)
Requirement to
hire
(i)
United states
workers
An employer may not seek a nonimmigrant agricultural
worker for agricultural employment unless the employer offers such employment
to any equally or better qualified United States worker who will be available
at the time and place of need and who applies for such employment during the
recruitment period.
(ii)
blue card
status
Except as provided in clause (iii), the employer shall,
for each job to be filled by a nonimmigrant agricultural worker, offer the job
to any eligible alien with blue card status who—
(I) applies for such
job;
(II) is equally or
better qualified for the job; and
(III) will be
available at the time and place of need.
(iii)
Exception
Notwithstanding
clauses (i) and (ii), the employer may hire a nonimmigrant described in section
101(a)(15)(H)(ii)(a) for agricultural employment if—
(I) such worker worked
for the employer for 3 years during the 4-year period ending on the date on
which the program authorized under section 218 (as in effect on the date of the
enactment of the Agricultural Worker Program
Act of 2013) is terminated; and
(II) the employer pays
such worker the adverse effect wage rate calculated under subsection
(f)(5).
(4)
Additional
program requirements for designated agricultural employers
Each
designated agricultural employer shall comply with the following
requirements:
(A)
No displacement
of united states workers
(i)
In
general
The employer shall not displace a United States worker
employed by the employer, other than for good cause, during the period of
employment of the nonimmigrant agricultural worker and for a period of 30 days
preceding such period in the occupation and at the location of employment for
which the employer seeks to employ nonimmigrant agricultural workers.
(ii)
Labor
dispute
The employer shall not employ a nonimmigrant agricultural
worker for a specific job for which the employer is requesting a nonimmigrant
agricultural worker because the former occupant of the job is on strike or
being locked out in the course of a labor dispute.
(B)
Guarantee of
employment for contract agricultural workers
(i)
Offer to
contract worker
The employer shall guarantee to offer contract
agricultural workers employment for the hourly equivalent of at least 75
percent of the work days of the total period of employment, beginning with the
first work day after the arrival of the worker at the place of employment and
ending on the expiration date specified in the job offer. In this clause, the
term hourly equivalent means the number of hours in the work days
as stated in the job offer and shall exclude the worker’s Sabbath and Federal
holidays. If the employer affords the contract agricultural worker less
employment than the number of hours required under this subparagraph, the
employer shall pay such worker the amount the worker would have earned had the
worker worked the guaranteed number of hours.
(ii)
Failure to
work
Any hours which the worker fails to work, up to a maximum of
the number of hours specified in the job offer for a work day, when the worker
has been offered an opportunity to do so, and all hours of work actually
performed (including voluntary work in excess of the number of hours specified
in the job offer in a work day, on the worker’s Sabbath, or on Federal
holidays) may be counted by the employer in calculating whether the period of
guaranteed employment has been met.
(iii)
Contract
impossibility
If, before the expiration of the period of
employment specified in the job offer, the services of a contract agricultural
worker are no longer required for reasons beyond the control of the employer
due to any form of natural disaster, including a flood, hurricane, freeze,
earthquake, fire, drought, plant or animal disease or pest infestation, or
regulatory drought, before the guarantee in subparagraph (A) is fulfilled, the
employer—
(I) may terminate the
worker’s employment;
(II) shall fulfill the
employment guarantee described in subparagraph (B) for the work days that have
elapsed from the first work day after the arrival of the worker to the
termination of employment;
(III) shall make
efforts to transfer the worker to other comparable employment acceptable to the
worker; and
(IV) if such a
transfer does not take place, shall provide the return transportation required
under subparagraph (J).
(C)
Workers’
compensation
(i)
Requirement to
provide
If a job referred to in paragraph (3) is not covered by
the State workers’ compensation law, the employer shall provide, at no cost to
the nonimmigrant agricultural worker, insurance covering injury and disease
arising out of, and in the course of, such job.
(ii)
Benefits
The
insurance required to be provided under clause (i) shall provide benefits at
least equal to those provided under and pursuant to State’s workers’
compensation law for comparable employment.
(D)
Prohibition for
use for nonagricultural services
The employer may not employ a
nonimmigrant agricultural worker for employment other than agricultural
employment.
(E)
Wages
The
employer shall pay the wage required under subsection (f).
(F)
Deduction of
wages
The employer shall make only deductions from a nonimmigrant
agricultural worker’s wages that are authorized by law or are reasonable and
customary in the occupation and area of employment of such worker.
(G)
Requirement to
provide housing or a housing allowance
(i)
In
general
Except as provided in clauses (iv) and (v), a designated
agricultural employer shall offer to provide a nonimmigrant agricultural worker
with housing in accordance with clause (ii) or (iii).
(ii)
Housing
An
employer may provide housing to a nonimmigrant agricultural worker that
meets—
(I) applicable Federal
standards for temporary labor camps; or
(II) applicable local
standards (or, in the absence of applicable local standards, State standards)
for rental or public accommodation housing or other substantially similar class
of habitation.
(iii)
Housing
payments
(I)
Public
housing
If the employer arranges public housing for nonimmigrant
agricultural workers through a State, county, or local government program and
such public housing units normally require payments from tenants, such payments
shall be made by the employer directly to the landlord.
(II)
Deposits
Deposits
for bedding or other similar incidentals related to housing shall not be
collected from workers by employers who provide housing for such
workers.
(III)
Damages
The
employer may require any worker who is responsible for damage to housing that
did not result from normal wear and tear related to habitation to reimburse the
employer for the reasonable cost of repairing such damage.
(iv)
Housing
allowance alternative
(I)
In
general
The employer may provide a reasonable housing allowance
instead of providing housing under clause (i). Upon the request of a worker
seeking assistance in locating housing, the employer shall make a good faith
effort to assist the worker in identifying and locating housing in the area of
intended employment. An employer who offers a housing allowance to a worker or
assists a worker in locating housing, which the worker occupies shall not be
deemed a housing provided under section 203 of the Migrant and Seasonal
Agricultural Worker Protection Act (29 U.S.C. 1823) solely by virtue of
providing such housing allowance. No housing allowance may be used for housing
that is owned or controlled by the employer.
(II)
Certification
requirement
Contract agricultural workers may only be provided a
housing allowance if the Governor of the State in which the place of employment
is located certifies to the Secretary that there is adequate housing available
in the area of intended employment for migrant farm workers and contract
agricultural workers who are seeking temporary housing while employed in
agricultural work. Such certification shall expire after 3 years unless renewed
by the Governor of the State.
(III)
Amount of
allowance
(aa)
Nonmetropolitan
counties
If the place of employment of the workers provided an
allowance under this clause is a nonmetropolitan county, the amount of the
housing allowance under this clause shall be equal to the average fair market
rental for existing housing in nonmetropolitan counties in the State in which
the place of employment is located, as established by the Secretary of Housing
and Urban Development pursuant to section 8(c) of the United States Housing Act
of 1937 (42 U.S.C. 1437f(c)), based on a 2-bedroom dwelling unit and an
assumption of 2 persons per bedroom.
(bb)
Metropolitan
counties
If the place of employment of the workers provided an
allowance under this clause is a metropolitan county, the amount of the housing
allowance under this clause shall be equal to the average fair market rental
for existing housing in metropolitan counties in the State in which the place
of employment is located, as established by the Secretary of Housing and Urban
Development pursuant to section 8(c) of the United States Housing Act of 1937
(42 U.S.C. 1437f(c)), based on a 2-bedroom dwelling unit and an assumption of 2
persons per bedroom.
(v)
Exception for
commuting workers
Nothing in this subparagraph may be construed
to require an employer to provide housing or a housing allowance to workers who
reside outside of the United States if their place of residence is within
normal commuting distance and the job site is within 50 miles of an
international land border of the United States.
(H)
Worksite
transportation for contract workers
During the period a
designated agricultural employer employs a contract worker, such employer
shall, at the employer's option, provide or reimburse the contract worker for
the cost of transportation from the contract worker's residence in the United
States to the contract worker's place of employment.
(I)
Reimbursement of
transportation to place of employment
(i)
In
general
Except as provided in subclause (II) a contract
agricultural worker who completes at least 27 months under his or her contract
with the same designated agricultural employer shall be reimbursed by that
employer for the cost of the worker’s transportation and subsistence from the
place of employment to the place from which the worker came from abroad to work
for the employer.
(ii)
Limitation
Except
as provided in clause (iii), the amount of reimbursement provided under clause
(i) to a worker shall not exceed the lesser of—
(I) the actual cost to
the worker of the transportation and subsistence involved; or
(II) the most
economical and reasonable common carrier transportation charges and subsistence
costs for the distance involved.
(iii)
Distance
traveled
The employer shall not be required to reimburse a worker
under clause (i) if—
(I) the distance
traveled is 100 miles or less; or
(II) the worker is not
residing in employer-provided housing or housing secured through an allowance
described in subclause (I)(iv).
(J)
Reimbursement of
transportation from place of employment
(i)
In
general
(I)
In
general
Except as provided in subclause (II), a contract
agricultural worker who completes at least 75 percent of a contract for a
designated agricultural employer shall be reimbursed by the employer for the
cost of the worker's transportation and subsistence from the place of
employment to the place from which the worker came to work for the
employer.
(II)
Exception
If
a contract agricultural worker was employed by another designated agricultural
worker after terminating employment with the designated agricultural employer
described in subclause (I) and before returning to the place outside the United
States from which the worker came, the subsequent designated agricultural
employer shall reimburse the worker for the costs described in subclause
(I).
(III)
Single
trip
A contract agricultural worker is only entitled to be
reimbursed by a designated agricultural employer under this subparagraph for
travel to the place from which the worker came at the time the worker is
leaving the Program.
(ii)
Limitation
Except
as provided in clause (iii), the amount of reimbursement provided under clause
(i) to a worker shall not exceed the lesser of—
(I) the actual cost to
the worker of the transportation and subsistence involved; or
(II) the most
economical and reasonable common carrier transportation charges and subsistence
costs for the distance involved.
(iii)
Distance
traveled
The employer shall not be required to reimburse a worker
under clause (i) if—
(I) the distance
traveled is 100 miles or less; or
(II) the worker is not
residing in employer-provided housing or housing secured through an allowance
described in subclause (I)(iv).
(iv)
Early
termination
If a contract agricultural worker is laid off or the
worker's employment is terminated for contract impossibility (as described in
subparagraph (C)(iii)) before completing 75 percent of such contract, the
employer shall reimburse the worker for the costs described in clause
(i)(I).
(5)
Violation of
program requirements
If the Secretary determines, after an
opportunity for a hearing, that a designated agricultural employer has violated
a term under this section the Secretary may—
(A) impose penalties,
including fines; and
(B) for serious
violations, disqualify the employer from future enrollment in the Program for a
period of not more than 3 years.
(f)
Wages
(1)
Wage rate
requirement
(A)
In
general
A nonimmigrant agricultural worker employed by a
designated agricultural employer shall be paid the wage rate for such
employment set forth in paragraph (3).
(B)
Workers paid on
a piece rate or other incentive basis
If an employer pays by the
piece rate or other incentive method and requires one or more minimum
productivity standards as a condition of job retention, such standards shall be
specified in the job offer and be no more than those which have been normally
required (at the time of the employee’s initial entry into the country as a
nonimmigrant agricultural worker) by other employers for the activity in the
geographic area of the job, unless the Secretary approves a higher
standard.
(2)
Job
categories
For purposes of paragraph (1), each nonimmigrant
agricultural worker employed by such employer shall be assigned to 1 of the
following standard occupational classifications, as defined by the Bureau of
Labor Statistics:
(A) First-Line
Supervisors of Farming, Fishing, and Forestry Workers (45–1011).
(B) Animal Breeders
(45-2021).
(C) Graders and
Sorters, Agricultural Products (45–2041).
(D) Agricultural
equipment operator (45–2091).
(E) Farmworkers and
Laborers, Crop, Nursery, and Greenhouse (45–2092).
(F) Farmworkers, Farm,
Ranch and Aquacultural Animals (45-2093).
(3)
Determination of
wage rate
(A)
Fiscal years
2014 through 2016
The wage rate under this subparagraph for
fiscal years 2014 through 2016 shall be the higher of—
(i) the applicable
Federal, State or local minimum wage; or
(ii)
(I) for the category
described in paragraph (2)(C)—
(aa) $9.37 for fiscal
year 2014;
(bb) $9.60 for fiscal
year 2015; and
(cc) $9.84 for fiscal
year 2016;
(II) for the category
described in paragraph (2)(D)—
(aa) $11.30 for fiscal
year 2014;
(bb) $11.58 for fiscal
year 2015; and
(cc) $11.87 for fiscal
year 2016;
(III) for the category
described in paragraph (2)(E)—
(aa) $9.17 for fiscal
year 2014;
(bb) $9.40 for fiscal
year 2015; and
(cc) $9.64 for fiscal
year 2016; and
(IV) for the category
described in paragraph (2)(F)—
(aa) $10.82 for fiscal
year 2014;
(bb) $11.09 for fiscal
year 2015; and
(cc) $11.37 for fiscal
year 2016;
(B)
Subsequent
years
The Secretary shall increase the hourly wage rates set
forth in clauses (i) through (iv) of subparagraph (A), for each fiscal year
after the fiscal years described in subparagraph (A) by an amount equal
to—
(i) 1.5 percent, if
the percentage increase in the Employment Cost Index for wages and salaries
during the previous fiscal year, as calculated by the Bureau of Labor
Statistics, is less than 1.5 percent;
(ii) the percentage
increase in such Employment Cost Index, if such percentage increase is between
1.5 percent and 2.5 percent, inclusive; or
(iii) 2.5 percent, if
such percentage increase is greater than 2.5 percent.
(C)
Agricultural
supervisors and animal breeders
Not later than September 1, 2015,
and annually thereafter, the Secretary, in consultation with the Secretary of
Labor, shall establish the prevailing wage for the next fiscal year for each of
the job categories set out in subparagraphs (A) and (B) of paragraph
(2).
(D)
Survey by Bureau
of Labor Statistics
Not later than April 15, 2015, the Bureau of
Labor Statistics shall consult with the Secretary to expand the Occupational
and Employment Survey to survey agricultural producers and contractors and
produce improved wage data by State and the job categories set out in
subparagraphs (A) through (F) of paragraph (2).
(4)
Consideration
In
determining the wage rate under paragraph (3), the Secretary may consider
appropriate factors, including—
(A) whether the
employment of additional alien workers at the prevailing wage will adversely
affect the wages and working conditions of workers in the United States
similarly employed;
(B) whether the
employment in the United States of an alien admitted under section
101(a)(15)(H)(ii)(a) or unauthorized aliens in the agricultural workforce has
depressed wages of United States workers engaged in agricultural employment
below the levels that would otherwise have prevailed if such aliens had not
been employed in the United States;
(C) whether wages of
agricultural workers are sufficient to support such workers and their families
at a level above the poverty thresholds determined by the Bureau of
Census;
(D) the wages paid
workers in the United States who are not employed in agricultural employment
but who are employed in comparable employment;
(E) the continued
exclusion of employers of nonimmigrant alien workers in agriculture from the
payment of taxes under chapter 21 of the Internal Revenue Code of 1986 (26
U.S.C. 3101 et seq.) and chapter 23 of such Code (26 U.S.C. 3301 et
seq.);
(F) the impact of farm
labor costs in the United States on the movement of agricultural production to
foreign countries;
(G) a comparison of
the expenses and cost structure of foreign agricultural producers to the
expenses incurred by agricultural producers based in the United States;
and
(H) the accuracy and
reliability of the Occupational and Employment Survey.
(5)
Adverse effect
wage rate
(A)
Prohibition of
modification
The adverse effect wage rates in effect on April 15,
2013, for nonimmigrants admitted under 101(a)(15)(H)(ii)(a)—
(i) shall remain in
effect until the date described in section 2233 of the
Agricultural Worker Program Act of
2013; and
(ii) may not be
modified except as provided in subparagraph (B).
(B)
Exception
Until
the Secretary establishes the wage rates required under paragraph (3)(C), the
adverse effect wage rates in effect on the date of the enactment of the
Agricultural Worker Program Act of
2013 shall be—
(i) deemed to be such
wage rates; and
(ii) after September
1, 2015, adjusted annually in accordance with paragraph (3)(B).
(6)
Equal wages,
benefits, and working conditions
(A)
Preferential
treatment of aliens prohibited
(i)
In
general
The employer’s job offer must offer to United States
workers no less than the same benefits, wages, and working conditions that the
employer is offering, intends to offer, or will provide to nonimmigrant
workers. Conversely, no job offer may impose on United States workers any
restrictions or obligations which will not be imposed on the employer’s
nonimmigrants.
(ii)
Similarly
situated U.S. workers
Except as provided in paragraph (3), all
similarly situated U.S. workers employed at the same place of employment in the
same occupational classification as the nonimmigrant workers must be provided
the same wages, benefits, and working conditions described in this
section.
(iii)
Exception
Notwithstanding
subparagraph (2), an employer is not required to provide housing for similarly
situated United States workers, other than United States workers recruited and
hired pursuant to an offer of employment in connection with an
application.
(B)
Attestation
(i)
In
general
Each designated agricultural employer shall include an
attestation that the employer is or is not a Program dependent employer in its
petition for nonimmigrant agricultural workers under paragraph (2).
(ii)
Program
dependent employer determination
Each designated agricultural
employer shall annually determine whether the employer is a Program dependent
employer, with at least 60 percent of its employees who are not United States
workers, based upon—
(I) the total number
of employees employed by an employer during the preceding calendar year, as
evidenced by the employer's payroll records; and
(II) the employer's
E-Verify records indicating the citizenship and alien status of each employee
employed by the employer.
(C)
Housing
exception
An employer described in subparagraph (A) shall only be
required to provide housing to United States workers in accordance with
subsection (e)(4)(H) if such workers do not reside within 100 miles of their
place of employment.
(g)
Worker
protections and dispute resolution
(1)
Equality of
treatment
Nonimmigrant agricultural workers shall not be denied
any right or remedy under any Federal, State, or local labor or employment law
applicable to United States workers engaged in agricultural employment.
(2)
Applicability of
the migrant and seasonal agricultural worker protection act
(A)
Migrant and
seasonal agricultural worker protection act
Nonimmigrant
agricultural workers shall be considered migrant agricultural workers for
purposes of the Migrant and Seasonal Agricultural Worker Protection Act (29
U.S.C. 1801 et seq.).
(B)
Eligibility of
nonimmigrant agricultural workers for certain legal assistance
A
nonimmigrant agricultural worker shall be considered to be lawfully admitted
for permanent residence for purposes of establishing eligibility for legal
services under the Legal Services Corporation Act (42 U.S.C. 2996 et seq.) on
matters relating to wages, housing, transportation, and other employment
rights.
(C)
Mediation
(i)
Free mediation
services
The Federal Mediation and Conciliation Service shall be
available to assist in resolving disputes arising under this section between
nonimmigrant agricultural workers and designated agricultural employers without
charge to the parties.
(ii)
Complaint
If
a nonimmigrant agricultural worker files a complaint under section 504 of the
Migrant and Seasonal Agricultural Worker Protection Act (29 U.S.C. 1854), not
later than 60 days after the filing of proof of service of the complaint, a
party to the action may file a request with the Federal Mediation and
Conciliation Service to assist the parties in reaching a satisfactory
resolution of all issues involving all parties to the dispute.
(iii)
Notice
Upon
filing a request under clause (ii) and giving of notice to the parties, the
parties shall attempt mediation within the period specified in clause
(iv).
(iv)
90-day
limit
The Federal Mediation and Conciliation Service may conduct
mediation or other nonbinding dispute resolution activities for a period not to
exceed 90 days beginning on the date on which the Federal Mediation and
Conciliation Service receives a request for assistance under clause (ii) unless
the parties agree to an extension of such period.
(v)
Authorization of
appropriations
(I)
In
general
Subject to clause (II), there are authorized to be
appropriated to the Federal Mediation and Conciliation Service $500,000 for
each fiscal year to carry out this subparagraph.
(II)
Mediation
Notwithstanding
any other provision of law, the Director of the Federal Mediation and
Conciliation Service is authorized—
(aa) to conduct the
mediation or other dispute resolution activities from any other account
containing amounts available to the Director; and
(bb) to reimburse such
account with amounts appropriated pursuant to subclause (I).
(vi)
Private
mediation
If all parties agree, a private mediator may be
employed as an alternative to the Federal Mediation and Conciliation
Service.
(3)
Other
rights
Nonimmigrant agricultural workers shall be entitled to the
rights granted to other classes of aliens under sections 242(h) and
245E.
(4)
Waiver of
rights
Agreements by nonimmigrant agricultural workers to waive
or modify any rights or protections under this section shall be considered void
or contrary to public policy except as provided in a collective bargaining
agreement with a bona fide labor organization.
(h)
Enforcement
authority
(1)
Review
The
Secretary of Homeland Security shall review petitions submitted by designated
agricultural employers under subsection (e)(2) for completeness or obvious
inaccuracies.
(2)
Investigation of
complaints
(A)
Aggrieved person
or third-party complaints
(i)
Process
The
Secretary of Labor shall establish a process for the receipt, investigation,
and disposition of complaints respecting a designated agricultural employer's
failure to meet a condition specified in subsection (e), or an employer's
misrepresentation of material facts in a petition under subsection
(e)(2).
(ii)
Filing
Any
aggrieved person or organization, including bargaining representatives, may
file a complaint referred to in clause (i) not later than 1 year after the date
of the failure or misrepresentation, respectively.
(iii)
Investigation
or hearing
The Secretary of Labor shall conduct an investigation
if there is reasonable cause to believe that such failure or misrepresentation
has occurred.
(B)
Determination on
complaint
Under such process, the Secretary of Labor shall
provide, not later than 30 days after the date on which such a complaint is
filed, for a determination as to whether or not a reasonable basis exists to
make a finding described in subparagraph (C), (D), (E), or (F). If the
Secretary of Labor determines that such a reasonable basis exists, the
Secretary of Labor shall provide for notice of such determination to the
interested parties and an opportunity for a hearing on the complaint, in
accordance with section 556 of title 5, United States Code, within 60 days
after the date of the determination. If such a hearing is requested, the
Secretary of Labor shall make a finding concerning the matter not later than 60
days after the date of the hearing. In the case of similar complaints
respecting the same applicant, the Secretary of Labor may consolidate the
hearings under this subparagraph on such complaints.
(C)
Failure to meet
conditions
If the Secretary of Labor finds, after notice and
opportunity for a hearing, a failure to meet a condition under subsection (e)
or (f), or made a material misrepresentation of fact in a petition under
subsection (e)(2)—
(i) the Secretary of
Labor shall notify the Secretary of such finding and may, in addition, impose
such other administrative remedies (including civil money penalties in an
amount not to exceed $1,000 per violation) as the Secretary of Labor determines
to be appropriate; and
(ii) the Secretary may
disqualify the designated agricultural employer from the employment of
nonimmigrant agricultural workers for a period of 1 year.
(D)
Willful failures
and willful misrepresentations
If the Secretary of Labor finds,
after notice and opportunity for hearing, a willful failure to meet a condition
under subsection (e) or (f) or a willful misrepresentation of a material fact
in an application or petition under paragraph (1) or (2) of subsection
(e)—
(i) the Secretary of
Labor shall notify the Secretary of such finding and may, in addition, impose
such other administrative remedies (including civil money penalties in an
amount not to exceed $5,000 per violation) as the Secretary of Labor determines
to be appropriate;
(ii) the Secretary of
Labor may seek appropriate legal or equitable relief to effectuate the purposes
of subsection (e)(8); and
(iii) the Secretary
may disqualify the designated agricultural employer from the employment of
nonimmigrant agricultural workers for a period of 2 years.
(E)
Displacement of
united states workers
If the Secretary of Labor finds, after
notice and opportunity for hearing, a willful failure to meet a condition under
subsection (e) or (f) or a willful misrepresentation of a material fact in an
application or petition under paragraph (1) or (2) of subsection (e), in the
course of which failure or misrepresentation the employer displaced a United
States worker employed by the employer during the period of employment on the
employer's petition under subsection (e)(2) or during the period of 30 days
preceding such period of employment—
(i) the Secretary of
Labor shall notify the Secretary of such finding and may, in addition, impose
such other administrative remedies (including civil money penalties in an
amount not to exceed $15,000 per violation) as the Secretary of Labor
determines to be appropriate; and
(ii) the Secretary may
disqualify the employer from the employment of nonimmigrant agricultural
workers for a period of 3 years.
(F)
Failures to pay
wages or required benefits
If the Secretary of Labor finds, after
notice and opportunity for a hearing, that the employer has failed to pay the
wages, or provide the housing allowance, transportation, subsistence
reimbursement, or guarantee of employment required under subsection (e)(4) and
(f), the Secretary of Labor shall assess payment of back wages, or other
required benefits, due any United States worker or nonimmigrant agricultural
worker employed by the employer in the specific employment in question. The
back wages or other required benefits required under subsection (e) and (f)
shall be equal to the difference between the amount that should have been paid
and the amount that actually was paid to such worker.
(G)
Disposition of
penalties
Civil penalties collected under this paragraph shall be
deposited into the Comprehensive Immigration Reform Trust Fund established
under section 6(a)(1) of the Border Security,
Economic Opportunity, and Immigration Modernization Act.
(3)
Limitations on
civil money penalties
The Secretary of Labor shall not impose
total civil money penalties with respect to a petition under subsection (e)(2)
in excess of $90,000.
(4)
Election
A
nonimmigrant agricultural worker who has filed an administrative complaint with
the Secretary of Labor may not maintain a civil action under paragraph (2)
unless a complaint based on the same violation filed with the Secretary of
Labor under subsection (a)(1) is withdrawn before the filing of such action, in
which case the rights and remedies available under this subsection shall be
exclusive.
(5)
Preclusive
effect
Any settlement by a nonimmigrant agricultural worker, a
designated agricultural employer, or any person reached through the mediation
process required under subsection (g)(2)(C) shall preclude any right of action
arising out of the same facts between the parties in any Federal or State court
or administrative proceeding, unless specifically provided otherwise in the
settlement agreement.
(6)
Settlements
Any
settlement by the Secretary of Labor on behalf of a designated agricultural
worker on behalf of a nonimmigrant agricultural worker of a complaint filed
with the Secretary of Labor under this section or any finding by the Secretary
of Labor under this subsection shall preclude any right of action arising out
of the same facts between the parties under any Federal or State court or
administrative proceeding, unless specifically provided otherwise in the
settlement agreement.
(7)
Statutory
construction
Nothing in this subsection may be construed as
limiting the authority of the Secretary of Labor to conduct any compliance
investigation under any other labor law, including any law affecting migrant
and seasonal agricultural workers, or, in the absence of a complaint under this
section, under paragraph (1), (3), or (4) of subsection (e), in the settlement
agreement.
(8)
Discrimination
prohibited
It is a violation of this subsection for any person to
intimidate, threaten, restrain, coerce, blacklist, discharge, or in any other
manner discriminate against an employee, including a former employee or an
applicant for employment, because the employee—
(A) has disclosed
information to the employer, or to any other person, that the employee
reasonably believes evidences a violation of subsection (e), or any rule or
regulation relating to subsection (e); or
(B) cooperates or
seeks to cooperate in an investigation or other proceeding concerning the
employer’s compliance with the requirements under subsection (e) or any rule or
regulation pertaining to subsection (e).
(9)
Role of
associations
(A)
Violation by a
member of an association
(i)
In
general
If an association acting as the agent of an employer
files an application on behalf of such employer, the employer is fully
responsible for such application, and for complying with the terms and
conditions of subsection (e). If such an employer is determined to have
violated any requirement described in this subsection, the penalty for such
violation shall apply only to that employer except as provided in clause
(ii).
(ii)
Collective
responsibility
If the Secretary of Labor determines that the
association or other members of the association participated in, had knowledge
of, or reason to know of a violation described in clause (i), the penalty shall
also be invoked against the association and complicit association
members.
(B)
Violations by an
association acting as an employer
(i)
In
general
If an association filing an application as a sole or
joint employer is determined to have violated any requirement described in this
section, the penalty for such violation shall apply only to the association
except as provided in clause (ii).
(ii)
Member
responsibility
If the Secretary of Labor determines that 1 or
more association members participated in, had knowledge of, or reason to know
of the violation described in clause (i), the penalty shall be invoked against
all complicit association members.
(i)
Special
nonimmigrant visa processing and wage determination procedures for certain
agricultural occupations
(1)
Finding
Certain
industries possess unique occupational characteristics that necessitate the
Secretary of Agriculture adopt special procedures relating to housing, pay, and
visa program application requirements for those industries.
(2)
Special
procedures industries defined
In this subsection, the term
Special Procedures Industries means—
(A) sheepherding and
goat herding;
(B) itinerant
commercial beekeeping and pollination;
(C) open range
production of livestock;
(D) itinerant animal
shearing;
(E) custom combining
industries; and
(F) any other industry
designated by the Secretary, upon petition by an employer, as a Special
Procedures Industry.
(3)
Work
locations
The Secretary shall allow designated agricultural
employers in a Special Procedures Industry that do not operate in a single
fixed-site location to provide, as part of application and job description
under the Program, a list of anticipated work locations, which—
(A) may include an
anticipated itinerary; and
(B) may be
subsequently amended by the employer, after notice to the Secretary.
(4)
Wage
rates
The Secretary may establish monthly, weekly, or biweekly
wage rates for occupations in a Special Procedures Industry for a State or
other geographic area. For an employer in those Special Industries that
typically pay a monthly wage, the Secretary shall require that workers will be
paid not less frequently than monthly and at a rate no less than the legally
required monthly cash wage for such employer as of the date of enactment and in
an amount as re-determined annually by the Secretary of Agriculture through
rulemaking.
(5)
Housing
The
Secretary shall allow for the provision of housing or a housing allowance by
employers in Special Procedures Industries and allow housing suitable for
workers employed in remote locations.
(6)
Allergy
limitation
An employer engaged in the commercial beekeeping or
pollination services industry may require that an applicant be free from bee
pollen or honey-related allergies.
(7)
Application
An
individual employer in Special Procedures Industry may file visa program
applications on its own behalf, including with use of an agent, or in
conjunction with an association of employers, and in any case the employer’s
application may be part of several related applications submitted
simultaneously that constitute a master application.
(8)
Rulemaking
The
Secretary of Agriculture, after consultation with employers and employee
representatives, shall publish for notice and comment proposed regulations
relating to housing, pay and application procedures for Special Procedure
Industries.
(j)
Miscellaneous
provisions
(1)
Disqualification
of nonimmigrant agricultural workers from financial assistance
An
alien admitted as a nonimmigrant agricultural worker is not eligible for any
program of financial assistance under Federal law (whether through grant, loan,
guarantee, or otherwise) on the basis of financial need, as such programs are
identified by the Secretary in consultation with other agencies of the United
States.
(2)
Monitoring
requirement
(A)
In
general
The Secretary shall monitor the movement of nonimmigrant
agricultural workers through—
(i) the Employment
Verification System described in section 274A(b); and
(ii) the electronic
monitoring system established pursuant to subparagraph (B).
(B)
Electronic
monitoring system
The Secretary of Homeland Security, through the
Director of U.S. Citizenship and Immigration Services, shall establish an
electronic monitoring system, which shall—
(i) be modeled on the
Student and Exchange Visitor Information System (SEVIS) and the SEVIS II
tracking system administered by U.S. Immigration and Customs
Enforcement;
(ii) monitor the
presence and employment of nonimmigrant agricultural workers; and
(iii) assist in
ensuring the compliance of designated agricultural employers and nonimmigrant
agricultural workers with the requirements of the
Program.
.
(b)
Rulemaking
The
Secretary of Agriculture shall issue regulations to cary out section 218A of
the Immigration and Nationality Act, as added by subsection (a), not later than
1 year after the date of the enactment of this Act.
(c)
Clerical
amendment
The table of contents in the first section of the
Immigration and Nationality Act (8 U.S.C. 1101 et seq.) is amended by inserting
after the item relation to section 219 the following:
Sec. 218A. Nonimmigrant agricultural
worker
program.
.
(d)
Effective
date
The amendments made by this section shall take effect on
October 1, 2014.
2233.
Transition of
H-2A worker program
(a)
Sunset of
program
An employer may not petition to employ an alien present
in the United States pursuant to section 101(a)(15)(H)(ii)(a) of the
Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(H)(ii)(a)) after the date
that is 1 year after the effective date of the regulations issued pursuant to
section 2241(b).
(b)
Conforming
amendments
(1)
Repeal of H-2A
nonimmigrant category
Section 101(a)(15)(H)(ii) of the
Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(H)(ii)) is amended by
striking subclause (a).
(2)
Repeal of
admission requirements for H-2A worker
Section 218 of the
Immigration and Nationality Act (8 U.S.C. 1188) is repealed.
(3)
Conforming
amendments
(A)
Amendment of
petition requirements
Section 214(c)(1) of the Immigration and
Nationality Act (8 U.S.C. 1184(g)(9)) is amended by striking For
purposes of this subsection and all that follows.
(4)
Effective
date
The amendments made by this subsection shall take effect on
the date that is 1 year after the effective date of the regulations issued
pursuant to section 2241(b).
2234.
Reports to
Congress on nonimmigrant agricultural workers
(a)
Annual report by
Secretary of Agriculture
Not later than September 30 of each
year, the Secretary of Agriculture shall submit a report to Congress that
identifies, for the previous year, the number, disaggregated by State and by
occupation, of—
(1) job opportunities
approved for employment of aliens admitted pursuant to clause (iii) or clause
(iv) of section 101(a)(15)(W) of the Immigration and Nationality Act, as added
by section 2232; and
(2) aliens actually
admitted pursuant to each such clause.
(b)
Annual report by
Secretary of Homeland Security
Not later than September 30 of
each year, the Secretary shall submit a report to Congress that identifies, for
the previous year, the number of aliens described in subsection (a)(2)
who—
(1) violated the terms
of the nonimmigrant agricultural worker program established under section
218A(b) of the Immigration and Nationality Act, as added by section 2232;
and
(2) have not departed
from the United States.
3
Other
provisions
2241.
Rulemaking
(a)
Consultation
requirement
In the course of promulgating any regulation
necessary to implement this subtitle, or the amendments made by this subtitle,
the Secretary, the Secretary of Agriculture, the Secretary of Labor, and the
Secretary of State shall regularly consult with each other.
(b)
Deadline for
issuance of regulations
Except as provided in section 2232(b),
all regulations to implement this subtitle and the amendments made by this
subtitle shall be issued not later than 6 months after the date of the
enactment of this Act.
2242.
Reports to
Congress
Not later than 180
days after the date of the enactment of this Act, the Secretary and the
Secretary of Agriculture shall jointly submit a report to Congress that
describes the measures being taken and the progress made in implementing this
subtitle and the amendments made by this subtitle.
2243.
Effective
date
This subtitle and the
amendments made by this subtitle, except for sections 2221, 2242, and 2243,
shall take effect on the date on which the regulations required under section
2241(e) are issued, regardless of whether such regulations are issued on an
interim basis or on any other basis.
C
Future
immigration
2301.
Merit-based
points track one
(a)
In
general
(1)
Worldwide level
of merit-based immigrants
Section 201(e) (8 U.S.C. 1151(e)) is
amended to read as follows:
(e)
Worldwide level
of merit-based immigrants
(1)
In
general
(A)
Numerical
limitation
Subject to paragraphs (2), (3), and (4), the worldwide
level of merit-based immigrants is equal to 120,000 for each fiscal
year.
(B)
Status
An
alien admitted on the basis of a merit-based immigrant visa under this section
shall have the status of an alien lawfully admitted for permanent
residence.
(2)
Annual
increase
(A)
In
general
Subject to subparagraph (B) and paragraph (3), if in any
fiscal year the worldwide level of visas available for merit-based immigrants
under this section—
(i) is less than 75
percent of the number of applicants for such fiscal year, the worldwide level
shall increase by 5 percent for the next fiscal year; and
(ii) is equal to or
more than 75 percent of such number, the worldwide level for the next fiscal
year shall be the same as the worldwide level for such fiscal year, minus any
amount added to the worldwide level for such fiscal year under paragraph
(4).
(B)
Limitation on
increase
The worldwide level of visas available for merit-based
immigrants shall not exceed 250,000.
(3)
Employment
consideration
The worldwide level of visas available for
merit-based immigrants may not be increased for a fiscal year under paragraph
(2) if the annual average unemployment rate for the civilian labor force 18
years or over in the United States, as determined by the Bureau of Labor
Statistics, for such previous fiscal year is more than
81/2 percent.
(4)
Recapture of
unused visas
The worldwide level of merit-based immigrants
described in paragraph (1) for a fiscal year shall be increased by the
difference (if any) between the worldwide level established under paragraph (1)
for the previous fiscal year and the number of visas actually issued under this
subsection during that fiscal year. Such visas shall be allocated for the
following year pursuant to section
203(c)(3).
.
(2)
Merit-based
immigrants
Section 203 (8 U.S.C. 1153), as amended by section
213, is further amended by inserting after subsection (b) the following:
(c)
Merit-based
immigrants
(1)
Fiscal years 1
through 4
For the first 4
fiscal years beginning after the date of enactment of the
Border Security, Economic Opportunity, and
Immigration Modernization Act, the worldwide level of merit-based
immigrant visas made available under section 201(e)(1) shall be available for
aliens described in section 203(b)(3) and in addition to any visas available
for such aliens under such section.
(2)
Subsequent
fiscal years
Beginning with
the fifth fiscal year beginning after the date of the enactment of the
Border Security, Economic Opportunity, and
Immigration Modernization Act, aliens subject to the worldwide
level specified in section 201(e) for merit-based immigrants shall be allocated
as follows:
(A) 50 percent shall
be available to applicants with the highest number of points allocated under
tier 1 in paragraph (4).
(B) 50 percent shall
be available to applicants with the highest number of points allocated under
tier 2 in paragraph (5).
(3)
Unused
visas
If the total number of
visas allocated to tier 1 or tier 2 for a fiscal year are not granted during
that fiscal year, such number may be added to the number of visas available
section 201(e)(1) for the following fiscal year and allocated as
follows:
(A) If the unused
visas were allocated for tier 1 in a fiscal year, 2/3 of
such visas shall be available for aliens allocated visas under tier 1 in the
following fiscal year and 1/3 of such visas shall be
available for aliens allocated visas under either tier 1 or tier 2 in the
following fiscal year.
(B) If the unused
visas were allocated for tier 2 in a fiscal year, 2/3 of
such visas shall be available for aliens allocated visas under tier 2 in the
following fiscal year and 1/3 of such visas shall be
available for aliens allocated visas under either tier 1 or tier 2 in the
following fiscal year.
(4)
Tier
1
The Secretary shall
allocate points to each alien seeking to be a tier 1 merit-based immigrant as
follows:
(A)
Education
(i)
In
general
An alien may received points under only one of the
following categories:
(I) An alien who has
received a doctorate degree shall be allocated 15 points.
(II) An alien who has
received a master’s degree shall be allocated 10 points.
(ii) An alien who has
received a bachelor’s degree from an institution of higher education (as
defined in section 101(a) of the Higher Education Act of 1965 (20 U.S.C.
1001(a)) shall be allocated 5 points.
(B)
Employment
experience
An alien shall be allocated not more than 20 points as
follows:
(i) 3 points for each
year the alien has been lawfully employed in a zone 5 occupation in the United
States.
(ii) 2 points for each
year the alien has been lawfully employed in a zone 4 occupation in the United
States.
(C)
Employment
related to education
An alien who in the United States and is
employed full-time or has an offer of full-time employment in a field related
to the alien's education—
(i) in a zone 5
occupation shall be allocated 10 points; or
(ii) in a zone 4
occupation shall be allocated 8 points.
(D)
Entrepreneurship
An
alien who is an entrepreneur in business that employs at least 2 employee in a
zone 4 occupation or a zone 5 occupation shall be allocated 10 points.
(E)
High demand
occupation
An alien who is employed full-time in the United
States or has an offer of full-time employment in a high demand occupation high
demand tier 1 occupation shall be allocated 10 points.
(F)
Civic
involvement
An alien who has attested that he or she has engaged
in a significant amount of community service, as determined by the Secretary,
shall be allocated 2 points.
(G)
English
language
An alien who received a score of 80 or more on the Test
of English as a Foreign Language, or an equivalent score on a similar test, as
determined by the Secretary, shall be allocated points 10 points.
(H)
Siblings and
married sons and daughters of citizens
An alien who is the
sibling of a citizen of the United States or who is more than 31 years of age
and is the married son or married daughter of a citizen of the United States
shall be allocated 10 points.
(I)
Age
An
alien who is—
(i) between 18 and 24
years of age shall be allocated 8 points;
(ii) between 25 and 32
years of age shall be allocated 6 points; or
(iii) between 33 and
37 years of age shall be allocated 4 points.
(J)
Country of
origin
An alien who is a national of a country of which fewer
than 50,000 nationals were lawfully admitted to permanent residence in the
United States in the previous 5 years shall be allocated 5 points.
(5)
Tier
2
The Secretary shall
allocate points to each alien seeking to be a tier 2 merit-based immigrant as
follows:
(A)
Employment
experience
An alien shall be allocated 2 points for each year the
alien has been lawfully employed in the United States, for a total of not more
than 20 points.
(B)
Special
employment criteria
An alien who is employed full-time in the
United States, or has an offer of full-time employment—
(i) in a high demand
tier 2 occupation shall be allocated 10 points; or
(ii) in a zone 1
occupation or zone 2 occupation shall be allocated 10 points.
(C)
Caregiver
An
alien who is or has been a primary caregiver shall be allocated 10
points.
(D)
Exceptional
employment record
An alien who has a record of exceptional
employment, as determined by the Secretary, shall be allocated 10 points. In
determining a record of exceptional employment, the Secretary shall consider
factors including promotions, longevity, changes in occupations from a lower
job zone to a higher job zone , good safety record, and an increases in
pay.
(E)
Civic
involvement
An alien who has demonstrated significant shall civic
involvement shall be allocated 2 points.
(F)
English
language
An alien who received a score on the Test of English as
a Foreign Language, or an equivalent score on a similar test, as determined by
the Secretary of Homeland Security of—
(i) 75 or more shall
be allocated points 10 points; or
(ii) more than 54 and
less than 75 shall be allocated 5 points.
(G)
Siblings and
married sons and daughters of citizens
An alien who is the
sibling of a citizen of the United States or is over the age of 31 and is the
married son or married daughter of a citizen of the United States shall be
allocated 10 points.
(H)
Age
An
alien who is—
(i) between 18 and 24
years of age shall be allocated 8 points;
(ii) between 25 and 32
years of age shall be allocated 6 points; or
(iii) between 33 and
37 years of age shall be allocated 4 points.
(I)
Country of
origin
An alien who is a national of a country of which fewer
than 50,000 nationals were lawfully admitted to permanent residence in the
United States in the previous 5 years shall be allocated 5 points.
(6)
Fee
An alien who is allocated a visa under this
section shall pay a fee of $500.
(7)
Eligibility of
aliens in registered provisional immigrant status
An alien who was granted registered
provisional immigrant status may be granted a merit-based immigrant visa under
section 201(e) and may begin accruing points under subsections (b), (d), and
(e) no earlier than the date that is 10 years after the date of the enactment
of the Border Security, Economic Opportunity,
and Immigration Modernization Act.
(8)
Ineligibility of
aliens with pending or approved petitions
An alien who has a petition pending or
approved in another immigrant category under this section or section 201 may
not apply for a merit-based immigrant visa.
(9)
Definitions
In this subsection:
(A)
High demand tier
1 occupation
The term high demand tier 1
occupation means 1 of the 5 occupations for which the highest number of
nonimmigrants described in section 101(a)(15)(H)(i) were sought to be admitted
by employers during the previous fiscal year.
(B)
High demand tier
2 occupation
The term high demand tier 2
occupation means 1 of the 5 occupations for which the highest number of
positions were sought to become registered positions by employers under section
220(e) during the previous fiscal year.
(C)
Secretary
The term Secretary means the
Secretary of Homeland Security.
(D)
Zone 1
occupation
The term zone 1 occupation means an
occupation that requires little or no preparation and is classified as a zone 1
occupation on—
(i) the Occupational
Information Network Database (O*NET) on the date of the enactment of this Act;
or
(ii) such Database or
a similar successor database, as designated by the Secretary of Labor, after
the date of the enactment of this Act.
(E)
Zone 2
occupation
The term zone 2 occupation means an
occupation that requires some preparation and is classified as a zone 2
occupation on—
(i) the Occupational
Information Network Database (O*NET) on the date of the enactment of this Act;
or
(ii) such Database or
a similar successor database, as designated by the Secretary of Labor, after
the date of the enactment of this Act.
(F)
Zone 3
occupation
The term zone 3 occupation means an
occupation that requires medium preparation and is classified as a zone 3
occupation on—
(i) the Occupational
Information Network Database (O*NET) on the date of the enactment of this Act;
or
(ii) such Database or
a similar successor database, as designated by the Secretary of Labor, after
the date of the enactment of this Act.
(G)
Zone 4
occupation
The term zone 3 occupation means an
occupation that requires considerable preparation and is classified as a zone 4
occupation on—
(i) the Occupational
Information Network Database (O*NET) on the date of the enactment of this Act;
or
(ii) such Database or
a similar successor database, as designated by the Secretary of Labor, after
the date of the enactment of this Act.
(H)
Zone 5
occupation
The term zone 5 occupation means an
occupation that requires extensive preparation and is classified as a zone 5
occupation on—
(i) the Occupational
Information Network Database (O*NET) on the date of the enactment of this Act;
or
(ii) such Database or
a similar successor database, as designated by the Secretary of Labor, after
the date of the enactment of this
Act.
.
(b)
Modification of
points
The Secretary may submit to Congress a proposal to modify
the number of points allocated under subsection (c) of section 203 of the
Immigration and Nationality Act (8 U.S.C. 1153), as amended by subsection
(a).
(c)
Conforming
amendment
Section 203(d) of the Immigration and Nationality Act
(8 U.S.C. 1153(d)), as amended by section 213(a)(2)(B) of this Act, is further
amended by striking (a) or (b) and inserting (a), (b), or
(c).
(d)
Effective
date
The amendments made by this section shall take effect on the
first day of the first fiscal year beginning after the date of the enactment of
this Act.
2302.
Merit-based
track two
(a)
In
general
In addition to any
immigrant visa made available under the Immigration and Nationality Act (8
U.S.C. 1101 et seq.), as amended by this Act, the Secretary of State shall
allocate merit-based immigrant visas as described in this section.
(b)
Status
An alien admitted on the basis of a
merit-based immigrant visa under this section shall have the status of an alien
lawfully admitted for permanent residence (as that term is defined in section
101(a)(20) of the Immigration and Nationality Act (8 U.S.C.
1101(a)(20)).
(c)
Eligibility
Beginning on October 1, 2014, the following
aliens shall be eligible for merit-based immigrant visas under this
section:
(1)
Employment-based
immigrants
An alien who is the beneficiary of a petition filed
before the date of the enactment of this Act to accord status under section
203(b) of the Immigration and Nationality Act, if the visa has not been issued
within 5 years after the date on which such petition was filed.
(2)
Family-based
immigrants
Subject to subsection (d), an alien who is the
beneficiary of a petition filed to accord status under section 203(a) of the
Immigration and Nationality Act—
(A) prior to the date
of the enactment of this Act, if the visa was not issued within 5 years after
the date on which such petition was filed; or
(B) after such date of
enactment, to accord status under paragraph (3) or (4) of section 203(a) of the
Immigration and Nationality Act (8 U.S.C. 1153 (a)), as in effect the day
before the effective date specified in section 217(a)(3 )of this Act, and the
visa was not issued within 5 years after the date on which petition was
filed.
(3)
Long-term alien
workers and other merit-based immigrants
An alien who—
(A) is not admitted
pursuant to subparagraph (W) of section 101(a)(15) of the Immigration and
Nationality Act (8 U.S.C. 1101(a)(15)); and
(B) has been lawfully
present in the United States for not less than 10 years; and
(d)
Allocation of
employment-sponsored merit-based immigrant visas
In each of the
fiscal years 2015 through and including 2021, the Secretary of State shall
allocate to aliens described in subsection (c)(1) a number of merit-based
immigrant visas equal to 1/7 of the number of aliens
described in subsection (c)(1) whose visas had not been issued as of the date
of the enactment of this Act.
(e)
Allocation of
family-sponsored merit-based immigrant visas
The visas authorized
by subsection (c)(2) shall be allocated as follows:
(1)
Spouses and
children of permanent residents
Petitions to accord status under
section 203(a)(2)(A) of the Immigration and Nationality Act (8 U.S.C.
1153(a)(2)(A)) of the Immigration and Nationality Act, as in effect the day
before the effective date specified in section 217(a)(3) of this Act, are
automatically converted to petitions to accord status to the same beneficiaries
as immediate relatives under section 201(b)(2)(A) of the Immigration and
Nationality Act (8 U.S.C. 1151(b)(2)(A)).
(2)
Other family
members
In each of the fiscal years 2015 through and including
2021, the Secretary of State shall allocate to the aliens described in
subsection (c)(2)(A), other than those aliens described in paragraph (1), a
number of transitional merit-based immigrant visas equal to
1/7 of the difference between—
(A) the number of
aliens described in subsection (c)(2)(A) whose visas had not been issued as of
the date of the enactment of this Act; and
(B) the number of
aliens described in paragraph (1).
(3)
Order of
issuance for previously filed applications
Subject to paragraphs
(1) and (2), the visas authorized by subsection (c)(2)(A) shall be issued in
the order in which the petitions to accord status under section 203(a) of the
Immigration and Nationality Act were filed (8 U.S.C. 1153(a)).
(4)
Subsequently
filed applications
In fiscal year 2022, the Secretary of State
shall allocate to the aliens described in subsection (c)(2)(B), the number of
merit-based immigrant visas equal to 1/2 of the number of
aliens described in subsection (c)(2)(B) whose visas had not been issued by
October 1, 2021. In fiscal year 2023, the Secretary of State shall allocate to
the aliens described in subsection (c)(2)(B), the number of merit-based
immigrant visas equal to the number of aliens described in subsection (c)(2)(B)
whose visas had not been issued by October 1, 2022.
(5)
Order of
issuance for subsequently filed applications
Subject to paragraph
(4), the visas authorized by subsection (c)(2)(B) shall be issued in the order
in which the petitions to accord status under section 203(a) of the Immigration
and Nationality Act were filed, as in effect the day before the effective date
specified in section 217(a)(3) of this Act.
(f)
Eligibility in
years after 2028
Beginning in fiscal year 2029, aliens eligible
for adjustment of status under paragraph (c)(3) of this section must be
lawfully present in an employment authorized status for 20 years prior to
filing an application for adjustment of status.
(g)
Registered
provisional immigrants
An alien granted registered provisional
status under section 201 of this Act is not eligible to receive a merit-based
immigrant visa under section 201(e) of the Immigration and Nationality Act, as
amended by section 2301, until 10 years after the date of the enactment of this
Act.
2303.
Repeal of the
diversity visa program
(a)
In
general
Title II (8 U.S.C.
1151 et seq.) is amended—
(1) in section 201 (8
U.S.C. 1151)—
(A) in subsection
(a)—
(i) in paragraph (1),
by adding and at the end;
(ii) in paragraph (2),
by striking ; and at the end and inserting a period; and
(iii) by striking
paragraph (3); and
(B) by striking
subsection (e);
(2) in section 203 (8
U.S.C. 1153)—
(A) by striking
subsection (c);
(B) in subsection (d),
by striking (a), (b), or (c) and inserting “(a) or (b)
(C) in subsection
(e)—
(i) by striking
paragraph (2); and
(ii) by redesignating
paragraph (3) as paragraph (2);
(D) in subsection (f),
by striking (a), (b), or (c) of this section and inserting
(a) or (b); and
(E) in subsection (g),
by striking (a), (b), and (c) and inserting (a) and
(b); and
(3) in section 204 (8
U.S.C. 1154)—
(A) in subsection
(a)(1), by striking subparagraph (I); and
(B) in subsection (e),
by striking (a), (b), or (c) and inserting (a) or
(b).
(b)
Effective date
and application
(1)
Effective
date
The amendments made by this section shall take effect on
October 1, 2014.
(2)
Application
An
alien who receives a notification from the Secretary that the alien was
selected to receive a diversity immigrant visa under section 203(c) of the
Immigration and Nationality Act (8 U.S.C. 1153(c)) for fiscal year 2013 or
fiscal year 2014 shall remain eligible to receive such visa under the rules of
such section, as in effect on September 30, 2014. No alien may be allocated
such a diversity immigrant visa for a fiscal year after fiscal year
2015.
2304.
World-wide
levels and recapture of unused immigrant visas
(a)
Employment-based
immigrants
Section 201(d) (8 U.S.C. 1151(d)) is amended to read
as follows:
(d)
Worldwide level
of employment-based immigrants
(1)
In
general
(A)
Worldwide
level
For a fiscal year after fiscal year 2015, the worldwide
level of employment-based immigrants under this subsection is equal to the sum
of—
(i) 140,000;
and
(ii) the number
computed under paragraph (2).
(B)
Fiscal year
2015
For fiscal year 2015, the worldwide level of
employment-based immigrants under this subsection is equal to the sum
of—
(i) 140,000;
(ii) the number
computed under paragraph (2); and
(iii) the number
computed under paragraph (3).
(2)
Previous fiscal
year
The number computed under this paragraph for a fiscal year
is the difference, if any, between the maximum number of visas which may be
issued under section 203(a)(relating to family-sponsored immigrants) during the
previous fiscal year and the number of visas issued under that section during
that year.
(3)
Unused
visas
The number computed under this paragraph is the difference,
if any, between—
(A) the sum of the
worldwide levels established under paragraph (1) for fiscal years 1992 through
and including 2013; and
(B) the number of
visas actually issued under section 203(b) during such fiscal
years.
.
(b)
Family-sponsored
immigrants
Section 201(c) (8 U.S.C. 1151(c)) is amended to read
as follows:
(c)
Worldwide level
of family-sponsored immigrants
(1)
In
general
(A)
Worldwide
level
Subject to subparagraph (C), for each fiscal year after
fiscal year 2015, the worldwide level of family-sponsored immigrants under this
subsection for a fiscal year is equal to the sum of—
(i) 480,000 minus the
number computed under paragraph (2); and
(ii) the number
computed under paragraph (3).
(B)
Fiscal year
2015
Subject to subparagraph (C), for fiscal year 2015, the
worldwide level of family-based immigrants under this subsection for a fiscal
year after fiscal year 2015 is equal to the sum of—
(i) 480,000 minus the
number computed under paragraph (2);
(ii) the number
computed under paragraph (3); and
(iii) the number
computed under paragraph (4).
(C)
Limitation
The
number computed under subparagraph (A)(i) or (B)(i) may not be less than
226,000. The number computed under subparagraph (A)(i) or (B)(i) may not be
less than 226,000, except that beginning on the date that is 18 months after
the date of the enactment of the Border
Security, Economic Opportunity, and Immigration Modernization
Act, the number computed under subparagraph (A)(i) or (B)(i) may
not be less than 161,000.
(2)
Immediate
relatives
The number computed under this paragraph for a fiscal
year is the number of aliens described in subparagraph (A) or (B) of subsection
(b)(2) who were issued immigrant visas, or who otherwise acquired the status of
an alien lawfully admitted to the United States for permanent residence, in the
previous fiscal year.
(3)
Previous fiscal
year
The number computed under this paragraph for a fiscal year
is the difference, if any, between the maximum number of visas which may be
issued under section 203(b) (relating to employment-based immigrants) during
the previous fiscal year and the number of visas issued under that section
during that year.
(4)
Unused
visas
The number computed under this paragraph is the difference,
if any, between—
(A) the sum of the
worldwide levels established under paragraph (1) for fiscal years 1992 through
and including 2013; and
(B) the number of
visas actually issued under section 203(a) during such fiscal
years.
.
(c)
Effective
date
The amendments made by this Act shall take effect on the
first day of the first fiscal year beginning after the date of the enactment of
this Act.
2305.
Reclassification
of spouses and minor children of lawful permanent residents as immediate
relatives
(a)
Immediate
relatives
Section 201(b)(2) (8 U.S.C. 1151(b)(2)) is amended to
read as follows:
(2)
(A) Aliens who are
immediate relatives.
(B) In this paragraph,
the term immediate relative means—
(i) a child, spouse,
or parent of a citizen of the United States, except that in the case of such a
parent such citizen shall be at least 21 years of age;
(ii) a child or spouse
of an alien lawfully admitted for permanent residence;
(iii) the child or
spouse of an alien described in clause (i), who is accompanying or following to
join the alien;
(iv) the child or
spouse of an alien described in clause (ii), who is accompanying or following
to join the alien;
(v) an alien admitted
under section 211(a) on the basis of a prior issuance of a visa to the alien’s
accompanying parent who is an immediate relative; and
(vi) an alien born to
an alien lawfully admitted for permanent residence during a temporary visit
abroad.
(C) If an alien who
was the spouse or child of a citizen of the United States or of an alien
lawfully admitted for permanent residence and was not legally separated from
the citizen or lawful permanent resident at the time of the citizen’s or lawful
permanent resident’s death files a petition under section 204(a)(1)(A)(ii) not
later than 2 years after the date of the citizen’s or permanent resident’s
death, the alien spouse (and each child of the alien) shall remain, for
purposes of this paragraph, an immediate relative during the period beginning
on the date of the citizen’s or permanent resident’s death and ending on the
date on which the alien spouse remarries.
(D) An alien who has
filed a petition under clause (iii) or (iv) of section 204(a)(1)(A) shall
remain, for purposes of this paragraph, an immediate relative if the United
States citizen or lawful permanent resident spouse or parent loses United
States citizenship on account of the
abuse.
.
(b)
Allocation of
immigrant visas
Section 203(a) (8 U.S.C. 1153(a)) is
amended—
(1) in paragraph (1),
by striking 23,400, and inserting 20 percent of the
worldwide level of family-sponsored immigrants under section
201(c);
(2) by striking
paragraph (2) and inserting the following:
(2)
Unmarried sons
and unmarried daughters of permanent resident aliens
Qualified
immigrants who are the unmarried sons or unmarried daughters (but are not the
children) of an alien lawfully admitted for permanent residence shall be
allocated visas in a number not to exceed 20 percent of the worldwide level of
family-sponsored immigrants under section 201(c), plus any visas not required
for the class specified in paragraph
(1).
;
(3) in paragraph (3)
—
(A) by striking
23,400, and inserting 20 percent of the worldwide level
of family-sponsored immigrants under section 201(c); and
(B) by striking
classes specified in paragraphs (1) and (2). and inserting
class specified in paragraph (2).; and
(4) in paragraph
(4)—
(A) by striking
65,000, and inserting 40 percent of the worldwide level
of family-sponsored immigrants under section 201(c); and
(B) by striking
classes specified in paragraphs (1) through (3). and inserting
class specified in paragraph (3)..
(c)
Termination of
registration
Section 203(g) (8 U.S.C. 1153(g)) is amended to read
as follows:
(g)
Lists
(1)
In
general
For purposes of carrying out the orderly administration
of this title, the Secretary of State may make reasonable estimates of the
anticipated numbers of immigrant visas to be issued during any quarter of any
fiscal year within each of the categories under subsections (a), (b), and (c)
and may rely upon such estimates in authorizing the issuance of visas.
(2)
Termination of
registration
(A)
Information
dissemination
Not later than 180 days after the date of the
enactment of the Border Security, Economic
Opportunity, and Immigration Modernization Act, the Secretary of
Homeland Security and the Secretary of State shall adopt a plan to broadly
disseminate information to the public regarding termination of registration
procedures described in subparagraphs (B) and (C), including procedures for
notifying the Department of Homeland Security and the Department of State of
any change of address on the part of a petitioner or a beneficiary of an
immigrant visa petition.
(B)
Termination for
failure to adjust
The Secretary of Homeland Security shall
terminate the registration of any alien who has evidenced an intention to
acquire lawful permanent residence under section 245 and who fails to apply to
adjust status within 1 year following notification to the alien of the
availability of an immigrant visa.
(C)
Termination for
failure to apply
The Secretary of State shall terminate the
registration of any alien not described in subparagraph (B) who fails to apply
for an immigrant visa within 1 year following notification to the alien of the
availability of such visa.
(3)
Reinstatement
The
registration of any alien that was terminated under paragraph (2) shall be
reinstated if the alien establishes within 2 years following the date of
notification of the availability of such visa demonstrates that such failure to
apply was due to good
cause.
.
(d)
Technical and
conforming amendments
(1)
Definitions
Section
101(a)(15)(K)(ii) (8 U.S.C. 1101(a)(15)(K)(ii)) is amended by striking
section 201(b)(2)(A)(i) and inserting section 201(b)(2)
(other than clause (v) or (vi) of subparagraph (A)).
(2)
Per country
level
Section 202(a)(1)(A) (8 U.S.C. 1152(a)(1)(A)) is amended by
striking section 201(b)(2)(A)(i) and inserting section
201(b)(2) (other than clause (v) or (vi) of subparagraph (A)).
(3)
Rules for
determining whether certain aliens are immediate
relatives
Section 201(f) (8 U.S.C. 1151(f)) is amended—
(A) in paragraph (1),
by striking paragraphs (2) and (3), and inserting
paragraph (2),;
(B) by striking
paragraph (2);
(C) by redesignating
paragraphs (3) and (4) as paragraphs (2) and (3), respectively; and
(D) in paragraph (3),
as redesignated by subparagraph (C), by striking through (3) and
inserting and (2).
(4)
Numerical
limitation to any single foreign state
Section 202 (8 U.S.C.
1152) is amended—
(A) in subsection
(a)(4)—
(i) by striking
subparagraphs (A) and (B);
(ii) by redesignating
subparagraphs (C) and (D) as subparagraphs (A) and (B), respectively;
and
(iii) in subparagraph
(A), as redesignated by clause (ii), by striking section
203(a)(2)(B) and inserting section 203(a)(2); and
(B) in subsection (e),
in the flush matter following paragraph (3), by striking , or as
limiting the number of visas that may be issued under section 203(a)(2)(A)
pursuant to subsection (a)(4)(A).
(5)
Allocation of
immigrant visas
Section 203(h) (8 U.S.C. 1153(h)) is
amended—
(A) in paragraph
(1)—
(i) in the matter
preceding subparagraph (A), by striking subsections (a)(2)(A) and
(d) and inserting subsection (d);
(ii) in subparagraph
(A), by striking becomes available for such alien (or, in the case of
subsection (d), the date on which an immigrant visa number became available for
the alien’s parent), and inserting became available for the
alien’s parent,; and
(iii) in subparagraph
(B), by striking applicable;
(B) by amending
paragraph (2) to read as follows:
(2)
Petitions
described
The petition described in this paragraph is a petition
filed under section 204 for classification of the alien’s parent under
subsection (a), (b), or (c).
;
and
(C) by amending
paragraph (3) to read as follows:
(3)
Retention of
priority date
(A)
Petitions filed
for children
For a petition originally filed to classify a child
under subsection (d), if the age of the alien is determined under paragraph (1)
to be 21 years of age or older on the date that a visa number becomes available
to the alien’s parent who was the principal beneficiary of the petition, then,
upon the parent’s admission to lawful permanent residence in the United States,
the petition shall automatically be converted to a petition filed by the parent
for classification of the alien under subsection (a)(2) and the petition shall
retain the priority date established by the original petition.
(B)
Family and
employment-based petitions
The priority date for any family- or
employment-based petition shall be the date of filing of the petition with the
Secretary of Homeland Security (or the Secretary of State, if applicable),
unless the filing of the petition was preceded by the filing of a labor
certification with the Secretary of Labor, in which case that date shall
constitute the priority date. The beneficiary of any petition shall retain his
or her earliest priority date based on any petition filed on his or her behalf
that was approvable when filed, regardless of the category of subsequent
petitions.
.
(6)
Procedure for
granting immigrant status
Section 204 (8 U.S.C. 1154) is
amended—
(A) in subsection
(a)(1)—
(i) in subparagraph
(A)—
(I) in clause (i), by
inserting or alien lawfully admitted for permanent residence
after citizen of the United States;
(II) in clause (ii),
by striking described in the second sentence of section 201(b)(2)(A)(i)
also and inserting or alien child described in section
201(b)(2)(C);
(III) in clause
(iii)—
(aa) in subclause
(I)(aa), by striking United States citizen and inserting
citizen of the United States or lawful permanent resident;
and
(bb) in subclause
(II)(aa)—
(AA) in subitem (AA),
by striking the semicolon at the end and inserting or lawful permanent
resident;;
(BB) in subitem
(BB)—
(cc) by inserting
or lawful permanent resident after a citizen of the
United States; and
(dd) by striking
States; and inserting States or lawful permanent
resident;; and
(CC) by amending
subitem (CC) to read as follows:
(CC) who was a bona
fide spouse of a citizen of the United States or a lawful permanent resident
within the past 2 years and—
(aaa) whose spouse
died within the past 2 years;
(bbb) whose spouse
renounced citizenship status or renounced or lost status as a lawful permanent
resident within the past 2 years related to an incident of domestic violence;
or
(ccc) who demonstrates
a connection between the legal termination of the marriage within the past 2
years and battering or extreme cruelty by the spouse who is a citizen of the
United States or a lawful permanent resident
spouse;
;
(IV) in clause (iv),
by inserting or lawful permanent resident after
citizen each place that term appears;
(V) in clause (v)(I),
by inserting or lawful permanent resident after
citizen; and
(VI) in clause
(vi)—
(aa) by striking
citizenship, and inserting citizenship or lawful
permanent resident status,; and
(bb) by inserting
or lawful permanent resident after abuser’s
citizenship;
(ii) by striking
subparagraph (B);
(iii) in subparagraph
(C), by striking subparagraph (A)(iii), (A)(iv), (B)(ii), or
(B)(iii) and inserting clause (iii) or (iv) of subparagraph
(A); and
(iv) in subparagraph
(J), by striking or clause (ii) or (iii) of subparagraph
(B);
(B) in subsection (a),
by striking paragraph (2);
(C) in subsection
(c)(1), by striking or preference status; and
(D) in subsection (h),
by striking or a petition filed under subsection
(a)(1)(B)(ii).
(7)
Excludable
aliens
Section 212(d)(12)(B) (8 U.S.C. 1182(d)(12)(B)) is amended
by striking section 201(b)(2)(A) and inserting section
201(b)(2) (other than subparagraph (A)(vi)).
(8)
Admission of
nonimmigrants
Section 214(r)(3)(A) (8 U.S.C. 1184(r)(3)(A)) is
amended by striking section 201(b)(2)(A)(i). and inserting
section 201(b)(2) (other than clause (v) or (vi) of subparagraph
(A))..
(9)
Refugee crisis
in Iraq Act of 2007
Section 1243(a)(4) of the Refugee Crisis in
Iraq Act of 2007 (8 U.S.C. 1157 note) is amended by striking section
201(b)(2)(A)(i) and inserting section 201(b)(2) (other than
clause (v) or (vi) of subparagraph (A)).
(10)
Processing of
visa applications
Section 233 of the Department of State
Authorization Act, Fiscal Year 2003 (8 U.S.C. 1201 note) is amended by striking
section 201(b)(2)(A)(i) and inserting section 201(b)(2)
(other than clause (v) or (vi) of subparagraph (A)).
(11)
Adjustment of
status
Section 245(a) (8 U.S.C. 1255(a)) is amended to read as
follows:
(a)
(1) The status of an alien
who was inspected and admitted or paroled into the United States or the status
of any other alien having an approved petition for classification as a VAWA
self-petitioner may be adjusted by the Attorney General or the Secretary of
Homeland Security, in the Attorney General's or the Secretary's discretion and
under such regulations as the Attorney General or Secretary may prescribe, to
that of an alien lawfully admitted for permanent residence (regardless of
whether the alien has already been admitted for permanent residence) if—
(A) the alien makes an
application for such adjustment;
(B) the alien is
eligible to receive an immigrant visa and is admissible to the United States
for permanent residence; and
(C) subject to
paragraph (2), an immigrant visa is immediately available to the alien at the
time the alien's application is filed.
(2)
(A) An application that is
based on a petition approved or approvable under subparagraph (A) or (B) of
section 204(a)(1) may be filed without regard to the limitation set forth in
paragraph (1)(C).
(B) An application for
adjustment filed for an alien under this paragraph may not be approved until
such time as an immigrant visa becomes available for the
alien.
.
(e)
Effective
date
The amendments made by this section shall take effect on the
date of the enactment of this Act.
2306.
Numerical
limitations on individual foreign states
(a)
Numerical
limitation to any single foreign State
Section 202(a)(2) (8
U.S.C. 1152(a)(2)) is amended—
(1) in the paragraph
heading, by striking AND
EMPLOYMENT-BASED;
(2) by striking
(3), (4), and (5), and inserting (3) and
(4),;
(3) by striking
subsections (a) and (b) of section 203 and inserting
section 203(a);
(4) by striking
7 and inserting 15; and
(5) by striking
such subsections and inserting such
section.
(b)
Conforming
amendments
Section 202 (8 U.S.C. 1152) is amended—
(1) in subsection
(a)—
(A) in paragraph (3),
by striking both subsections (a) and (b) of section 203 and
inserting section 203(a); and
(B) by striking
paragraph (5); and
(2) by amending
subsection (e) to read as follows:
(e)
Special rules
for countries at ceiling
If it is determined that the total
number of immigrant visas made available under section 203(a) to natives of any
single foreign state or dependent area will exceed the numerical limitation
specified in subsection (a)(2) in any fiscal year, in determining the allotment
of immigrant visa numbers to natives under section 203(a), visa numbers with
respect to natives of that state or area shall be allocated (to the extent
practicable and otherwise consistent with this section and section 203) in a
manner so that, except as provided in subsection (a)(4), the proportion of the
visa numbers made available under each of paragraphs (1) through (4) of section
203(a) is equal to the ratio of the total number of visas made available under
the respective paragraph to the total number of visas made available under
section
203(a).
.
(c)
Country-specific
offset
Section 2 of the Chinese Student Protection Act of 1992 (8
U.S.C. 1255 note) is amended—
(1) in subsection (a),
by striking subsection (e)) and inserting subsection
(d)); and
(2) by striking
subsection (d) and redesignating subsection (e) as subsection (d).
(d)
Effective
date
The amendments made by this section shall take effect 1 year
after the date of the enactment of this Act.
2307.
Allocation of
immigrant visas
(a)
Preference
allocation for family-based immigrants
(1)
In
general
Section 203(a) (8 U.S.C. 1153(a)) is amended to read as
follows:
(a)
Preference
allocation for family-based immigrants
Aliens subject to the
worldwide level specified in section 201(c) for family-based immigrants shall
be allotted visas as follows:
(1)
Sons and
daughters of citizens
Qualified immigrants who are—
(A) the unmarried sons
or unmarried daughters but not the children of citizens of the United States
shall be allocated visas in a number not to exceed 35 percent of the worldwide
level authorized in section 201(c), plus the sum of—
(i) the number of
visas not required for the class specified in paragraph (2) for the current
fiscal year; and
(ii) the number of
visas not required for the class specified in subparagraph (B); or
(B) the married sons
or married daughters of citizens of the United States who are under 31 years of
age at the time of filing a petition under section 204 shall be allocated visas
in a number not to exceed 25 percent of the worldwide level authorized in
section 201(c), plus the number of any visas not required for the class
specified in subparagraph (A) current fiscal year.
(2)
Sons and
daughters of residents
Qualified immigrants who are the unmarried
sons or unmarried daughters of aliens admitted for permanent residence shall be
allocated visas in a number not to exceed 40 percent of the worldwide level
authorized in section 201(c), plus any visas not required for the class
specified in paragraph
(1)(A).
.
(2)
Conforming
amendments
(A)
Procedure for
granting immigrant status
Section 204 (8 U.S.C. 1154) is
amended—
(i) in subsection
(a)(1)(A)(i), by striking (1), (3), or (4) of section 203(a) and
inserting subparagraph (A) or (B) of section 203(a)(1);
and
(ii) in subsection
(f)(1), by striking section 201(b), 203(a)(1), or 203(a)(3), and
inserting section 201(b) or subparagraph (A) or (B) of section
203(a)(1).
(B)
Automatic
conversion
For the purposes of any petition pending or approved
based on a relationship described—
(i) in subparagraph
(A) of section 203(a)(1) of the Immigration and Nationality Act (8 U.S.C.
1153(a)(1)), as amended by paragraph (1), and notwithstanding the age of the
alien, such a petition shall be deemed reclassified as a petition based on a
relationship described in subparagraph (B) of such section 203(a)(1) upon the
marriage of such alien; or
(ii) in subparagraph
(B) of such section 203(a)(1), such a petition shall be deemed reclassified as
a petition based on a relationship described in subparagraph (A) of such
section 203(a)(1) upon the legal termination of marriage or death of such
alien’s spouse.
(3)
Effective
date
The amendments made by this subsection shall take effect on
the first day of the first fiscal year that begins at least 18 months following
the date of the enactment of this Act.
(b)
Preference
allocation for Employment-based immigrants
Section 201(b)(1) (8
U.S.C. 1151(b)(1)) is amended by adding at the end the following:
(F) Derivative
beneficiaries as described in section 203(d) of employment-based immigrants
under section 203(b).
(G) Aliens with
extraordinary ability in the sciences, arts, education, business, or athletics
which has been demonstrated by sustained national or international acclaim, if,
with respect to any such alien—
(i) the achievements
of such alien have been recognized in the field through extensive
documentation;
(ii) such alien seeks
to enter the United States to continue work in the area of extraordinary
ability; and
(iii) the entry of
such alien into the United States will substantially benefit prospectively the
United States.
(H) Aliens who are
outstanding professors and researchers if, with respect to any such
alien—
(i) the alien is
recognized internationally as outstanding in a specific academic area;
(ii) the alien has at
least 3 years of experience in teaching or research in the academic area;
and
(iii) the alien seeks
to enter the United States—
(I) to be employed in
for a tenured position (or tenure-track position) within a not for profit
university or institution of higher education to teach in the academic
area;
(II) for employment in
a comparable position with a not for profit university or institution of higher
education , or a governmental research organization, to conduct research in the
area; or
(III) for employment
in a comparable position to conduct research in the area with a department,
division, or institute of a private employer, if the department, division, or
institute employs at least 3 persons full-time in research activities and has
achieved documented accomplishments in an academic field.
(I) Aliens who are
multinational executives and managers if, with respect to any such
alien—
(i) in the 3 years
preceding the time of the alien’s application for classification and admission
into the United States under this subparagraph, the alien has been employed for
at least 1 year by a firm or corporation or other legal entity or an affiliate
or subsidiary thereof; and
(ii) the alien seeks
to enter the United States in order to continue to render services to the same
employer or to a subsidiary or affiliate thereof in a capacity that is
managerial or executive.
(J) Aliens who have
earned a doctorate degree.
(K) Alien physicians
who have completed the foreign residency requirements under section 212(e) or
obtained a waiver of these requirements or an exemption requested by an
interested State agency or by an interested Federal agency under section
214(l), including those alien physicians who completed such service before the
date of the enactment of the Border Security,
Economic Opportunity, and Immigration Modernization
Act.
.
(c)
Technical and
conforming amendments
(1)
Procedure for
granting immigrant status
Section 204(a)(1)(E) (8 U.S.C.
1154(a)(1)(E)) is amended by striking under section 203(b)(1)(A)
and inserting under subparagraph (G), (H), (I), (J) or (K) of section
201(b)(1), or section.
(2)
Treatment of
derivative family members
Section 203(d) (8 U.S.C. 1153(d)) is
amended to read as follows:
(d)
Treatment of
family members
If accompanying or following to join a spouse or
parent issued a visa under subsection (a), (b), or (c), subparagraph (G), (H),
(I), (j), or (K) of section 201(b)(1), or section 201(b)(2), a spouse or child
as defined in subparagraph (A), (B), (C), (D), or (E) of section 101(b)(1)
shall be entitled to the same immigrant status and the same order of
consideration provided in the respective
subsection.
.
(3)
Aliens who are
priority workers or members of the professions holding advanced
degrees
Section 203(b) (8 U.S.C. 1153(b)) is amended—
(A) in the matter
preceding paragraph (1), by striking Aliens and inserting
Other than aliens described in paragraph (1) or (2)(B),
aliens;
(B) in paragraph (1)
by striking the matter preceding subparagraph (A) and inserting Aliens
described in any of the following subparagraphs be admitted to the United
States without respect to the worldwide level specified in section
201(d); and
(C) by amending (2) to
read as follows:
(2)
Aliens who are
members of the professions holding advanced degrees or advanced degrees in a
STEM field
(A)
Professions
holding advanced degrees
Visas shall be made available, in a
number not to exceed 40 percent of the worldwide level authorized in section
201(d), plus any visas not required for the classes specified in paragraph (5),
to qualified immigrants who are members of the professions holding advanced
degrees or their equivalent whose services in the sciences, arts, professions,
or business are sought by an employer in the United States, including alien
physicians holding foreign medical degrees that have been deemed sufficient for
acceptance by an accredited United States medical residency or fellowship
program.
(B)
Advanced degrees
in a STEM field
(i)
In
general
A qualified immigrant shall be admitted to the United
States without respect to the worldwide level specified in section 201(d) if
such immigrant—
(I) has earned a
graduate degree at the level of master’s or higher in a field of science,
technology, engineering, or mathematics from an accredited United States
institution of higher education
(II) has an offer of
employment from a United States employer in a field related to such degree;
and
(III) earned the
qualifying graduate degree within the 5 years immediately prior to the initial
filing date of the petition under which the nonimmigrant is a
beneficiary.
(ii)
United States
doctoral institution of higher education
In this subparagraph,
the term United States doctoral institution of higher education
means an institution that—
(I) is described in
section 101(a) of the Higher Education Act of 1965 (20 U.S.C. 1001(a)) or is a
proprietary institution of higher education (as defined in section 102(b) of
such Act (20 U.S.C. 1002(b)));
(II) was classified by
the Carnegie Foundation for the Advancement of Teaching on January 1, 2012, as
a doctorate-granting university with a very high or high level of research
activity or classified by the National Science Foundation after the date of
enactment of this paragraph, pursuant to an application by the institution, as
having equivalent research activity to those institutions that had been
classified by the Carnegie Foundation as being doctorate-granting universities
with a very high or high level of research activity; and
(III) is accredited by
an accrediting body that is itself accredited either by the Department of
Education or by the Council for Higher Education Accreditation.
(C)
Waiver of job
offer
(i)
National
interest waiver
Subject to clause (ii), the Secretary of Homeland
Security may, if the Secretary deems it to be in the national interest, waive
the requirements of subparagraph (A) that an alien’s services in the sciences,
arts, professions, or business be sought by an employer in the United
States.
(ii)
Physicians
working in shortage areas or veterans facilities
(I)
In
general
The Secretary shall grant a national interest waiver
pursuant to clause (i) on behalf of any alien physician with respect to whom a
petition for preference classification has been filed under subparagraph (A)
if—
(aa) the alien
physician agrees to work full time as a physician practicing primary care,
specialty medicine, or a combination thereof, in an area or areas designated by
the Secretary of Health and Human Services as having a shortage of health care
professionals or at a health care facility under the jurisdiction of the
Secretary of Veterans Affairs; or
(bb) the alien
physician is pursuing such waiver based upon service at a facility or
facilities that serve patients who reside in a geographic area or areas
designated by the Secretary of Health and Human Services as having a shortage
of health care professionals (without regard to whether such facility or
facilities are located within such an area) and a Federal agency or a local,
county, regional, or State department of public health determines that the
alien physician’s work at such facility was or will be in the public
interest.
(II)
Prohibition
(aa) No permanent
resident visa may be issued to an alien physician described in subclause (I) by
the Secretary of State under section 204(b), and the Secretary of Homeland
Security may not adjust the status of such an alien physician from that of a
nonimmigrant alien to that of a permanent resident alien under section 245,
until such time as the alien has worked full time as a physician for an
aggregate of 5 years (not including the time served in the status of an alien
described in section 101(a)(15)(J)), in an area or areas designated by the
Secretary of Health and Human Services as having a shortage of health care
professionals or at a health care facility under the jurisdiction of the
Secretary of Veterans Affairs; or at a facility or facilities meeting the
requirements of subclause (I)(bb).
(bb) The 5-year
service requirement of item (aa) shall be counted from the date the alien
physician begins work in the shortage area in any legal status and not the date
an immigrant visa petition is filed or approved. Such service shall be
aggregated without regard to when such service began and without regard to
whether such service began during or in conjunction with a course of graduate
medical education.
(cc) An alien
physician shall not be required to submit an employment contract with a term
exceeding the balance of the 5-year commitment yet to be served, nor an
employment contract dated within a minimum time period prior to filing of a
visa petition pursuant to this subsection.
(dd) An alien
physician shall not be required to file additional immigrant visa petitions
upon a change of work location from the location approved in the original
national interest immigrant petition.
(III)
Statutory
construction
Nothing in this subparagraph may be construed to
prevent the filing of a petition with the Secretary of Homeland Security for
classification under section 204(a), by an alien physician described in
subclause (I) prior to the date by which such alien physician has completed the
service described in subclause (II) or in section
214(l).
.
(4)
Exception from
labor certification requirement for STEM immigrants
Section
212(a)(5)(D) (8 U.S.C. 1182(a)(5)(D)) is amended to read as follows:
(D)
Application of
grounds
(i)
In
general
Except as provided in clause (ii), the grounds for
inadmissibility of aliens under subparagraphs (A) and (B) shall apply to
immigrants seeking admission or adjustment of status under paragraph (2) or (3)
of section 203(b).
(ii)
Special rule
for STEM immigrants
The grounds for inadmissibility of aliens
under subparagraph (A) shall not apply to an immigrant seeking admission or
adjustment of status under paragraph (2)(A)(ii) of section
203(b).
.
(5)
Skilled workers,
professionals, and other workers
(A)
In
general
Section 203(b)(3)(A) (8 U.S.C. 1153(b)(3)(A)) is amended
by striking in a number not to exceed 28.6 percent of such worldwide
level, plus any visas not required for the classes specified in paragraphs (1)
and (2), and inserting in a number not to exceed 40 percent of
the worldwide level authorized in section 201(d), plus any visas not required
for the class specified in paragraph (2),.
(B)
Medical license
requirements
Section 214(i)(2)(A) (8 U.S.C. 1184(i)(2)(A)) is
amended by adding at the end including in the case of a medical doctor,
the licensure required to practice medicine in the United
States,.
(C)
Repeal of
limitation on other workers
Section 203(b)(3) (8 U.S.C.
1153(b)(3)) is amended—
(i) by striking
subparagraph (B); and
(ii) redesignated
subparagraph (C) as subparagraph (B).
(6)
Certain special
immigrants
Section 203(b)(4) (8 U.S.C. 1153(b)(4)) is amended by
striking in a number not to exceed 7.1 percent of such worldwide level,
and inserting in a number not to exceed 10 percent of the
worldwide level authorized in section 201(d), plus any visas not required for
the class specified in paragraph (3),.
(7)
Employment
creation
Section 203(b)(5)(A) (8 U.S.C. 1153(b)(5)(A)) is amended
by striking in a number not to exceed 7.1 percent of such worldwide
level, and inserting in a number not to exceed 10 percent of
the worldwide level authorized in section 201(d), plus any visas not required
for the class specified in paragraph (4), .
2308.
V nonimmigrant
visas
(a)
Nonimmigrant
eligibility
Subparagraph (V) of section 101(a)(15) (8 U.S.C.
1101(a)(15)) is amended to read as follows:
(V)
(i) subject to section
214(q)(1) and section 212(a)(4), an alien who is the beneficiary of an approved
petition under section 203(a) as—
(I) the unmarried son
or unmarried daughter of a citizen of the United States;
(II) the unmarried son
or unmarried daughter of an alien lawfully admitted for permanent residence;
or
(III) the married son
or married daughter of a citizen of the United States and who is under 31 years
of age; or
(ii) subject to
section 214(q)(2), an alien who is—
(I) the sibling of a
citizen of the United States; or
(II) the married son
or married daughter of a citizen of the United States and who is over 31 years
of
age.
.
(b)
Employment and
period of admission of nonimmigrants described in section
101(a)(15)(V)
Section 214(q) (8 U.S.C. 1184(q)) is amended to
read as follows:
(q)
Nonimmigrants
described in section 101(a)(15)(V)
(1)
Certain sons and
daughters
(A)
Employment
authorization
The Secretary shall—
(i) authorize a
nonimmigrant admitted pursuant to section 101(a)(15)(V)(i) to engage in
employment in the United States during the period of such nonimmigrant's
authorized admission; and
(ii) provide such a
nonimmigrant with an employment authorized endorsement or other
appropriate document signifying authorization of employment.
(B)
Termination of
admission
The period of authorized admission for such a
nonimmigrant shall terminate 30 days after the date on which—
(i) such
nonimmigrant’s application for an immigrant visa pursuant to the approval of a
petition under subsection (a) or (c) of section 203 is denied; or
(ii) such
nonimmigrant’s application for adjustment of status under section 245 pursuant
to the approval of such a petition is denied.
(2)
Siblings and
sons and daughters of citizens
(A)
Employment
authorization
The Secretary may not authorize a nonimmigrant
admitted pursuant to section 101(a)(15)(V)(ii) to engage in employment in the
United States.
(B)
Period of
admission
The period of authorized admission as such a
nonimmigrant may not exceed 60 days per fiscal year.
(C)
Treatment of
period of admission
An alien admitted under section 101(a)(15)(V)
may not received an allocation of points pursuant to section 211 of this Act
which is section 201(e) as amended for residence in the United States while
admitted as such a
nonimmigrant.
.
(c)
Public
benefits
A noncitizen who is lawfully present in the United
States pursuant to section 101(a)(15)(V) of the Immigration and Nationality Act
(8 U.S.C. 1101(a)(15)(V)) is not eligible for any means-tested public benefits
(as such term is defined in section 403 of the Personal Responsibility and Work
Opportunity Reconciliation Act of 1996 (8 U.S.C. 1613)). A noncitizen admitted
under this section is—
(1) not entitled to
the premium assistance tax credit authorized under section 36B of the Internal
Revenue Code of 1986;
(2) shall be subject
to the rules applicable to individuals not lawfully present that are set forth
in subsection (e) of such section; and
(3) shall be subject
to the rules applicable to individuals not lawfully present that are set forth
in section 1402(e) of the Patient Protection and Affordable Care Act (42 U.S.C.
18071).
(d)
Effective
date
The amendments made by this section shall take effect on the
first day of the first fiscal year beginning after the date of the enactment of
this Act.
2309.
Fiancée and
fiancé child status protection
(a)
Definition
Section
101(a)(15)(K) (8 U.S.C. 1101(a)(15)(K)(i) is amended—
(1) in clause (i), by
inserting or of an alien lawfully admitted for permanent
residence after 204(a)(1)(A)(viii)(I));
(2) in clause (ii), by
inserting or of an alien lawfully admitted for permanent
residence after 204(a)(1)(A)(viii)(I)); and
(3) in clause (iii),
by striking the semicolon and inserting , provided that a determination
of the age of such child is made using the age of the alien on the date on
which the fiancé, fiancée, or immigrant visa petition is filed with the
Secretary of Homeland Security to classify the alien's parent as the fiancée or
fiancé of a United States citizen or of an alien lawfully admitted for
permanent residence (in the case of an alien parent described in clause (i)) or
as the spouse of a citizen of the United States or of an alien lawfully
admitted to permanent residence under section 201(b)(2)(A)(i) (in the case of
an alien parent described in clause (ii));.
(b)
Adjustment of
status authorized
Section 214(d) (8 U.S.C. 1184(d)) is
amended—
(1) by redesignating
paragraphs (2) and (3) as paragraphs (3) and (4), respectively; and
(2) in paragraph (1),
by striking In the event and all that follows through the end;
and
(3) by inserting after
paragraph (1) the following:
(2)
(A) If an alien does not
marry the petitioner under paragraph (1) within 3 months after the alien and
the alien's children are admitted into the United States, the visa previously
issued under the provisions of section 1101(a)(15)(K)(i) shall automatically
expire and such alien and children shall be required to depart from the United
States. If such aliens fail to depart from the United States, they shall be
placed in proceedings in accordance with sections 240 and 241.
(B) Subject to
subparagraphs (C) and (D), if an alien marries the petitioner described in
section 101(a)(15)(K)(i) within 90 days after the alien is admitted into the
United States, the Secretary or the Attorney General, subject to the provisions
of section 245(d), may adjust the status of the alien, and any children
accompanying or following to join the alien, to that of an alien lawfully
admitted for permanent residence on a conditional basis under section 216 if
the alien and any such children apply for such adjustment and are not
determined to be inadmissible to the United States. If the alien does not apply
for such adjustment within 6 months after the marriage, the visa issued under
the provisions of section 1101(a)(15)(K) shall automatically expire.
(C) Paragraphs (5) and
(7)(A) of section 212(a) shall not apply to an alien who is eligible to apply
for adjustment of the alien's status to an alien lawfully admitted for
permanent residence under this section.
(D) An alien eligible
for a waiver of inadmissibility as otherwise authorized under this Act or the
Border Security, Economic Opportunity, and
Immigration Modernization Act shall be permitted to apply for
adjustment of the alien's status to that of an alien lawfully admitted for
permanent residence under this
section.
.
(c)
Age
Determination
Section 245(d) (8 U.S.C. 1255(d)) is
amended—
(1) by inserting
(1) before The Attorney General by striking
The Attorney General and inserting (1) The Secretary of
Homeland Security;
(2) in paragraph (1),
as designated under paragraph (1) of this subsection, by striking
Attorney General and inserting Secretary;
and
(3) by adding at the
end the following:
(2) A determination of
the age of an alien admitted to the United States under section
101(a)(15)(K)(iii) shall be made, for purposes of adjustment to the status of
an alien lawfully admitted for permanent residence on a conditional basis under
section 216, using the age of the alien on the date on which the fiancé,
fiancée, or immigrant visa petition was filed with the Secretary of Homeland
Security to classify the alien's parent as the fiancée or fiancé of a United
States citizen or of an alien lawfully admitted to permanent residence (in the
case of an alien parent admitted to the United States under section
101(a)(15)(K)(i)) or as the spouse of a United States citizen or of an alien
lawfully admitted to permanent residence under section 201(b)(2)(A)(i) (in the
case of an alien parent admitted to the United States under section
101(a)(15)(K)(ii)).
.
(d)
Applicability
The
amendments made by this section shall apply to all petitions or applications
described in such amendments that are pending as of the date of the enactment
of the Border Security, Economic Opportunity,
and Immigration Modernization Act.
(e)
Technical and
conforming amendments
(1)
Definitions
Section
101(a)(15)(K) (8 U.S.C. 1101(a)(15)(K)), as amended by subsection (a), if
further amended—
(A) in clause (ii), by
striking section 201(b)(2)(A)(i) and inserting section
201(b)(2); and
(B) in clause (iii),
by striking section 201(b)(2)(A)(i) and inserting section
201(b)(2).
(2)
Age
determination
Section paragraph (2) of section 245(d) (8 U.S.C.
1255(d)), as add by subsection (c), is further amended by striking section
201(b)(2)(A)(i) and inserting 201(b)(2).
(3)
Effective
date
The amendments made by this subsection shall take effect on
the first day of the first fiscal year beginning no earlier than 1 year after
the date of the enactment of this Act.
2310.
Equal
treatment for all stepchildren
Section 101(b)(1)(B) (8 U.S.C.
1101(b)(1)(B)) is amended by striking eighteen years and
inserting 21 years.
2311.
International
adoption harmonization
(a)
Modification of
adoption age requirements
Section
101(b)(1) (8 U.S.C.
1101(b)(1)) is amended—
(1) in subparagraph (E)—
(A) by striking
(E)(i) and inserting (E);
(B) by striking
sixteen and inserting 18;
(C) by striking
; or and inserting a semicolon; and
(D) by striking clause
(ii);
(2) in subparagraph (F)—
(A) by striking
(F)(i) and inserting (F);
(B) by striking
sixteen and inserting 18;
(C) by striking
Attorney General and inserting Secretary of Homeland
Security; and
(D) by striking clause
(ii); and
(3) in subparagraph
(G), by striking 16 and inserting 18.
(b)
Harmonizing
adoptions between Hague Convention and non-Hague-Convention
countries
Section 212(a)(1)(C)(ii) (8 U.S.C.
1182(a)(1)(C)(ii)) is amended by striking section
101(b)(1)(F), and inserting subparagraph (F) or (G) of section
101(b)(1),.
2312.
Relief for
orphans, widows, and widowers
(a)
In
general
(1)
Special rule for
orphans and spouses
In applying clauses (iii) and (iv) of section
201(b)(2)(A) of the Immigration and Nationality Act, as added by section 102(a)
of this Act, to an alien whose citizen or lawful permanent resident relative
died before the date of the enactment of this Act, the alien relative may file
the classification petition under section 204(a)(1)(A)(ii) of such Act, as
amended by section 102(c)(4)(A)(i)(II) of this Act, not later than 2 years
after the date of the enactment of this Act.
(2)
Eligibility for
parole
If an alien was excluded, deported, removed, or departed
voluntarily before the date of the enactment of this Act based solely upon the
alien's lack of classification as an immediate relative (as defined in section
201(b)(2)(A)(iv) of the Immigration and Nationality Act, as amended by section
102(a) of this Act) due to the death of such citizen or resident—
(A) such alien shall
be eligible for parole into the United States pursuant to the Secretary's
discretionary authority under section 212(d)(5) of such Act (8 U.S.C.
1182(d)(5)); and
(B) such alien's
application for adjustment of status shall be considered notwithstanding
section 212(a)(9) of such Act (8 U.S.C. 1182(a)(9)).
(3)
Eligibility for
parole
If an alien described in section 204(l) of the Immigration
and Nationality Act (8 U.S.C. 1154(l)), was excluded, deported, removed, or
departed voluntarily before the date of the enactment of this Act—
(A) such alien shall
be eligible for parole into the United States pursuant to the Secretary's
discretionary authority under section 212(d)(5) of such Act (8 U.S.C.
1182(d)(5)); and
(B) such alien's
application for adjustment of status shall be considered notwithstanding
section 212(a)(9) of such Act (8 U.S.C. 1182(a)(9)).
(b)
Processing of
immigrant visas and derivative petitions
(1)
In
general
Section 204(b) (8 U.S.C. 1154(b)) is amended—
(A) by striking
After an investigation and inserting (1) After an
investigation; and
(B) by adding at the
end the following:
(2)
(A) Any alien described in
subparagraph (B) whose qualifying relative died before the completion of
immigrant visa processing may have an immigrant visa application adjudicated as
if such death had not occurred. An immigrant visa issued before the death of
the qualifying relative shall remain valid after such death.
(B) An alien described
in this subparagraph is an alien who—
(i) is an immediate
relative (as described in section 201(b)(2)(A));
(ii) is a
family-sponsored immigrant (as described in subsection (a) or (d) of section
203);
(iii) is a derivative
beneficiary of an employment-based immigrant under section 203(b) (as described
in section 203(d)); or
(iv) is the spouse or
child of a refugee (as described in section 207(c)(2)) or an asylee (as
described in section
208(b)(3)).
.
(2)
Transition
period
(A)
In
general
Notwithstanding a denial or revocation of an application
for an immigrant visa for an alien whose qualifying relative died before the
date of the enactment of this Act, such application may be renewed by the alien
through a motion to reopen, without fee.
(B)
Inapplicability
of bars to entry
Notwithstanding section 212(a)(9) of the
Immigration and Nationality Act (8 U.S.C. 1182(a)(9)), an alien's application
for an immigrant visa shall be considered if the alien was excluded, deported,
removed, or departed voluntarily before the date of the enactment of this
Act.
(c)
Naturalization
Section
319(a) (8 U.S.C. 1430(a)) is amended by striking States, and
inserting States (or if the spouse is deceased, the spouse was a citizen
of the United States),.
(d)
Waivers of
inadmissibility
Section 212 (8 U.S.C. 1182) is amended by adding
at the end the following:
(v)
Continued waiver
eligibility for widows, widowers, and orphans
In the case of an
alien who would have been statutorily eligible for any waiver of
inadmissibility under this Act but for the death of a qualifying relative, the
eligibility of such alien shall be preserved as if the death had not occurred
and the death of the qualifying relative shall be the functional equivalent of
hardship for purposes of any waiver of inadmissibility which requires a showing
of
hardship.
.
(e)
Surviving
relative consideration for certain petitions and
applications
Section 204(l)(1) (8 U.S.C. 1154(l)(1)) is
amended—
(1) by striking
who resided in the United States at the time of the death of the
qualifying relative and who continues to reside in the United States;
and
(2) by striking
related applications, and inserting related applications
(including affidavits of support),.
(f)
Immediate
relatives
Section 201(b)(2)(A)(i) (8 U.S.C. 1151(b)(2)(A)(i)) is
amended by striking within 2 years after such date.
(g)
Family-sponsored
immigrants
Section 212(a)(4)(C)(i) (8 U.S.C. 1182(a)(4)(C)(i)) is
amended—
(1) in subclause (I),
by striking , or and inserting a semicolon;
(2) in subclause (II),
by striking or at the end; and
(3) by adding at the
end the following:
(IV) the status as a
surviving relative under 204(l);
or
.
2313.
Discretionary
authority with respect to removal, deportation or inadmissibility of citizen
and resident immediate family members
(a)
Applications for
relief from removal
Section
240(c)(4) (8 U.S.C. 1229a(c)(4)) is amended by adding at the end the
following:
(D)
Judicial
discretion
In the case of an
alien subject to removal, deportation, or exclusion, the immigration judge may
exercise discretion to decline to order the alien removed, deported or excluded
from the United States and terminate proceedings if the judge determines that
such removal, deportation, or exclusion is against the public interest or would
result in hardship to the alien's United States citizen or permanent resident
parent of a child, spouse, or child, or the judge determines the alien is prima
facie eligible for naturalization except that this subparagraph shall not apply
to an alien whom the judge determines—
(i) is described in—
(I) subparagraph (B), (C), (D)(ii), (E), (H),
(I), or (J) of section 212(a)(2);
(II) section 212(a)(3);
(III) subparagraph (A), (C), or (D) of section
212(a)(10); or
(IV) paragraph (2)(A)(ii), (2)(A)(v), (2)(F),
(4), or (6) of section 237(a); or
(ii) has—
(I) engaged in conduct described in paragraph
(8) or (9) of section 103 of the Trafficking Victims Protection Act of 2000 (22
U.S.C. 7102); or
(II) a felony
conviction described in section 101(a)(43) that would have been classified as
an aggravated felony at the time of
conviction.
.
(b)
Secretary's
discretion
Section 212 (8 U.S.C. 1182), as amended by section
2312(d), is further amended by adding at the end the following:
(w)
Secretary's
discretion
In the case of an alien inadmissible under this
section, the Secretary of Homeland Security may exercise discretion to waive a
ground of inadmissibility if the Secretary determines that such refusal of
admission is against the public interest or would result in hardship to the
alien's United States citizen or permanent resident parent, spouse, or child
except that this subparagraph shall not apply to an alien whom the Secretary
determines—
(1) is described
in—
(A) subparagraph (B),
(C), (D)(ii), (E), (H), (I), of subsection (a)(2);
(B) subsection
(a)(3);
(C) subparagraph (A),
(C), or (D) of subsection (a)(10);
(D) paragraphs (2)(A)(ii), (2)(A)(v), (2)(F),
or (6) of section 237(a); or
(E) section
240(c)(4)(D)(ii)(II); or
(2) has—
(A) engaged in conduct
described in paragraph (8) or (9) of section 103 of the Trafficking Victims
Protection Act of 2000 (22 U.S.C. 7102); or
(B) a felony
conviction described in section 101(a)(43) that would have been classified as
an aggravated felony at the time of
conviction.
.
(c)
Reinstatement of
removal orders
Section 241(a)(5) (8 U.S.C. 1231(a)(5)) is amended
by striking the period at the end and inserting , unless the alien
reentered prior to attaining the age of 18 years, or reinstatement of the prior
order of removal would not be in the public interest or would result in
hardship to the alien's United States citizen or permanent resident parent,
spouse, or child..
2314.
Waivers of
inadmissibility
(a)
Aliens who
entered as children
Section
212(a)(9)(B)(iii) (8 U.S.C. 1182(a)(9)(B)(iii)) is amended by adding at the end
the following:
(VI)
Aliens who
entered as children
Clause (i) shall not apply to an alien who is
the beneficiary of an approved petition under 101(a)(15)(H) and who has earned
a baccalaureate or higher degree from a United States institution of higher
education (as defined in section 101(a) of the Higher Education Act of 1965 (20
U.S.C. 1001(a)), and had not yet reached the age of 16 years at the time of
initial entry to the United
States.
.
(b)
Aliens
unlawfully present
Section 212(a)(9)(B)(v) (8 U.S.C.
1181(a)(9)(B)(v) is amended—
(1) by striking
spouse or son or daughter and inserting spouse, son,
daughter, or parent; and
(2) by striking
extreme.
(c)
Previous
immigration violations
Section 212(a)(9)(C)(i) (8 U.S.C.
1182(a)(9)(C)(i)) is amended by adding , other than an alien described
in clause (iii) or (iv) of subparagraph (B), after Any
alien.
(d)
False
claims
(1)
Inadmissibility
(A)
In
general
Section 212(a)(6)(C) (8 U.S.C. 1182(a)(6)(C)) is amended
to read as follows:
(C)
Misrepresentation
(i)
In
general
Any alien who, by fraud or willfully misrepresenting a
material fact, seeks to procure (or within the last 3 years has sought to
procure or has procured) a visa, other documentation, or admission into the
United States or other benefit provided under this Act is inadmissible.
(ii)
Falsely
claiming citizenship
(I)
Inadmissibility
Subject
to subclause (II), any alien who knowingly misrepresents himself or herself to
be a citizen of the United States for any purpose or benefit under this chapter
(including section 274A) or any other Federal or State law is
inadmissible.
(II)
Special rule
for children
An alien shall not be inadmissible under this clause
if the misrepresentation described in subclause (I) was made by the alien when
the alien—
(aa) was under 18
years of age; or
(bb) otherwise lacked
the mental competence to knowingly misrepresent a claim of United States
citizenship.
(iii)
Waiver
The
Attorney General or the Secretary of Homeland Security may, in the discretion
of the Attorney General or the Secretary, waive the application of clause (i)
or (ii)(I) for an alien, regardless whether the alien is within or outside the
United States, if the Attorney General or the Secretary find that a
determination of inadmissibility to the United States for such alien
would—
(I) result in extreme
hardship to the alien or to the alien’s parent, spouse, son, or daughter who is
a citizen of the United States or an alien lawfully admitted for permanent
residence; or
(II) in the case of a
VAWA self-petitioner, result in significant hardship to the alien or a parent
or child of the alien who is a citizen of the United States, an alien lawfully
admitted for permanent residence, or a qualified alien (as defined in section
431 of the Personal Responsibility and Work Opportunity Reconciliation Act of
1996 (8 U.S.C. 1641(b)).
(iv)
Limitation on
review
No court shall have jurisdiction to review a decision or
action of the Attorney General or the Secretary regarding a waiver under clause
(iii).
.
(B)
Conforming
amendment
Section 212 (8 U.S.C. 1182) is amended by striking
subsection (i).
(2)
Deportability
Section
237(a)(3)(D) (8 U.S.C. 1227(a)(3)(D)) is amended to read as follows:
(D)
Falsely claiming
citizenship
Any alien described in section 212(a)(6)(C)(ii) is
deportable.
.
2315.
Continuous
presence
Section 240A(d)(1) (8
U.S.C. 1229b(d)(1)) is amended to read as follows:
(1)
Termination of
continuous period
For purposes of this section, any period of
continuous residence or continuous physical presence in the United States shall
be deemed to end, except in the case of an alien who applies for cancellation
of removal under subsection (b)(2), on the date that a notice to appear is
filed with the Executive Office for Immigration Review pursuant to section
240.
.
2316.
Global health
care cooperation
(a)
Temporary
absence of aliens providing health care in developing countries
(1)
In
general
Title III (8 U.S.C. 1401 et seq.) is amended by inserting
after section 317 the following:
317A.
Temporary
absence of aliens providing health care in developing countries
(a)
In
general
Notwithstanding any other provision of this Act, the
Secretary of Homeland Security shall allow an eligible alien and the spouse or
child of such alien to reside in a candidate country during the period that the
eligible alien is working as a physician or other health care worker in a
candidate country. During such period the eligible alien and such spouse or
child shall be considered—
(1) to be physically
present and residing in the United States for purposes of naturalization under
section 316(a); and
(2) to meet the
continuous residency requirements under section 316(b).
(b)
Definitions
In
this section:
(1)
Candidate
country
The term candidate country means a country
that the Secretary of State determines to be—
(A) eligible for
assistance from the International Development Association, in which the per
capita income of the country is equal to or less than the historical ceiling of
the International Development Association for the applicable fiscal year, as
defined by the International Bank for Reconstruction and Development;
(B) classified as a
lower middle income country in the then most recent edition of the World
Development Report for Reconstruction and Development published by the
International Bank for Reconstruction and Development and having an income
greater than the historical ceiling for International Development Association
eligibility for the applicable fiscal year; or
(C) qualified to be a
candidate country due to special circumstances, including natural disasters or
public health emergencies.
(2)
Eligible
alien
The term eligible alien means an alien
who—
(A) has been lawfully
admitted to the United States for permanent residence; and
(B) is a physician or
other healthcare worker.
(c)
Consultation
The
Secretary of Homeland Security shall consult with the Secretary of State in
carrying out this section.
(d)
Publication
The
Secretary of State shall publish—
(1) not later than 180
days after the date of the enactment of the Border Security, Economic Opportunity, and Immigration
Modernization Act, a list of candidate countries;
(2) an updated version
of the list required by paragraph (1) not less often than once each year;
and
(3) an amendment to
the list required by paragraph (1) at the time any country qualifies as a
candidate country due to special circumstances under subsection
(b)(1)(C).
.
(2)
Rulemaking
(A)
Requirement
Not
later than 180 days after the date of the enactment of this Act, the Secretary
shall promulgate regulations to carry out the amendments made by this
subsection.
(B)
Content
The
regulations promulgated pursuant to subparagraph (A) shall—
(i) permit an eligible
alien (as defined in section 317A of the Immigration and Nationality Act, as
added by subsection (a)) and the spouse or child of the eligible alien to
reside in a foreign country to work as a physician or other healthcare worker
as described in subsection (a) of such section 317A for not less than a
12-month period and not more than a 24-month period, and shall permit the
Secretary to extend such period for an additional period not to exceed 12
months, if the Secretary determines that such country has a continuing need for
such a physician or other healthcare worker;
(ii) provide for the
issuance of documents by the Secretary to such eligible alien, and such spouse
or child, if appropriate, to demonstrate that such eligible alien, and such
spouse or child, if appropriate, is authorized to reside in such country under
such section 317A; and
(iii) provide for an
expedited process through which the Secretary shall review applications for
such an eligible alien to reside in a foreign country pursuant to subsection
(a) of such section 317A if the Secretary of State determines a country is a
candidate country pursuant to subsection (b)(1)(C) of such section 317A.
(3)
Technical and
conforming amendments
(A)
Definition
Section
101(a)(13)(C)(ii) (8 U.S.C. 1101(a)(13)(C)(ii)) is amended by adding
except in the case of an eligible alien, or the spouse or child of such
alien, who is authorized to be absent from the United States under section
317A, at the end.
(B)
Documentary
requirements
Section 211(b) (8 U.S.C. 1181(b)) is amended by
inserting , including an eligible alien authorized to reside in a
foreign country under section 317A and the spouse or child of such eligible
alien, if appropriate, after 101(a)(27)(A),.
(C)
Ineligible
aliens
Section 212(a)(7)(A)(i)(I) (8 U.S.C. 1182(a)(7)(A)(i)(I))
is amended by inserting other than an eligible alien authorized to
reside in a foreign country under section 317A and the spouse or child of such
eligible alien, if appropriate, after Act,.
(4)
Clerical
amendment
The table of contents of such Act is amended by
inserting after the item relating to section 317 the following:
Sec. 317A. Temporary
absence of aliens providing health care in developing
countries.
.
(b)
Attestation by
health care workers
(1)
Attestation
requirement
Section 212(a)(5) (8 U.S.C. 1182(a)(5)) is amended by
adding at the end the following:
(E)
Health care
workers with other obligations
(i)
In
general
An alien 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 alien submits to the Secretary of Homeland Security or
the Secretary of State, as appropriate, an attestation that the alien is not
seeking to enter the United States for such purpose during any period in which
the alien has an outstanding obligation to the government of the alien's
country of origin or the alien's country of residence.
(ii)
Obligation
defined
In this subparagraph, the term obligation
means an obligation incurred as part of a valid, voluntary individual agreement
in which the alien received financial assistance to defray the costs of
education or training to qualify as a physician or other health care worker in
consideration for a commitment to work as a physician or other health care
worker in the alien's country of origin or the alien's country of
residence.
(iii)
Waiver
The
Secretary of Homeland Security may waive a finding of inadmissibility under
clause (i) if the Secretary determines that—
(I) the obligation was
incurred by coercion or other improper means;
(II) the alien and the
government of the country to which the alien has an outstanding obligation have
reached a valid, voluntary agreement, pursuant to which the alien's obligation
has been deemed satisfied, or the alien has shown to the satisfaction of the
Secretary that the alien has been unable to reach such an agreement because of
coercion or other improper means; or
(III) the obligation
should not be enforced due to other extraordinary circumstances, including
undue hardship that would be suffered by the alien in the absence of a
waiver.
.
(2)
Effective
date
The amendment made by paragraph (1) shall take effect on the
date that is 180 days after the date of the enactment of this Act.
(3)
Application
Not
later than the effective date described in paragraph (2), the Secretary of
Homeland Security shall begin to carry out subparagraph (E) of section
212(a)(5) of the Immigration and Nationality Act, as added by paragraph (1),
including the requirement for the attestation and the granting of a waiver
described in clause (iii) of such subparagraph (E), regardless of whether
regulations to implement such subparagraph have been promulgated.
2317.
Extension and
improvement of the Iraqi special immigrant visa program
The Refugee Crisis in Iraq Act of 2007 (8
U.S.C. 1157 note) is amended—
(1) in section 1242,
by amended subsection (c) to read as follows:
(c)
Improved
application process
Not later than 120 days after the date of the
enactment of the Border Security, Economic
Opportunity, and Immigration Modernization Act, the Secretary of
State and the Secretary of Homeland Security, in consultation with the
Secretary of Defense, shall improve the efficiency by which applications for
special immigrant visas under section 1244(a) are processed so that all steps
incidental to the issuance of such visas, including required screenings and
background checks, are completed not later than 9 months after the date on
which an eligible alien applies for such
visa.
;
and
(2) in section
1244—
(A) subsection
(b)—
(i) in paragraph
(1)—
(I) by amending
subparagraph (B) to read as follows:
(B) was or is employed
in Iraq on or after March 20, 2003, for not less than 1 year, by, or on behalf
of—
(i) the United States
Government;
(ii) a media or
nongovernmental organization headquartered in the United States; or
(iii) an organization
or entity closely associated with the United States mission in Iraq that has
received United States Government funding through an official and documented
contract, award, grant, or cooperative
agreement;
;
(II) in subparagraph
(C), by striking United States Government and inserting
an entity or organization described in subparagraph (B);
and
(III) in subparagraph
(D), by striking by striking United States Government. and
inserting such entity or organization.;
(ii) in paragraph
(4)—
(I) by striking
A recommendation and inserting the following:
(A)
In
general
Except as provided under subparagraph (B), a
recommendation
;
(II) by striking
United States Government prior and inserting an entity or
organization described in paragraph (1)(B) prior; and
(III) by adding at the
end the following:
(B)
Review process
for denial by Chief of Mission
(i)
In
general
An applicant who has been denied Chief of Mission
approval required by subparagraph (A) shall—
(I) receive a written
decision; and
(II) be provided 120
days from the date of the decision to request reopening of the decision to
provide additional information, clarify existing information, or explain any
unfavorable information.
(ii)
Senior
coordinator
The Secretary of State shall designate, in the
Embassy of the United States in Baghdad, Iraq, a senior coordinator responsible
for overseeing the efficiency and integrity of the processing of special
immigrant visas under this section, who shall be given—
(I) sufficiently high
security clearance to review Chief of Mission denials in cases that appear to
have relied upon insufficient or incorrect information; and
(II) responsibility
for ensuring that an applicant described in clause (i) receives the information
described in clause (i)(I).
;
and
(B) in subsection
(c)(3), by adding at the end the following:
(C)
Subsequent
fiscal years
Notwithstanding subparagraphs (A) and (B), and
consistent with subsection (b), any unused balance of the total number of
principal aliens who may be provided special immigrant status under this
section in fiscal years 2008 through 2012 may be carried forward and provided
through the end of fiscal year 2018.
;
and
(3) in section 1248,
by adding at the end the following:
(f)
Report on
improvements
(1)
In
general
Not later than 120 days after the date of the enactment
of the Border Security, Economic Opportunity,
and Immigration Modernization Act, the Secretary of State and the
Secretary of Homeland Security, in consultation with the Secretary of Defense,
shall submit a report, with a classified annex, if necessary, to—
(A) the Committee on
the Judiciary of the Senate;
(B) the Committee on
Foreign Relations of the Senate;
(C) the Committee on
the Judiciary of the House of Representatives; and
(D) the Committee on
Foreign Affairs of the House of Representatives.
(2)
Contents
The
report submitted under paragraph (1) shall describe the implementation of
improvements to the processing of applications for special immigrant visas
under section 1244(a), including information relating to—
(A) enhancing existing
systems for conducting background and security checks of persons applying for
special immigrant status, which shall—
(i) support
immigration security; and
(ii) provide for the
orderly processing of such applications without delay;
(B) the financial,
security, and personnel considerations and resources necessary to carry out
this subtitle;
(C) the number of
aliens who have applied for special immigrant visas under section 1244 during
each month of the preceding fiscal year;
(D) the reasons for
the failure to expeditiously process any applications that have been pending
for longer than 9 months;
(E) the total number
of applications that are pending due to the failure—
(i) to receive
approval from the Chief of Mission;
(ii) for U.S.
Citizenship and Immigration Services to complete the adjudication of the Form
I–360;
(iii) to conduct a
visa interview; or
(iv) to issue the visa
to an eligible alien;
(F) the average wait
times for an applicant at each of the stages described in subparagraph
(E);
(G) the number of
denials or rejections at each of the stages described in subparagraph (E);
and
(H) a breakdown of
reasons for denials at by the Chief of Mission based on the categories already
made available to denied special immigrant visa applicants in the denial letter
sent to them by the Chief of Mission.
(g)
Public quarterly
reports
Not later than 120 days after the date of the enactment
of the Border Security, Economic Opportunity,
and Immigration Modernization Act, and every 3 months thereafter,
the Secretary of State and the Secretary of Homeland Security, in consultation
with the Secretary of Defense, shall publish a report on the website of the
Department of State that describes the efficiency improvements made in the
process by which applications for special immigrant visas under section 1244(a)
are processed, including information described in subparagraphs (C) through (H)
of subsection
(f)(2).
.
2318.
Extension and
improvement of the Afghan special immigrant visa program
Section 602(b) of the Afghan Allies
Protection Act of 2009 (8 U.S.C. 1101 note) is amended—
(1) in paragraph
(2)—
(A) in subparagraph
(A)—
(i) by amending clause
(ii) to read as follows:
(ii) was or is
employed in Afghanistan on or after October 7, 2001, for not less than 1 year,
by, or on behalf of—
(I) the United States
Government;
(II) a media or
nongovernmental organization headquartered in the United States; or
(III) an organization
or entity closely associated with the United States mission in Afghanistan that
has received United States Government funding through an official and
documented contract, award, grant, or cooperative
agreement;
;
(ii) in clause (iii),
by striking United States Government and inserting an
entity or organization described in clause (ii); and
(iii) in clause (iv),
by striking by striking United States Government. and inserting
such entity or organization.;
(B) by amending
subparagraph (B) to read as follows:
(B)
Family
members
An alien is described in this subparagraph if the alien
is—
(i) the spouse or
minor child of a principal alien described in subparagraph (A) who is
accompanying or following to join the principal alien in the United States;
or
(ii)
(I) the spouse, child,
parent or sibling of a principal alien described in subparagraph (A), whether
or not accompanying or following to join; and
(II) has experienced
or is experiencing an ongoing serious threat as a consequence of the qualifying
employment of a principal alien described in subparagraph
(A).
;
and
(C) in subparagraph
(D)—
(i) by striking
A recommendation and inserting the following:
(i)
In
general
Except as provided under clause (ii), a
recommendation
;
(ii) by striking
United States Government prior and inserting an entity or
organization described in paragraph (2)(A)(ii) prior; and
(iii) by adding at the
end the following:
(ii)
Review process
for denial by Chief of Mission
(I)
In
general
An applicant who has been denied Chief of Mission
approval shall—
(aa) receive a written
decision; and
(bb) be provided 120
days from the date of receipt of such opinion to request reconsideration of the
decision to provide additional information, clarify existing information, or
explain any unfavorable information..
(II)
Senior
coordinator
The Secretary of State shall designate, in the
Embassy of the United States in Kabul, Afghanistan, a senior coordinator
responsible for overseeing the efficiency and integrity of the processing of
special immigrant visas under this section, who shall be given—
(aa) sufficiently high
security clearance to review Chief of Mission denials in cases that appear to
have relied upon insufficient or incorrect information; and
(bb) responsibility
for ensuring that an applicant described in subclause (I) receives the
information described in subclause
(I)(aa).
;
(2) in paragraph
(3)(C), by amending clause (iii) to read as follows:
(iii)
Fiscal years
2014 through 2018
For each of the fiscal years 2014 through 2018,
the total number of principal aliens who may be provided special immigrant
status under this section may not exceed the sum of—
(I) 5,000;
(II) the difference
between the number of special immigrant visas allocated under this section for
fiscal years 2009 through 2013 and the number of such allocated visas that were
issued; and
(III) any unused
balance of the total number of principal aliens who may be provided special
immigrant status in fiscal years 2014 through 2018 that have been carried
forward.
;
(3) in paragraph
(4)—
(A) in the heading, by
striking Prohibition on
fees.—and inserting Application
process.—;
(B) by striking
The Secretary and inserting the following:
(A)
In
general
Not later than 120 days after the date of enactment of
the Border Security, Economic Opportunity,
and Immigration Modernization Act, the Secretary of State and the
Secretary of Homeland Security, in consultation with the Secretary of Defense,
shall improve the efficiency by which applications for special immigrant visas
under paragraph (1) are processed so that all steps incidental to the issuance
of such visas, including required screenings and background checks, are
completed not later than 6 months after the date on which an eligible alien
applies for such visa.
(B)
Prohibition on
fees
The Secretary
;
and
(4) by adding at the
end the following:
(12)
Report on
improvements
Not later than 120 days after the date of the
enactment of the Border Security, Economic
Opportunity, and Immigration Modernization Act, the Secretary of
State and the Secretary of Homeland Security, in consultation with the
Secretary of Defense, shall submit to the appropriate committees a report, with
a classified annex, if necessary, that describes the implementation of
improvements to the processing of applications for special immigrant visas
under this subsection, including information relating to—
(A) enhancing existing
systems for conducting background and security checks of persons applying for
special immigrant status, which shall—
(i) support
immigration security; and
(ii) provide for the
orderly processing of such applications without delay;
(B) the financial,
security, and personnel considerations and resources necessary to carry out
this section;
(C) the number of
aliens who have applied for special immigrant visas under this subsection
during each month of the preceding fiscal year;
(D) the reasons for
the failure to expeditiously process any applications that have been pending
for longer than 9 months;
(E) the total number
of applications that are pending due to the failure—
(i) to receive
approval from the Chief of Mission;
(ii) for U.S.
Citizenship and Immigration Services to complete the adjudication of the Form
I–360;
(iii) to conduct a
visa interview; or
(iv) to issue the visa
to an eligible alien;
(F) the average wait
times for an applicant at each of the stages described in subparagraph
(E);
(G) the number of
denials or rejections at each of the stages described in subparagraph (E);
and
(H) a breakdown of
reasons for denials by the Chief of Mission based on the categories already
made available to denied special immigrant visa applicants in the denial letter
sent to them by the Chief of Mission.
(13)
Public
quarterly reports
Not later than 120 days after the date of the
enactment of the Border Security, Economic
Opportunity, and Immigration Modernization Act, and every 3
months thereafter, the Secretary of State and the Secretary of Homeland
Security, in consultation with the Secretary of Defense, shall publish a report
on the website of the Department of State that describes the efficiency
improvements made in the process by which applications for special immigrant
visas under this subsection are processed, including information described in
subparagraph (C) through (H) of paragraph
(12).
.
2319.
Elimination of
sunsets for certain visa programs
(a)
Special
Immigrant Nonminister Religious Worker Program
Section
101(a)(27)(C)(ii) (8 U.S.C. 1101 (a)(27)(C)(ii)) is amended in subclauses (II)
and (III) by striking before September 30, 2015, both places
such term appears.
(b)
EB -5 Regional
Center Program
Section 610(b) of the Departments of Commerce,
Justice, and State, the Judiciary, and Related Agencies Appropriations Act,
1993 (Public Law 102–395; 8 U.S.C. 1153 note) is amended by striking
until September 30, 2015.
D
Conrad State 30
and physician access
2401.
Conrad State 30
Program
Section 220(c) of the
Immigration and Nationality Technical Corrections Act of 1994 (Public Law
103–416; 8 U.S.C. 1182 note) is amended by striking and before September
30, 2015.
2402.
Retaining
physicians who have practiced in medically underserved
communities
Section 201(b)(1)
(8 U.S.C. 1151(b)(1)), as amended by section 217(b), is further amended by
adding at the end the following:
(L)
(i) Alien physicians who have completed service
requirements of a waiver requested under section 203(b)(2)(B)(ii), including
alien physicians who completed such service before the date of the enactment of
the Border Security, Economic Opportunity,
and Immigration Modernization Act and any spouses or children of
such alien physicians.
(ii) Nothing in this subparagraph may be
construed—
(I) to prevent the filing of a petition with
the Secretary of Homeland Security for classification under section 204(a) or
the filing of an application for adjustment of status under section 245 by an
alien physician described in this subparagraph prior to the date by which such
alien physician has completed the service described in section 214(l) or worked
full-time as a physician for an aggregate of 5 years at the location identified
in the section 214(l) waiver or in an area or areas designated by the Secretary
of Health and Human Services as having a shortage of health care professionals;
or
(II) to permit the Secretary of Homeland
Security to grant such a petition or application until the alien has satisfied
all the requirements of the waiver received under section
214(l).
.
2403.
Employment
protections for physicians
(a)
In
general
Section 214(l)(1)(C)
(8 U.S.C. 1184(l)(1)(C)) is amended by striking clauses (i) and (ii) and
inserting the following:
(i) the alien
demonstrates a bona fide offer of full-time employment, at a health care
organization, which employment has been determined by the Secretary of Homeland
Security to be in the public interest; and
(ii) the alien agrees
to begin employment with the health facility or health care organization in a
geographic area or areas which are designated by the Secretary of Health and
Human Services as having a shortage of health care professionals by the later
of the date that is 90 days after receiving such waiver, 90 days after
completing graduate medical education or training under a program approved
pursuant to section 212(j)(1), or 90 days after receiving nonimmigrant status
or employment authorization, and agrees to continue to work for a total of not
less than 3 years in any status authorized for such employment under this
subsection unless—
(I) the Secretary
determines that extenuating circumstances exist that justify a lesser period of
employment at such facility or organization, in which case the alien shall
demonstrate another bona fide offer of employment at a health facility or
health care organization, for the remainder of such 3-year period;
(II) the interested
State agency that requested the waiver attests that extenuating circumstances
exist that justify a lesser period of employment at such facility or
organization in which case the alien shall demonstrate another bona fide offer
of employment at a health facility or health care organization so designated by
the Secretary of Health and Human Services, for the remainder of such 3-year
period; or
(III) if the alien
elects not to pursue a determination of extenuating circumstances pursuant to
subclause (I) or (II), the alien terminates the alien’s employment relationship
with such facility or organization, in which case the alien shall be employed
for the remainder of such 3-year period, and 1 additional year for each
termination, at another health facility or health care organization in a
geographic area or areas which are designated by the Secretary of Health and
Human Services as having a shortage of health care professionals;
and
.
(b)
Contract
requirements
Section 214(l)
(8 U.S.C. 1184(l)) is amended by adding at the end the following:
(4) An alien granted a
waiver under paragraph (1)(C) shall enter into an employment agreement with the
contracting health facility or health care organization that—
(A) specifies the
maximum number of on-call hours per week (which may be a monthly average) that
the alien will be expected to be available and the compensation the alien will
receive for on-call time;
(B) specifies whether
the contracting facility or organization will pay for the alien’s malpractice
insurance premiums, including whether the employer will provide malpractice
insurance and, if so, the amount of such insurance that will be
provided;
(C) describes all of
the work locations that the alien will work and a statement that the
contracting facility or organization will not add additional work locations
without the approval of the Federal agency or State agency that requested the
waiver; and
(D) does not include a
non-compete provision.
(5) An alien granted a waiver under paragraph
(1)(C) whose employment relationship with a health facility or health care
organization terminates during the 3-year service period required by such
paragraph—
(A) shall have a period of 120 days beginning
on the date of such termination of employment to submit to the Secretary of
Homeland Security applications or petitions to commence employment with another
contracting health facility or health care organization in a geographic area or
areas which are designated by the Secretary of Health and Human Services as
having a shortage of health care professionals; and
(B) shall be considered to be maintaining
lawful status in an authorized stay during the 120-day period referred to in
subsection
(A).
.
2404.
Allotment of
Conrad 30 waivers
(a)
In
general
Section 214(l) (8
U.S.C. 1184(l)), as amended by section 333(b), is further amended by adding at
the end the following:
(6)
(A)
(i) All States shall be
allotted a total of 35 waivers under paragraph (1)(B) for a fiscal year if 90
percent of the waivers available to the States receiving at least 5 waivers
were used in the previous fiscal year.
(ii) When an
allocation has occurred under clause (i), all States shall be allotted an
additional 5 waivers under paragraph (1)(B) for each subsequent fiscal year if
90 percent of the waivers available to the States receiving at least 5 waivers
were used in the previous fiscal year. If the States are allotted 45 or more
waivers for a fiscal year, the States will only receive an additional increase
of 5 waivers the following fiscal year if 95 percent of the waivers available
to the States receiving at least 1 waiver were used in the previous fiscal
year.
(B) Any increase in
allotments under subparagraph (A) shall be maintained indefinitely, unless in a
fiscal year, the total number of such waivers granted is 5 percent lower than
in the last year in which there was an increase in the number of waivers
allotted pursuant to this paragraph, in which case—
(i) the number of
waivers allotted shall be decreased by 5 for all States beginning in the next
fiscal year; and
(ii) each additional 5
percent decrease in such waivers granted from the last year in which there was
an increase in the allotment, shall result in an additional decrease of 5
waivers allotted for all States, provided that the number of waivers allotted
for all States shall not drop below
30.
.
(b)
Academic medical
centers
Section 214(l)(1)(D) (8 U.S.C. 1184(l)(1)(D)) is
amended—
(1) in clause (ii), by
striking and at the end;
(2) in clause (iii),
by striking the period at the end and inserting ; and;
and
(3) by adding at the
end the following:
(iv) in the case of a
request by an interested State agency—
(I) the head of such
agency determines that the alien is to practice medicine in, or be on the
faculty of a residency program at, an academic medical center (as that term is
defined in section 411.355(e)(2) of title 42, Code of Federal Regulation, or
similar successor regulation), without regard to whether such facility is
located within an area designated by the Secretary of Health and Human Services
as having a shortage of health care professionals; and
(II) the head of such
agency determines that—
(aa) the alien
physician’s work is in the public interest; and
(bb) the grant of such
waiver would not cause the number of the waivers granted on behalf of aliens
for such State for a fiscal year (within the limitation in subparagraph (B) and
subject to paragraph (6)) in accordance with the conditions of this clause to
exceed
3.
.
2405.
Amendments to
the procedures, definitions, and other provisions related to physician
immigration
(a)
Dual intent for
physicians seeking graduate medical training
Section 214(b) (8
U.S.C. 1184(b)) is amended by striking (other than a nonimmigrant
described in subparagraph (L) or (V) of section 101(a)(15), and other than a
nonimmigrant described in any provision of section 101(a)(15)(H)(i) except
subclause (b1) of such section) and inserting (other than a
nonimmigrant described in subparagraph (L) or (V) of section 101(a)(15), a
nonimmigrant described in any provision of section 101(a)(15)(H)(i), except
subclause (b1) of such section, and an alien coming to the United States to
receive graduate medical education or training as described in section 212(j)
or to take examinations required to receive graduate medical education or
training as described in section 212(j)).
(b)
Allowable visa
status for physicians fulfilling waiver requirements in medically underserved
areas
Section 214(l)(2)(A) (8 U.S.C. 1184(l)(2)(A)) is amended by
striking an alien described in section 101(a)(15)(H)(i)(b). and
inserting any status authorized for employment under this
Act..
(c)
Physician
national interest waiver clarifications
Section
203(b)(2)(B)(ii)(I) (8 U.S.C. 1153(b)(2)(B)(ii)(I)) is amended by striking
items (aa) and (bb) and inserting the following:
(aa) the alien
physician agrees to work on a full-time basis practicing primary care,
specialty medicine, or a combination thereof, in an area or areas designated by
the Secretary of Health and Human Services as having a shortage of health care
professionals, or at a health care facility under the jurisdiction of the
Secretary of Veterans Affairs; or
(bb) the alien
physician is pursuing such waiver based upon service at a facility or
facilities that serve patients who reside in a geographic area or areas
designated by the Secretary of Health and Human Services as having a shortage
of health care professionals (without regard to whether such facility or
facilities are located within such an area) and a Federal agency, or a local,
county, regional, or State department of public health determines the alien
physician’s work was or will be in the public
interest.
.
(d)
Short term work
authorization for physicians completing their residencies
A
physician completing graduate medical education or training as described in
section 212(j) of the Immigration and Nationality Act (8 U.S.C. 1182(j)) as a
nonimmigrant described section 101(a)(15)(H)(i) of such Act (8 U.S.C.
1101(a)(15)(H)(i)) shall have such nonimmigrant status automatically extended
until October 1 of the fiscal year for which a petition for a continuation of
such nonimmigrant status has been submitted in a timely manner and where the
employment start date for the beneficiary of such petition is October 1 of that
fiscal year. Such physician shall be authorized to be employed incident to
status during the period between the filing of such petition and October 1 of
such fiscal year. However, the physician’s status and employment authorization
shall terminate 30 days from the date such petition is rejected, denied or
revoked. A physician’s status and employment authorization will automatically
extend to October 1 of the next fiscal year if all visas as described in such
section 101(a)(15)(H)(i) authorized to be issued for the fiscal year have been
issued.
(e)
Applicability of
section 212(e) to spouses and children of J–1
exchange visitors
A spouse or child of an exchange visitor
described in section 101(a)(15)(J) of the Immigration and Nationality Act (8
U.S.C. 1101(a)(15)(J)) shall not be subject to the requirements of section
212(e) of the Immigration and Nationality Act (8 U.S.C. 1182(e)).
E
Integration
2501.
Definitions
In this subtitle:
(1)
Chief
The
term Chief means the Chief of the Office.
(2)
Foundation
The
term Foundation means the United States Citizenship Foundation
established pursuant to section 2531.
(3)
IEACA
grants
The term IEACA grants means Initial Entry,
Adjustment, and Citizenship Assistance grants authorized under section
2537.
(4)
Immigrant
integration
The term immigrant integration means the
process by which immigrants—
(A) join the
mainstream of civic life by engaging and sharing ownership in their local
community, the United States, and the principles of the Constitution;
(B) attain financial
self-sufficiency and upward economic mobility for themselves and their family
members; and
(C) acquire English
language skills and related cultural knowledge necessary to effectively
participate in their community.
(5)
Linguistic
integration
The term linguistic integration means
the acquisition, by limited English proficient individuals, of English language
skills and related cultural knowledge necessary to meaningfully and effectively
fulfill their roles as community members, family members, and workers.
(6)
Office
The
term Office means the Office of Citizenship and New Americans
established in U.S. Citizenship and Immigration Services under section
2511.
(7)
Receiving
communities
The term receiving communities means the
long-term residents of the communities in which immigrants settle.
(8)
Task
Force
The term Task Force means the Task Force on
New Americans established pursuant to section 2521.
(9)
USCF
council
The term USCF Council means the Council of
Directors of the Foundation.
1
Citizenship and
New Americans
A
Office of
Citizenship and New Americans
2511.
Office of
Citizenship and New Americans
(a)
Renaming Office
of Citizenship
(1)
In
general
Beginning on the date of the enactment of this Act, the
Office of Citizenship in U.S. Citizenship and Immigration Services shall be
referred to as the Office of Citizenship and New
Americans.
(2)
References
Any
reference in a law, regulation, document, paper, or other record of the United
States to the Office of Citizenship in U.S. Citizenship and Immigration
Services shall be deemed to be a reference to the Office of Citizenship and New
Americans.
(3)
Technical and
conforming amendments
Section 451 of the Homeland Security Act of
2002 (6 U.S.C. 271) is amended—
(A) in the section
heading, by striking Bureau
of and inserting U.S.;
(B) in subsection
(a)(1), by striking the 'Bureau of and inserting
'U.S.;
(C) by striking
the Bureau of each place such terms appears and inserting
U.S.; and
(D) in subsection
(f)—
(i) by amending the
subsection heading to read as follows: Office of Citizenship and New
Americans; and
(ii) by striking
paragraph (1) and inserting the following:
(1)
Chief
The
Office of Citizenship and New Americans shall be within U.S. Citizenship and
Immigration Services and shall be headed by the Chief of the Office of
Citizenship and New
Americans.
.
(b)
Functions
Section
451(f) of such Act (6 U.S.C. 271(f)), as amended by subsection (a)(3)(D), is
further amended by striking paragraph (2) and inserting the following:
(2)
Functions
The
Chief of the Office of Citizenship and New Americans shall—
(A) promote
institutions and training on citizenship responsibilities for aliens interested
in becoming naturalized citizens of the United States, including the
development of educational materials for such aliens;
(B) provide general
leadership, consultation, and coordination of the immigrant integration
programs across the Federal Government and with State and local
entities;
(C) advise the
Director of U.S. Citizenship and Immigration Services, the Secretary of
Homeland Security, and the Domestic Policy Council on—
(i) the challenges and
opportunities relating to the linguistic, economic, and civic integration of
immigrants and their young children and progress in meeting integration goals
and indicators; and
(ii) immigrant
integration considerations relating to Federal budgets;
(D) establish national
goals for introducing new immigrants into the United States and measure the
degree to which such goals are met;
(E) evaluate the
scale, quality, and effectiveness of Federal Government efforts in immigrant
integration and provide advice on appropriate actions;
(F) identify the
integration implications of new or proposed immigration policies and provide
recommendations for addressing such implications;
(G) continue the
efforts of the Task Force on New Americans established by Executive Order 13404
(71 Fed. Reg. 33593);
(H) serve as a liaison
and intermediary with State and local governments and other entities to assist
in establishing local goals, task forces, and councils to assist in—
(i) introducing
immigrants into the United States; and
(ii) promoting
citizenship education and awareness among aliens interested in becoming
naturalized citizens of the United States;
(I) coordinate with
other Federal agencies to provide information to State and local governments on
the demand for existing Federal and State English acquisition and citizenship
education programs and best practices for immigrants who recently arrived in
the United States;
(J) assist States in
coordinating the activities of the grant programs authorized under sections
2537 and 2538 of the Border Security,
Economic Opportunity, and Immigration Modernization Act;
(K) submit a biennial
report to the appropriate congressional committees that describes the
activities of the Office of Citizenship and New Americans; and
(L) carry out such
other functions and activities as Secretary may
assign.
.
(c)
Effective
date
The amendments made by subsections (a) and (b) shall take
effect on the date that is 1 year after the date of the enactment of this
Act.
B
Task Force on New
Americans
2521.
Establishment
(a)
In
general
The Secretary shall
establish a Task Force on New Americans.
(b)
Fully
functional
The Task Force
shall be fully functional not later than 18 months after the date of the
enactment of this Act.
2522.
Purpose
The purposes of the Task Force are—
(1) to establish a
coordinated Federal program and policy response to immigrant integration
issues; and
(2) to advise and
assist the Secretary in identifying and fostering policies to carry out the
policies and goals established under this chapter.
2523.
Membership
(a)
In
general
The Task Force shall be comprised of—
(1) the Secretary, who
shall serve as Chair of the Task Force;
(2) the Secretary of
the Treasury;
(3) the Attorney
General;
(4) the Secretary of
Commerce;
(5) the Secretary of
Labor;
(6) the Secretary of
Health and Human Services;
(7) the Secretary of
Housing and Urban Development;
(8) the Secretary of
Transportation;
(9) the Secretary of
Education;
(10) the Director of
the Office of Management and Budget;
(11) the Administrator
of the Small Business Administration;
(12) the Director of
the Domestic Policy Council; and
(13) the Director of
the National Economic Council.
(b)
Delegation
A
member of the Task Force may delegate a senior official, at the Assistant
Secretary, Deputy Administrator, Deputy Director, or Assistant Attorney General
level to perform the functions of a Task Force member described in section
2524.
2524.
Functions
(a)
Meetings;
functions
The Task Force shall—
(1) meet at the call
of the Chair; and
(2) perform such
functions as the Secretary may prescribe.
(b)
Coordinated
response
The Task Force shall work with executive branch
agencies—
(1) to provide a
coordinated Federal response to issues that impact the lives of new immigrants
and receiving communities, including—
(A) access to youth
and adult education programming;
(B) workforce
training;
(C) health care
policy;
(D) access to
naturalization; and
(E) community
development challenges; and
(2) to ensure that
Federal programs and policies adequately address such impacts.
(c)
Liaisons
Members
of the Task Force shall serve as liaisons to their respective agencies to
ensure the quality and timeliness of their agency’s participation in activities
of the Task Force, including—
(1) creating
integration goals and indicators;
(2) implementing the
biannual consultation process with the agency’s State and local counterparts;
and
(3) reporting on
agency data collection, policy, and program efforts relating to achieving the
goals and indicators referred to in paragraph (1).
(d)
Recommendations
Not
later than 18 months after the end of the period specified in section 2521(b),
the Task Force shall—
(1) provide
recommendations to the Domestic Policy Council and the Secretary on the effects
of pending legislation and executive branch policy proposals;
(2) suggest changes to
Federal programs or policies to address issues of special importance to new
immigrants and receiving communities;
(3) review and
recommend changes to policies that have a distinct impact on new immigrants and
receiving communities; and
(4) assist in the
development of legislative and policy proposals of special importance to new
immigrants and receiving communities.
2
Public-private
partnership
2531.
Establishment
of United States Citizenship Foundation
The Secretary, acting through the Director
of U.S. Citizenship and Immigration Services, is authorized to establish a
nonprofit corporation, which shall be known as the United States
Citizenship Foundation.
2532.
Funding
(a)
Gifts to
foundation
In order to carry out the purposes set forth in
section 2533, the Foundation may—
(1) solicit, accept,
and make gifts of money and other property in accordance with section 501(c)(3)
of the Internal Revenue Code of 1986;
(2) engage in
coordinated work with the Department, including the Office and U.S. Citizenship
and Immigration Services; and
(3) accept, hold,
administer, invest, and spend any gift, devise, or bequest of real or personal
property made to the Foundation.
(b)
Gifts to office
of citizenship and new americans
The Office may accept gifts from
the Foundation to support the functions of the Office.
2533.
Purposes
The purposes of the Foundation are—
(1) to expand
citizenship preparation programs for permanent residents;
(2) to provide direct
assistance for aliens seeking provisional immigrant status, legal permanent
resident status, or naturalization as a United States citizen; and
(3) to coordinate
immigrant integration with State and local entities.
2534.
Authorized
activities
The Foundation
shall carry out its purpose by—
(1) making United
States citizenship instruction and naturalization application services
accessible to low-income and other underserved permanent resident
populations;
(2) developing,
identifying, and sharing best practices in United States citizenship
preparation;
(3) supporting
innovative and creative solutions to barriers faced by those seeking
naturalization;
(4) increasing the use
of, and access to, technology in United States citizenship preparation
programs;
(5) engaging receiving
communities in the United States citizenship and civic integration
process;
(6) administering the
New Citizens Award Program to recognize, in each calendar year, not more than
10 United States citizens who—
(A) have made
outstanding contributions to the United States; and
(B) have been
naturalized during the 10-year period ending on the date of such
recognition;
(7) fostering public
education and awareness;
(8) coordinate its
immigrant integration efforts with the Office;
(9) awarding grants to
eligible public or private nonprofit organizations under section 2537.
(10) awarding grants
to State and local governments under section 2538.
2535.
Council of
directors
(a)
Members
The
Foundation shall have a Council of Directors, which shall be comprised
of—
(1) the Director of
U.S. Citizenship and Immigration Services;
(2) the Chief of the
Office of Citizenship and New Americans; and
(3) 10 directors,
appointed by the ex-officio directors designated in paragraphs (1) and (2),
from national community-based organizations that promote and assist permanent
residents with naturalization.
(b)
Appointment of
executive director
The USCF Council shall appoint an Executive
Director, who shall oversee the day-to-day operations of the Foundation.
2536.
Powers
The Executive Director is authorized to
carry out the purposes set forth in section 2533 on behalf of the Foundation
by—
(1) accepting,
holding, administering, investing, and spending any gift, devise, or bequest of
real or personal property made to the Foundation;
(2) entering into
contracts and other financial assistance agreements with individuals, public or
private organizations, professional societies, and government agencies to carry
out the functions of the Foundation;
(3) entering into such
other contracts, leases, cooperative agreements, and other transactions as the
Executive Director considers appropriate to carry out the activities of the
Foundation; and
(4) charging such fees
for professional services furnished by the Foundation as the Executive Director
determines reasonable and appropriate.
2537.
Initial Entry,
Adjustment, and Citizenship Assistance Grant Program
(a)
Authorization
The
Secretary, acting through the Director of U.S. Citizenship and Immigration
Services, may award Initial Entry, Adjustment, and Citizenship Assistance
grants to eligible public or private, nonprofit organizations.
(b)
Use of grant
funds
IEACA grants shall be used for the design and
implementation of programs that provide direct assistance, within the scope of
the authorized practice of immigration law—
(1) to aliens who are
preparing an initial application for registered provisional immigrant status
under section 245B of the Immigration and Nationality Act, as added by section
2101 of this Act, including assisting applicants in—
(A) screening to
assess prospective applicants’ potential eligibility or lack of
eligibility;
(B) completing
applications;
(C) gathering proof of
identification, employment, residence, and tax payment;
(D) gathering proof of
relationships of eligible family members;
(E) applying for any
waivers for which applicants and qualifying family members may be eligible;
and
(F) any other
assistance that the Secretary or grantee considers useful to aliens who are
interested in applying for registered provisional immigrant status;
(2) to aliens seeking
to adjust their status under section2211 or 2212 of this Act or section 245,
245B, or 245C of the Immigration and Nationality Act;
(3) to legal permanent
residents seeking to become naturalized United States citizens; and
(4) to applicants
on—
(A) the rights and
responsibilities of United States citizenship;
(B) civics-based
English as a second language;
(C) civics, with a
special emphasis on common values and traditions of Americans, including an
understanding of the history of the United States and the principles of the
Constitution; and
(D) applying for
United States citizenship.
2538.
Pilot program
to promote immigrant integration at State and local levels
(a)
Grants
authorized
The Chief shall establish a pilot program through
which the Chief may award grants, on a competitive basis, to States and local
governments or other qualifying entities, in collaboration with State and local
governments —
(1) to establish New
Immigrant Councils to carry out programs to integrate new immigrants; or
(2) to carry out
programs to integrate new immigrants.
(b)
Application
A
State or local government desiring a grant under this section shall submit an
application to the Chief at such time, in such manner, and containing such
information as the Chief may reasonably require, including—
(1) a proposal to meet
an objective or combination of objectives set forth in subsection
(d)(3);
(2) the number of new
immigrants in the applicant’s jurisdiction; and
(3) a description of
the challenges in introducing and integrating new immigrants into the State or
local community.
(c)
Priority
In
awarding grants under this section, the Chief shall give priority to States and
local governments or other qualifying entities that—
(1) use matching funds
from non-Federal sources, which may include in-kind contributions;
(2) demonstrate
collaboration with public and private entities to achieve the goals of the
comprehensive plan developed pursuant to subsection (d)(3);
(3) are 1 of the 10
States with the highest rate of foreign-born residents; or
(4) have experienced a
large increase in the population of immigrants during the most recent 10-year
period relative to past migration patterns, based on data compiled by the
Office of Immigration Statistics or the United States Census Bureau.
(d)
Authorized
activities
A grant awarded under this subsection may be
used—
(1) to form a New
Immigrant Council, which shall—
(A) consist of between
15 and 19 individuals, inclusive, from the State, local government, or
qualifying organization;
(B) include, to the
extent practicable, representatives from—
(i) business;
(ii) faith-based
organizations;
(iii) civic
organizations;
(iv) philanthropic
organizations;
(v) nonprofit
organizations, including those with experience working with immigrant
communities;
(vi) key education
stakeholders, such as State educational agencies, local educational agencies,
community colleges, and teachers;
(vii) State adult
education offices;
(viii) State or local
public libraries; and
(ix) State or local
governments; and
(C) meet not less
frequently than once each quarter;
(2) to provide
subgrants to local communities, city governments, municipalities, nonprofit
organizations (including veterans' and patriotic organizations) or other
qualifying entities;
(3) to develop,
implement, expand, or enhance a comprehensive plan to introduce and integrate
new immigrants into the State by—
(A) improving English
language skills;
(B) engaging
caretakers with limited English proficiency in their child’s education through
interactive parent and child literacy activities;
(C) improving and
expanding access to workforce training programs;
(D) teaching United
States history, civics education, citizenship rights, and
responsibilities;
(E) promoting an
understanding of the form of government and history of the United States and
the principles of the Constitution;
(F) improving
financial literacy; and
(G) focusing on other
key areas of importance to integration in our society; and
(4) to engage
receiving communities in the citizenship and civic integration process
by—
(A) increasing local
service capacity;
(B) building
meaningful connections between newer immigrants and long-time residents;
(C) communicating the
contributions of receiving communities and new immigrants; and
(D) engaging leaders
from all sectors of the community.
(e)
Reporting and
evaluation
(1)
Annual
report
Each grant recipient shall submit an annual report to the
Office that describes—
(A) the activities
undertaken by the grant recipient, including how such activities meet the goals
of the Office, the Foundation, and the comprehensive plan described in
subsection (d)(3);
(B) the geographic
areas being served;
(C) the number of
immigrants in such areas; and
(D) the primary
languages spoken in such areas.
(2)
Annual
evaluation
The Chief shall conduct an annual evaluation of the
grant program established under this section—
(A) to assess and
improve the effectiveness of such grant program;
(B) to assess the
future needs of immigrants and of State and local governments related to
immigrants; and
(C) to ensure that
grantees recipients and subgrantees are acting within the scope and purpose of
this subchapter.
2539.
Naturalization
ceremonies
(a)
In
general
The Chief, in consultation with the Director of the
National Park Service, the Archivist of the United States, and other
appropriate Federal officials, shall develop and implement a strategy to
enhance the public awareness of naturalization ceremonies.
(b)
Venues
In
developing the strategy under subsection (a), the Secretary shall consider the
use of outstanding and historic locations as venues for select naturalization
ceremonies.
(c)
Reporting
requirement
The Secretary shall annually submit a report to
Congress that contains—
(1) the content of the
strategy developed under subsection (a); and
(2) the progress made
towards the implementation of such strategy.
3
Funding
2541.
Authorization
of appropriations
(a)
Office of
Citizenship and New Americans
In addition to any amounts
otherwise made available to the Office, there are authorized to be appropriated
to carry out the functions described in section 451(f)(2) of the Homeland
Security Act of 2002 (6 U.S.C. 271(f)(2)), as amended by section
2511(b)—
(1) $10,000,000 for
the 5-year period ending on September 30, 2018; and
(2) such sums as may
be necessary for fiscal year 2019 and subsequent fiscal years.
(b)
Grant
programs
There are authorized
to be appropriated to implement the grant programs authorized under sections
2537 and 2538, and to implement the strategy under section 2539—
(1) $100,000,000 for the 5-year period ending
on September 30, 2018; and
(2) such sums as may
be necessary for fiscal year 2019 and subsequent fiscal years.
4
Reduce barriers to
naturalization
2551.
Waiver of
English requirement for senior new Americans
Section 312 (8 U.S.C. 1423) is amended by
striking subsection (b) and inserting the following:
(b) The requirements
under subsection (a) shall not apply to any person who—
(1) is unable to
comply with such requirements because of physical or developmental disability
or mental impairment; or
(2) on the date on
which the person’s application for naturalization is filed under section
334—
(A) is older than 65
years of age; and
(B) has been living in
the United States for periods totaling at least 5 years after being lawfully
admitted for permanent residence.
(c) The requirement
under subsection (a)(1) shall not apply to any person who, on the date on which
the person’s application for naturalization is filed under section 334—
(1) is older than 50
years of age and has been living in the United States for periods totaling at
least 20 years after being lawfully admitted for permanent residence;
(2) is older than 55
years of age and has been living in the United States for periods totaling at
least 15 years after being lawfully admitted for permanent residence; or
(3) is older than 60
years of age and has been living in the United States for periods totaling at
least 10 years after being lawfully admitted for permanent residence.
(d) The Secretary of
Homeland Security may waive, on a case-by-case basis, the requirement under
subsection (a)(2) on behalf of any person who, on the date on which the
person’s application for naturalization is filed under section 334—
(1) is older than 60
years of age; and
(2) has been living in
the United States for periods totaling at least 10 years after being lawfully
admitted for permanent
residence.
.
2552.
Filing of
applications not requiring regular internet access
(a)
Electronic
filing not required
(1)
In
general
The Secretary may not require that an applicant or
petitioner for permanent residence or citizenship of the United States use an
electronic method to file any application, or access to a customer
account.
(2)
Sunset
date
This subsection shall cease to be effective on October 1,
2020.
(b)
Notification
requirement
Beginning on October 1, 2020, the Secretary may not
require that an applicant or petitioner for permanent residence or citizenship
of the United States use an electronic method to file any application, or
access to a customer account unless the Secretary notifies the
Committee on Homeland Security and
Governmental Affairs of the Senate and the
Committee on Homeland Security of the House of
Representatives of such requirement not later than 30 days
before the effective date of such requirement.
III
Interior
enforcement
A
Employment
Verification System
3101.
Unlawful
employment of unauthorized aliens
(a)
In
general
Section 274A (8 U.S.C. 1324a) is amended to read as
follows:
274A.
Unlawful
employment of aliens
(a)
Making
employment of unauthorized aliens unlawful
(1)
In
general
It is unlawful for an employer—
(A) to hire, recruit,
or refer for a fee an alien for employment in the United States knowing that
the alien is an unauthorized alien with respect to such employment; or
(B) to hire, recruit,
or refer for a fee for employment in the United States an individual without
complying with the requirements under subsections (c) and (d).
(2)
Continuing
employment
(A)
Prohibition on
continued employment of unauthorized aliens
It is unlawful for an
employer, after hiring an alien for employment, to continue to employ the alien
in the United States knowing that the alien is (or has become) an unauthorized
alien with respect to such employment.
(B)
Prohibition on
consideration of previous unauthorized status
Nothing in this
section may be construed to prohibit the employment of an individual who is
authorized for employment in the United States if such individual was
previously an unauthorized alien.
(3)
Use of labor
through contract
For purposes of this section, any employer that
uses a contract, subcontract, or exchange to obtain the labor of an alien in
the United States while knowing that the alien is an unauthorized alien with
respect to performing such labor shall be considered to have hired the alien
for employment in the United States in violation of paragraph (1)(A).
(4)
Use of State
employment agency documentation
For purposes of paragraphs
(1)(B), (5), and (6), an employer shall be deemed to have complied with the
requirements under subsection (c) with respect to the hiring of an individual
who was referred for such employment by a State employment agency (as defined
by the Secretary) if the employer has and retains (for the period and in the
manner described in subsection (c)(3)) appropriate documentation of such
referral by such agency, certifying that such agency has complied with the
procedures described in subsection (c) with respect to the individual’s
referral. An employer that relies on a State agency’s certification of
compliance with subsection (c) under this paragraph may utilize and retain the
State agency’s certification of compliance with the procedures described in
subsection (d), if any, in the manner provided under this paragraph.
(5)
Good faith
defense
(A)
Defense
An
employer, person, or entity that hires, employs, recruits, or refers
individuals for employment in the United States, or is otherwise obligated to
comply with the requirements under this section and establishes good faith
compliance with the requirements under paragraphs (1) through (4) of subsection
(c) and subsection (d)—
(i) has established an
affirmative defense that the employer, person, or entity has not violated
paragraph (1)(A) with respect to hiring and employing; and
(ii) has established
compliance with its obligations under subparagraph (A) and (B) of paragraph (1)
and subsection (c) unless the Secretary demonstrates that the employer had
knowledge that an individuals hired, employed, recruited, or referred by the
employer, person, or entity is an authorized alien.
(B)
Failure to
obtain verification
An employer that has made the inquiry under
subsection (d) with respect to an individual, but has not received an
appropriate verification of the identity and work eligibility of such
individual from the System within the time period specified in subsection
(d)(4)(C) may retain the defense under subparagraph (A) if the employer timely
records in the System the reasons the employer continues to employ the
individual.
(C)
Exception for
certain employers
An employer who is not required to participate
in the System or who is participating in the System on a voluntary basis
pursuant to subsection (d)(2)(I) has established an affirmative defense under
subparagraph (A) and need not demonstrate compliance with the requirements
under subsection (d).
(6)
Good faith
compliance
(A)
In
general
Except as otherwise provided in this subsection, an
employer, person, or entity 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.
(B)
Exception if
failure to correct after notice
Subparagraph (A) shall not apply
if—
(i) the failure is not
de minimis;
(ii) the Secretary of
Homeland Security has explained to the employer, person, or entity the basis
for the failure and why it is not de minimis;
(iii) the employer,
person, or entity has been provided a period of not less than 30 days
(beginning after the date of the explanation) to correct the failure;
and
(iv) the employer,
person, or entity has not corrected the failure voluntarily within such
period.
(C)
Exception for
pattern or practice violators
Subparagraph (A) shall not apply to
an employer, person, or entity that has engaged or is engaging in a pattern or
practice of violations of paragraph (1)(A) or (2).
(7)
Presumption
After
the date on which an employer is required to participate in the System under
subsection (d), the employer is presumed to have acted with knowledge for
purposes of paragraph (1)(A) if the employer hires, employs, recruits, or
refers an employee and fails to make an inquiry to verify the employment
authorization status of the employee through the System.
(8)
Continued
application of workforce and labor protection remedies despite unauthorized
employment
An employer may
not deny an employee back pay or any other remedy provided under any Federal,
State, or local law relating to workplace rights, and a court may not prohibit
an employee from pursuing other causes of action giving rise to liability,
except any reinstatement remedy prohibited by Federal law, on account of the
employee’s status as an unauthorized alien, either during or after the period
of employment by the employer.
(9)
Availability of
reinstatement and relief
Reinstatement and all other appropriate
relief shall be available to individuals who—
(A) are lawfully
present in the United States at the time such relief is requested; and
(B) lost employment
authorized status due to the unlawful acts of the employer and for whom
reinstatement would restore such status.
(b)
Definitions
In
this section:
(1)
Commissioner
The
term Commissioner means the Commissioner of Social
Security.
(2)
Department
Except
as otherwise provided, the term Department means the Department of
Homeland Security.
(3)
Employer
The
term employer means any person or entity, including an agency or
department of a Federal, State, or local government, an agent, or a System
service provider, that hires, employs, recruits, or refers for a fee an
individual for employment in the United States that is not casual, sporadic,
irregular, or intermittent (as defined by the Secretary).
(4)
Employment
authorized status
The term employment authorized
status means, with respect to an individual, that the individual is
authorized to be employed in the United States under the immigration laws of
the United States.
(5)
Secretary
Except
as otherwise specifically provided, the term Secretary means the
Secretary of Homeland Security.
(6)
System
The
term System means the Employment Verification System established
under subsection (d).
(7)
Unauthorized
alien
The term unauthorized alien means an alien
who, with respect to employment in the United States at a particular
time—
(A) is not lawfully
admitted for permanent residence; or
(B) is not authorized
to be employed under this Act or by the Secretary.
(8)
Workplace
rights
The term workplace rights means rights
guaranteed under Federal, State, or local labor or employment laws, including
laws concerning wages and hours, benefits and employment standards, labor
relations, workplace health and safety, work-related injuries,
nondiscrimination, and retaliation for exercising rights under such
laws.
(c)
Document
verification requirements
Any employer hiring an individual for
employment in the United States shall comply with the following requirements
and the requirements under subsection (d) to verify that the individual has
employment authorized status:
(1)
Attestation
after examination of documentation
(A)
In
general
(i)
Examination by
employer
An employer shall attest, under penalty of perjury on a
form prescribed by the Secretary, that the employer has verified the identity
and employment authorization status of the individual—
(I) by
examining—
(aa) a document
specified in subparagraph (C); or
(bb) a document
specified in subparagraph (D) and a document specified in subparagraph (E);
and
(II) by utilizing an
identity authentication mechanism described in clause (iii) or (iv) of
subparagraph (F).
(ii)
Publication of
documents
The Secretary shall publish a picture of each document
specified in subparagraphs (C) and (E) on the U.S. Citizenship and Immigration
Services' website.
(B)
Requirements
(i)
Form
The
form referred to in subparagraph (A)(i)—
(I) shall be
prescribed by the Secretary not later than 6 months after the date of the
enactment of the Border Security, Economic
Opportunity, and Immigration Modernization Act;
(II) shall be
available as—
(aa) a paper
form;
(bb) a form that may
be completed by an employer via telephone;
(cc) an electronic
form; or
(dd) a form that is
integrated electronically with the requirements under subsection (d).
(ii)
Attestation
Each
such form shall require the employer to sign an attestation with a handwritten,
electronic, or digital pin code signature, according to standards prescribed by
the Secretary.
(iii)
Compliance
An
employer has complied with the requirements under this paragraph with respect
to examination of the documents included in subclauses (I) and (II) of
subparagraph (A)(i) if—
(I) the employer has,
in good faith, followed applicable regulations and any written procedures or
instructions provided by the Secretary; and
(II) a reasonable
person would conclude that the documentation is genuine and relates to the
individual presenting such documentation.
(C)
Documents
establishing identity and employment authorized status
A document
is specified in this subparagraph if the document is unexpired (unless the
validity of the document is extended by law) and is 1 of the following:
(i) A United States
passport or passport card issued to an individual pursuant to the Secretary of
State's authority under the Act entitled An Act to regulate the issue
and validity of passports, and for other purposes, approved July 3,
1926 (22 U.S.C. 211a).
(ii) A document issued
to an alien evidencing that the alien is lawfully admitted for permanent
residence or another document issued to an individual evidencing the
individual's employment authorized status, as designated by the Secretary, if
the document—
(I) contains a
photograph of the individual, or such other personal identifying information
relating to the individual as the Secretary determines, by regulation, to be
sufficient for the purposes of this subparagraph;
(II) is evidence of
employment authorized status; and
(III) contains
security features to make the document resistant to tampering, counterfeiting,
and fraudulent use.
(iii) An enhanced
driver’s license or identification card issued to a national of the United
States by a State or a federally recognized Indian tribe that—
(I) meets the
requirements under section 202 of the REAL ID Act of 2005 (division B of Public
Law 109–13; 49 U.S.C. 30301 note); and
(II) the Secretary has
certified by notice published in the Federal Register and through appropriate
notice directly to employers registered in the System 3 months prior to
publication that such enhanced license or card is suitable for use under this
subparagraph based upon the accuracy and security of the issuance process,
security features on the document, and such other factors as the Secretary may
prescribe.
(iv) A passport issued
by the appropriate authority of a foreign country accompanied by a Form I–94 or
Form I-94A (or similar successor form), or other documentation as designated by
the Secretary that specifies the individual’s status in the United States and
the duration of such status if the proposed employment is not in conflict with
any restriction or limitation specified on such form or documentation.
(v) A passport issued
by the Federated States of Micronesia or the Republic of the Marshall Islands
with evidence of nonimmigrant admission to the United States under the Compact
of Free Association between the United States and the Federated States of
Micronesia or the Republic of the Marshall Islands.
(D)
Documents
establishing identity of individual
A document is specified in
this subparagraph if the document is unexpired (unless the validity of the
document is extended by law) and is 1 of the following:
(i) A driver’s license
or identity card that is not described in subparagraph (C)(iii) and is issued
to an individual by a State or an outlying possession of the United States, a
federally recognized Indian tribe, or an agency (including military) of the
Federal Government if the driver’s license or identity card includes, at a
minimum—
(I) the individual’s
photograph, name, date of birth, gender, and driver’s license or identification
card number, and
(II) security features
to make the license or card resistant to tampering, counterfeiting, and
fraudulent use.
(ii) A voter
registration card.
(iii) A document that
complies with the requirements under section 7209(b)(1) of the Intelligence
Reform and Terrorism Prevention Act of 2004 (Public Law 108–458; 8 U.S.C. 1185
note).
(iv) For individuals
under 18 years of age who are unable to present a document listed in clause (i)
or (ii), documentation of personal identity of such other type as the Secretary
determines will provide a reliable means of identification, which may include
an attestation as to the individual’s identity by a person 21 years of age or
older under penalty of perjury.
(E)
Documents
evidencing employment authorization
A document is specified in
this subparagraph if the document is unexpired (unless the validity of the
document is extended by law) and is 1 of the following:
(i) A social security
account number card issued by the Commissioner, other than a card which
specifies on its face that the card is not valid to evidence employment
authorized status or has other similar words of limitation.
(ii) Any other
documentation evidencing employment authorized status that the Secretary
determines and publishes in the Federal Register and through appropriate notice
directly to employers registered within the System to be acceptable for
purposes of this subparagraph if such documentation, including any electronic
security measures linked to such documentation, contains security features to
make such documentation resistant to tampering, counterfeiting, and fraudulent
use.
(F)
Identity
authentication mechanism
(i)
Definitions
In
this subparagraph:
(I)
Covered identity
document
The term covered identity document means a
valid—
(aa) United States
passport, passport card, or a document evidencing lawful permanent residence
status or employment authorized status issued to an alien;
(bb) enhanced driver's
license or identity card issued by a participating State; or
(cc) photograph and
appropriate identifying information provided by the Secretary of State pursuant
to the granting of a visa.
(II)
Participating
state
The term participating State means a State
that has an agreement with the Secretary to provide the Secretary, for purposes
of identity verification in the System, with photographs and appropriate
identifying information maintained by the State.
(ii)
Requirement for
identity authentication
In addition to verifying the documents
specified in subparagraph (C), (D), or (E) and utilizing the System under
subsection (d), each employer shall use an identity authentication mechanism
described in clause (iii) or provided in clause (iv) after it becomes available
to verify the identity of each individual the employer seeks to hire.
(iii)
Photo
tool
(I)
Use
requirement
An employer seeking to hire an individual who has a
covered identity document shall verify the identity of such individual using
the photo tool described in subclause (II).
(II)
Development
requirement
The Secretary shall develop and maintain a photo tool
that enables employers to match the photo on a covered identity document
provided to the employer to a photo maintained by a U.S. Citizenship and
Immigration Services database.
(iv)
Additional
security measures
(I)
Use
requirement
An employer seeking to hire an individual whose
identity may not be verified using the photo tool described in clause (iii)
shall verify the identity of such individual using the additional security
measures described in subclause (II).
(II)
Development
requirement
The Secretary shall develop, after publication in the
Federal Register and an opportunity for public comment, specific and effective
additional security measures to adequately verify the identity of an individual
whose identity may not be verified using the photo tool described in clause
(iii). Such additional security measures—
(aa) shall be kept
up-to-date with technological advances; and
(bb) shall provide a
means of identity authentication in a manner that provides a high level of
certainty as to the identity of such individual, using immigration and
identifying information that may include review of identity documents or
background screening verification techniques using publicly available
information.
(G)
Authority to
prohibit use of certain documents
If the Secretary determines,
after publication in the Federal Register and an opportunity for public commit,
that any document or class of documents specified in subparagraph (B), (C), or
(D) does not reliably establish identity or that employment authorized status
is being used fraudulently to an unacceptable degree, the Secretary—
(i) may prohibit or
restrict the use of such document or class of documents for purposes of this
subsection; and
(ii) shall directly
notify all employers registered within the System of the prohibition through
appropriate means.
(H)
Authority to
allow use of certain documents
If the Secretary has determined
that another document or class of documents, such as a document issued by a
federally recognized Indian tribe, may be used to reliably establish identity
or employment authorized status, the Secretary—
(i) may allow the use
of that document or class of documents for purposes of this subsection after
publication in the Federal Register and an opportunity for public
comment;
(ii) shall publish a
description of any such document or class of documents on the U.S. Citizenship
and Immigration Services' website; and
(iii) shall directly
notify all employers registered within the System of the prohibition through
appropriate means.
(2)
Individual
attestation of employment authorization
An individual, upon
commencing employment with an employer, shall—
(A) attest, under
penalty of perjury, on the form prescribed by the Secretary, that the
individual is—
(i) a national of the
United States;
(ii) an alien lawfully
admitted for permanent residence;
(iii) an alien who has
employment authorized status; or
(iv) otherwise
authorized by the Secretary to be hired for such employment;
(B) provide such
attestation by a handwritten, electronic, or digital pin code signature;
and
(C) provide the
individual’s social security account number to the Secretary, unless the
individual has not yet been issued such a number, on such form as the Secretary
may require.
(3)
Retention of
verification record
(A)
In
general
After completing a form for an individual in accordance
with paragraphs (1) and (2), the employer shall retain a version of such
completed form and make such form available for inspection by the Secretary or
the Office of Special Counsel for Immigration-Related Unfair Employment
Practices of the Department of Justice during the period beginning on the
hiring date of the individual and ending on the later of—
(i) the date that is 3
years after such hiring date; or
(ii) the date that is
1 year after the date on which the individual’s employment with the employer is
terminated.
(B)
Requirement for
electronic retention
The Secretary—
(i) shall permit an
employer to retain the form described in subparagraph (A) in electronic form;
and
(ii) may permit an
employer to retain such form in paper, microfiche, microfilm, or other
media.
(4)
Copying of
documentation and recordkeeping
The Secretary may promulgate
regulations regarding—
(A) copying documents
and related information pertaining to employment verification presented by an
individual under this subsection; and
(B) retaining such
information during a period not to exceed the required retention period set
forth in paragraph (3).
(5)
Penalties
An
employer that fails to comply with any requirement under this subsection may be
penalized under subsection (e)(4)(B).
(6)
Protection of
civil rights
(A)
In
general
Nothing in this section may be construed to diminish any
rights otherwise protected by Federal law.
(B)
Prohibition on
discrimination
An employer shall use the procedures for document
verification set forth in this paragraph for all employees without regard to
race, color, religion, sex, national origin, or, unless specifically permitted
in this section, to citizenship status.
(7)
Receipts
The
Secretary may authorize the use of receipts for replacement documents, and
temporary evidence of employment authorization by an individual to meet a
documentation requirement under this subsection on a temporary basis not to
exceed 1 year, after which time the individual shall provide documentation
sufficient to satisfy the documentation requirements under this
subsection.
(8)
No authorization
of national identification cards
Nothing in this section may be
construed to directly or indirectly authorize the issuance, use, or
establishment of a national identification card.
(d)
Employment
Verification System
(1)
In
general
(A)
Establishment
The
Secretary, in consultation with the Commissioner, shall establish the
Employment Verification System.
(B)
Monitoring
The
Secretary shall create the necessary processes to monitor—
(i) the functioning of
the System, including the volume of the workflow, the speed of processing of
queries, the speed and accuracy of responses;
(ii) the misuse of the
System, including the prevention of fraud or identity theft;
(iii) whether the use
of the System results in wrongful adverse actions or discrimination based upon
a prohibited factor against nationals of the United States or individuals who
have employment authorized status; and
(iv) the security,
integrity, and privacy of the System.
(C)
Procedures
The
Secretary—
(i) shall create
processes to provide an individual with direct access to the individual's case
history in the System, including—
(I) the identities of
all persons or entities that have queried the individual through the
System;
(II) the date of each
such query; and
(III) the System
response for each such query; and
(ii) in consultation
with the Commissioner, may develop—
(I) protocols to
notify an individual, in a timely manner through the use of electronic
correspondence or mail, that a query for the individual has been processed
through the System; or
(II) a process for the
individual to submit additional queries to the System or notify the Secretary
of potential identity fraud.
(2)
Participation
requirements
(A)
Federal
government
Except as provided in clause (ii), all agencies and
departments in the executive, legislative, or judicial branches of the Federal
Government shall participate in the System beginning on the earlier of—
(i) the date of the
enactment of the Border Security, Economic
Opportunity, and Immigration Modernization Act, to the extent
required under section 402(e)(1) of the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (division C of Public Law 104–208; 8
U.S.C. 1324a) and as already implemented by each agency or department;
or
(ii) the date that is
90 days after the date of the enactment of the
Border Security, Economic Opportunity, and
Immigration Modernization Act.
(B)
Federal
contractors
Federal contractors shall participate in the System
as provided in the final rule relating to employment eligibility verification
published in the Federal Register on November 14, 2008 (73 Fed. Reg. 67,651),
or any similar subsequent regulation, for which purpose references to E-Verify
in the final rule shall be construed to apply to the System.
(C)
Critical
infrastructure
(i)
In
general
Beginning on the date that is 1 year after the date on
which regulations are published implementing this subsection, the Secretary may
authorize or direct any employer, person, or entity responsible for granting
access to, protecting, securing, operating, administering, or regulating part
of the critical infrastructure (as defined in section 1016(e) of the Critical
Infrastructure Protection Act of 2001 (42 U.S.C. 5195c(e))) to participate in
the System to the extent the Secretary determines that such participation will
assist in the protection of the critical infrastructure.
(ii)
Notification to
employers
The Secretary shall notify an employer required to
participate in the System under this subparagraph not later than 90 days before
the date on which the employer is required to participate.
(D)
Employers with
more than 5,000 employees
Not later than 2 years after
regulations are published implementing this subsection, all employers with more
than 5,000 employees shall participate in the System with respect to all newly
hired employees and employees with expiring temporary employment authorization
documents.
(E)
Employers with
more than 500 employees
Not later than 3 years after regulations
are published implementing this subsection, all employers with more than 500
employees shall participate in the System with respect to all newly hired
employees and employees with expiring temporary employment authorization
documents.
(F)
Agricultural
labor or services
With respect to an employee performing
agricultural labor or services (as defined for purposes of section
101(a)(15)(H)(ii)(a)), this paragraph shall not apply with respect to the
verification of the employee until the date that is 4 years after the date of
the enactment of the Legal Workforce Act. An employee described in this clause
shall not be counted for purposes of subparagraph (D) or (E).
(G)
All
employers
Except as provided in subparagraph (I), not later than
4 years after regulations are published implementing this subsection, all
employers shall participate in the System with respect to all newly hired
employees and employees with expiring temporary employment authorization
documents.
(H)
Tribal
government employers
(i)
Rulemaking
In
developing regulations to implement this subsection, the Secretary
shall—
(I) consider the
effects of this section on federally recognized Indian tribes and tribal
members; and
(II) consult with the
governments of federally recognized Indian tribes.
(ii)
Required
participation
Not later than 5 years after regulations are
published implementing this subsection, all employers owned by, or entities of,
the government of a federally recognized Indian tribe shall participate in the
System with respect to all newly hired employees with expiring temporary
employment authorization documents.
(I)
Immigration law
violators
(i)
Orders finding
violations
An order finding any employer to have violated this
section or section 274C may, in the Secretary's discretion, require the
employer to participate in the System with respect to newly hired employees and
employees with expiring temporary employment authorization documents, if such
employer is not otherwise required to participate in the System under this
section. The Secretary shall monitor such employer’s compliance with System
procedures.
(ii)
Pattern or
practice of violations
The Secretary may require an employer that
is required to participate in the System with respect to newly hired employees
to participate in the System with respect to the employer's current employees
if the employer is determined by the Secretary or other appropriate authority
to have engaged in a pattern or practice of violations of the immigration laws
of the United States.
(J)
Voluntary
participation
The Secretary may permit any employer that is not
required to participate in the System under this section to do so on a
voluntary basis.
(3)
Consequence of
failure to participate
(A)
In
general
Except as provided in subparagraph (B), the failure,
other than a de minimis or inadvertent failure, of an employer that is required
to participate in the System to comply with the requirements of the System with
respect to an individual—
(i) shall be treated
as a violation of subsection (a)(1)(B) with respect to that individual;
and
(ii) creates a
rebuttable presumption that the employer has violated paragraph (1)(A) or (2)
of subsection (a).
(B)
Exception
(i)
In
general
Subparagraph (A) shall not apply in a criminal
prosecution.
(ii)
Use as
evidence
Nothing in this paragraph may be construed to limit the
use in the prosecution of a Federal crime, in a manner otherwise consistent
with Federal criminal law and procedure, of evidence relating to the employer’s
failure to comply with requirements of the System.
(4)
Procedures for
participants in the system
(A)
In
general
An employer participating in the System shall register
such participation with the Secretary and, when hiring any individual for
employment in the United States, shall comply with the following:
(i)
Registration of
employers
The Secretary, through notice in the Federal Register,
shall prescribe procedures that employers shall be required to follow to
register with the System.
(ii)
Updating
information
The employer is responsible for providing notice of
any change to the information required under subclauses (I), (II), and (III) of
clause (v) before conducting any further inquiries within the System, or on
such other schedule as the Secretary may prescribe.
(iii)
Training
The
Secretary shall require employers to undergo such training as the Secretary
determines to be necessary to ensure proper use, protection of civil rights and
civil liberties, privacy, integrity, and security of the System. To the extent
practicable, such training shall be made available electronically on the U.S.
Citizenship and Immigration Services' website.
(iv)
Notification to
employees
The employer shall inform individuals hired for
employment that the System—
(I) will be used by
the employer;
(II) may be used for
immigration enforcement purposes; and
(III) may not be used
to discriminate or to take adverse action against a national of the United
States or an alien who has employment authorized status.
(v)
Provision of
additional information
The employer shall obtain from the
individual (and the individual shall provide) and shall record in such manner
as the Secretary may specify—
(I) the individual’s
social security account number;
(II) if the individual
does not attest to United States citizenship or noncitizen nationality under
subsection (c)(2), such identification or authorization number established by
the Department as the Secretary shall specify; and
(III) such other
information as the Secretary may require to determine the identity and
employment authorization of an individual.
(vi)
Presentation of
documentation
The employer, and the individual whose identity and
employment authorized status are being confirmed, shall fulfill the
requirements under subsection (c).
(B)
Seeking
confirmation
(i)
In
general
An employer shall use the System to confirm the identity
and employment authorized status of any individual during—
(I) the period
beginning on the date on which the individual accepts an offer of employment
and ending 3 business days after the date on which employment begins; or
(II) such other
reasonable period as the Secretary may prescribe.
(ii)
Limitation
An
employer may not make the starting date of an individual’s employment or
training or any other term and condition of employment dependent on the receipt
of a confirmation of identity and employment authorized status by the
System.
(iii)
Reverification
If
an individual has a limited period of employment authorized status, the
individual's employer shall reverify such status through the System not later
than 3 business days after the last day of such period.
(iv)
Other
employment
For employers directed by the Secretary to participate
in the System under paragraph (2)(C)(i) to protect critical infrastructure or
otherwise specified circumstances in this section to verify their entire
workforce, the System may be used for initial verification of an individual who
was hired before the employer became subject to the System, and the employer
shall initiate all required procedures on or before such date as the Secretary
shall specify.
(v)
Notification
(I)
In
general
The Secretary shall provide, and the employer shall
utilize, as part of the System, a method of notifying employers of a
confirmation or nonconfirmation of an individual’s identity and employment
authorized status, or a notice that further action is required to verify such
identity or employment eligibility (referred to in this subsection as a
further action notice).
(II)
Procedures
The
Secretary shall establish procedures—
(aa) to directly
notify the individual and the employer of a confirmation, nonconfirmation, or
further action notice; and
(bb) to provide
information about filing an administrative appeal under paragraph (6) and a
hearing before an administrative law judge under paragraph (7).
(III)
Implementation
The
Secretary may provide for a phased-in implementation of the notification
requirements under this clause, as appropriate. The notification system shall
cover all inquiries not later than 1 year from the date of the enactment of the
Border Security, Economic Opportunity, and
Immigration Modernization Act.
(C)
Confirmation or
nonconfirmation
(i)
Initial
response
(I)
In
general
Except as provided in subclause (II), the System shall
provide—
(aa) a confirmation of
an individual’s identity and employment authorized status or a further action
notice at the time of the inquiry; and
(bb) an appropriate
code indicating such confirmation or such further action notice.
(II)
Alternative
deadline
If the System is unable to provide immediate
confirmation or further action notice for technological reasons or due to
unforeseen circumstances, the System shall provide a confirmation or further
action notice not later than 3 business days after the initial inquiry.
(ii)
Confirmation
upon initial inquiry
If the employer receives an appropriate
confirmation of an individual’s identity and employment authorized status under
the System, the employer shall record the confirmation in such manner as the
Secretary may specify.
(iii)
Further action
notice and later confirmation or nonconfirmation
(I)
Notification and
acknowledgment that further action is required
Not later than 3
business days after an employer receives a further action notice of an
individual’s identity or employment eligibility under the System, or during
such other reasonable time as the Secretary may prescribe, the employer shall
notify the individual for whom the confirmation is sought of the further action
notice and any procedures specified by the Secretary for addressing such
notice. The further action notice shall be given to the individual in writing
and the employer shall acknowledge in the System under penalty of perjury that
it provided the employee with the further action notice. The individual shall
affirmatively acknowledge in writing, or in such other manner as the Secretary
may specify, the receipt of the further action notice from the employer. If the
individual refuses to acknowledge the receipt of the further action notice, or
acknowledges in writing that the individual will not contest the further action
notice under subclause (II), the employer shall notify the Secretary in such
manner as the Secretary may specify.
(II)
Contest
Not
later than 10 business days after receiving notification of a further action
notice under subclause (I), the individual shall contact the appropriate
Federal agency and, if the Secretary so requires, appear in person for purposes
of verifying the individual’s identity and employment eligibility. The
Secretary, in consultation with the Commissioner and other appropriate Federal
agencies, shall specify an available secondary verification procedure to
confirm the validity of information provided and to provide a confirmation or
nonconfirmation. Any procedures for reexamination shall not limit in any way an
employee’s right to appeal a nonconfirmation.
(III)
No
contest
If the individual refuses to acknowledge receipt of the
further action notice, acknowledges that the individual will not contest the
further action notice as provided in subclause (I), or does not contact the
appropriate Federal agency within the period specified in subclause (II),
following expiration of the period specified in subclause (II), a
nonconfirmation shall be issued. The employer shall record the nonconfirmation
in such manner as the Secretary may specify and terminate the individual’s
employment. An individual’s failure to contest a further action notice shall
not be considered an admission of guilt with respect to any violation of this
section or any provision of law.
(IV)
Confirmation or
nonconfirmation
Unless the period is extended in accordance with
this subclause, the System shall provide a confirmation or nonconfirmation not
later than 10 business days after the date on which the individual contests the
further action notice under subclause (II). If the Secretary determines that
good cause exists, after taking into account adverse impacts to the employer,
and including time to permit the individual to obtain and provide needed
evidence of identity or employment eligibility, the Secretary shall extend the
period for providing confirmation or nonconfirmation for stated periods beyond
10 business days. When confirmation or nonconfirmation is provided, the
confirmation system shall provide an appropriate code indicating such
confirmation or nonconfirmation.
(V)
Reexamination
Nothing
in this section shall prevent the Secretary from establishing procedures to
reexamine a case where a confirmation or nonconfirmation has been provided if
subsequently received information indicates that the confirmation or
nonconfirmation may not have been correct. Any procedures for reexamination
shall not limit in any way an employee’s right to appeal a
nonconfirmation.
(VI)
Employee
protections
An employer may not terminate employment or take any
other adverse action against an individual solely because of a failure of the
individual to have identity and employment eligibility confirmed under this
subsection until—
(aa) a nonconfirmation
has been issued;
(bb) if the further
action notice was contested, the period to timely file an administrative appeal
has expired without an appeal; or
(cc) if an
administrative appeal has been filed, the nonconfirmation has been
upheld.
(iv)
Notice of
nonconfirmation
Not later than 3 business days after an employer
receives a nonconfirmation, or during such other reasonable time as the
Secretary may provide, the employer shall notify the individual who is the
subject of the nonconfirmation, and provide information about filing an
administrative appeal pursuant to paragraph (6) and request for a hearing
before an administrative law judge pursuant to paragraph (7). The
nonconfirmation notice shall be given to the individual in writing and the
employer shall acknowledge in the System under penalty of perjury that it
provided the notice (or adequately attempted to provide notice, but was unable
to do so despite reasonable efforts). The individual shall affirmatively
acknowledge in writing, or in such other manner as the Secretary may prescribe,
the receipt of the nonconfirmation notice from the employer. If the individual
refuses or fails to acknowledge the receipt of the nonconfirmation notice, the
employer shall notify the Secretary in such manner as the Secretary may
prescribe.
(D)
Consequences of
nonconfirmation
(i)
Termination of
continued employment
Except as provided in clause (iii), an
employer that has received a nonconfirmation regarding an individual and has
made reasonable efforts to notify the individual in accordance with
subparagraph (C)(iv) shall terminate the employment of the individual upon the
expiration of the time period specified in paragraph (6)(A) for filing an
administrative appeal and paragraph (7)(A) for requesting a hearing before an
administrative law judge.
(ii)
Continued
employment after nonconfirmation
If the employer continues to
employ an individual after receiving nonconfirmation and exhaustion of all
appeals or expiration of all rights to appeal if not appealed, in violation of
clause (i), a rebuttable presumption is created that the employer has violated
paragraphs (1)(A) and (2) of subsection (a). Such presumption shall not apply
in any prosecution under subsection (k)(1).
(iii)
Effect of
administrative appeal or review by administrative law judge
If an
individual files an administrative appeal of the nonconfirmation within the
time period specified in paragraph (6)(A), or review by an administrative law
judge specified in paragraph (7)(A), the employer shall not terminate the
individual’s employment under this subparagraph prior to the resolution of the
administrative appeal unless the Secretary or Commissioner terminates the stay
under paragraph (6)(B) or (7)(B).
(E)
Obligation to
respond to queries and additional information
(i)
In
general
Employers shall comply with requests for information from
the Secretary and the Special Counsel for Immigration-Related Unfair Employment
Practices of the Department of Justice, including queries concerning current
and former employees, within the time frame during which records are required
to be maintained under this section regarding such former employees, if such
information relates to the functioning of the System, the accuracy of the
responses provided by the System, or any suspected misuse, discrimination,
fraud, or identity theft in the use of the System. Failure to comply with a
request under this clause constitutes a violation of subsection
(a)(1)(B).
(ii)
Action by
individuals
(I)
In
general
Individuals being verified through the System may be
required to take further action to address questions identified by the
Secretary or the Commissioner regarding the documents relied upon for purposes
of subsection (c).
(II)
Notification
Not
later than 3 business days after the receipt of such questions regarding an
individual, or during such other reasonable time as the Secretary may
prescribe, the employer shall—
(aa) notify the
individual of any such requirement for further actions; and
(bb) shall record the
date and manner of such notification.
(III)
Acknowledgment
The
individual shall acknowledge the notification received from the employer under
subclause (II) in writing, or in such other manner as the Secretary may
prescribe.
(iii)
Rulemaking
(I)
In
general
The Secretary, in consultation with the Commissioner, is
authorized to issue regulations implementing, clarifying, and supplementing the
requirements under this subparagraph—
(aa) to facilitate the
functioning, accuracy, and fairness of the System; or
(bb) to prevent
misuse, discrimination, fraud, or identity theft in the use of the
System.
(II)
Notice
The
regulations issued under subclause (I)—
(aa) shall be
published in the Federal Register; and
(bb) provide directly
to all employers registered in the System.
(F)
Designated
agents
The Secretary shall establish a process—
(i) for certifying, on
an annual basis or at such times as the Secretary may prescribe, designated
agents and other System service providers seeking access to the System to
perform verification queries on behalf of employers, based upon training,
usage, privacy, and security standards prescribed by the Secretary; and
(ii) for ensuring that
designated agents and other System service providers are subject to monitoring
to the same extent as direct access users.
(G)
Requirement to
provide information
(i)
In
general
No later than 3 months after the date of the enactment of
the Border Security, Economic Opportunity,
and Immigration Modernization Act, the Secretary, in consultation
with the Secretary of Labor, the Secretary of Agriculture, the Commissioner,
the Attorney General, the Equal Employment Opportunity Commission, and the
Administrator of the Small Business Administration, shall commence a campaign
to disseminate information respecting the procedures, rights, and remedies
prescribed under this section.
(ii)
Campaign
requirements
The campaign authorized under clause (i)—
(I) shall be aimed at
increasing the knowledge of employers, employees, and the general public
concerning employer and employee rights, responsibilities, and remedies under
this section; and
(II) shall be
coordinated with the public education campaign conducted by U.S. Citizenship
and Immigration Services.
(iii)
Assessment
The
Secretary shall assess the success of the campaign in achieving the goals of
the campaign.
(iv)
Authority to
contract
In order to carry out and assess the campaign under this
subparagraph, the Secretary may, to the extent deemed appropriate and subject
to the availability of appropriations, contract with public and private
organizations for outreach and assessment activities under the campaign.
(v)
Authorization of
appropriations
There are authorized to be appropriated to carry
out this paragraph $40,000,000 for each of the fiscal years 2014 through
2016.
(H)
Authority to
modify information requirements
Based on a regular review of the
System and the document verification procedures to identify misuse or
fraudulent use and to assess the security of the documents and processes used
to establish identity or employment authorized status, the Secretary, in
consultation with the Commissioner, after publication of notice in the Federal
Register and an opportunity for public comment, may modify, if the Secretary
determines that the modification is necessary to ensure that the System
accurately and reliably determines the identity and employment authorized
status of employees and maintain existing protections against misuse,
discrimination, fraud, and identity theft—
(i) the information
that shall be presented to the employer by a worker individual;
(ii) the information
that shall be provided to the System by the employer; and
(iii) the procedures
that shall be followed by employers with respect to the process of verifying an
individual through the System.
(I)
Self-verification
Subject
to appropriate safeguards to prevent misuse of the system, the Secretary, in
consultation with the Commissioner, shall establish a secure self-verification
procedure to permit an individual who seeks to verify the individual’s own
employment eligibility to contact the appropriate agency and, in a timely
manner, correct or update the information contained in the System.
(5)
Protection from
liability for actions taken on the basis of information provided by the
System
An employer shall not be liable to a job applicant, an
employee, the Federal Government, or a State or local government, under
Federal, State, or local criminal or civil law for any employment-related
action taken with respect to a job applicant or employee in good-faith reliance
on information provided by the System.
(6)
Administrative
appeal
(A)
In
general
An individual who is notified of a nonconfirmation may,
not later than 10 business days after the date that such notice is received,
file an administrative appeal of such nonconfirmation with the Commissioner if
the notice is based on records maintained by the Commissioner, or in any other
case, with the Secretary. An individual who did not timely contest a further
action notice timely received by that individual for which the individual
acknowledged receipt may not be granted a review under this paragraph.
(B)
Administrative
stay of nonconfirmation
The nonconfirmation shall be
automatically stayed upon the timely filing of an administrative appeal, unless
the nonconfirmation resulted after the individual acknowledged receipt of the
further action notice but failed to contact the appropriate agency within the
time provided. The stay shall remain in effect until the resolution of the
appeal, unless the Secretary or the Commissioner terminates the stay based on a
determination that the administrative appeal is frivolous or filed for purposes
of delay.
(C)
Review for
error
The Secretary and the Commissioner shall develop procedures
for resolving administrative appeals regarding nonconfirmations based upon the
information that the individual has provided, including any additional evidence
or argument that was not previously considered. Any such additional evidence or
argument shall be filed within 10 business days of the date the appeal was
originally filed. Appeals shall be resolved within 20 business days after the
individual has submitted all evidence and arguments the individual wishes to
submit, or has stated in writing that there is no additional evidence that the
individual wishes to submit. The Secretary and the Commissioner may, on a case
by case basis for good cause, extend the filing and submission period in order
to ensure accurate resolution of an appeal before the Secretary or the
Commissioner.
(D)
Preponderance of
evidence
Administrative appeal under this paragraph shall be
limited to whether a nonconfirmation notice is supported by a preponderance of
the evidence.
(E)
Damages, fees,
and costs
No money damages, fees or costs may be awarded in the
administrative appeal process under this paragraph.
(7)
Review by
administrative law judge
(A)
In
general
Not later than 30 days after the date an individual
receives a final determination on an administrative appeal under paragraph (6),
the individual may obtain review of such determination by filing a complaint
with an administrative law judge in accordance with this paragraph.
(B)
Stay of
nonconfirmation
The nonconfirmation related to such final
determination shall be automatically stayed upon the timely filing of a
complaint under this paragraph, and the stay shall remain in effect until the
resolution of the complaint, unless the administrative law judge determines
that the action is frivolous or filed for purposes of delay.
(C)
Service
The
respondent to complaint filed under this paragraph is either the Secretary or
the Commissioner, but not both, depending upon who issued the administrative
order under paragraph (6). In addition to serving the respondent, the plaintiff
shall serve the Attorney General.
(D)
Authority of
administrative law judge
(i)
Rules of
practice
The Secretary shall promulgate regulations regarding the
rules of practice in appeals brought pursuant to this subsection.
(ii)
Authority of
administrative law judge
The administrative law judge shall have
power to—
(I) terminate a stay
of a nonconfirmation under subparagraph (B) if the administrative law judge
determines that the action is frivolous or filed for purposes of delay;
(II) adduce evidence
at a hearing;
(III) compel by
subpoena the attendance of witnesses and the production of evidence at any
designated place or hearing;
(IV) resolve claims of
identity theft; and
(V) enter, upon the
pleadings and any evidence adduced at a hearing, a decision affirming or
reversing the result of the agency, with or without remanding the cause for a
rehearing.
(iii)
Subpoena
In
case of contumacy or refusal to obey a subpoena lawfully issued under this
section and upon application of the administrative law judge, an appropriate
district court of the United States may issue an order requiring compliance
with such subpoena and any failure to obey such order may be punished by such
court as a contempt of such court.
(iv)
Training
An
administrative law judge hearing cases shall have special training respecting
employment authorized status verification.
(E)
Order by
administrative law judge
(i)
In
general
The administrative law judge shall issue and cause to be
served to the parties in the proceeding an order which may be appealed as
provided in subparagraph (G).
(ii)
Contents of
order
Such an order shall uphold or reverse the final
determination on the request for reconsideration and order lost wages and other
appropriate remedies as provided in subparagraph (F).
(F)
Compensation for
error
(i)
In
general
In cases in which the administrative law judge reverses
the final determination of the Secretary or the Commissioner made under
paragraph (6), and the administrative law judge finds that—
(I) the
nonconfirmation was due to gross negligence or intentional misconduct of the
employer, the administrative law judge may order the employer to pay the
individual lost wages, and reasonable costs and attorneys’ fees incurred during
administrative and judicial review; or
(II) such final
determination was erroneous by reason of the negligence of the Secretary or the
Commissioner, the administrative law judge may order the Secretary or the
Commissioner to pay the individual lost wages, and reasonable costs and
attorneys’ fees incurred during administrative and judicial review.
(ii)
Calculation of
lost wages
Lost wages shall be calculated based on the wage rate
and work schedule that prevailed prior to termination. The individual shall be
compensated for wages lost beginning on the first scheduled work day after
employment was terminated and ending 120 days after completion of the
administrative law judge’s review described in this paragraph or the day after
the individual is reinstated or obtains employment elsewhere, whichever occurs
first. If the individual obtains employment elsewhere at a lower wage rate, the
individual shall be compensated for the difference in wages for the period
ending 120 days after completion of the administrative law judge review
process. No lost wages shall be awarded for any period of time during which the
individual was not in employment authorized status.
(iii)
Payment of
compensation
Notwithstanding any other law, payment of
compensation for lost wages, costs, and attorneys’ fees under this paragraph,
or compromise settlements of the same, shall be made as provided by section
1304 of title 31, United States Code. Appropriations made available to the
Secretary or the Commissioner, accounts provided for under section 286, and
funds from the Federal Old-Age and Survivors Insurance Trust Fund or the
Federal Disability Insurance Trust Fund shall not be available to pay such
compensation.
(G)
Appeal
No
later than 45 days after the entry of such final order, any person adversely
affected by such final order may seek review of such order in the United States
Court of Appeals for the circuit in which the violation is alleged to have
occurred or in which the employer resides or transacts business.
(8)
Management of
the System
(A)
In
general
The Secretary is authorized to establish, manage, and
modify the System, which shall—
(i) respond to
inquiries made by participating employers at any time through the internet, or
such other means as the Secretary may designate, concerning an individual’s
identity and whether the individual is in employment authorized status;
(ii) maintain records
of the inquiries that were made, of confirmations provided (or not provided),
and of the codes provided to employers as evidence of their compliance with
their obligations under the System; and
(iii) provide
information to, and require action by, employers and individuals using the
System.
(B)
Design and
operation of System
The System shall be designed and
operated—
(i) to maximize its
reliability and ease of use by employers consistent with protecting the privacy
and security of the underlying information, and ensuring full notice of such
use to employees;
(ii) to maximize its
ease of use by employees, including direct notification of its use, of results,
and ability to challenge results;
(iii) to respond
accurately to all inquiries made by employers on whether individuals are
authorized to be employed and to register any times when the system is unable
to receive inquiries;
(iv) to maintain
appropriate administrative, technical, and physical safeguards to prevent
unauthorized disclosure of personal information, misuse by employers and
employees, and discrimination;
(v) to require
regularly scheduled refresher training of all users of the System to ensure
compliance with all procedures;
(vi) to allow for
auditing of the use of the System to detect misuse, discrimination, fraud, and
identity theft, and to preserve the integrity and security of the information
in all of the System, including—
(I) to develop and use
tools and processes to detect or prevent fraud and identity theft, such as
multiple uses of the same identifying information or documents to fraudulently
gain employment;
(II) to develop and
use tools and processes to detect and prevent misuse of the system by employers
and employees;
(III) to develop tools
and processes to detect anomalies in the use of the system that may indicate
potential fraud or misuse of the system;
(IV) to audit
documents and information submitted by employees to employers, including
authority to conduct interviews with employers and employees, and obtain
information concerning employment from the employer;
(vii) to confirm
identity and employment authorization through verification and comparison of
records as determined necessary by the Secretary;
(viii) to confirm
electronically the issuance of the employment authorization or identity
document and—
(I) if such photograph
is available, to display the digital photograph that the issuer placed on the
document so that the employer can compare the photograph displayed to the
photograph on the document presented by the employee; or
(II) if a photograph
is not available from the issuer, to confirm the authenticity of the document
using such alternative procedures as the Secretary may specify; and
(ix) to provide
appropriate notification directly to employers registered with the System of
all changes made by the Secretary or the Commissioner related to allowed and
prohibited documents, and use of the System.
(C)
Safeguards to
the System
(i)
Requirement to
develop
The Secretary, in consultation with the Commissioner and
other appropriate Federal and State agencies, shall develop policies and
procedures to ensure protection of the privacy and security of personally
identifiable information and identifiers contained in the records accessed or
maintained by the System. The Secretary, in consultation with the Commissioner
and other appropriate Federal and State agencies, shall develop and deploy
appropriate privacy and security training for the Federal and State employees
accessing the records under the System.
(ii)
Privacy
audits
The Secretary, acting through the Chief Privacy Officer of
the Department, shall conduct regular privacy audits of the policies and
procedures established under clause (i), including any collection, use,
dissemination, and maintenance of personally identifiable information and any
associated information technology systems, as well as scope of requests for
this information. The Chief Privacy Officer shall review the results of the
audits and recommend to the Secretary any changes necessary to improve the
privacy protections of the program.
(iii)
Records
security program
Any person, including a private third party
vendor, who retains document verification or System data pursuant to this
section shall implement an effective records security program that—
(I) ensures that only
authorized personnel have access to document verification or System data;
and
(II) ensures that
whenever such data is created, completed, updated, modified, altered, or
corrected in electronic format, a secure and permanent record is created that
establishes the date of access, the identity of the individual who accessed the
electronic record, and the particular action taken.
(iv)
Records
security program
In addition to the security measures described
in clause (iii), a private third party vendor who retains document verification
or System data pursuant to this section shall implement an effective records
security program that—
(I) provides for
backup and recovery of any records maintained in electronic format to protect
against information loss, such as power interruptions; and
(II) ensures that
employees are trained to minimize the risk of unauthorized or accidental
alteration or erasure of such data in electronic format.
(v)
Authorized
personnel defined
In this subparagraph, the term authorized
personnel means anyone registered as a System user, or anyone with
partial or full responsibility for completion of employment authorization
verification or retention of data in connection with employment authorization
verification on behalf of an employer.
(D)
Responsibilities
of the Secretary
(i)
In
general
As part of the System, the Secretary shall maintain a
reliable, secure method, which, operating through the System and within the
time periods specified, compares the name, alien identification or
authorization number, or other information as determined relevant by the
Secretary, provided in an inquiry against such information maintained or
accessed by the Secretary in order to confirm (or not confirm) the validity of
the information provided, the correspondence of the name and number, whether
the alien has employment authorized status (or, to the extent that the
Secretary determines to be feasible and appropriate, whether the records
available to the Secretary verify the identity or status of a national of the
United States), and such other information as the Secretary may
prescribe.
(ii)
Photograph
display
As part of the System, the Secretary shall establish a
reliable, secure method, which, operating through the System, displays the
digital photograph described in subparagraph (B)(viii)(I).
(iii)
Timing of
notices
The Secretary shall have authority to prescribe when a
confirmation, nonconfirmation, or further action notice shall be issued.
(iv)
Use of
information
The Secretary shall perform regular audits under the
System, as described in subparagraph (B)(vi) and shall utilize the information
obtained from such audits, as well as any information obtained from the
Commissioner pursuant to part E of title XI of the Social Security Act (42
U.S.C. 1301 et seq.), for the purposes of this section and to administer and
enforce the immigration laws.
(v)
Available
facilities and alternative accommodations
The Secretary shall
make appropriate arrangements and develop standards to allow employers or
employees, including remote hires, who are otherwise unable to access the
System to use electronic and telephonic formats (including video conferencing,
scanning technology, and other available technologies), Federal Government
facilities, public facilities, or other available locations in order to utilize
the System.
(vi)
Identity fraud
protection
To prevent identity fraud, not later than 18 months
after the date of the enactment of the Border
Security, Economic Opportunity, and Immigration Modernization
Act, the Secretary shall—
(I) in consultation
with the Commissioner, establish a program to provide a reliable, secure method
for an individual to temporarily suspend or limit the use of the individual's
social security account number or other identifying information for
verification by the System; and
(II) for each
individual being verified through the System—
(aa) notify the
individual that the individual has the option to limit the use of the
individual's social security account number or other identifying information
for verification by the System; and
(bb) provide
instructions to the individuals for exercising the option referred to in item
(aa).
(vii)
Protection
from multiple use
The Secretary and the Commissioner shall
establish a procedure for identifying and handling a situation in which a
social security account number has been identified to be subject to unusual
multiple use in the System or is otherwise suspected or determined to have been
compromised by identity fraud.
(viii)
Monitoring
and compliance unit
The Secretary shall establish or designate a
monitoring and compliance unit to detect and reduce identity fraud and other
misuse of the System.
(ix)
Civil rights
and civil liberties assessments
(I)
Requirement to
conduct
The Secretary shall conduct regular civil rights and
civil liberties assessments of the System, including participation by
employers, other private entities, and Federal, State, and local government
entities.
(II)
Requirement to
respond
Employers, other private entities, and Federal, State,
and local entities shall timely respond to any request in connection with such
an assessment.
(III)
Assessment and
recommendations
The Officer for Civil Rights and Civil Liberties
of the Department shall review the results of each such assessment and
recommend to the Secretary any changes necessary to improve the civil rights
and civil liberties protections of the System.
(E)
Grants to
states
(i)
In
general
The Secretary shall create and administer a grant program
to help provide funding for States that grant—
(I) the Secretary
access to driver’s license information as needed to confirm that a driver’s
license presented under subsection (c)(1)(C)(i) confirms the identity of the
subject of the System check, and that a driver’s license matches the State’s
records; and
(II) such assistance
as the Secretary may request in order to resolve further action notices or
nonconfirmations relating to such information.
(ii)
Construction
with the Driver's Privacy Protection Act of 1994
The provision of
a photograph to the Secretary as described in clause (i) may not be construed
as a violation of section 2721 of title 18, United States Code, and is a
permissible use under subsection (b)(1) of that section.
(iii)
Authorization
of appropriations
There is authorized to be appropriated to the
Secretary $250,000,000 to carry out this subparagraph.
(F)
Responsibilities
of the Secretary of State
As part of the System, the Secretary of
State shall provide to the Secretary access to passport and visa information as
needed to confirm that a passport, passport card, or visa presented under
subsection (c)(1)(B) confirms the identity of the subject of the System check,
and that a passport, passport card, or visa photograph matches the Secretary of
State’s records, and shall provide such assistance as the Secretary may request
in order to resolve further action notices or nonconfirmations relating to such
information.
(G)
Updating
information
The Commissioner, the Secretary, and the Secretary of
State shall update their information in a manner that promotes maximum accuracy
and shall provide a process for the prompt correction of erroneous
information.
(9)
Limitation on
use of the system
Notwithstanding any other provision of law,
nothing in this subsection may be construed to permit or allow any department,
bureau, or other agency of the United States Government or any other entity to
utilize any information, database, or other records assembled under this
subsection for any purpose other than for employment verification or to ensure
secure, appropriate and nondiscriminatory use of the System.
(10)
Annual report
and certification
Not later than 18 months after the promulgation
of regulations to implement this subsection, and annually thereafter, the
Secretary shall submit to Congress a report that includes the following:
(A) An assessment of
the accuracy rates of further action notices and other System notices provided
by employers to individuals who are authorized to be employed in the United
States.
(B) An assessment of
the accuracy rates of further action notices and other System notices provided
directly (by the System) in a timely fashion to individuals who are not
authorized to be employed in the United States.
(C) An assessment of
any challenges faced by small employers in utilizing the System.
(D) An assessment of
the rate of employer noncompliance (in addition to failure to provide required
notices in a timely fashion) in each of the following categories:
(i) Taking adverse
action based on a further action notice.
(ii) Use of the System
for nonemployees or other individuals before they are offered
employment.
(iii) Use of the
System to reverify employment authorized status of current employees except if
authorized to do so.
(iv) Use of the System
selectively, except in cases in which such use is authorized.
(v) Use of the System
to deny employment or post-employment benefits or otherwise interfere with
labor rights.
(vi) Requiring
employees or applicants to use any self-verification feature or to provide
self-verification results.
(vii) Discouraging
individuals who receive a further action notice from challenging the further
action notice or appealing a determination made by the System.
(E) An assessment of
the rate of employee noncompliance in each of the following categories:
(i) Obtaining
employment when unauthorized with an employer complying with the System in good
faith.
(ii) Failure to
provide required documents in a timely manner.
(iii) Attempting to
use fraudulent documents or documents not related to the individual.
(iv) Misuse of the
administrative appeal and judicial review process.
(F) An assessment of
the amount of time taken for—
(i) the System to
provide the confirmation or further action notice;
(ii) individuals to
contest further action notices;
(iii) the System to
provide a confirmation or nonconfirmation of a contested further action
notice;
(iv) individuals to
file an administrative appeal of a nonconfirmation; and
(v) resolving
administrative appeals regarding nonconfirmations.
(11)
Annual GAO
study and report
(A)
Requirement
The
Comptroller General shall, for each year, undertake a study to evaluate the
accuracy, efficiency, integrity, and impact of the System.
(B)
Report
Not
later than 18 months after the promulgation of regulations to implement this
subsection, and yearly thereafter, the Comptroller General shall submit to
Congress a report containing the findings of the study carried out under this
paragraph. Each such report shall include, at a minimum, the following:
(i) An assessment of
System performance with respect to the rate at which individuals who are
eligible for employment in the United States are correctly approved within the
required periods, including a separate assessment of such rate for nationals
and aliens.
(ii) An assessment of
the privacy and confidentiality of the System and of the overall security of
the System with respect to cybertheft and theft or misuse of private
data.
(iii) An assessment of
whether the System is being implemented in a manner that is not discriminatory
or used for retaliation against employees.
(iv) An assessment of
the most common causes for the erroneous issuance of nonconfirmations by the
System and recommendations to correct such causes.
(v) The
recommendations of the Comptroller General regarding System
improvements.
(vi) An assessment of
the frequency and magnitude of changes made to the System and the impact on the
ability for employers to comply in good faith.
(vii) An assessment of
the direct and indirect costs incurred by employers in complying with the
System, including costs associated with retaining potential employees through
the administrative appeals process and receiving a nonconfirmation.
(viii) An assessment
of any backlogs or delays in the System providing the confirmation or further
action notice and impacts to hiring by employers.
(e)
Compliance
(1)
Complaints and
investigations
The Secretary shall establish procedures—
(A) for individuals
and entities to file complaints respecting potential violations of subsections
(a) or (f)(1);
(B) for the
investigation of those complaints which the Secretary deems appropriate to
investigate; and
(C) for providing
notification to the Special Counsel for Immigration-Related Unfair Employment
Practices of the Department of Justice of potential violations of section
274B.
(2)
Authority in
investigations
In conducting investigations and proceedings under
this subsection—
(A) immigration
officers shall have reasonable access to examine evidence of the employer being
investigated;
(B) immigration
officers designated by the Secretary, and administrative law judges and other
persons authorized to conduct proceedings under this section, may compel by
subpoena the attendance of relevant witnesses and the production of relevant
evidence at any designated place in an investigation or case under this
subsection. In case of refusal to fully comply with a subpoena lawfully issued
under this paragraph, the Secretary may request that the Attorney General apply
in an appropriate district court of the United States for an order requiring
compliance with the subpoena, and any failure to obey such order may be
punished by the court as contempt. Failure to cooperate with the subpoena shall
be subject to further penalties, including but not limited to further fines and
the voiding of any mitigation of penalties or termination of proceedings under
paragraph (4)(D); and
(C) the Secretary, in
cooperation with the Commissioner and Attorney General, and in consultation
with other relevant agencies, shall establish a Joint Employment Fraud Task
Force consisting of, at a minimum—
(i) the System’s
compliance personnel;
(ii) immigration law
enforcement officers;
(iii) personnel of the
Office of Special Counsel for Immigration-Related Unfair Employment Practices
of the Department of Justice;
(iv) personnel of the
Office for Civil Rights and Civil Liberties of the Department; and
(v) personnel of
Office of Inspector General of the Social Security Administration.
(3)
Compliance
procedures
(A)
Pre-penalty
notice
If the Secretary has reasonable cause to believe that
there has been a civil violation of this section, the Secretary shall issue to
the employer concerned a written notice of the Department’s intention to issue
a claim for a monetary or other penalty. Such pre-penalty notice shall:
(i) describe the
violation;
(ii) specify the laws
and regulations allegedly violated;
(iii) disclose the
material facts which establish the alleged violation;
(iv) describe the
penalty sought to be imposed; and
(v) inform such
employer that such employer shall have a reasonable opportunity to make
representations as to why a monetary or other penalty should not be
imposed.
(B)
Employer’s
response
Whenever any employer receives written pre-penalty
notice of a fine or other penalty in accordance with subparagraph (A), the
employer may, within 60 days from receipt of such notice, file with the
Secretary its written response to the notice. The response may include any
relevant evidence or proffer of evidence that the employer wishes to present
with respect to whether the employer violated this section and whether, if so,
the penalty should be mitigated, and shall be filed and considered in
accordance with procedures to be established by the Secretary.
(C)
Right to a
hearing
Before issuance of an order imposing a penalty on any
employer, person, or entity, the employer, person, or entity shall be entitled
to a hearing before an administrative law judge, if requested within 60 days of
the notice of penalty. The hearing shall be held at the nearest location
practicable to the place where the employer, person, or entity resides or of
the place where the alleged violation occurred.
(D)
Issuance of
orders
If no hearing is so requested, the Secretary’s imposition
of the order shall constitute a final and unappealable order. If a hearing is
requested and the administrative law judge determines, upon clear and
convincing evidence received, that there was a violation, the administrative
law judge shall issue the final determination with a written penalty claim. The
penalty claim shall specify all charges in the information provided under
clauses (i) through (iii) of subparagraph (A) and any mitigation of the penalty
that the administrative law judge deems appropriate under paragraph
(4)(D).
(4)
Civil
penalties
(A)
Hiring or
continuing to employ unauthorized aliens
Any employer that
violates any provision of subsection (a)(1)(A) or (a)(2) shall—
(i) pay a civil
penalty of not less than $3,500 and not more than $7,500 for each unauthorized
alien with respect to which each violation of either subsection (a)(1)(A) or
(a)(2) occurred;
(ii) if the employer
has previously been fined as a result of a previous enforcement action or
previous violation under this paragraph, pay a civil penalty of not less than
$5,000 and not more than $15,000 for each unauthorized alien with respect to
which a violation of either subsection (a)(1)(A) or (a)(2) occurred; and
(iii) if the employer
has previously been fined more than once under this paragraph, pay a civil
penalty of not less than $10,000 and not more than $25,000 for each
unauthorized alien with respect to which a violation of either subsection
(a)(1)(A) or (a)(2) occurred.
(B)
Enhanced
penalties
After the Secretary certifies to Congress that the
System has been established, implemented, and made mandatory for use by all
employers in the United States, the Secretary may establish an enhanced civil
penalty for an employer who—
(i) fails to query the
System to verify the identify and work authorized status of an individual;
and
(ii) violates a
Federal, State, or local law related to—
(I) the payment of
wages;
(II) hours worked by
employees; or
(III) workplace health
and safety.
(C)
Recordkeeping or
verification practices
Any employer that violates or fails to
comply with any requirement under subsection (a)(1)(B), other than a minor or
inadvertent failure, as determined by the Secretary, shall pay a civil penalty
of—
(i) not less than $500
and not more than $2,000 for each violation;
(ii) if an employer
has previously been fined under this paragraph, not less than $1,000 and not
more than $4,000 for each violation; and
(iii) if an employer
has previously been fined more than once under this paragraph, not less than
$2,000 and not more than $8,000 for each violation.
(D)
Other
penalties
The Secretary may impose additional penalties for
violations, including cease and desist orders, specially designed compliance
plans to prevent further violations, suspended fines to take effect in the
event of a further violation, and in appropriate cases, the remedy provided by
paragraph (f)(2).
(E)
Mitigation
The
Secretary or, if an employer requests a hearing, the administrative law judge,
is authorized, upon such terms and conditions as the Secretary or
administrative law judge deems reasonable and just and in accordance with such
procedures as the Secretary may establish or any procedures established
governing the administrative law judge’s assessment of penalties, to reduce or
mitigate penalties imposed upon employers, based upon factors including, the
employer’s hiring volume, compliance history, good-faith implementation of a
compliance program, the size and level of sophistication of the employer, and
voluntary disclosure of violations of this subsection to the Secretary. The
Secretary or administrative law judge shall not mitigate a penalty below the
minimum penalty provided by this section, except that the Secretary may, in the
case of an employer subject to penalty for recordkeeping or verification
violations only who has not previously been penalized under this section, in
the Secretary’s or administrative law judge’s discretion, mitigate the penalty
below the statutory minimum or remit it entirely. In any case where a civil
money penalty has been imposed on an employer under section 274B for an action
or omission that is also a violation of this section, the Secretary or
administrative law judge shall mitigate any civil money penalty under this
section by the amount of the penalty imposed under section 274B.
(F)
Effective
date
The civil money penalty amounts and the enhanced penalties
provided by subparagraphs (A), (B), and (C) of this paragraph and by subsection
(f)(2) shall apply to violations of this section committed on or after the date
that is 1 year after the date of the enactment of the
Border Security, Economic Opportunity, and
Immigration Modernization Act. For violations committed prior to
such date of enactment, the civil money penalty amounts provided by regulations
implementing this section as in effect the day before such date of enactment
with respect to knowing hiring or continuing employment, verification, or
indemnity bond violations, as appropriate, shall apply.
(5)
Order of
internal review and certification of compliance
(A)
Employer
compliance
If the Secretary has reasonable cause to believe that
an employer has failed to comply with this section, the Secretary is
authorized, at any time, to require that the employer certify that it is in
compliance with this section, or has instituted a program to come into
compliance.
(B)
Employer
certification
(i)
Requirement
Except
as provided in subparagraph (C), not later than 60 days after receiving a
notice from the Secretary requiring a certification under subparagraph (A), an
official with responsibility for, and authority to bind the company on, all
hiring and immigration compliance notices shall certify under penalty of
perjury that the employer is in conformance with the requirements of paragraphs
(1) through (4) of subsection (c), pertaining to document verification
requirements, and with subsection (d), pertaining to the System (once the
System is implemented with respect to that employer according to the
requirements of subsection (d)(1)), and with any additional requirements that
the Secretary may promulgate by regulation pursuant to subsection (c) or (d) or
that the employer has instituted a program to come into compliance with these
requirements.
(ii)
Application
Clause
(i) shall not apply until the date that the Secretary certifies to Congress
that the System has been established, implemented, and made mandatory for use
by all employers in the United States.
(C)
Extension of
deadline
At the request of the employer, the Secretary may extend
the 60-day deadline for good cause.
(D)
Standards or
methods
The Secretary is authorized to publish in the Federal
Register standards or methods for such certification, require specific
recordkeeping practices with respect to such certifications, and audit the
records thereof at any time. This authority shall not be construed to diminish
or qualify any other penalty provided by this section.
(6)
Requirements for
review of a final determination
With respect to judicial review
of a final determination or penalty claim issued under paragraph (3)(C), the
following requirements apply:
(A)
Deadline
The
petition for review must be filed no later than 30 days after the date of the
final determination or penalty claim issued under paragraph (3)(C).
(B)
Venue and
forms
The petition for review shall be filed with the court of
appeals for the judicial circuit where the employer’s principal place of
business was located when the final determination or penalty claim was made.
The record and briefs do not have to be printed. The court shall review the
proceeding on a typewritten or electronically filed record and briefs.
(C)
Service
The
respondent is the Secretary. In addition to serving the respondent, the
petitioner shall serve the Attorney General.
(D)
Petitioner’s
brief
The petitioner shall serve and file a brief in connection
with a petition for judicial review not later than 40 days after the date on
which the administrative record is available, and may serve and file a reply
brief not later than 14 days after service of the brief of the respondent, and
the court may not extend these deadlines, except for good cause shown. If a
petitioner fails to file a brief within the time provided in this paragraph,
the court shall dismiss the appeal unless a manifest injustice would
result.
(E)
Scope and
standard for review
The court of appeals shall conduct a de novo
review of the administrative record on which the final determination was based
and any additional evidence that the Court finds was previously unavailable at
the time of the administrative hearing.
(F)
Exhaustion of
administrative remedies
A court may review a final determination
under paragraph (3)(C) only if—
(i) the petitioner has
exhausted all administrative remedies available to the petitioner as of right,
including any administrative remedies established by regulation, and
(ii) another court has
not decided the validity of the order, unless the reviewing court finds that
the petition presents grounds that could not have been presented in the prior
judicial proceeding or that the remedy provided by the prior proceeding was
inadequate or ineffective to test the validity of the order.
(G)
Enforcement of
orders
If the final determination issued against the employer
under this subsection is not subjected to review as provided in this paragraph,
the Attorney General, upon request by the Secretary, may bring a civil action
to enforce compliance with the final determination in any appropriate district
court of the United States. The court, on a proper showing, shall issue a
temporary restraining order or a preliminary or permanent injunction requiring
that the employer comply with the final determination issued against that
employer under this subsection. In any such civil action, the validity and
appropriateness of the final determination shall not be subject to
review
(7)
Creation of
lien
If any employer liable for a fee or penalty under this
section neglects or refuses to pay such liability after demand and fails to
file a petition for review (if applicable) as provided in paragraph (6), the
amount of the fee or penalty shall be a lien in favor of the United States on
all property and rights to property, whether real or personal, belonging to
such employer. If a petition for review is filed as provided in paragraph (6),
the lien shall arise upon the entry of a final judgment by the court. The lien
continues for 20 years or until the liability is satisfied, remitted, set
aside, or terminated.
(8)
Filing notice of
lien
(A)
Place for
filing
The notice referred to in paragraph (7) shall be filed as
described in 1 of the following:
(i)
Under State
laws
(I)
Real
property
In the case of real property, in 1 office within the
State (or the county, or other governmental subdivision), as designated by the
laws of such State, in which the property subject to the lien is
situated.
(II)
Personal
property
In the case of personal property, whether tangible or
intangible, in 1 office within the State (or the county, or other governmental
subdivision), as designated by the laws of such State, in which the property
subject to the lien is situated, except that State law merely conforming to or
reenacting Federal law establishing a national filing system does not
constitute a second office for filing as designated by the laws of such
State.
(ii)
With clerk of
district court
In the office of the clerk of the United States
district court for the judicial district in which the property subject to the
lien is situated, whenever the State has not by law designated 1 office which
meets the requirements of clause (i).
(iii)
With recorder
of deeds of the District of Columbia
In the office of the
Recorder of Deeds of the District of Columbia, if the property subject to the
lien is situated in the District of Columbia.
(B)
Situs of
property subject to lien
For purposes of subparagraph (A),
property shall be deemed to be situated as follows:
(i)
Real
property
In the case of real property, at its physical
location.
(ii)
Personal
property
In the case of personal property, whether tangible or
intangible, at the residence of the taxpayer at the time the notice of lien is
filed.
(C)
Determination or
residence
For purposes of subparagraph (A)(ii), the residence of
a corporation or partnership shall be deemed to be the place at which the
principal executive office of the business is located, and the residence of a
taxpayer whose residence is outside the United States shall be deemed to be in
the District of Columbia.
(D)
Effect of filing
notice of lien
(i)
In
general
Upon filing of a notice of lien in the manner described
in this paragraph, the lien shall be valid against any purchaser, holder of a
security interest, mechanic’s lien, or judgment lien creditor, except with
respect to properties or transactions specified in subsection (b), (c), or (d)
of section 6323 of the Internal Revenue Code of 1986 for which a notice of tax
lien properly filed on the same date would not be valid.
(ii)
Notice of
lien
The notice of lien shall be considered a notice of lien for
taxes payable to the United States for the purpose of any State or local law
providing for the filing of a notice of a tax lien. A notice of lien that is
registered, recorded, docketed, or indexed in accordance with the rules and
requirements relating to judgments of the courts of the State where the notice
of lien is registered, recorded, docketed, or indexed shall be considered for
all purposes as the filing prescribed by this section.
(iii)
Other
provisions
The provisions of section 3201(e) of title 28, United
States Code, shall apply to liens filed as prescribed by this paragraph.
(E)
Enforcement of a
lien
A lien obtained through this paragraph shall be considered a
debt as defined by section 3002 of title 28, United States Code and enforceable
pursuant to chapter 176 of such title.
(9)
Attorney General
adjudication
The Attorney General shall have jurisdiction to
adjudicate administrative proceedings under this subsection. Such proceedings
shall be conducted in accordance with requirements of section 554 of title 5,
United States Code.
(f)
Criminal and
civil penalties and injunctions
(1)
Prohibition of
indemnity bonds
It is unlawful for an employer, in the hiring of
any individual, to require the individual to post a bond or security, to pay or
agree to pay an amount, or otherwise to provide a financial guarantee or
indemnity, against any potential liability arising under this section relating
to such hiring of the individual.
(2)
Civil
penalty
Any employer who is determined, after notice and
opportunity for mitigation of the monetary penalty under subsection (e), to
have violated paragraph (1) shall be subject to a civil penalty of $10,000 for
each violation and to an administrative order requiring the return of any
amounts received in violation of such paragraph to the employee or, if the
employee cannot be located, to the general fund of the Treasury.
(g)
Government
contracts
(1)
Contractors and
recipients
Whenever an employer who is a Federal contractor
(meaning an employer who holds a Federal contract, grant, or cooperative
agreement, or reasonably may be expected to submit an offer for or be awarded a
government contract) is determined by the Secretary to have violated of this
section more than 3 occasions or is convicted of a crime under this section,
the employer shall be considered for debarment from the receipt of Federal
contracts, grants, or cooperative agreements in accordance with the procedures
and standards and for the periods prescribed by the Federal Acquisition
Regulation. However, any administrative determination of liability for civil
penalty by the Secretary or the Attorney General shall not be reviewable in any
debarment proceeding.
(2)
Inadvertent
violations
Inadvertent violations of recordkeeping or
verification requirements, in the absence of any other violations of this
section, shall not be a basis for determining that an employer is a repeat
violator for purposes of this subsection.
(3)
Other remedies
available
Nothing in this subsection shall be construed to modify
or limit any remedy available to any agency or official of the Federal
Government for violation of any contractual requirement to participate in the
System, as provided in the final rule relating to employment eligibility
verification published in the Federal Register on November 14, 2008 (73 Fed.
Reg. 67,651), or any similar subsequent regulation.
(h)
Preemption
The
provisions of this section preempt any State or local law, ordinance, policy,
or rule, including any criminal or civil fine or penalty structure, relating to
the hiring, continued employment, or status verification for employment
eligibility purposes, of unauthorized aliens. A State, locality, municipality,
or political subdivision may exercise its authority over business licensing and
similar laws as a penalty for failure to use the System.
(i)
Deposit of
amounts received
Except as otherwise specified, civil penalties
collected under this section shall be deposited by the Secretary into the
Comprehensive Immigration Reform Trust Fund established under section 6 of the
Border Security, Economic Opportunity, and
Immigration Modernization Act.
(j)
Challenges to
validity of the System
(1)
In
general
Any right, benefit, or claim not otherwise waived or
limited pursuant to this section is available in an action instituted in the
United States District Court for the District of Columbia, but shall be limited
to determinations of—
(A) whether this
section, or any regulation issued to implement this section, violates the
Constitution of the United States; or
(B) whether such a
regulation issued by or under the authority of the Secretary to implement this
section, is contrary to applicable provisions of this section or was issued in
violation of title 5, chapter 5, United States Code.
(2)
Deadlines for
bringing actions
Any action instituted under this subsection must
be filed no later than 180 days after the date the challenged section or
regulation described in subparagraph (A) or (B) of paragraph (1) becomes
effective. No court shall have jurisdiction to review any challenge described
in subparagraph (B) after the time period specified in this subsection
expires.
(k)
Criminal
penalties and injunctions for pattern or practice violations
(1)
Pattern and
practice
Any employer who engages in a pattern or practice of
knowing violations of subsection (a)(1)(A) or (a)(2) shall be fined under title
18, United States Code, no more than $10,000 for each unauthorized alien with
respect to whom such violation occurs, imprisoned for not more than 2 years for
the entire pattern or practice, or both.
(2)
Term of
imprisonment
The maximum term of imprisonment of a person
convicted of any criminal offense under the United States Code shall be
increased by 5 years if the offense is committed as part of a pattern or
practice of violations of subsection (a)(1)(A) or (a)(2).
(3)
Enjoining of
pattern or practice violations
Whenever the Secretary or the
Attorney General has reasonable cause to believe that an employer is engaged in
a pattern or practice of employment in violation of subsection (a)(1)(A) or
(a)(2), the Attorney General may bring a civil action in the appropriate
district court of the United States requesting such relief, including a
permanent or temporary injunction, restraining order, or other order against
the employer, as the Secretary or Attorney General deems necessary.
(l)
Criminal
penalties for unlawful and abusive employment
(1)
In
general
Any person who, during any 12-month period, knowingly
employs or hires, employs, recruits, or refers for employment 10 or more
individuals within the United States who are under the control and supervision
of such person—
(A) knowing that the
individuals are unauthorized aliens; and
(B) under conditions
that violate section 5(a) of the Occupational Safety and Health Act of 1970 (29
U.S.C. 654(a) (relating to occupational safety and health), section 6 or 7 of
the Fair Labor Standards Act of 1938 (29 U.S.C. 206 and 207) (relating to
minimum wages and maximum hours of employment), section 3142 of title 40,
United States Code, (relating to required wages on construction contracts), or
sections 6703 or 6704 of title 41, United States Code, (relating to required
wages on service contracts)
shall be fined under title 18,
United States Code, or imprisoned for not more than 10 years, or both.
(2)
Attempt and
conspiracy
Any person who attempts or conspires to commit any
offense under this section shall be punished in the same manner as a person who
completes the
offense.
.
(b)
Report on use of
the System in the agricultural industry
Not later than 18 months
after the date of the enactment of this Act, the Secretary shall submit to
Congress a report that assesses implementation of the Employment Verification
System established under section 274A(d) of the Immigration and Nationality
Act, as amended by subsection (a), in the agricultural industry, including the
use of such System technology in agriculture industry hiring processes, user,
contractor, and third-party employer agent employment practices, timing and
logistics regarding employment verification and reverification processes to
meet agriculture industry practices, and identification of potential challenges
and modifications to meet the unique needs of the agriculture industry. Such
report shall review—
(1) the modality of
access, training and outreach, customer support, processes for further action
notices and secondary verifications for short-term workers, monitoring, and
compliance procedures for such System;
(2) the interaction of
such System with the process to admit nonimmigrant workers pursuant to section
218 or 218A of the Immigration and Nationality Act (8 U.S.C. 1188 et seq.) and
with enforcement of the immigration laws; and
(3) the collaborative
use of processes of other Federal and State agencies that intersect with the
agriculture industry.
(c)
Report on impact
of the System on employers
Not later than 18 months after the
date of the enactment of this Act, the Secretary shall submit to Congress a
report that assesses—
(1) the implementation
of the Employment Verification System established under section 274A(d) of the
Immigration and Nationality Act, as amended by subsection (a), by
employers;
(2) any adverse impact
on the revenues, business processes, or profitability of employers required to
use such System; and
(3) the economic
impact of such System on small businesses.
(d)
Government
Accountability Office study of the effects of document requirements on
employment authorized persons and employers
(1)
Study
The
Comptroller General of the United States shall carry out a study of the effects
of the documentary requirements of section 274A of the Immigration and
Nationality Act, as amended by subsection (a), on employers, nationals of the
United States and individuals with employment authorized status, and challenges
such employers, nationals or individuals may face in obtaining the
documentation required by that section.
(2)
Report
Not
later than 4 years after the enactment of this Act, the Comptroller General
shall submit to Congress a report containing the findings of the study carried
out under paragraph (1). Such report shall include, at a minimum, the
following:
(A) An assessment of
available information regarding the number of working age nationals of the
United States and individuals who have employment authorized status who lack
documents required for employment by such section 274A.
(B) A description of
the additional steps required for individuals who have employment authorized
status and do not possess the documents required by such section 274A to obtain
such documents.
(C) A general
assessment of the average financial costs for individuals who have employment
authorized status who do not possess the documents required by such section
274A to obtain such documents.
(D) A general
assessment of the average financial costs and challenged for employers who have
been required to participate in the Employment Verification System established
by subsection (d) of such section 274A.
(E) A description of
the barriers to individuals who have employment authorized status in obtaining
the documents required by such section 274A, including barriers imposed by the
executive branch of the Government.
(F) Any particular
challenges facing individuals who have employment authorized status who are
members of a federally recognized Indian tribe in complying with the provisions
of such section 274A.
(e)
Repeal of pilot
programs and E-Verify and transition procedures
(1)
Repeal
Sections
401, 402, 403, 404, and 405 of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (division C of Public Law 104–208; 8 U.S.C. 1324a
note) are repealed.
(2)
Transition
procedures
Any employer who was participating in the E-Verify
Program described in section 403 of the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (division C of Public Law 104–208; 8
U.S.C. 1324a note), as in effect on the minute before the date of the enactment
of this Act, shall participate in the System described in subsection (d) of
section 274A of the Immigration and Nationality Act, as amended by subsection
(a) to the same extent and in the same manner that the employer participated in
such E-Verify Program.
(3)
Construction
The
repeal made by paragraph (1) may not be construed to limit the authority of the
Secretary to allow or continue to allow the participation in such System of
employers who have participated in such E-Verify Program, as in effect on the
day before the date of the enactment of this Act.
(f)
Conforming
amendment
Paragraph (3) of section 274(a) (8 U.S.C. 1324(a)) is
repealed.
3102.
Increasing
security and integrity of social security cards
(a)
Fraud-resistant,
tamper-resistant, wear-resistant, and identity theft-resistant social security
cards
(1)
Issuance
(A)
Preliminary
work
Not later than 180 days after the date of the enactment of
this title, the Commissioner of Social Security shall begin work to administer
and issue fraud-resistant, tamper-resistant, wear-resistant, and identity
theft-resistant social security cards.
(B)
Completion
Not
later than 5 years after the date of enactment of this title, the Commissioner
of Social Security shall issue only social security cards determined to be
fraud-resistant, tamper-resistant, wear-resistant, and identity theft-resistant
social security cards.
(2)
Amendment
Section
205(c)(2)(G) of the Social Security Act (42 U.S.C. 405(c)(2)(G)) is amended by
striking the second sentence and inserting the following: The social
security card shall be fraud-resistant, tamper-resistant, wear-resistant, and
identity theft-resistant..
(3)
Appropriation
Out
of any money in the Treasury of the United States not otherwise appropriated,
there is appropriated to the Commissioner of Social Security an additional
amount for Limitation on Administrative Expenses for the purpose
of carrying out the amendments made by this subsection, $1,000,000,000 for
fiscal year 2014, to remain available until expended.
(4)
Emergency
designation for congressional enforcement
In the Senate, amounts
made available under this subsection are designated as an emergency requirement
pursuant to section 403(a) of S. Con. Res. 13 (111th Congress), the concurrent
resolution on the budget for fiscal year 2010.
(5)
Emergency
designation for statutory paygo
Amounts made available under this
subsection are designated as an emergency requirement under section 4(g) of the
Statutory Pay-As-You-Go Act of 2010 (Public Law 111–139; 2 U.S.C.
933(g)).
(b)
Multiple
cards
Section 205(c)(2)(G) of the Social Security Act (42 U.S.C.
405(c)(2)(G)), as amended by subsection (a)(2), is amended—
(1) by inserting
(i) after (G); and
(2) by adding at the
end the following:
(ii) The Commissioner
of Social Security shall restrict the issuance of multiple replacement social
security cards to any individual to 3 per year and 10 for the life of the
individual, except that the Commissioner may allow for reasonable exceptions
from the limits under this clause on a case-by-case basis in compelling
circumstances.
.
(c)
Criminal
penalties
(1)
Social security
fraud
(A)
In
general
Chapter 47 of title 18, United States Code, is amended by
inserting at the end the following:
1041.
Social
security fraud.
Any person
who—
(1) knowingly
possesses or uses a social security account number or social security card
knowing that the number or card was obtained from the Commissioner of Social
Security by means of fraud or false statement;
(2) knowingly and
falsely represents a number to be the social security account number assigned
by the Commissioner of Social Security to him or her or to another person, when
such number is known not to be the social security account number assigned by
the Commissioner of Social Security to him or her or to such other
person;
(3) knowingly, and
without lawful authority, buys, sells, or possesses with intent to buy or sell
a social security account number or a social security card that is or purports
to be a number or card issued by the Commissioner of Social Security;
(4) knowingly alters,
counterfeits, forges, or falsely makes a social security account number or a
social security card;
(5) knowingly uses,
distributes, or transfers a social security account number or a social security
card knowing the number or card to be intentionally altered, counterfeited,
forged, falsely made, or stolen; or
(6) without lawful
authority, knowingly produces or acquires for any person a social security
account number, a social security card, or a number or card that purports to be
a social security account number or social security card,
shall be fined under this title,
imprisoned not more than 5 years, or
both.
.
(B)
Table of
sections amendment
The table of sections for chapter 47 of title
18, United States Code, is amended by adding after the item relating to section
1040 the following:
Sec. 1041. Social security
fraud.
.
(2)
Information
disclosure
(A)
In
general
Notwithstanding any other provision of law and subject to
subparagraph (B), the Commissioner of Social Security shall disclose for the
purpose of investigating a violation of section 1041 of title 18, United States
Code, or section 274A, section 274B, or section 274C of the Immigration and
Nationality Act (8 U.S.C. 1324a, 1324b, 1324c), provided that such request is
in writing and from an officer in a supervisory position or higher official,
the following records of the Social Security Administration to any Federal law
enforcement agency that requests such records:
(i) Records concerning
the identity, address, location, or financial institution accounts of the
holder of a social security account number or social security card.
(ii) Records
concerning the application for and issuance of a social security account number
or social security card.
(iii) Records
concerning the existence or nonexistence of a social security account number or
social security card.
(B)
Limitation
The
Commissioner of Social Security shall not disclose any tax return or tax return
information pursuant to subparagraph (A) except as authorized by section 6103
of the Internal Revenue Code of 1986.
3103.
Increasing
security and integrity of immigration documents
Not later than 1 year after the date of the
enactment of this Act, the Secretary shall submit a report to Congress on the
feasibility, advantages, and disadvantages of including, in addition to a
photograph, other biometric information on each employment authorization
document issued by the Department.
3104.
Responsibilities
of the Social Security Administration
Title XI of the Social Security Act (42
U.S.C. 1301 et seq.) is amended by adding at the end the following new
part:
E
Employment
Verification
1186.
Responsibilities of the Commissioner of
Social Security
(a)
Confirmation of
employment verification data
As part of the employment verification
system established by the Secretary of Homeland Security under the provisions
of section 274A of the Immigration and Nationality Act (8 U.S.C. 1324a) (in
this section referred to as the System), the Commissioner of
Social Security shall, subject to the provisions of section 274A(d) of the
Immigration and Nationality Act (8 U.S.C. 1324a(d)), establish a reliable,
secure method that, operating through the System and within the time periods
specified in section 274A(d) of such Act—
(1) compares the name,
date of birth, social security account number, and available citizenship
information provided in an inquiry against such information maintained by the
Commissioner in order to confirm (or not confirm) the validity of the
information provided regarding an individual whose identity and employment
eligibility must be confirmed;
(2) determines the
correspondence of the name, date of birth, and number;
(3) determines whether
the name and number belong to an individual who is deceased according to the
records maintained by the Commissioner;
(4) determines whether
an individual is a national of the United States, as defined in section
101(a)(22) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(22));
and
(5) determines whether
the individual has presented a social security account number that is not valid
for employment.
(b)
Prohibition
The
System shall not disclose or release social security information to employers
through the confirmation system (other than such confirmation or
nonconfirmation, information provided by the employer to the System, or the
reason for the issuance of a further action
notice).
.
3105.
Improved
prohibition on discrimination based on national origin or citizenship
status
(a)
In
general
Section 274B(a) (8 U.S.C. 1324b) is amended to read as
follows:
(a)
Prohibition on
discrimination based on national origin or citizenship status
(1)
Prohibition on
discrimination generally
It is an unfair immigration-related
employment practice for a person, other entity, or employment agency, to
discriminate against any individual (other than an unauthorized alien defined
in section 274A(b)) because of such individual’s national origin or citizenship
status, with respect to the following:
(A) The hiring of the
individual for employment.
(B) The verification
of the individual’s eligibility to work in the United States.
(C) The discharging of
the individual from employment.
(2)
Exceptions
Paragraph
(1) shall not apply to the following:
(A) A person, other
entity, or employer that employs 5 or fewer employees, except for an employment
agency.
(B) A person’s or
entity’s discrimination because of an individual’s national origin if the
discrimination with respect to that employer, person, or entity and that
individual is covered under section 703 of the Civil Rights Act of 1964 (42
U.S.C. 2000e–2), unless the discrimination is related to an individual’s
verification of employment authorization.
(C) Discrimination
because of citizenship status which—
(i) is otherwise
required in order to comply with a provision of Federal, State, or local law
related to law enforcement;
(ii) is required by
Federal Government contract; or
(iii) the Secretary or
Attorney General determines to be essential for an employer to do business with
an agency or department of the Federal Government or a State, local, or tribal
government.
(3)
Additional
exception providing right to prefer equally qualified
citizens
Notwithstanding any other provision of this section, it
is not an unfair immigration-related employment practice for an employer (as
defined in section 274A(b)) to prefer to hire, recruit, or refer an individual
who is a citizen or national of the United States over another individual who
is an alien if the 2 individuals are equally qualified.
(4)
Unfair
immigration-related employment practices relating to the
System
It is also an unfair immigration-related employment
practice for a person, other entity, or employment agency—
(A) to discharge or
constructively discharge an individual solely due to a further action notice
issued by the Employment Verification System created by section 274A until the
administrative appeal described in section 274A(d)(6) is completed;
(B) to use the System
with regard to any person for any purpose except as authorized by section
274A(d);
(C) to use the System
to reverify the employment authorization of a current employee, including an
employee continuing in employment, other than reverification in a situation
authorized by regulation on the date of the enactment of the
Border Security, Economic Opportunity, and
Immigration Modernization Act, reverification upon expiration of
employment authorization, or as otherwise authorized under section 274A(d) or
by regulation;
(D) to use the System
selectively for employees, except where authorized by law;
(E) to fail to provide
to an individual any notice required in section 274A(d) within the relevant
time period;
(F) to use the System
to deny workers’ employment or post-employment benefits;
(G) to misuse the
System to discriminate based on national origin or citizenship status;
(H) to require an
employee or prospective employee to use any self-verification feature of the
System or provide, as a condition of application or employment, any
self-verification results;
(I) to use an
immigration status verification system, service, or method other than those
described in section 274A for purposes of verifying employment eligibility;
or
(J) to grant access to
document verification or System data, to any individual or entity other than
personnel authorized to have such access, or to fail to take reasonable
safeguards to protect against unauthorized loss, use, alteration, or
destruction of System data.
(5)
Prohibition of
intimidation or retaliation
It is also an unfair
immigration-related employment practice for a person, other entity, or
employment agency to intimidate, threaten, coerce, or retaliate against any
individual—
(A) for the purpose of
interfering with any right or privilege secured under this section; or
(B) because the
individual intends to file or has filed a charge or a complaint, testified,
assisted, or participated in any manner in an investigation, proceeding, or
hearing under this section.
(6)
Treatment of
certain documentary practices as employment practices
A person’s,
other entity’s, or employment agency’s request, for purposes of verifying
employment eligibility, for more or different documents than are required under
section 274A, or for specific documents, or refusing to honor documents
tendered that reasonably appear to be genuine shall be treated as an unfair
immigration-related employment practice.
(7)
Employment
agency defined
In this section, the term employment
agency means any employer, person, or entity regularly undertaking with
or without compensation to procure employees for an employer or to procure for
employees opportunities to work for an employer and includes an agent of such
employer, person, or
entity.
.
(b)
Referral by
EEOC
Section 274B(b) (8 U.S.C. 1324b(b)) is amended by adding at
the end the following:
(3)
Referral by
EEOC
The Equal Employment Opportunity Commission shall refer all
matters alleging immigration-related unfair employment practices filed with the
Commission, including those alleging violations of paragraphs (1), (4), (5),
and (6) of subsection (a) to the Special Counsel for Immigration-Related Unfair
Employment Practices of the Department of
Justice.
;
(c)
Authorization of
appropriations
Section 274B(l)(3) (8 U.S.C. 1324b(l)(3)), is
amended by striking the period at the end and inserting and an
additional $40,000,000 for each of fiscal years 2014 through
2016..
(d)
Fines
(1)
In
general
Section 274B(g)(2)(B) (8 U.S.C. 1324b(g)(2)(B)) is
amended by striking clause (vi) and inserting the following:
(iv) to pay any
applicable civil penalties prescribed below, the amounts of which may be
adjusted periodically to account for inflation as provided by law—
(I) except as provided
in subclauses (II) through (IV), to pay a civil penalty of not less than $2,000
and not more than $5,000 for each individual subjected to an unfair
immigration-related employment practice;
(II) except as
provided in subclauses (III) and (IV), in the case of an employer, person, or
entity previously subject to a single order under this paragraph, to pay a
civil penalty of not less than $4,000 and not more than $10,000 for each
individual subjected to an unfair immigration-related employment
practice;
(III) except as
provided in subclause (IV), in the case of an employer, person, or entity
previously subject to more than 1 order under this paragraph, to pay a civil
penalty of not less than $8,000 and not more than $25,000 for each individual
subjected to an unfair immigration-related employment practice; and
(IV) in the case of an
unfair immigration-related employment practice described in paragraphs (4)
through (6) of subsection (a), to pay a civil penalty of not less than $500 and
not more than $2,000 for each individual subjected to an unfair
immigration-related employment
practice.
.
(2)
Effective
date
The amendment made by paragraph (1) shall take effect on the
date that is 1 year after the date of the enactment of this Act and apply to
violations occurring on or after such date of enactment.
3106.
Rulemaking
(a)
Interim final
regulations
(1)
In
general
Not later than 1 year after the date of the enactment of
this Act—
(A) the Secretary,
shall issue regulations implementing sections 3101, 3104, and 3105, and the
amendments made by such sections; and
(B) the Attorney
General shall issue regulations implementing section 3102 and the amendment
made by such section.
(2)
Effective
date
Regulations issued pursuant to paragraph (1) shall be
effective immediately on an interim basis, but are subject to change and
revision after public notice and opportunity for a period for public
comment.
(b)
Final
regulations
Within a reasonable time after publication of the
interim regulations under subsection (a), the Secretary, in consultation with
the Commissioner of Social Security and the Attorney General, shall publish
final regulations implementing this subtitle.
B
Protecting United
States workers
3201.
Protections
for victims of serious violations of labor and employment law or crime
(a)
In
general
Section 101(a)(15)(U) (8 U.S.C. 1101(a)(15)(U)) is
amended—
(1) in clause
(i)—
(A) by amending
subclause (I) to read as follows:
(I) the alien—
(aa) has suffered
substantial physical or mental abuse or substantial harm as a result of having
been a victim of criminal activity described in clause (iii) or of a covered
violation described in clause (iv); or
(bb) is a victim of
criminal activity described in clause (iii) or of a covered violation described
in clause (iv) and would suffer extreme hardship upon
removal;
;
(B) in subclause (II),
by inserting , or a covered violation resulting in a claim described in
clause (iv) that is not the subject of a frivolous lawsuit by the alien
before the semicolon at the end; and
(C) by amending
subclauses (III) and (IV) to read as follows:
(III) the alien (or in
the case of an alien child who is younger than 16 years of age, the parent,
guardian, or next friend of the alien) has been helpful, is being helpful, or
is likely to be helpful to—
(aa) a Federal, State,
or local law enforcement official, a Federal, State, or local prosecutor, a
Federal, State, or local judge, the Department of Homeland Security, the Equal
Employment Opportunity Commission, the Department of Labor, or other Federal
or, State, or local authorities investigating or prosecuting criminal activity
described in clause (iii); or
(bb) any Federal,
State, or local governmental agency investigating, prosecuting, or seeking
civil remedies for any cause of action, whether criminal, civil, or
administrative, arising from a covered violation described in clause (iv) and
presents a certification from such Federal, State, or local governmental agency
attesting that the alien has been helpful, is being helpful, or is likely to be
helpful to such agency in the investigation, prosecution, or adjudication
arising from a covered violation described in clause (iv); and
(IV) the criminal
activity described in clause (iii) or the covered violation described in clause
(iv)—
(aa) violated the laws
of the United States; or
(bb) occurred in the
United States (including Indian country and military installations) or the
territories and possessions of the United
States;
;
(2) in clause
(ii)(II), by striking and at the end;
(3) by moving clause
(iii) 2 ems to the left;
(4) in clause
(iii)—
(A) by inserting
stalking, child abuse when the alien is a minor; after
sexual exploitation;;
(B) by inserting
fraud in foreign labor contracting; before
peonage;; and
(C) by striking
or at the end and inserting and; and
(5) by adding at the
end the following:
(iv) a covered
violation referred to in this clause is—
(I) a serious
violation involving 1 or more of the following or any similar activity in
violation of any Federal, State, or local law, serious workplace abuse,
exploitation, retaliation, or violation of whistleblower protections;
(II) a violation
giving rise to a civil cause of action under section 1595 of title 18, United
States Code; or
(III) a violation
resulting in the deprivation of due process or constitutional
rights.
.
(b)
Savings
provision
Nothing in section 101(a)(15)(U)(iv)(III) of the
Immigration and Nationality Act, as added by subsection (a), may be construed
as altering the definition of retaliation or discrimination under any other
provision of law.
(c)
Temporary stay
of removal
Section 274A (8 U.S.C. 1324a), as amended by section
3101, is further amended—
(1) in subsection (e)
by adding at the end the following:
(10)
Conduct in
enforcement actions
If the Secretary undertakes an enforcement
action at a facility about which a bona fide workplace claim has been filed or
is contemporaneously filed, or as a result of information provided to the
Secretary in retaliation against employees for exercising their rights related
to a bona fide workplace claim, the Secretary shall ensure that—
(A) any aliens
arrested or detained who are necessary for the investigation or prosecution of
a bona fide workplace claim violations or criminal activity (as described in
subparagraph (T) or (U) of section 101(a)(15)) are not removed from the United
States until after the Secretary—
(i) notifies the
appropriate law enforcement agency with jurisdiction over such violations or
criminal activity; and
(ii) provides such
agency with the opportunity to interview such aliens;
(B) no aliens entitled
to a stay of removal or abeyance of removal proceedings under this section are
removed; and
(C) the Secretary
shall stay the removal of an alien who—
(i) has filed a
covered violation described in clause (iv) of section 101(a)(15)(U) and is the
victim of the same violations under an existing investigation;
(ii) is a material
witness in any pending or anticipated proceeding involving a bona fide
workplace claim or civil rights claim; or
(iii) has filed for
relief under such section if the alien has is working with law enforcement as
described in clause (i)(III) of such
section.
;
and
(2) by adding at the
end the following:
(m)
Victims of
criminal activity or labor and employment violations
The
Secretary of Homeland Security may permit an alien to remain temporarily in the
United States and authorize the alien to engage in employment in the United
States if the Secretary determines that the alien—
(1) has filed for
relief under section 101(a)(15)(U); or
(2)
(A) has filed, or is a
material witness to, a bona fide claim or proceedings resulting from a covered
violation (as defined in section 101(a)(15)(U)(iv)); and
(B) has been helpful,
is being helpful, or is likely to be helpful, in the investigation, prosecution
of, or pursuit of civil remedies related to the claim arising from a covered
violation, to—
(i) a Federal, State,
or local law enforcement official;
(ii) a Federal, State,
or local prosecutor;
(iii) a Federal,
State, or local judge;
(iv) the Department of
Homeland Security;
(v) the Equal
Employment Opportunity Commission; or
(vi) the Department of
Labor.
.
(d)
Conforming
amendments
Section 214(p) (8 U.S.C. 1184(p)) is amended—
(1) in paragraph (1),
by striking in section 101(a)(15)(U)(iii). both places it
appears and inserting in clause (iii) of section 101(a)(15)(U) or
investigating, prosecuting, or seeking civil remedies for claims resulting from
a covered violation described in clause (iv) of such section.;
and
(2) in the first
sentence of paragraph (6)—
(A) by striking
in section 101(a)(15)(U)(iii) and inserting in clause
(iii) of section 101(a)(15)(U) or claims resulting from a covered violation
described in clause (iv) of such section; and
(B) by inserting
or claim arising from a covered violation after
prosecution of such criminal activity.
(e)
Modification of
limitation on authority To adjust status for victims of
crimes
Section 245(m)(1) (8 U.S.C. 1255(m)(1)) is amended, in the
matter before subparagraph (A), by inserting or an investigation or
prosecution regarding a workplace or civil rights claim after
prosecution.
(f)
Expansion of
limitation on sources of information that may be used To make adverse
determinations
(1)
In
general
Section 384(a)(1) of the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (8 U.S.C. 1367(a)(1)) is amended—
(A) in each of
subparagraphs (A) through (D), by striking the comma at the end and inserting a
semicolon;
(B) subparagraph (E),
by striking the criminal activity, and inserting abuse
and the criminal activity or bona fide workplace claim (as defined in
subsection (e)); ;
(C) in subparagraph
(F), by striking , the trafficker or perpetrator, and inserting
), the trafficker or perpetrator; or; and
(D) by inserting after
subparagraph (F) the following:
(G) the alien's
employer,
.
(2)
Workplace claim
defined
Section 384 of the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (8 U.S.C. 1367) is amended by adding at
the end the following:
(e)
Workplace
claims
(1)
Workplace claims
defined
(A)
In
general
In section (a)(1), the term workplace claim
means any claim, petition, charge, complaint, or grievance filed with, or
submitted to, a Federal, State, or local agency or court, relating to the
violation of applicable Federal, State, or local labor or employment
laws.
(B)
Constructions
Subparagraph
(A) may not be construed to alter what constitutes retaliation or
discrimination under any other provision of law.
(2)
Penalty for
false claims
Any person who knowingly presents a false or
fraudulent claim to a law enforcement official in relation to a covered
violation for the purpose of obtaining a benefit under this section shall be
subject to a civil penalty of not more than $1,000.
(3)
Limitation on
stay of adverse determinations
In the case of an alien applying
for status under section 101(a)(15)(U) of the Immigration and Nationality Act
and seeking relief under this section, the prohibition on adverse
determinations under subsection (a) shall expire on the date that the alien's
application for status under such section is denied and all opportunities for
appeal of the denial have been
exhausted.
.
(g)
Removal
proceedings
Section 239(e) (8 U.S.C. 1229(e)) is amended—
(1) in paragraph
(1)—
(A) by striking
In cases where and inserting If; and
(B) by striking
paragraph (2), and inserting paragraph (2) or as a result
of information provided to the Secretary of Homeland Security in retaliation
against individuals for exercising or attempting to exercise their employment
rights or other legal rights,; and
(2) in paragraph (2),
by adding at the end the following:
(C) At a facility
about which a bona fide workplace claim has been filed or is contemporaneously
filed.
.
3202.
Employment
Verification System Education Funding
(a)
Disposition of
civil penalties
Penalties
collected under subsections (e)(4) and (f)(3) of section 274A of the
Immigration and Nationality Act, amended by section 3101, shall be deposited,
as offsetting receipts, into the Comprehensive Immigration Reform Trust Fund
established under section 6(a)(1).
(b)
Expenditures
Amounts
deposited into the Trust Fund under subsection (a) shall be made available to
the Secretary to provide education to employers and employees regarding the
requirements, obligations, and rights under the Employment Verification
System.
(c)
Determination of
budgetary effects
(1)
Emergency
designation for congressional enforcement
In the Senate, amounts
made available under this section are designated as an emergency requirement
pursuant to section 403(a) of S. Con. Res. 13 (111th Congress), the concurrent
resolution on the budget for fiscal year 2010.
(2)
Emergency
designation for statutory paygo
Amounts made available under this
section are designated as an emergency requirement under section 4(g) of the
Statutory Pay-As-You-Go Act of 2010 (Public Law 111–139; 2 U.S.C.
933(g)).
3203.
Directive to
the United States Sentencing Commission
(a)
In
general
Pursuant to its authority under section 994 of title 28,
United States Code, and in accordance with subsection (b), the United States
Sentencing Commission shall promulgate sentencing guidelines or amend existing
sentencing guidelines to modify, if appropriate, the penalties imposed on
persons convicted of offenses under—
(1) section 274A of
the Immigration and Nationality Act (8 U.S.C. 1324a), as amended by section
3101;
(2) section 16 of the
Fair Labor Standards Act of 1938 (29 U.S.C. 216); and
(3) any other Federal
law covering similar conduct.
(b)
Requirements
In
carrying out subsection (a), the Sentencing Commission shall provide sentencing
enhancements for any person convicted of an offense described in subsection (a)
if such offense involves—
(1) the intentional
confiscation of identification documents;
(2) corruption,
bribery, extortion, or robbery;
(3) sexual
abuse;
(4) serious bodily
injury;
(5) an intent to
defraud; or
(6) a pattern of
conduct involving multiple violations of law that—
(A) creates, through
knowing and intentional conduct, a risk to the health or safety of any victim;
or
(B) denies payments
due to victims for work completed.
3204.
Confidentiality
for victims of crime
Section
384 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996
(8 U.S.C. 1367) is amended—
(1) in subsection (a)—
(A) in the matter preceding paragraph
(1)—
(i) by striking in no case may;
and
(ii) by inserting or, with respect to
subparagraphs (E) and (F) and paragraph (2), any other official or employee of
a certifying agency, may not after Departments);
and
(B) in paragraph (2), by striking who is
a beneficiary of an application and inserting applying
for; and
(2) in subsection
(b)—
(A) in paragraph (4),
by striking battered; and
(B) by adding at the
end the following:
(8)
(A) Subsection (a)(2) may
not be construed to prevent the disclosure of—
(i) information that
prosecutors are constitutionally obligated to disclose to provide statements by
witnesses and certain other documents to defendants in a pending Federal
criminal proceeding; or
(ii) information in a
civil proceeding in which a judge orders that such information be disclosed in
connection with a witness testifying in such proceeding.
(B) All information
disclosed during litigation pursuant to the exception set forth in this
paragraph for any purpose other than the purpose ordered in the
proceeding—
(i) may not be
disclosed to any nonrequired party;
(ii) shall be filed
under seal, with all personally identifying information redacted except the
witness’s first name; and
(iii) shall be
returned to the disclosing party at the conclusion of the
proceeding.
.
C
Other
provisions
3301.
Funding
(a)
Establishment of
the Interior Enforcement Account
There is hereby established in
the Treasury of the United States an account which shall be known as the
Interior Enforcement Account.
(b)
Appropriations
There
are authorized to be appropriated to the Interior Enforcement Account
$1,000,000,000 to carry out this title and the amendments made by this title,
including the following appropriations:
(1) In each of the 5
years beginning on the date of the enactment of this Act, the appropriations
necessary to increase to a level not less than 5,000, by the end of such 5-year
period, the total number of personnel of the Department assigned exclusively or
principally to an office or offices in U.S. Citizenship and Immigration
Services and U.S. Immigration and Customs Enforcement (and consistent with the
missions of such agencies), dedicated to administering the System, and
monitoring and enforcing compliance with sections 274A, 274B, and 274C of the
Immigration and Nationality Act (8 U.S.C. 1324a, 1324b, and 1324c), including
compliance with the requirements of the Electronic Verification System
established under section 274A(d) of the Immigration and Nationality Act (8
U.S.C. 1324a(d)), as amended by section 3101. Such personnel shall perform
compliance and monitoring functions, including the following:
(A) Verify compliance
of employers participating in such System with the requirements for
participation that are prescribed by the Secretary.
(B) Monitor such
System for multiple uses of social security account numbers and immigration
identification numbers that could indicate identity theft or fraud.
(C) Monitor such
System to identify discriminatory or unfair practices.
(D) Monitor such
System to identify employers who are not using such System properly, including
employers who fail to make available appropriate records with respect to their
queries and any notices of confirmation, nonconfirmation, or further
action.
(E) Identify instances
in which an employee alleges that an employer violated the employee's privacy
or civil rights, or misused such System, and create procedures for an employee
to report such an allegation.
(F) Analyze and audit
the use of such System and the data obtained through such System to identify
fraud trends, including fraud trends across industries, geographical areas, or
employer size.
(G) Analyze and audit
the use of such System and the data obtained through such System to develop
compliance tools as necessary to respond to changing patterns of fraud.
(H) Provide employers
with additional training and other information on the proper use of such
System, including training related to privacy and employee rights.
(I) Perform threshold
evaluation of cases for referral to the Special Counsel for Immigration-Related
Unfair Employment Practices of the Department of Justice or the Equal
Employment Opportunity Commission, and other officials or agencies with
responsibility for enforcing anti-discrimination, civil rights, privacy, or
worker protection laws, as may be appropriate.
(J) Any other
compliance and monitoring activities that the Secretary determines are
necessary to ensure the functioning of such System.
(K) Investigate
identity theft and fraud detected through such System and undertake the
necessary enforcement or referral actions.
(L) Investigate use of
or access to fraudulent documents and undertake the necessary enforcement
actions.
(M) Perform any other
investigations that the Secretary determines are necessary to ensure the lawful
functioning of such System, and undertake any enforcement actions necessary as
a result of such investigations.
(2) The appropriations
necessary to acquire, install, and maintain technological equipment necessary
to support the functioning of such System and the connectivity between U.S.
Citizenship and Immigration Services and U.S. Immigration and Customs
Enforcement, the Department of Justice, and other agencies or officials with
respect to the sharing of information to support such System and related
immigration enforcement actions.
(3) The appropriations
necessary to establish a robust redress process for employees who wish to
appeal contested nonconfirmations to ensure the accuracy and fairness of such
System.
(4) The appropriations
necessary to provide a means by which individuals may access their own
employment authorization data to ensure the accuracy of such data, independent
of an individual's employer.
(5) To carry out the
identity authentication mechanisms described in section 274A(c)(1)(F) of the
Immigration and Nationality Act, as amended by section 3101(a).
(6) The appropriations
necessary for the Office for Civil Rights and Civil Liberties and the Office of
Privacy of the Department to perform the responsibilities of such Offices
related to such System.
(7) The appropriations
necessary to make grants to States to support the States in assisting the
Federal Government in carrying out the provisions of this title and the
amendments made by this title.
(c)
Authorization of
appropriations to the Commissioner of Social Security
(1)
In
general
There are authorized to be appropriated to the
Commissioner of Social Security such sums as may be necessary to carry out the
provisions of this title and the amendments made by this title.
(2)
Prohibition on
use of Trust Funds
In no case shall the Commissioner expend funds
from the Old Age and Survivors Trust Fund or the Disability Trust Fund for
expenses related to administration of this title or the amendments made by this
title.
(d)
Authorization of
appropriations to the Attorney General
There are authorized to be
appropriated to the Attorney General such sums as may be necessary to carry out
the provisions of this title and the amendments made by this title, including
enforcing compliance with section 274B of the Immigration and Nationality Act,
as amended by section 3105 of this Act.
(e)
Authorization of
appropriations to the Secretary of State
There are authorized to
be appropriated to the Secretary of State such sums as may be necessary to
carry out the provisions of this title and the amendments made by this
title.
3302.
Effective
date
Except as otherwise
specifically provided, this title and the amendments made by this title shall
take effect on the date of the enactment of this Act.
3303.
Mandatory exit
system
(a)
Establishment
Not
later than December 31, 2015, the Secretary shall establish a mandatory exit
data system that shall include a requirement for the collection of data from
machine-readable visas, passports, and other travel and entry documents for all
categories of aliens who are exiting from air and sea ports of entry.
(b)
Integration and
interoperability
(1)
Integration of
data system
The Secretary shall fully integrate all data from
databases and data systems that process or contain information on aliens, which
are maintained by—
(A) the Department,
at—
(i) the U.S.
Immigration and Customs Enforcement;
(ii) the U.S. Customs
and Border Protection; and
(iii) the U.S.
Citizenship and Immigration Services;
(B) the Department of
Justice, at the Executive Office for Immigration Review; and
(C) the Department of
State, at the Bureau of Consular Affairs.
(2)
Interoperable
component
The fully integrated data system under paragraph (1)
shall be an interoperable component of the exit data system.
(3)
Interoperable
data system
The Secretary shall fully implement an interoperable
electronic data system to provide current and immediate access to information
in the databases of Federal law enforcement agencies and the intelligence
community that is relevant to determine—
(A) whether to issue a
visa; or
(B) the admissibility
or deportability of an alien.
(4)
Training
The
Secretary shall establish ongoing training modules on immigration law to
improve adjudications at United States ports of entry, consulates, and
embassies.
3304.
Identity-theft
resistant manifest information for passengers, crew, and non-crew onboard
departing aircraft and vessels
(a)
Definitions
Except
as otherwise specifically provided, in this section:
(1)
Identity-theft
resistant collection location
The term identity-theft
resistant collection location means a location within an airport or
seaport—
(A) within the path of
the departing alien, such that the alien would not need to significantly
deviate from that path to comply with exit requirements at which air or vessel
carrier employees, as applicable, either present or routinely available if an
alien needs processing assistance; and
(B) which is equipped
with technology that is able to securely transmit identity-theft resistant
departure manifest information to the Department.
(2)
US-VISIT
The
term US-VISIT means the United States-Visitor and Immigrant
Status Indicator Technology system.
(b)
Identity theft
resistant manifest information
(1)
Passport or visa
collection requirement
Except as provided in paragraph (c), an
appropriate official of each commercial aircraft or vessel departing from the
United States to any port or place outside the United States shall ensure
transmission to U.S. Customs and Border Protection of identity-theft resistant
departure manifest information covering alien passengers, crew, and non-crew.
Such identity-theft resistant departure manifest information—
(A) shall be
transmitted to U.S. Customs and Border Protection at the place and time
specified in subparagraph (3) by means approved by the Secretary; and
(B) shall set forth
the information specified in paragraph (4) or other information as required by
the Secretary.
(2)
Manner of
collection
Carriers boarding alien passengers, crew, and non-crew
subject to the requirement to provide information upon departure US-VISIT
processing shall collect identity-theft resistant departure manifest
information from each alien at a collection location at the airport or seaport
before boarding that alien on transportation for departure from the United
States, at a time close to the originally scheduled departure of that
passenger's aircraft or sea vessel as practicable.
(3)
Time and manner
of submission
(A)
In
general
The appropriate official specified in paragraph (1) shall
ensure transmission of the identity-theft resistant departure manifest
information required and collected under paragraphs (1) and (2) to the Data
Center or Headquarters U.S. Customs and Border Protection, or such other data
center as may be designated.
(B)
Transmission
The
biometric departure information may be transmitted to the Department over any
means of communication authorized by the Secretary for the transmission of
other electronic manifest information containing personally identifiable
information and under transmission standards currently applicable to other
electronic manifest information.
(C)
Submission along
with other information
Files containing the identity-theft
resistant departure manifest information—
(i) may be sent with
other electronic manifest data prior to departure or may be sent separately
from any topically related electronic manifest data; and
(ii) may be sent in
batch mode.
(4)
Information
required
The identity-theft resistant departure information
required under paragraphs (1) through (3) for each covered passenger or crew
member shall contain alien data from machine-readable visas, passports, and
other travel and entry documents issued to the alien.
(c)
Exception
The
identity-theft resistant departure manifest information specified in this
section is not required for any alien active duty military personnel traveling
as passengers on board a departing Department of Defense commercial chartered
aircraft.
(d)
Carrier
maintenance and use of identity-theft resistant departure manifest
information
Carrier use of identity-theft resistant departure
manifest information for purposes other than as described in standards set by
the Secretary is prohibited. Carriers shall immediately notify the Chief
Privacy Officer of the Department in writing in event of unauthorized use or
access, or breach, of identity-theft resistant departure manifest
information.
(e)
Collection at
specified location
If the Secretary determines that an air or
vessel carrier has not adequately complied with the provisions of this section,
the Secretary may, in the Secretary's discretion, require the air or vessel
carrier to collect identity-theft resistant departure manifest information at a
specific location prior to the issuance of a boarding pass or other document on
the international departure, or the boarding of crew, in any port through which
the carrier boards aliens for international departure under the supervision of
the Secretary for such period as the Secretary considers appropriate to ensure
the adequate collection and transmission of biometric departure manifest
information.
(f)
Funding
There shall be appropriated to the Interior
Enforcement Account $500,000,000 to reimburse carriers for their reasonable
actual expenses in carrying out their duties as described in this
section.
(g)
Determination of
budgetary effects
(1)
Emergency
designation for congressional enforcement
In the Senate, amounts
made available under this section are designated as an emergency requirement
pursuant to section 403(a) of S. Con. Res. 13 (111th Congress), the concurrent
resolution on the budget for fiscal year 2010.
(2)
Emergency
designation for statutory paygo
Amounts made available under this
section are designated as an emergency requirement under section 4(g) of the
Statutory Pay-As-You-Go Act of 2010 (Public Law 111–139; 2 U.S.C.
933(g)).
3305.
Profiling
(a)
Prohibition
In
making routine or spontaneous law enforcement decisions, such as ordinary
traffic stops, Federal law enforcement officers may not use race or ethnicity
to any degree, except that officers may rely on race and ethnicity if a
specific suspect description exists.
(b)
Exceptions
(1) 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. This standard applies even where the use of race or
ethnicity might otherwise be lawful.
(2) In investigating
or preventing threats to national security or other catastrophic events
(including the performance of duties related to air transportation security),
or in enforcing laws protecting the integrity of the Nation’s borders, Federal
law enforcement officers may not consider race or ethnicity except to the
extent permitted by the Constitution and laws of the United States.
(3)
Defined
term
In this section, the term Federal law enforcement
officer means any officer, agent, or employee of the United States
authorized by law or by a Government agency to engage in or supervise the
prevention, detection, investigation, or prosecution of any violation of
Federal law.
(b)
Study and
regulations
(1)
Data
collection
Not later than 180 days after the date of the
enactment of this Act, the Secretary shall begin collecting data regarding the
individualized immigration enforcement activities of covered Department of
Homeland Security officers.
(2)
Study
Not
later than 180 days after data collection under paragraph (1) commences, the
Secretary shall complete a study analyzing the data.
(3)
Regulations
Not
later than 90 days after the date the study required by paragraph (2) is
completed, the Secretary, in consultation with the Attorney General, shall
issue regulations regarding the use of race, ethnicity, and any other suspect
classifications the Secretary deems appropriate by covered Department of
Homeland Security officers.
(4)
Reports
Not
later than 30 days after completion of the study required by paragraph (2), the
Secretary shall submit the study to—
(A) the Committee on
Homeland Security and Governmental Affairs of the Senate;
(B) the Committee on
Homeland Security of the House of Representatives;
(C) the Committee on
Appropriations of the Senate;
(D) the Committee on
Appropriations of the House of Representatives;
(E) the Committee on
the Judiciary of the Senate; and
(F) the Committee on
the Judiciary of the House of Representatives.
(5)
Defined
term
In this subsection, the term covered Department of
Homeland Security officer means any officer, agent, or employee of
United States Customs and Border Protection, United States Immigration and
Customs Enforcement, or the Transportation Security Administration.
D
Asylum and refugee
provisions
3401.
Time limits
and efficient adjudication of genuine asylum claims
Section 208(a)(2) (8 U.S.C. 1158(a)(2)) is
amended—
(1) in subparagraph
(A), by inserting or the Secretary of Homeland Security after
Attorney General both places such term appears;
(2) by striking
subparagraphs (B) and (D);
(3) by redesignating
subparagraph (C) as subparagraph (B);
(4) in subparagraph
(B), as redesignated, by striking subparagraph (D) and inserting
subparagraphs (C) and (D); and
(5) by inserting after
subparagraph (B), as redesignated, the following:
(C)
Changed
circumstances
Notwithstanding subparagraph (B), an application
for asylum of an alien may be considered if the alien demonstrates, to the
satisfaction of the Attorney General or the Secretary of Homeland Security, the
existence of changed circumstances that materially affect the applicant’s
eligibility for asylum.
(D)
Motion to reopen
certain meritorious claims
Notwithstanding subparagraph (B) or
section 240(c)(7), an alien may file a motion to reopen an asylum claim during
the 2-year period beginning on the date of the enactment of the
Border Security, Economic Opportunity, and
Immigration Modernization Act if the alien—
(i) was denied asylum
based solely upon a failure to meet the 1-year application filing deadline in
effect on the date on which the application was filed;
(ii) was granted
withholding of removal pursuant to section 241(b)(3) and has not obtained
lawful permanent residence in the United States pursuant to any other provision
of law;
(iii) is not subject
to the safe third country exception in subsection (a)(2)(A) or a bar to asylum
under subsection (b)(2) and should not be denied asylum as a matter of
discretion; and
(iv) is physically
present in the United States when the motion is
filed.
.
3402.
Refugee family
protections
(a)
Children of
refugee or asylee spouses and children
A child of an alien who
qualifies for admission as a spouse or child under section 207(c)(2)(A) or
208(b)(3) of the Immigration and Nationality Act (8 U.S.C. 1157(c)(2)(A) and
1158(b)(3)) shall be entitled to the same admission status as such alien if the
child—
(1) is accompanying or
following to join such alien; and
(2) is otherwise
eligible under section 207(c)(2)(A) or 208(b)(3) of the Immigration and
Nationality Act.
3403.
Clarification
on designation of certain refugees
Section 207(c)(1) (8 U.S.C. 1157(c)(1)) is
amended—
(1) by inserting
(A) before Subject to the numerical limitations;
and
(2) by adding at the
end the following:
(B)
(i) The President, upon a
recommendation of the Secretary of State made in consultation with the
Secretary of Homeland Security, and after appropriate consultation, may
designate specifically defined groups of aliens—
(I) whose resettlement
in the United States is justified by humanitarian concerns or is otherwise in
the national interest; and
(II) who—
(aa) share common
characteristics that identify them as targets of persecution on account of
race, religion, nationality, membership in a particular social group, or
political opinion; or
(bb) having been
identified as targets as described in item (aa), share a common need for
resettlement due to a specific vulnerability.
(ii) An alien who
establishes membership in a group designated under clause (i) to the
satisfaction of the Secretary of Homeland Security shall be considered a
refugee for purposes of admission as a refugee under this section unless the
Secretary determines that such alien ordered, incited, assisted, or otherwise
participated in the persecution of any person on account of race, religion,
nationality, membership in a particular social group, or political
opinion.
(iii) A designation
under clause (i) is for purposes of adjudicatory efficiency and may be revoked
by the President at any time after notification to Congress.
(iv) Categories of
aliens established under section 599D of the Foreign Operations, Export
Financing, and Related Programs Appropriations Act, 1990 (Public Law 101–167; 8
U.S.C. 1157 note)—
(I) shall be
designated under clause (i) until the end of the first fiscal year commencing
after the date of the enactment of the Border
Security, Economic Opportunity, and Immigration Modernization
Act; and
(II) shall be eligible
for designation thereafter at the discretion of the President, considering,
among other factors, whether a country under consideration has been designated
by the Secretary of State as a Country of Particular Concern for
engaging in or tolerating systematic, ongoing, and egregious violations of
religious freedom.
(v) A designation
under clause (i) shall not influence decisions to grant, to any alien, asylum
under section 208, protection under section 241(b)(3), or protection under the
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, done at New York December 10, 1984.
(vi) A decision to
deny admission under this section to an alien who establishes to the
satisfaction of the Secretary that the alien is a member of a group designated
under clause (i) shall—
(I) be in writing;
and
(II) state, to the
maximum extent feasible, the reason for the denial.
(vii) Refugees
admitted pursuant to a designation under clause (i) shall be subject to the
number of admissions under this
section.
.
3404.
Asylum
determination efficiency
Section 235(b)(1)(B)(ii) (8 U.S.C.
1225(b)(1)(B)(ii)) is amended—
(1) by striking
asylum. and inserting asylum by an asylum officer. The
asylum officer, after conducting a nonadversarial asylum interview and seeking
supervisory review, may grant asylum to the alien under section 208 or refer
the case to a designee of the Attorney General, for a de novo asylum
determination, for relief under the Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment, done at New York December 10,
1984, or for protection under section 241(b)(3)..
3405.
Stateless
persons in the United States
(a)
In
general
Chapter 1 of title II (8 U.S.C. 1151 et seq.) is amended
by adding at the end the following:
210A.
Protection of
certain stateless persons in the United States
(a)
Stateless
persons
(1)
In
general
In this section, the term stateless person
means an individual who is not considered a national under the operation of the
laws of any country.
(2)
Designation of
specific stateless groups
The Secretary of Homeland Security, in
consultation with the Secretary of State, may, in the discretion of the
Secretary, designate specific groups of individuals who are considered
stateless persons, for purposes of this section.
(b)
Status of
stateless persons
(1)
Relief for
certain individuals determined to be stateless persons
The
Secretary of Homeland Security or the Attorney General may, in his or her
discretion, provide conditional lawful status to an alien who is otherwise
inadmissible or deportable from the United States if the alien—
(A) is a stateless
person present in the United States;
(B) applies for such
relief;
(C) has not lost his
or her nationality as a result of his or her voluntary action or knowing
inaction after arrival in the United States;
(D) except as provided
in paragraphs (2) and (3), is not inadmissible under section 212(a); and
(E) is not described
in section 241(b)(3)(B)(i).
(2)
Inapplicability
of certain provisions
The provisions under paragraphs (4), (5),
(7), and (9)(B) of section 212(a) shall not apply to any alien seeking relief
under paragraph (1).
(3)
Waiver
The
Secretary or the Attorney General may waive any other provisions of such
section, other than subparagraphs (B), (C), (D)(ii), (E), (G), (H), or (I) of
paragraph (2), paragraph (3), paragraph (6)(C)(i) (with respect to
misrepresentations relating to the application for relief under paragraph (1)),
or subparagraphs (A), (C), (D), or (E) of paragraph (10) of section 212(a),
with respect to such an alien for humanitarian purposes, to assure family
unity, or if it is otherwise in the public interest.
(4)
Submission of
passport or travel document
Any alien who seeks relief under this
section shall submit to the Secretary of Homeland Security or the Attorney
General—
(A) any available
passport or travel document issued at any time to the alien (whether or not the
passport or document has expired or been cancelled, rescinded, or revoked);
or
(B) an affidavit,
sworn under penalty of perjury—
(i) stating that the
alien has never been issued a passport or travel document; or
(ii) identifying with
particularity any such passport or travel document and explaining why the alien
cannot submit it.
(5)
Work
authorization
The Secretary of Homeland Security may authorize an
alien who has applied for and is found prima facie eligible for or been granted
relief under paragraph (1) to engage in employment in the United States.
(6)
Travel
documents
The Secretary may issue appropriate travel documents to
an alien who has been granted relief under paragraph (1) that would allow him
or her to travel abroad and be admitted to the United States upon return, if
otherwise admissible.
(7)
Treatment of
spouse and children
The spouse or child of an alien who has been
granted conditional lawful status under paragraph (1) shall, if not otherwise
eligible for admission under paragraph (1), be granted conditional lawful
status under this section if accompanying, or following to join, such alien
if—
(A) the spouse or
child is admissible (except as otherwise provided in paragraphs (2) and (3))
and is not described in section 241(b)(3)(B)(i); and
(B) the qualifying
relationship to the principal beneficiary existed on the date on which such
alien was granted conditional lawful status.
(c)
Adjustment of
status
(1)
Inspection and
examination
At the end of the 1-year period beginning on the date
on which an alien has been granted conditional lawful status under subsection
(b), the alien may apply for lawful permanent residence in the United States
if—
(A) the alien has been
physically present in the United States for at least 1 year;
(B) the alien’s
conditional lawful status has not been terminated by the Secretary of Homeland
Security or the Attorney General, pursuant to such regulations as the Secretary
or the Attorney General may prescribe; and
(C) the alien has not
otherwise acquired permanent resident status.
(2)
Requirements for
adjustment of status
The Secretary of Homeland Security or the
Attorney General, under such regulations as the Secretary or the Attorney
General may prescribe, may adjust the status of an alien granted conditional
lawful status under subsection (b) to that of an alien lawfully admitted for
permanent residence if such alien—
(A) is a stateless
person;
(B) properly applies
for such adjustment of status;
(C) has been
physically present in the United States for at least 1 year after being granted
conditional lawful status under subsection (b);
(D) is not firmly
resettled in any foreign country; and
(E) is admissible
(except as otherwise provided under paragraph (2) or (3) of subsection (b)) as
an immigrant under this chapter at the time of examination of such alien for
adjustment of status.
(3)
Record
Upon
approval of an application under this subsection, the Secretary of Homeland
Security or the Attorney General shall establish a record of the alien’s
admission for lawful permanent residence as of the date that is 1 year before
the date of such approval.
(4)
Numerical
limitation
The number of aliens who may receive an adjustment of
status under this section for a fiscal year shall be subject to the numerical
limitation of section 203(b)(4).
(d)
Proving the
claim
In determining an alien’s eligibility for lawful
conditional status or adjustment of status under this subsection, the Secretary
of Homeland Security or the Attorney General shall consider any credible
evidence relevant to the application. The determination of what evidence is
credible and the weight to be given that evidence shall be within the sole
discretion of the Secretary or the Attorney General.
(e)
Review
(1)
Administrative
review
No appeal shall lie from the denial of an application by
the Secretary, but such denial will be without prejudice to the alien’s right
to renew the application in proceedings under section 240.
(2)
Motions to
reopen
Notwithstanding any limitation imposed by law on motions
to reopen removal, deportation, or exclusion proceedings, any individual who is
eligible for relief under this section may file a motion to reopen proceedings
in order to apply for relief under this section. Any such motion shall be filed
within 2 years of the date of the enactment of the
Border Security, Economic Opportunity, and
Immigration Modernization Act.
(f)
Limitation
(1)
Applicability
The
provisions of this section shall only apply to aliens present in the United
States.
(2)
Savings
provision
Nothing in this section may be construed to authorize
or require—
(A) the admission of
any alien to the United States;
(B) the parole of any
alien into the United States; or
(C) the grant of any
motion to reopen or reconsider filed by an alien after departure or removal
from the United
States.
.
(b)
Judicial
review
Section 242(a)(2)(B)(ii) (8 U.S.C. 1252(a)(2)(B)(ii)) is
amended by striking 208(a). and inserting 208(a) or
210A..
(c)
Conforming
amendment
Section 203(b)(4) (8 U.S.C. 1153(b)(4)) is amended by
inserting to aliens granted an adjustment of status under section
210A(c) or after level,.
(d)
Clerical
amendment
The table of contents for the Immigration and
Nationality Act is amended by inserting after the item relating to section 210
the following:
Sec. 210A. Protection of
stateless persons in the United
States.
.
3406.
U visa
accessibility
Section
214(p)(2)(A) (8 U.S.C. 1184(p)(2)(A)) is amended by striking
10,000. and inserting 18,000, of which not more than
3,000 visas may be issued for aliens who are victims of a covered violation
described in section 101(a)(15)(U)..
3407.
Representation
at overseas refugee interviews
Section 207(c) (8 U.S.C. 1157(c)) is amended
by adding at the end the following:
(5) The adjudicator of
an application for refugee status under this section shall consider all
relevant evidence and maintain a record of the evidence considered.
(6) An applicant for
refugee status may be represented, including at a refugee interview, at no
expense to the Government, by an attorney or accredited representative
who—
(A) was chosen by the
applicant; and
(B) is authorized by
the Secretary of Homeland Security to be recognized as the representative of
such applicant in an adjudication under this section.
(7)
(A) A decision to deny an
application for refugee status under this section—
(i) shall be in
writing; and
(ii) shall provide, to
the maximum extent feasible, information on the reason for the denial,
including—
(I) the facts
underlying the determination; and
(II) whether there is
a waiver of inadmissibility available to the applicant.
(B) The basis of any
negative credibility finding shall be part of the written decision.
(8)
(A) An applicant who is
denied refugee status under this section may file a request with the Secretary
for a review of his or her application not later than 120 days after such
denial.
(B) A request filed
under subparagraph (A) shall be adjudicated by refugee officers who have
received training on considering requests for review of refugee applications
that have been denied.
(C) The Secretary
shall publish the standard applied to a request for review.
(D) A request for
review may result in the decision being granted, denied, or reopened for a
further interview.
(E) A decision on a
request for review under this paragraph—
(i) shall be in
writing; and
(ii) shall provide, to
the maximum extent feasible, information on the reason for the
denial.
.
E
Shortage of
immigration court resources for removal proceedings
3501.
Shortage of
immigration court personnel for removal proceedings
(a)
Immigration
court judges
The Attorney General shall increase the total number
of immigration judges to adjudicate current pending cases and efficiently
process future cases by at least—
(1) 75 in fiscal year
2014;
(2) 75 in fiscal year
2015; and
(3) 75 in fiscal year
2016.
(b)
Necessary
support staff for immigration court judges
The Attorney General
shall address the shortage of support staff for immigration judges by ensuring
that each immigration judge has the assistance of the necessary support staff,
including the equivalent of 1 staff attorney or law clerk and 1 legal
assistant.
(c)
Annual increases
in board of immigration appeals personnel
The Attorney General
shall increase the number of Board of Immigration Appeals staff attorneys
(including the necessary additional support staff) to efficiently process cases
by at least—
(1) 30 in fiscal year
2014;
(2) 30 in fiscal year
2015; and
(3) 30 in fiscal year
2016.
(d)
Funding
There
shall be appropriated, from the Comprehensive Immigration Reform Trust Fund
established under section 6(a)(1), such sums as may be necessary to carry out
this section.
3502.
Improving
immigration court efficiency and reducing costs by increasing access to legal
information
(a)
Clarification
regarding the authority of the attorney general to appoint counsel to aliens in
immigration proceedings
Section 292 (8 U.S.C. 1362) is
amended—
(1) by inserting
(a) before In any;
(2) by striking
(at no expense to the Government);
(3) by striking
he shall and inserting the person shall;
and
(4) by adding at the
end the following:
(b) The Government is
not required to provide counsel to aliens under subsection (a). However, the
Attorney General may, in the Attorney General’s sole and unreviewable
discretion, appoint or provide counsel to aliens in immigration proceedings
conducted under section 240 of this
Act.
.
(b)
Appointment of
counsel in certain cases
Section 240(b)(4) (8 U.S.C. 1229a(b)(4))
is amended—
(1) in subparagraph
(A), by striking , at no expense to the Government,; and
(2) by adding at the
end the following: The Government is not required to provide counsel to
aliens under this paragraph. However, the Attorney General may, in the Attorney
General’s sole and unreviewable discretion, appoint or provide counsel at
government expense to aliens in immigration proceedings..
(c)
Appointment of
counsel for unaccompanied alien children and aliens with a serious mental
disability
Section 292 (8 U.S.C. 1362), as amended by subsection
(a), is further amended by adding at the end the following:
(c) Notwithstanding
subsection (b), the Attorney General shall appoint counsel, at the expense of
the Government, if necessary, to represent an alien in a removal proceeding who
has been determined by the Secretary to be an unaccompanied alien child, is
incompetent to represent himself or herself due to a serious mental disability
that would be included in section 3(2) of the Americans with Disabilities Act
of 1990 (42 U.S.C. 12102(2)), or is considered particularly vulnerable when
compared to other aliens in removal proceedings, such that the appointment of
counsel is necessary to help ensure fair resolution and efficient adjudication
of the
proceedings.
.
(d)
Funding
There
shall be appropriated, from the Comprehensive Immigration Reform Trust Fund
established under section 6(a)(1), such sums as may be necessary to carry out
this section and the amendments made by this section.
3503.
Office of
Legal Access Programs
(a)
Establishment of
Office of Legal Access Programs
The Attorney General shall
establish within the Executive Office for Immigration Review an Office of Legal
Access Programs to develop and administer a system of legal orientation
programs to make immigration proceedings more efficient and cost effective by
educating aliens regarding administrative procedures and legal rights under
United States immigration law and to establish other programs to assist in
providing aliens access to legal information.
(b)
Legal
orientation programs
The legal orientation programs—
(1) shall provide
programs to assist detained aliens in making informed and timely decisions
regarding their removal and eligibility for relief from removal in order to
increase efficiency and reduce costs in immigration proceedings and Federal
custody processes and to improve access to counsel and other legal
services;
(2) may provide
services to detained aliens in immigration proceedings under sections 235, 238,
240, and 241(a)(5) of the Immigration and Nationality Act (8 U.S.C. 1225, 1228,
1229a, and 1231(a)(5)) and to other aliens in immigration and asylum
proceedings under sections 235, 238, and 240 of the Immigration and Nationality
Act (8 U.S.C. 1225, 1228, and 1229a); and
(3) shall identify
unaccompanied alien children, aliens with a serious mental disability, and
other particularly vulnerable aliens for consideration by the Attorney General
pursuant to section 292(c) of the Immigration and Nationality Act, as added by
section 3502(c).
(c)
Procedures
The
Secretary shall establish procedures that ensure that legal orientation
programs are available for all detained aliens within 5 days of arrival into
custody and to inform such aliens of the basic procedures of immigration
hearings, their rights relating to those hearings under the immigration laws,
information that may deter such aliens from filing frivolous legal claims, and
any other information deemed appropriate by the Attorney General, such as a
contact list of potential legal resources and providers.
(d)
Rule of
construction
Nothing in this subsection shall 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.
(e)
Funding
There
shall be appropriated, from the Comprehensive Immigration Reform Trust Fund
established under section 6(a)(1), such sums as may be necessary to carry out
this section.
3504.
Codifying
Board of Immigration Appeals
(a)
Definition of
board member
Section 101(a) (8 U.S.C. 1101(a)) is amended by
adding at the end the following:
(53) The term
Board Member means an attorney whom the Attorney General appoints
as an administrative judge within the Executive Office for Immigration Review
to serve on the Board of Immigration Appeals, qualified to review decisions of
immigration judges and other matters within the jurisdiction of the Board of
Immigration
Appeals.
.
(b)
Board of
Immigration Appeals
Section 240(a)(1) (8 U.S.C. 1229a(a)(1)) is
amended by adding at the end the following: The Board of Immigration
Appeals and its Board Members shall review decisions of immigration judges
under this section..
(c)
Appeals
Section
240(b)(4) (8 U.S.C. 1229a(b)(4)), as amended by section 3502(b), is further
amended—
(1) in subparagraph
(B), by striking , and and inserting a semicolon;
(2) in subparagraph
(C), by striking the period and inserting ; and; and
(3) by inserting after
subparagraph (C) the following:
(D) the alien may
appeal the immigration judge’s decision to a 3-judge panel of the Board of
Immigration
Appeals.
.
(d)
Decision and
burden of proof
Section 240(c)(1)(A) (8 U.S.C. 1229a(c)(1)(A)) is
amended to read as follows:
(A)
In
general
At the conclusion of the proceeding, the immigration
judge shall decide whether an alien is removable from the United States. The
determination of the immigration judge shall be based only on the evidence
produced at the hearing. On appeal, the Board of Immigration Appeals shall
issue a written opinion. The opinion shall address all dispositive arguments
raised by the parties. The panel may incorporate by reference the opinion of
the immigration judge whose decision is being reviewed, provided that the panel
also addresses any arguments made by the nonprevailing party regarding
purported errors of law, fact, or
discretion.
.
3505.
Improved
training for immigration judges and Board Members
(a)
In
general
Section 240 (8 U.S.C.
1229a) is amended by adding at the end the following:
(f)
Improved
training
(1)
Improved
training for immigration judges and board members
(A)
In
general
In consultation with the Attorney General and the
Director of the Federal Judicial Center, the Director of the Executive Office
for Immigration Review shall review and modify, as appropriate, training
programs for immigration judges and Board Members.
(B)
Elements of
review
Each such review shall study—
(i) the expansion of
the training program for new immigration judges and Board Members;
(ii) continuing
education regarding current developments in the field of immigration law;
and
(iii) methods to
ensure that immigration judges are trained on properly crafting and dictating
decisions.
(2)
Improved
training and guidance for staff
The Director of the Executive
Office for Immigration Review shall—
(A) modify guidance
and training regarding screening standards and standards of review; and
(B) ensure that Board
Members provide staff attorneys with appropriate guidance in drafting decisions
in individual cases, consistent with the policies and directives of the
Director of the Executive Office for Immigration Review and the Chairman of the
Board of Immigration
Appeals.
.
(b)
Funding
There
shall be appropriated, from the Comprehensive Immigration Reform Trust Fund
established under section 6(a)(1), such sums as may be necessary to carry out
this section and the amendment made by this section.
3506.
Improved
resources and technology for immigration courts and Board of Immigration
Appeals
(a)
Improved
on-bench reference materials and decision templates
The Director
of the Executive Office for Immigration Review shall ensure that immigration
judges are provided with updated reference materials and standard decision
templates that conform to the law of the circuits in which they sit.
(b)
Practice
manual
The Director of the Executive Office for Immigration
Review shall produce a practice manual describing best practices for the
immigration courts and shall make such manual available electronically to
counsel and litigants who appear before the immigration courts.
(c)
Recording system
and other technologies
(1)
Plan
required
The Director of the Executive Office for Immigration
Review shall provide the Attorney General with a plan and a schedule to replace
the immigration courts’ tape recording system with a digital recording system
that is compatible with the information management systems of the Executive
Office for Immigration Review.
(2)
Audio recording
system
Consistent with the plan described in paragraph (1), the
Director shall pilot a digital audio recording system not later than 1 year
after the enactment of this Act, and shall begin nationwide implementation of
that system as soon as practicable.
(d)
Improved
transcription services
Not later than 1 year after the enactment
of this Act, the Director of the Executive Office for Immigration Review shall
report to the Attorney General on the current transcription services utilized
by the Office and recommend improvements to this system regarding quality and
timeliness of transcription.
(e)
Improved
interpreter selection
Not later than 1 year after the enactment
of this Act, the Director of the Executive Office for Immigration Review shall
report to the Attorney General on the current interpreter selection process
utilized by the Office and recommend improvements to this process regarding
screening, hiring, certification, and evaluation of staff and contract
interpreters.
(f)
Funding
There
shall be appropriated, from the Comprehensive Immigration Reform Trust Fund
established under section 6(a)(1), such sums as may be necessary to carry out
this section.
F
Prevention of
trafficking in persons and abuses involving workers recruited abroad
3601.
Definitions
(a)
In
general
Except as otherwise provided by this subtitle, the terms
used in this subtitle shall have the same meanings, respectively, as are given
those terms in section 3 of the Fair Labor Standards Act of 1938 (29 U.S.C.
203).
(b)
Other
definitions
(1)
Foreign labor
contractor
The term foreign labor contractor means
any person who performs any foreign labor contracting activity, including any
person who performs foreign labor contracting activity wholly outside of the
United States, except that the term does not include any entity of the United
States Government.
(2)
Foreign labor
contracting activity
The term foreign labor contracting
activity means recruiting, soliciting, hiring, employing, sponsoring,
managing, furnishing, processing visa applications for, transporting, or
housing an individual who resides outside of the United States in furtherance
of employment in the United States, including when such activity occurs wholly
outside of the United States.
(3)
Person
The
term person means any natural person or any corporation, company,
firm, partnership, joint stock company or association or other organization or
entity (whether organized under law or not), including municipal
corporations.
(4)
Secretary
The
term the Secretary means the Secretary of Labor.
(5)
Worker
the
term worker means an individual or exchange visitor who is the
subject of foreign labor contracting activity.
3602.
Disclosure
(a)
Requirement for
disclosure
Any person who
engages in foreign labor contracting activity shall ascertain and disclose in
writing in English and in the primary language of the worker at the time of the
worker’s recruitment, the following information:
(1) The identity and
address of the employer and the identity and address of the person conducting
the recruiting on behalf of the employer, including any subcontractor or agent
involved in such recruiting.
(2) All assurances and
terms and conditions of employment, from the prospective employer for whom the
worker is being recruited, including the work hours, level of compensation to
be paid, the place and period of employment, a description of the type and
nature of employment activities, any withholdings or deductions from
compensation and any penalties for terminating employment.
(3) A signed copy of
the work contract between the worker and the employer.
(4) The type of visa
under which the foreign worker is to be employed, the length of time for which
the visa will be valid and the terms and conditions under which this visa will
be renewed with a clear statement of whether the employer will secure renewal
of this visa or if renewal must be obtained by the worker and any expenses
associated with securing or renewing the visa.
(5) An itemized list
of any costs or expenses to be charged to the worker and any deductions to be
taken from wages, including any costs for housing or accommodation,
transportation to and from the worksite, meals, health insurance, workers’
compensation, costs of benefits provided, medical examinations, healthcare,
tools, or safety equipment costs.
(6) The existence of
any labor organizing effort, strike, lockout, or other labor dispute at the
place of employment.
(7) Whether and the
extent to which workers will be compensated through workers' compensation,
private insurance, or otherwise for injuries or death, including work related
injuries and death, during the period of employment and, if so, the name of the
State workers' compensation insurance carrier or the name of the policyholder
of the private insurance, the name and the telephone number of each person who
must be notified of an injury or death, and the time period within which such
notice must be given.
(8) A statement, in a
form specified by the Secretary—
(A) stating
that—
(i) no foreign labor
contractor, agent, or employee of a foreign labor contractor, may lawfully
assess any fee (including visa fees, processing fees, transportation fees,
legal expenses, placement fees, and other costs) to a worker for any foreign
labor contracting activity; and
(ii) the employer may
bear such costs or fees for the foreign labor contractor, but that these fees
cannot be passed along to the worker; and
(B) explaining
that—
(i) no additional
requirements or changes may be made from the terms of the contract originally
signed by the worker unless the worker is provided at least 48 hours to review
and consider the additional requirements or changes;
(ii) no such
additional requirements or changes may be made to the original contract signed
by the worker without the specific consent of the worker to each such
additional requirement or change; and
(iii) such consent
shall be obtained voluntarily and without threat of penalty and if not so
obtained will be a violation of law subject to the provisions of section
3611;
(C) describing the
protections afforded the worker by this section and by section 202 of the
William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008
(8 U.S.C. 1375b) and any applicable visa program, including—
(i) relevant
information about the procedure for filing a complaint provided for in section
3611 and
(ii) the telephone
number for the national human trafficking resource center hotline
number.
(9) Any education or
training to be provided or required, including the nature, timing and cost of
such training and the person who will pay such costs, whether the training is a
condition of employment, continued employment, or future employment; and
whether the worker will be paid or remunerated during the training period,
including the rate of pay.
(10) Any other
information that the Secretary may require by regulation.
(b)
Relationship to
labor and employment laws
Nothing in the disclosure required by
subsection (a) shall constitute a legal conclusion as to the worker’s status or
rights under the labor and employment laws.
(c)
Prohibition on
false and misleading information
No foreign labor contractor or
employer who engages in any foreign labor contracting activity shall knowingly
provide materially false or misleading information to any worker concerning any
matter required to be disclosed under section (a). The disclosure required by
this section is a document concerning the proper administration of a matter
within the jurisdiction of a department or agency of the United States for the
purposes of section 1519 of title 18, United States Code.
3603.
Prohibition on
discrimination
(a)
In
general
It shall be unlawful for an employer or a foreign labor
contractor to fail or refuse to hire, discharge, intimidate, threaten,
restrain, coerce, or blacklist any individual or otherwise discriminate against
an individual with respect to compensation, terms, conditions, or privileges of
employment, because of such individual's race, color, creed, sex, national
origin, religion, age, or disability.
(b)
Determinations
of discrimination
For the purposes of determining the existence
of unlawful discrimination under subsection (a)—
(1) in the case of a
claim of discrimination based on race, color, creed, sex, national origin, or
religion, the same legal standards shall apply as are applicable under title
VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.);
(2) in the case of a
claim of discrimination based on unlawful discrimination based on age, the same
legal standards shall apply as are applicable under the Age Discrimination in
Employment Act of 1967 (29 U.S.C. 621 et seq.); and
(3) in the case of a
claim of discrimination based on disability, the same legal standards shall
apply as are applicable under title I of the Americans With Disabilities Act of
1990 (42 U.S.C. 12111 et seq.).
3604.
Recruitment
fees
No employer, foreign
labor contractor, or agent or employee of a foreign labor contractor, shall
assess any fee (including visa fees, processing fees, transportation fees,
legal expenses, placement fees, and other costs) to a worker for any foreign
labor contracting activity.
3605.
Registration
(a)
Requirement to
register
(1)
In
general
Subject to paragraph (2), prior to engaging in any
foreign labor contracting activity, any person who is a foreign labor
contractor or who, for any money or other valuable consideration paid or
promised to be paid, performs a foreign labor contracting activity on behalf of
a foreign labor contractor, shall obtain a certificate of registration from the
Secretary of Labor pursuant to regulations promulgated by the Secretary under
subsection (c).
(2)
Exception for
certain employers
An employer, or employee of an employer, who
engages in foreign labor contracting activity solely to find employees for that
employer’s own use, and without the participation of any other foreign labor
contractor, shall not be required to register under this section.
Notwithstanding the preceding sentence, such an employer shall be subject to
the requirements of subsections (a) and (c) of section 3602 and sections 3603
and 3604 and shall be subject to the remedies under section 3610 for all
violations stemming from the employer's own foreign labor contracting
activity.
(b)
Notification
(1)
Annual employer
notification
Each employer shall notify the Secretary, not less
frequently than once every year, of the identity of any foreign labor
contractor involved in any foreign labor contracting activity for, or on behalf
of, the employer, including at a minimum, the name and address of the foreign
labor contractor and a description of the services.
(2)
Annual foreign
labor contractor notification
Each foreign labor contractor shall
notify the Secretary, not less frequently than once every year, of the identity
of any subcontractee, agent, or foreign labor contractor employee involved in
any foreign labor contracting activity for, or on behalf of, the foreign labor
contractor.
(3)
Noncompliance
notification
An employer shall notify the Secretary of the
identity of a foreign labor contractor whose activities do not comply with this
subtitle.
(4)
Agreement
Not
later than 48 hours after receiving a request from the Secretary, an employer
shall provide the Secretary with the identity of any foreign labor contractor
with which the employer has a contract or other agreement.
(c)
Regulations
Not
later than 180 days after the date of the enactment of this Act, the Secretary
shall promulgate regulations to establish an efficient electronic process for
the timely investigation and approval of an application for a certificate of
registration of foreign labor contractors, including—
(1) a declaration,
subscribed and sworn to by the applicant, stating the applicant's permanent
place of residence, the foreign labor contracting activities for which the
certificate is requested, and such other relevant information as the Secretary
may require;
(2) a set of
fingerprints of the applicant;
(3) an expeditious
means to update registrations and renew certificates;
(4) providing for the
consent of any foreign labor recruiter to the designation by a court of the
Secretary as an agent available to accept service of summons in any action
against the applicant, if the applicant has left the jurisdiction in which the
action is commenced, otherwise has become unavailable to accept service or is
subject to personal jurisdiction in no State;
(5) providing for the
consent of any foreign labor recruiter to jurisdiction in the Department of
Labor or any state or Federal court of the United States for any action brought
by any aggrieved individual or worker;
(6) providing for
cooperation in any investigation by the Secretary or other appropriate
authorities;
(7) providing for
consent to the forfeiture of the bond for failure to cooperate with these
provisions;
(8) providing for
consent to be liable for violations of this subtitle by any agents or
subcontractees of any level in relation to the foreign labor contracting
activity of the agent or subcontractee to the same extent as if the foreign
labor contractor had committed the violation;
(9) providing for
consultation with other appropriate Federal agencies to determine whether any
reason exists to deny registration to a foreign labor contractor; and
(10) any other
requirements that the Secretary may prescribe.
(d)
Term of
registration
Unless suspended or revoked, a certificate under
this section shall be valid for 2 years.
(e)
Application
fee
(1)
Requirement for
fee
In addition to any other fees authorized by law, the
Secretary shall impose a fee, to be deposited in the general fund of the
Treasury, on a foreign labor contractor that submits an application for a
certificate of registration under this section.
(2)
Amount of
fee
The amount of the fee required by paragraph (1) shall be set
at a level that the Secretary determines sufficient to cover the full costs of
carrying out foreign labor contract registration activities under this
subtitle, including worker education and any additional costs associated with
the administration of the fees collected.
(f)
Refusal to
issue; revocation
In accordance with regulations promulgated by
the Secretary, the Secretary shall refuse to issue or renew, or shall revoke
and debar from eligibility to obtain a certificate of registration for a period
of not greater than 5 years, after notice and an opportunity for a hearing, a
certificate of registration under this section if—
(1) the applicant for,
or holder of, the certification has knowingly made a material misrepresentation
in the application for such certificate;
(2) the applicant for,
or holder of, the certification is not the real party in interest in the
application or certificate of registration and the real party in
interest—
(A) is a person who
has been refused issuance or renewal of a certificate;
(B) has had a
certificate revoked; or
(C) does not qualify
for a certificate under this section;
(3) the applicant for,
or holder of, the certification has been convicted within the preceding 5 years
of —
(A) any felony under
State or Federal law or crime involving robbery, bribery, extortion,
embezzlement, grand larceny, burglary, arson, violation of narcotics laws,
murder, rape, assault with intent to kill, assault which inflicts grievous
bodily injury, prostitution, peonage, or smuggling or harboring individuals who
have entered the United States illegally; or
(B) any crime relating
to gambling, or to the sale, distribution or possession of alcoholic beverages,
in connection with or incident to any labor contracting activities.
(4) the applicant for,
or holder of, the certification has materially failed to comply with this
section.
(g)
Re-registration of violators
The Secretary shall establish a procedure
by which a foreign labor contractor that has had its registration revoked under
subsection (f) may seek to re-register under this subsection by demonstrating
to the Secretary’s satisfaction that the foreign labor contractor has not
violated this subtitle in the previous 5 years and that the foreign labor
contractor has taken sufficient steps to prevent future violations of this
subtitle.
3606.
Bonding requirement
(a)
In general
The Secretary shall require a foreign labor
contractor to post a bond in an amount sufficient to ensure the ability of the
foreign labor contractor to discharge its responsibilities and to ensure
protection of workers, including wages.
(b)
Regulations
The Secretary, by regulation, shall
establish the conditions under which the bond amount is determined, paid, and
forfeited.
(c)
Relationship to
other remedies
The bond
requirements and forfeiture of the bond under this section shall be in addition
to other remedies under 3610 or any other law.
3607.
Maintenance of
lists
(a)
In
general
The Secretary shall maintain—
(1) a list of all
foreign labor contractors registered under this subsection, including—
(A) the countries from
which the contractors recruit;
(B) the employers for
whom the contractors recruit;
(C) the visa
categories and occupations for which the contractors recruit; and
(D) the States where
recruited workers are employed; and
(2) a list of all
foreign labor contractors whose certificate of registration the Secretary has
revoked.
(b)
Updates;
availability
The Secretary shall—
(1) update the lists
required by subsection (a) on an ongoing basis, not less frequently than every
6 months; and
(2) make such lists
publicly available, including through continuous publication on Internet
websites and in written form at and on the websites of United States embassies
in the official language of that country.
(c)
Inter-agency
availability
The Secretary shall share the information described
in subsection (a) with the Secretary of State
3608.
Amendment to
the Immigration and Nationality Act
Section 214 (8 U.S.C. 1184) is amended by
adding at the end the following:
(s) A visa shall not
be issued under the subparagraph (A)(iii), (B)(i) (but only for domestic
servants described in clause (i) or (ii) of section 274a.12(c)(17) of title 8,
Code of Federal Regulations (as in effect on December 4, 2007)), (G)(v), (H),
(J), (L), (Q), (R) or add any new immigration subsections of section 101(a)(15)
until the consular officer—
(1) has provided to
and reviewed with the applicant, in the applicant’s language (or a language the
applicant understands), a copy of the information and resources pamphlet
required by section 202 of the William Wilberforce Trafficking Victims
Protection Reauthorization Act of 2008 (8 U.S.C. 1375b) ; and
(2) has reviewed and
made a part of the visa file the foreign labor recruiter disclosures required
by section 3602 of the Border Security,
Economic Opportunity, and Immigration Modernization Act,
including whether the foreign labor recruiter is registered pursuant to that
section.
.
3609.
Responsibilities
of Secretary of State
(a)
In
general
The Secretary of State shall ensure that each United
States diplomatic mission has a person who shall be responsible for receiving
information from any worker who has been subject to violations of this
subtitle.
(b)
Provision of
information
The responsible person referred to in subsection (a)
shall ensure that the information received is provided to the Department of
Justice, the Department of Labor, or any other relevant Federal agency.
(c)
Mechanisms
The
Attorney General and the Secretary shall ensure that there is a mechanism for
any actions that need to be taken in response to information received under
subsection (a).
(d)
Assistance from
foreign government
The person designated for receiving
information pursuant to this subsection is strongly encouraged to coordinate
with governments and civil society organizations in the countries of origin to
ensure the worker receives additional support.
(e)
Maintenance and
availability of information
The Secretary of State shall ensure
that consulates maintain information regarding the identities of foreign labor
contractors and the employers to whom the foreign labor contractors supply
workers. The Secretary of State shall make such information publically
available in written form and on-line, including on the websites of United
States embassies in the official language of that country.
(f)
Annual public
disclose
The Secretary of State shall make publically available
on-line, on an annual basis, data disclosing the gender, country of origin and
state, if available, date of birth, wage, level of training, and occupation
category, disaggregated by job and by visa category.
3610.
Enforcement
provisions
(a)
Complaints and
investigations
The
Secretary—
(1) shall establish a process for the receipt,
investigation, and disposition of complaints filed by any person, including
complaints respecting a foreign labor contractor’s compliance with this
subtitle; and
(2) either pursuant to the process required by
paragraph (1) or otherwise, may investigate employers or foreign labor
contractors, including actions occurring in a foreign country, as necessary to
determine compliance with this subtitle.
(b)
Administrative
enforcement
(1)
In
general
If the Secretary finds, after notice and an opportunity
for a hearing, any foreign labor contractor or employer failed to comply with
any of the requirements of this subtitle, the Secretary may impose the
following against such contractor or employer—
(A) a fine in an
amount not more than $10,000 per violation; and
(B) upon the occasion
of a third violation or a failure to comply with representations, a fine of not
more than $25,000 per violation.
(c)
Authority to
ensure compliance
The Secretary is authorized to take other such
actions, including issuing subpoenas and seeking appropriate injunctive relief
and recovery of damages, as may be necessary to assure compliance with the
terms and conditions of this subtitle.
(d)
Bonding
Pursuant
to the bonding requirement in section 3606, bond liquidation and forfeitures
shall be in addition to other remedies under this section or any other
law.
(e)
Civil
action
(1)
In
general
The Secretary or any person aggrieved by a violation of
this subtitle may bring a civil action against any foreign labor contractor or
employer that does not meet the requirements of section (f)(2) in any court of
competent jurisdiction—
(A) to seek remedial
action, including injunctive relief;
(B) to recover damages
on behalf of any worker harmed by a violation of this subsection; and,
(C) to ensure
compliance with requirements of this section.
(2)
Actions by the
Secretary of Labor
(A)
Sums
recovered
Any sums recovered by the Secretary on behalf of a
worker under paragraph (1) or through liquidation of the bond held pursuant to
section 3606 shall be held in a special deposit account and shall be paid, on
order of the Secretary, directly to each worker affected. Any such sums not
paid to a worker because of inability to do so within a period of 5 years shall
be credited as an offsetting collection to the appropriations account of the
Secretary for expenses for the administration of this section and shall remain
available to the Secretary until expended or may be used for enforcement of the
laws within the jurisdiction of the wage and hour division or may be
transferred to the Secretary of Health and Human Services for the purpose of
providing support to programs that provide assistance to victims of trafficking
in persons or other exploited persons. The Secretary shall work with any
attorney or organization representing workers to locate workers owed sums under
this section.
(B)
Representation
Except
as provided in section 518(a) of title 28, United States Code, the Solicitor of
Labor may appear for and represent the Secretary in any civil litigation
brought under this paragraph. All such litigation shall be subject to the
direction and control of the Attorney General.
(3)
Actions by
individuals
(A)
Award
If
the court finds in a civil action filed by an individual under this section
that the defendant has violated any provision of this subtitle (or any
regulation issued pursuant to this subtitle), the court may award—
(i) damages, up to and
including an amount equal to the amount of actual damages, and statutory
damages of up to $1,000 per plaintiff per violation, or other equitable relief,
except that with respect to statutory damages—
(I) multiple
infractions of a single provision of this subtitle (or of a regulation under
this subtitles) shall constitute only 1 violation for purposes of section
3602(a) to determine the amount of statutory damages due a plaintiff;
and
(II) if such complaint
is certified as a class action the court may award—
(aa) damages up to an
amount equal to the amount of actual damages; and
(bb) statutory damages
of no more than the lesser of up to $1,000 per class member per violation, or
up to $500,000; and other equitable relief;
(ii) reasonable
attorneys’ fees and costs; and
(iii) such other and
further relief, including declaratory and injunctive relief, as necessary to
effectuate the purposes of this subtitle.
(B)
Criteria
In
determining the amount of statutory damages to be awarded under subparagraph
(A), the court is authorized to consider whether an attempt was made to resolve
the issues in dispute before the resort to litigation.
(C)
Bond
To
satisfy the damages, fees, and costs found owing under this clause, the
Secretary shall release as much of the bond held pursuant to section 3606 as
necessary.
(D)
Appeal
Any
civil action brought under this section shall be subject to appeal as provided
in chapter 83 of title 28, United States Code (28 U.S.C. 1291 et seq.).
(E)
Access to legal
services corporation
Notwithstanding any other provision of law,
the Legal Services Corporation and recipients of its funding may provide legal
assistance on behalf of any alien with respect to any provision of this
subtitle.
(f)
Agency
liability
(1)
In
general
Beginning 180 days after the Secretary of Labor has
promulgated regulations pursuant to section 3605(c), an employer who retains
the services of a foreign labor contractor shall only use those foreign labor
contractors who are registered under section 3605. An employer who uses a
foreign labor contractor who is not registered under section 3605 after such
time period, or who uses a foreign labor contractor that has violated any
provision of this subsection, shall be subject to the provisions of this
subsection for violations committed by such foreign labor contractor to the
same extent as if the employer were the foreign labor contractor who had
committed the violation.
(2)
Safe
harbor
An employer shall not have any liability under this
section if the employer hires workers referred by a foreign labor contractor
that has a valid registration with the Department of Labor pursuant to section
3605, the employer does not act with reckless disregard of the fact that the
foreign labor contractor has violated any provision of this section, and if the
employer obtained knowledge of a violation of the provisions of this section,
it immediately reported the violation to the Secretary.
(3)
Liability for
agents
Foreign labor contractors shall be subject to the
provisions of this section for violations committed by the foreign labor
contractor's agents or subcontractees of any level in relation to their foreign
labor contracting activity to the same extent as if the foreign labor
contractor had committed the violation.
(g)
Retaliation
(1)
In
general
No person shall intimidate, threaten, restrain, coerce,
discharge or in any other manner discriminate or retaliate against any worker
or their family members (including a former employee or an applicant for
employment) because such worker disclosed information to any person that the
worker reasonably believes evidences a violation of this section (or any rule
or regulation pertaining to this section), including seeking legal assistance
of counsel or cooperating with an investigation or other proceeding concerning
compliance with this section (or any rule or regulation pertaining to this
section).
(2)
Enforcement
An
individual who is subject to any conduct described in paragraph (1) may, in a
civil action, recover appropriate relief, including reasonable attorneys’ fees
and costs, with respect to that violation. Any civil action under this
subparagraph shall be stayed during the pendency of any criminal action arising
out of the violation.
(h)
Waiver of
rights
Agreements by employees purporting to waive or to modify
their rights under this subtitle shall be void as contrary to public
policy.
(i)
Presence during
pendency of actions
(1)
In
general
If other immigration relief is not available, the
Attorney General and the Secretary of Homeland Security shall grant advance
parole to permit a nonimmigrant to remain legally in the United States for time
sufficient to fully and effectively participate in all legal proceedings
related to any action taken pursuant to this section.
(2)
Regulations
Not
later than 180 days after the date of the enactment of this Act, the Secretary
shall promulgate regulations to carry out paragraph (1).
3611.
Rule of
construction
Nothing in this
subtitle shall be construed to preempt or alter any other rights or remedies,
including any causes of action, available under any other Federal or State
law.
3612.
Regulations
The Secretary shall prescribe such
regulations as may be necessary to carry out this subtitle.
G
Interior
enforcement
3701.
Criminal
street gangs
(a)
Inadmissibility
Section
212(a)(2) (8 U.S.C. 1182(a)(2)) is amended—
(1) by redesignating
subparagraph (F) as subparagraph (L); and
(2) by inserting after
subparagraph (E) the following:
(F)
Aliens in
criminal street gangs
(i)
In
general
Any alien is inadmissible—
(I) who has been
convicted of an offense for which an element was active participation in a
criminal street gang (as defined in section 521(a) of title 18, United States
Code) and the alien—
(aa) had knowledge
that the gang’s members engaged in or have engaged in a continuing series of
offenses described in section 521(c) of title 18, United States Code;
and
(bb) acted with the
intention to promote or further the felonious activities of the criminal street
gang or maintain or increase his or her position in the gang; or
(II) subject to clause
(ii), who is 18 years of age or older, who is physically present outside the
United States, whom the Secretary determines by clear and convincing evidence,
based upon law enforcement information deemed credible by the Secretary, has,
since the age of 18, knowingly and willingly participated in a criminal street
gang with knowledge that such participation promoted or furthered the illegal
activity of the gang.
(ii)
Waiver
The
Secretary may waive clause (i)(II) if the alien has renounced all association
with the criminal street gang, is otherwise admissible, and is not a threat to
the security of the United
States.
.
(b)
Grounds for
deportation
Section 237(a)(2) (8 U.S.C. 1227(a)(2)) is amended by
adding at the end the following:
(G)
Aliens
associated with criminal street gangs
Any alien is removable who
has been convicted of an offense for which an element was active participation
in a criminal street gang (as defined in section 521(a) of title 18, United
States Code), and the alien—
(i) had knowledge that
the gang's members engaged in or have engaged in a continuing series of
offenses described in section 521(c) of title 18, United States Code;
and
(ii) acted with the
intention to promote or further the felonious activities the criminal street
gang or increase his or her position in such
gang.
.
(c)
Ground of
ineligibility for registered provisional immigrant status
(1)
In
general
An alien who is 18 years of age or older is ineligible
for registered provisional immigrant status if the Secretary determines that
the alien—
(A) has been convicted
of an offense for which an element was active participation in a criminal
street gang (as defined in section 521(a) of title 18, United States Code and
the alien—
(i) had knowledge that
the gang's members engaged in or have engaged in a continuing series of
offenses described in section 521(c) of title 18, United States Code;
and
(ii) acted with the
intention to promote or further the felonious activities of the criminal street
gang or maintain or increase his or her position in such gang; or
(B) subject to
paragraph (2), any alien who is 18 years of age or older whom the Secretary
determines by clear and convincing evidence, based upon law enforcement
information deemed credible by the Secretary, has, since the age of 18,
knowingly and willingly participated in a such gang with knowledge that such
participation promoted or furthered the illegal activity of such gang.
(2)
Waiver
The
Secretary may waive this paragraph (1)(B) if the alien has renounced all
association with the criminal street gang, is otherwise admissible, and is not
a threat to the security of the United States.
3702.
Banning
habitual drunk drivers from the United States
(a)
Grounds for
inadmissibility
Section
212(a)(2) (8 U.S.C. 1182), as amended by section 3401, is further amended by
inserting after subparagraph (I) the following:
(J)
Habitual drunk
drivers
An alien convicted of 3 or more offenses on separate
dates, at least 1 of which occurred after the date of the enactment of the
Border Security, Economic Opportunity, and
Immigration Modernization Act, related to driving under the
influence or driving while intoxicated is
inadmissable.
.
(b)
Grounds for
deportation
Section 237(a)(2) (8 U.S.C. 1227(a)(2)) is amended by
adding at the end the following:
(G)
Habitual drunk drivers
An alien convicted of 3 or more offenses on
separate dates related to driving under the influence or driving while
intoxicated is
deportable.
.
3703.
Sexual abuse
of a minor
Section
101(a)(43)(A) (8 U.S.C. 1101(a)(43)(A)) is amended by striking murder,
rape, or sexual abuse of a minor; and inserting murder, rape, or
sexual abuse of a minor, whether or not the minority of the victim is
established by evidence contained in the record of conviction or by credible
evidence extrinsic to the record of conviction;;
3704.
Illegal
entry
(a)
In
general
Section 275 (8 U.S.C. 1325) is amended to read as
follows:
275.
Illegal
entry
(a)
In
general
(1)
Criminal
offenses
An alien shall be subject to the penalties set forth in
paragraph (2) if the alien—
(A) enters or crosses
the border into the United States at any time or place other than as designated
by the Secretary of Homeland Security;
(B) eludes examination
or inspection by an immigration officer, or a customs or agriculture inspection
at a port of entry; or
(C) enters or crosses
the border to the United States by means of a knowingly false or misleading
representation or the concealment of a material fact.
(2)
Criminal
penalties
Any alien who violates any provision under paragraph
(1)—
(A) shall, for the
first violation, be fined under title 18, United States Code, imprisoned not
more than 12 months, or both;
(B) shall, for a
second or subsequent violation, or following an order of voluntary departure,
be fined under such title, imprisoned not more than 3 years, or both;
(C) if the violation
occurred after the alien had been convicted of 3 or more misdemeanors with the
convictions occurring on different dates or of a felony for which the alien
served a term of imprisonment of 15 days or more, shall be fined under such
title, imprisoned not more than 10 years, or both; and
(D) if the violation
occurred after the alien had been convicted of a felony for which the alien was
sentenced to a term of imprisonment of not less than 30 months,
shall be fined under such title,
imprisoned not more than 15 years, or both.
(3)
Prior
convictions
The prior convictions described in subparagraphs (C)
and (D) of paragraph (2) are elements of the offenses described in that
paragraph and the penalties in such subparagraphs shall apply only in cases in
which the conviction or convictions that form the basis for the additional
penalty are—
(A) alleged in the
indictment or information; and
(B) proven beyond a
reasonable doubt at trial or admitted by the defendant under oath as part of a
plea agreement.
(b)
Improper time or
place; civil penalties
Any alien older than 18 years of age who
is apprehended while knowingly entering, attempting to enter, or crossing or
attempting to cross the border to the United States at a time or place other
than as designated by immigration officers shall be subject to a civil penalty,
in addition to any criminal or other civil penalties that may be imposed under
any other provision of law, in an amount equal to—
(1) not less than $250
or more than $5000 for each such entry, crossing, attempted entry, or attempted
crossing; or
(2) twice the amount
specified in paragraph (1) if the alien had previously been subject to a civil
penalty under this
subsection.
.
(b)
Clerical
amendment
The table of contents is amended by striking the item
relating to section 275 and inserting the following:
Sec. 275. Illegal
entry.
.
(c)
Effective
date
The amendments made by this section shall take effect one
year after the date of the enactment of this Act.
3705.
Reentry of
removed alien
Section 276 (8
U.S.C. 1326) is amended to read as follows:
276.
Reentry of
removed alien
(a)
Reentry after
removal
Any alien who has
been denied admission, excluded, deported, or removed, or who has departed the
United States while an order of exclusion, deportation, or removal is
outstanding, and subsequently enters, attempts to enter, crosses the border to,
attempts to cross the border to, or is at any time found in the United States,
shall be fined under title 18, United States Code, and imprisoned not more than
2 years.
(b)
Reentry of
criminal offenders
Notwithstanding the penalty provided in
subsection (a), if an alien described in that subsection—
(1) was convicted for 3 or more misdemeanors,
with the convictions occurring on different dates, before such removal or
departure, the alien shall be fined under title 18, United States Code, and
imprisoned not more than 10 years, or both;
(2) was convicted for a felony before such
removal or departure for which the alien was sentenced to a term of
imprisonment of not less than 30 months, the alien shall be fined under such
title, and imprisoned not more than 15 years, or both;
(3) was convicted for a felony before such
removal or departure for which the alien was sentenced to a term of
imprisonment of not less than 60 months, the alien shall be fined under such
title, and imprisoned not more than 20 years, or both;
(4) was convicted for 3 felonies, with the
convictions occurring on different dates before such removal or departure, the
alien shall be fined under such title, and imprisoned not more than 20 years,
or both; or
(5) was convicted, before such removal or
departure, for murder, rape, kidnapping, or a felony offense described in
chapter 77 (relating to peonage and slavery) or 113B (relating to terrorism) of
such title, the alien shall be fined under such title, and imprisoned not more
than 20 years, or both.
(c)
Reentry after
repeated removal
Any alien who has been denied admission,
excluded, deported, or removed 3 or more times and thereafter enters, attempts
to enter, crosses the border to, attempts to cross the border to, or is at any
time found in the United States, shall be fined under title 18, United States
Code, and imprisoned not more than 10 years, or both.
(d)
Proof of prior
convictions
The prior
convictions described in subsection (b) are elements of the offenses described
in that subsection, and the penalties in such subsection shall apply only in
cases in which the conviction or convictions that form the basis for the
additional penalty are—
(1) alleged in the indictment or information;
and
(2) proven beyond a reasonable doubt at trial
or admitted by the defendant under oath as part of a plea agreement.
(e)
Affirmative
defenses
It shall be an
affirmative defense to a violation of this section that—
(1) prior to the alleged violation, the alien
had sought and received the express consent of the Secretary of Homeland
Security to reapply for admission into the United States; or
(2) at the time of the prior exclusion,
deportation, removal, or denial of admission alleged in the violation, the
alien had not yet reached 18 years of age and had not been convicted of a crime
or adjudicated a delinquent minor by a court of the United States, or a court
of a state or territory, for conduct that would constitute a felony if
committed by an adult.
(f)
Limitation on
collateral attack on underlying deportation order
In a criminal proceeding under this
section, an alien may not challenge the validity of the deportation order
described in subsection (a) or subsection (c) unless the alien demonstrates
that—
(1) the alien exhausted any administrative
remedies that may have been available to seek relief against the order;
(2) the deportation proceedings at which the
order was issued improperly deprived the alien of the opportunity for judicial
review; and
(3) the entry of the order was fundamentally
unfair.
(g)
Reentry of alien
removed prior to completion of term of imprisonment
Any alien removed pursuant to section
241(a)(4) who enters, attempts to enter, crosses the border to, attempts to
cross the border to, or is at any time found in, the United States shall be
incarcerated for the remainder of the sentence of imprisonment which was
pending at the time of deportation without any reduction for parole or
supervised release unless the alien affirmatively demonstrates that the
Secretary of Homeland Security has expressly consented to the alien's reentry
or the alien is prima facie eligible for protection from removal. Such alien
shall be subject to such other penalties relating to the reentry of removed
aliens as may be available under this section or any other provision of
law.
(h)
Limitation
It is not aiding and abetting a violation
of this section for an individual to provide an alien with emergency
humanitarian assistance, including emergency medical care and food, or to
transport the alien to a location where such assistance can be rendered without
compensation or the expectation of compensation.
(i)
Definitions
In this section:
(1)
Felony
The term felony means any
criminal offense punishable by a term of imprisonment of more than 1 year under
the laws of the United States, any State, or a foreign government.
(2)
Misdemeanor
The term misdemeanor means any
criminal offense punishable by a term of imprisonment of not more than 1 year
under the applicable laws of the United States, any State, or a foreign
government.
(3)
Removal
The term removal includes any
denial of admission, exclusion, deportation, or removal, or any agreement by
which an alien stipulates or agrees to exclusion, deportation, or
removal.
(4)
State
The term State means a State
of the United States, the District of Columbia, and any commonwealth,
territory, or possession of the United
States.
.
3706.
Penalties
related to removal
(a)
Penalties
relating to vessels and aircraft
Section 243(c) (8 U.S.C.
1253(c)) is amended—
(1) by striking
Attorney General each place such term appears and inserting
Secretary of Homeland Security; and
(2) by striking
Commissioner each place such term appears and inserting
Secretary of Homeland Security; and
(3) in paragraph
(1)—
(A) in subparagraph
(A), by striking $2,000 and inserting
$5,000;
(B) in subparagraph
(B), by striking $5,000 and inserting
$10,000;
(C) by amending
paragraph (1)(C) to read as follows:
(C)
Compromise
The
Secretary of Homeland Security, in the Secretary’s unreviewable discretion and
upon the receipt of a written request, may mitigate the monetary penalties
required under this subsection for each alien stowaway to an amount equal to
not less than $2,000, upon such terms that the Secretary determines to be
appropriate.
;
and
(D) by inserting at
the end the following:
(D)
Exception
A
person, acting without compensation or the expectation of compensation, is not
subject to penalties under this paragraph if the person is—
(i) providing, or
attempting to provide, an alien with humanitarian assistance, including
emergency medical care or food or water; or
(ii) transporting the
alien to a location where such humanitarian assistance can be rendered without
compensation or the expectation of
compensation.
.
3707.
Reform of
passport, visa, and immigration fraud offenses
(a)
Trafficking in
passports
Section 1541 of title 18, United States Code, is
amended to read as follows:
1541.
Trafficking in
passports
(a)
Multiple
passports
Subject to subsection (b), any person who, during any
period of 3 years or less, knowingly—
(1) and without lawful
authority produces, issues, or transfers 3 or more passports;
(2) forges,
counterfeits, alters, or falsely makes 3 or more passports;
(3) secures,
possesses, uses, receives, buys, sells, or distributes 3 or more passports,
knowing the passports to be forged, counterfeited, altered, falsely made,
stolen, procured by fraud, or produced or issued without lawful authority;
or
(4) completes, mails,
prepares, presents, signs, or submits 3 or more applications for a United
States passport, knowing the applications to contain any materially false
statement or representation,
shall be fined under this title,
imprisoned not more than 20 years, or both.
(b)
Use in a
terrorism offense
Any person who commits an offense described in
subsection (a) to facilitate an act of international terrorism (as defined in
section 2331) shall be fined under this title, imprisoned not more than 25
years, or both.
(c)
Passport
materials
Any person who knowingly and without lawful authority
produces, buys, sells, possesses, or uses any official material (or counterfeit
of any official material) used to make 10 or more passports, including any
distinctive paper, seal, hologram, image, text, symbol, stamp, engraving, or
plate, shall be fined under this title, imprisoned not more than 20 years, or
both.
.
(b)
False statement
in an application for a passports
Section 1542 of title 18,
United States Code, is amended to read as follows:
1542.
False
statement in an application for a passport
(a)
In
general
Any person who
knowingly makes any material false statement or representation in an
application for a United States passport, or mails, prepares, presents, or
signs an application for a United States passport knowing the application to
contain any material false statement or representation, shall be fined under
this title, imprisoned not more than 25 years (if the offense was committed to
facilitate an act of international terrorism (as defined in section 2331 of
this title)), 20 years (if the offense was committed to facilitate a drug
trafficking crime (as defined in section 929(a) of this title)), or 15 years
(in the case of any other offense) or both.
(b)
Venue
(1)
In
general
An offense under subsection (a) may be prosecuted in any
district—
(A) in which the false
statement or representation was made or the application for a United States
passport was prepared or signed; or
(B) in which or to
which the application was mailed or presented.
(2)
Offenses outside
the United States
An offense under subsection (a) involving an
application prepared and adjudicated outside the United States may be
prosecuted in the district in which the resultant passport was or would have
been produced.
(c)
Savings
clause
Nothing in this section may be construed to limit the
venue otherwise available under sections 3237 and 3238 of this
title.
.
(c)
Misuse of a
passport
Section 1544 of title 18, United States Code, is amended
to read as follows:
1544.
Misuse of a
passport
Any person who
knowingly—
(1) misuses for their
own purposes any passport issued or designed for the use of another;
(2) uses any passport
in violation of the laws, regulations, or rules governing the issuance and use
of the passport;
(3) secures,
possesses, uses, receives, buys, sells, or distributes any passport knowing the
passport to be forged, counterfeited, altered, falsely made, procured by fraud,
or produced or issued without lawful authority; or
(4) substantially
violates the terms and conditions of any safe conduct duly obtained and issued
under the authority of the United States,
shall be fined under this title,
imprisoned not more than 25 years (if the offense was committed to facilitate
an act of international terrorism (as defined in section 2331 of this title)),
20 years (if the offense was committed to facilitate a drug trafficking crime
(as defined in section 929(a) of this title)) or 15 years (in the case of any
other offense), or
both.
.
(d)
Schemes to
provide fraudulent immigration services
Section 1545 of title 18,
United States Code, is amended to read as follows:
1545.
Schemes to
provide fraudulent immigration services
(a)
In
general
Any person who knowingly executes a scheme or artifice,
in connection with any matter that is authorized by or arises under any Federal
immigration law or any matter the offender claims or represents is authorized
by or arises under any Federal immigration law, to—
(1) defraud any
person; or
(2) obtain or receive
money or anything else of value from any person by means of false or fraudulent
pretenses, representations, or promises,
shall be fined under this title,
imprisoned not more than 10 years, or both.
(b)
Misrepresentation
Any
person who knowingly and falsely represents that such person is an attorney or
an accredited representative (as that term is defined in section 1292.1 of
title 8, Code of Federal Regulations (or any successor regulation)) in any
matter arising under any Federal immigration law shall be fined under this
title, imprisoned not more than 15 years, or
both.
.
(e)
Immigration and
visa fraud
Section 1546 of title 18, United States Code, is
amended—
(1) by amending the
section heading to read as follows:
1546.
Immigration
and visa
fraud
;
and
(2) by striking
subsections (b) and (c) and inserting the following:
(b)
Trafficking
Any
person who, during any period of 3 years or less, knowingly—
(1) and without lawful
authority produces, issues, or transfers 3 or more immigration
documents;
(2) forges,
counterfeits, alters, or falsely makes 3 or more immigration documents;
(3) secures,
possesses, uses, buys, sells, or distributes 3 or more immigration documents,
knowing the immigration documents to be forged, counterfeited, altered, stolen,
falsely made, procured by fraud, or produced or issued without lawful
authority; or
(4) completes, mails,
prepares, presents, signs, or submits 3 or more immigration documents knowing
the documents to contain any materially false statement or
representation,
shall be fined under this title,
imprisoned not more than 20 years, or both.
(c)
Immigration
document materials
Any person who knowingly and without lawful
authority produces, buys, sells, possesses, or uses any official material (or
counterfeit of any official material) used to make 10 or more immigration
documents, including any distinctive paper, seal, hologram, image, text,
symbol, stamp, engraving, or plate, shall be fined under this title, imprisoned
not more than 20 years, or
both.
.
(f)
Alternative
imprisonment maximum for certain offenses
Section 1547 of title
18, United States Code, is amended—
(1) in the matter
preceding paragraph (1), by striking (other than an offense under
section 1545);
(2) in paragraph (1),
by striking 15 and inserting 20; and
(3) in paragraph (2),
by striking 20 and inserting 25.
(g)
Authorized law
enforcement activities
Chapter 75 of title 18, United States
Code, is amended by adding after section 1547 the following:
1548.
Authorized law
enforcement activities
Nothing
in this chapter may be construed to prohibit—
(1) any lawfully
authorized investigative, protective, or intelligence activity of a law
enforcement agency of the United States, a State, or a political subdivision of
a State, or an intelligence agency of the United States; or
(2) any activity
authorized under title V of the Organized Crime Control Act of 1970 (Public Law
91–452; 84 Stat.
933).
.
(h)
Table of
sections amendment
The table of sections for chapter 75 of title
18, United States Code, is amended to read as follows:
Sec.
1541. Trafficking in
passports.
1542. False statement in
an application for a passport.
1543. Forgery or false
use of a passport.
1544. Misuse of a
passport.
1545. Schemes to provide
fraudulent immigration services.
1546. Immigration and
visa fraud.
1547. Alternative
imprisonment maximum for certain offenses.
1548. Authorized law
enforcement
activities.
.
3708.
Combating
schemes to defraud aliens
(a)
Regulations,
forms, and procedures
The Secretary and the Attorney General, for
matters within their respective jurisdictions arising under the immigration
laws, shall promulgate appropriate regulations, forms, and procedures defining
the circumstances in which—
(1) persons submitting
applications, petitions, motions, or other written materials relating to
immigration benefits or relief from removal under the immigration laws will be
required to identify who (other than immediate family members) assisted them in
preparing or translating the immigration submissions; and
(2) any person or
persons who received compensation (other than a nominal fee for copying,
mailing, or similar services) in connection with the preparation, completion,
or submission of such materials will be required to sign the form as a preparer
and provide identifying information.
(b)
Civil
injunctions against immigration service provider
The Attorney
General may commence a civil action in the name of the United States to enjoin
any immigration service provider from further engaging in any fraudulent
conduct that substantially interferes with the proper administration of the
immigration laws or who willfully misrepresents such provider's legal authority
to provide representation before the Department of Justice or
Department.
(c)
Definitions
In
this section:
(1)
Immigration
laws
The term immigration laws has the meaning
given that term in section 101(a)(17) of the Immigration and Nationality Act (8
U.S.C. 1101(a)(17)).
(2)
Immigration
service provider
The term immigration service
provider means any individual or entity (other than an attorney or
individual otherwise authorized to provide representation in immigration
proceedings as provided in Federal regulation) who, for a fee or other
compensation, provides any assistance or representation to aliens in relation
to any filing or proceeding relating to the alien which arises, or which the
provider claims to arise, under the immigration laws, executive order, or
presidential proclamation.
3709.
Inadmissibility
and removal for passport and immigration fraud offenses
(a)
Inadmissibility
Section
212(a)(2)(A)(i) (8 U.S.C. 1182(a)(2)(A)(i)) is amended—
(1) in subclause (I),
by striking , or at the end and inserting a semicolon;
(2) in subclause (II),
by striking the comma at the end and inserting ; or; and
(3) by inserting after
subclause (II) the following:
(III) a violation of
section 1541, 1545, and subsection (b) of section 1546 of title 18, United
States
Code,
.
(b)
Removal
Section
237(a)(3)(B)(iii) (8 U.S.C. 1227(a)(3)(B)(iii)) is amended to read as
follows:
(ii) a violation of
section 1541, 1545, and subsection (b) of section 1546 of title 18, United
States
Code,
.
(c)
Effective
date
The amendments made by subsections (a) and (b) shall apply
to proceedings pending on or after the date of the enactment of this Act, with
respect to conduct occurring on or after that date.
3710.
Directives
related to passport and document fraud
(a)
Directive to the
United States Sentencing Commission
(1)
In
general
Pursuant to the authority under section 994 of title 28,
United States Code, the United States Sentencing Commission shall promulgate or
amend the sentencing guidelines, policy statements, and official commentaries,
if appropriate, related to passport fraud offenses, including the offenses
described in chapter 75 of title 18, United States Code, as amended by section
3407, to reflect the serious nature of such offenses.
(2)
Report
Not
later than 1 year after the date of the enactment of this Act, the United
States Sentencing Commission shall submit a report on the implementation of
this subsection to—
(A) the Committee on
the Judiciary of the Senate; and
(B) the Committee on
the Judiciary of the House of Representatives.
(b)
Protection for
legitimate refugees and asylum seekers
(1)
In
general
(A)
Requirement for
guidelines
The Attorney General, in consultation with the
Secretary, shall develop binding prosecution guidelines for Federal prosecutors
to ensure that each prosecution of an alien seeking entry into the United
States by fraud is consistent with the United States treaty obligations under
Article 31(1) of the Convention Relating to the Status of Refugees, done at
Geneva July 28, 1951 (as made applicable by the Protocol Relating to the Status
of Refugees, done at New York January 31, 1967 (19 UST 6223)).
(B)
No private right
of action
The guidelines developed pursuant to subparagraph (A),
and any internal office procedures related to such guidelines—
(i) are intended
solely for the guidance of attorneys of the United States; and
(ii) are not intended
to, do not, and may not be relied upon to, create any right or benefit,
substantive or procedural, enforceable at law by any party in any
administrative, civil, or criminal matter.
(2)
Protection of
vulnerable persons
A person described in paragraph (3) may not be
prosecuted under chapter 75 of title 18, United States Code, or under section
275 or 276 of the Immigration and Nationality Act (8 U.S.C. 1325 and 1326), in
connection with the person’s entry or attempted entry into the United States
until after the date on which the person’s application for such protection,
classification, or status has been adjudicated and denied in accordance with
the Immigration and Nationality Act (8 U.S.C. 1101 et seq.).
(3)
Persons seeking
protection, classification, or status
A person described in this
paragraph is a person who—
(A) is seeking
protection, classification, or status; and
(B)
(i) has filed an
application for asylum under section 208 of the Immigration and Nationality Act
(8 U.S.C. 1158), withholding of removal under section 241(b)(3) of such Act (8
U.S.C. 1231(b)(3)), or relief under the Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment, done at New York, December
10, 1994, pursuant to title 8, Code of Federal Regulations;
(ii) indicates
immediately after apprehension, that he or she intends to apply for such
asylum, withholding of removal, or relief and promptly files the appropriate
application;
(iii) has been
referred for a credible fear interview, a reasonable fear interview, or an
asylum-only hearing under section 235 of the Immigration and Nationality Act (8
U.S.C. 1225) or title 8, Code of Federal Regulations; or
(iv) has filed an
application for classification or status under—
(I) subparagraph (T)
or (U) of paragraph (15), paragraph (27)(J), or paragraph (51) of section
101(a) of the Immigration and Nationality Act (8 U.S.C. 1101(a)); or
(II) section
216(c)(4)(C) or 240A(b)(2), of such Act (8 U.S.C. 1186a(c)(4)(C) and
1229b(b)(2)).
3711.
Inadmissible
aliens
(a)
Deterring aliens
ordered removed from remaining in the united states
unlawfully
Section 212(a)(9)(A) (8 U.S.C. 1182(a)(9)(A)) is
amended—
(1) in clause (i), by
striking seeks admission within 5 years of the date of such removal (or
within 20 years and inserting seeks admission not later than 5
years after the date of the alien’s removal (or not later than 20 years after
the alien’s removal; and
(2) in clause (ii), by
striking seeks admission within 10 years of the date of such alien’s
departure or removal (or within 20 years of and inserting seeks
admission not later than 10 years after the date of the alien’s departure or
removal (or not later than 20 years after.
(b)
Biometric
screening
Section 212 (8 U.S.C. 1182) is amended—
(1) in subsection
(a)(7), by adding at the end the following:
(C)
Withholding
information
Except as provided in subsection (d)(2), any alien
who willfully, through his or her own fault, refuses to comply with a lawful
request for biometric information is
inadmissible.
;
and
(2) in subsection (d),
by inserting after paragraph (1) the following:
(2) The Secretary may
waive the application of subsection (a)(7)(C) for an individual alien or a
class of
aliens.
.
(c)
Precluding
admissibility of aliens convicted of serious criminal offenses and domestic
violence, stalking, child abuse and violation of protection orders
(1)
Inadmissibility
on criminal and related grounds; waivers
Section 212 (8 U.S.C.
1182), as amended by section 3302, is further amended—
(A) in subsection
(a)(2), as amended by sections 3401 and 3402, is further amended by inserting
after subparagraph (J) the following:
(K)
Crimes of
domestic violence, stalking, or violation of protective orders; crimes against
children
(i)
Domestic
violence, stalking, and child abuse
(I)
In
general
Any alien who has been convicted of a crime of domestic
violence, a crime of stalking, or a crime of child abuse, child neglect, or
child abandonment, provided the alien served at least 1 year imprisonment for
the crime, or provided the alien was convicted of offenses constituting more
than 1 such crime, not arising out of a single scheme of criminal misconduct,
is inadmissible.
(II)
Crime of
domestic violence defined
In this clause, the term crime of
domestic violence means any crime of violence (as defined in section 16
of title 18, United States Code) against a person committed by a current or
former spouse of the person, by an individual with whom the person shares a
child in common, by an individual who is cohabiting with or has cohabited with
the person as a spouse, by an individual similarly situated to a spouse of the
person under the domestic or family violence laws of the jurisdiction where the
offense occurs, or by any other individual against a person who is protected
from that individual's acts under the domestic or family violence laws of the
United States or any State, Indian tribal government, or unit of local or
foreign government.
(ii)
Violators of
protection orders
(I)
In
general
Any alien who at any time is enjoined under a protection
order issued by a court and whom the court determines has engaged in conduct
that constitutes criminal contempt of the portion of a protection order that
involves protection against credible threats of violence, repeated harassment,
or bodily injury to the person or persons for whom the protection order was
issued, is inadmissible.
(II)
Protection
order defined
In this clause, the term protection
order means any injunction issued for the purpose of preventing violent
or threatening acts of domestic violence, including temporary or final orders
issued by civil or criminal courts (other than support or child custody orders
or provisions) whether obtained by filing an independent action or as an
independent order in another proceeding.
(iii)
Applicability
This
subparagraph shall not apply to an alien who has been battered or subjected to
extreme cruelty and who is not and was not the primary perpetrator of violence
in the relationship, upon a determination by the Attorney General or the
Secretary of Homeland Security that—
(I) the alien was
acting in self-defense;
(II) the alien was
found to have violated a protection order intended to protect the alien;
or
(III) the alien
committed, was arrested for, was convicted of, or pled guilty to committing a
crime that did not result in serious bodily
injury.
;
(B) in subsection
(h)—
(i) by striking
The Attorney General may, in his discretion, waive the application of
subparagraphs (A)(i)(I), (B), (D), and (E) of subsection (a)(2) and
inserting The Attorney General or the Secretary of Homeland Security may
waive the application of subparagraphs (A)(i)(I), (B), (D), (E), of subsection
(a)(2); and
(ii) by inserting
or Secretary of Homeland Security after the Attorney
General each place that term appears.
(2)
Effective
date
The amendments made by this subsection shall apply to any
acts that occurred on or after the date of the enactment of this Act.
3712.
Organized and
abusive human smuggling activities
(a)
Enhanced
penalties
(1)
In
general
Title II (8 U.S.C. 1151 et seq.) is amended by adding at
the end the following:
295.
Organized human
smuggling
(a)
Prohibited
activities
Whoever, while acting for profit or other financial
gain, knowingly directs or participates in an effort or scheme to assist or
cause 5 or more persons (other than a parent, spouse or child of the
offender)—
(1) to enter, attempt
to enter, or prepare to enter the United States—
(A) by fraud,
falsehood, or other corrupt means;
(B) at any place other
than a port or place of entry designated by the Secretary; or
(C) in a manner not
prescribed by the immigration laws and regulations of the United States;
or
(2) to travel by air,
land, or sea toward the United States (whether directly or indirectly)—
(A) knowing that the
persons seek to enter or attempt to enter the United States without lawful
authority; and
(B) with the intent to
aid or further such entry or attempted entry; or
(3) to be transported
or moved outside of the United States—
(A) knowing that such
persons are aliens in unlawful transit from one country to another or on the
high seas; and
(B) under
circumstances in which the persons are in fact seeking to enter the United
States without official permission or legal authority;
shall be punished as provided in
subsection (c) or (d).
(b)
Conspiracy and
attempt
Any person who attempts or conspires to violate
subsection (a) of this section shall be punished in the same manner as a person
who completes a violation of such subsection.
(c)
Base
penalty
Except as provided in subsection (d), any person who
violates subsection (a) or (b) shall be fined under title 18, imprisoned for
not more than 20 years, or both.
(d)
Enhanced
penalties
Any person who violates subsection (a) or (b)
shall—
(1) in the case of a
violation during and in relation to which a serious bodily injury (as defined
in section 1365 of title 18) occurs to any person, be fined under title 18,
imprisoned for not more than 30 years, or both;
(2) in the case of a
violation during and in relation to which the life of any person is placed in
jeopardy, be fined under title 18, imprisoned for not more than 30 years, or
both;
(3) in the case of a
violation involving 10 or more persons, be fined under title 18, imprisoned for
not more than 30 years, or both;
(4) in the case of a
violation involving the bribery or corruption of a U.S. or foreign government
official, be fined under title 18, imprisoned for not more than 30 years, or
both;
.
(5) in the case of a
violation involving robbery or extortion (as those terms are defined in
paragraph (1) or (2), respectively, of section 1951(b)) be fined under title
18, imprisoned for not more than 30 years, or both;
(6) in the case of a
violation during and in relation to which any person is subjected to an
involuntary sexual act (as defined in section 2246(2) of title 18), be fined
under title 18, imprisoned for not more than 30 years, or both; or
(7) in the case of a
violation resulting in the death of any person, be fined under title 18,
imprisoned for or any term of years or for life, or both.
(e)
Lawful authority
defined
(1)
In
general
In this section, the term lawful
authority—
(A) means permission,
authorization, or license that is expressly provided for in the immigration
laws of the United States or accompanying regulations: and
(B) does not include
any such authority secured by fraud or otherwise obtained in violation of law;
nor does it include authority sought, but not approved.
(2)
Application to
travel or entry
No alien shall be deemed to have lawful authority
to travel to or enter the United States if such travel or entry was, is, or
would be in violation of law.
(f)
Effort or
scheme
For purposes of this section, effort or scheme to
assist or cause 5 or more persons does not require that the 5 or more
persons enter, attempt to enter, prepare to enter, or travel at the same time
so long as the acts are completed within 1 year.
296.
Unlawfully
hindering immigration, border, and customs controls
(a)
Illicit
spotting
Whoever knowingly transmits to another person the
location, movement, or activities of any Federal, State, or tribal law
enforcement agency with the intent to further a Federal crime relating to
United States immigration, customs, controlled substances, agriculture,
monetary instruments, or other border controls shall be fined under title 18,
imprisoned not more than 10 years, or both.
(b)
Destruction of
united states border controls
Whoever knowingly and without
lawful authorization destroys, alters, or damages any fence, barrier, sensor,
camera, or other physical or electronic device deployed by the Federal
government to control the border or a port of entry or otherwise seeks to
construct, excavate, or make any structure intended to defeat, circumvent or
evade any such fence, barrier, sensor camera, or other physical or electronic
device deployed by the Federal government to control the border or a port of
entry shall be fined under title 18, imprisoned not more than 10 years, or
both, and if, at the time of the offense, the person uses or carries a firearm
or who, in furtherance of any such crime, possesses a firearm, that person
shall be fined under Title 18, imprisoned not more than 20 years, or
both
(c)
Conspiracy and
attempt
Any person who attempts or conspires to violate
subsection (a) or (b) of this section shall be punished in the same manner as a
person who completes a violation of such
subsection.
.
(2)
Table of
contents amendment
The table of contents is amended by adding
after the item relating to section 294 the following:
Sec. 295. Organized human
smuggling.
Sec. 296. Unlawfully hindering
immigration, border, and customs
controls.
.
(b)
Prohibiting
carrying or use of a firearm during and in relation to an alien smuggling
crime
Section 924(c) of title 18, United States Code, is
amended—
(1) in paragraph
(1)—
(A) in subparagraph
(A), by inserting , alien smuggling crime, after crime of
violence each place that term appears; and
(B) in subparagraph
(D)(ii), by inserting , alien smuggling crime, after
crime of violence; and
(2) by adding at the
end the following:
(6) For purposes of
this subsection, the term alien smuggling crime means any felony
punishable under section 274(a), 277, or 278 of the Immigration and Nationality
Act (8 U.S.C. 1324(a), 1327, and
1328).
.
(c)
Statute of
limitations
Section 3298 of title 18, United States Code, is
amended by inserting , 295, 296, or 297 after
274(a).
3713.
Preventing
criminals from renouncing citizenship during wartime
Section 349(a) (8 U.S.C. 1481(a) is
amended—
(1) by striking
paragraph (6) ; and
(2) redesignating
paragraph (7) as paragraph (6).
3714.
Diplomatic
security service
Paragraph (1)
of section 37(a) of the State Department Basic Authorities Act of 1956 (22
U.S.C. 2709(a)) is amended to read as follows:
(1) conduct investigations concerning—
(A) illegal passport or visa issuance or
use;
(B) identity theft or document fraud affecting
or relating to the programs, functions, and authorities of the Secretary of
State;
(C) violations of chapter 77 of title 18,
United States Code; and
(D) Federal offenses committed within the
special maritime and territorial jurisdiction of the United States (as defined
in section 7(9) of title 18, United States
Code);
.
3715.
Secure
alternatives programs
(a)
In
general
The Secretary shall establish secure alternatives
programs that incorporate case management services in each field office of the
Department to ensure appearances at immigration proceedings and public
safety.
(b)
Contract
authority
The Secretary shall contract with nongovernmental
community based organizations to conduct screening of detainees, provide
appearance assistance services, and operate community-based supervision
programs. Secure alternatives shall offer a continuum of supervision mechanisms
and options including community support, depending on an assessment of each
individual’s circumstances. The Secretary may contract with nongovernmental
organizations to implement secure alternatives that maintain custody over the
alien.
(c)
Individualized
determinations
In determining whether to use secure alternatives,
the Secretary shall make an individualized determination, and for each
individual placed on secure alternatives shall review the level of supervision
on a monthly basis. Secure alternatives shall not be used when release on bail
or recognizance is determined to be a sufficient measure to ensure appearances
at immigration proceedings and public safety.
(d)
Custody
The
Secretary may use secure alternatives programs to maintain custody over any
alien detained under this Act except for aliens detained under section 236A of
the Immigration and Nationality Act (8 U.S.C. 1226a). If an individual is not
eligible for release from custody or detention, the Secretary shall consider
the alien for placement in secure alternatives that maintain custody over the
alien to serve as detention, including the use of electronic ankle
devices.
3716.
Oversight of
detention facilities
(a)
Definitions
In
this section:
(1)
Applicable
standards
The term applicable standards means the
most recent version of detention standards and detention-related policies
issued by the Secretary or the Director of U.S. Immigration and Customs
Enforcement.
(2)
Detention
facility
The term detention facility means a
Federal, State, or local government facility, or a privately owned and operated
facility, that is used, in whole or in part, to hold individuals under the
authority of the Director of U.S. Immigration and Customs Enforcement,
including facilities that hold such individuals under a contract or agreement
with the Director.
(b)
Detention
requirements
The Secretary shall ensure that all persons detained
pursuant to the Immigration and Nationality Act (8 U.S.C. 1101 et seq.) are
treated humanely and benefit from the protections set forth in this
section.
(c)
Oversight
requirements
(1)
Annual
inspection
All detention facilities shall be inspected by the
Secretary on a regular basis, but not less than annually, for compliance with
applicable detention standards issued by the Secretary and other applicable
regulations.
(2)
Routine
oversight
In addition to annual inspections, the Secretary shall
conduct routine oversight of detention facilities, including unannounced
inspections.
(3)
Availability of
records
All detention facility contracts, memoranda of agreement,
and evaluations and reviews shall be considered records for purposes of section
552(f)(2) of title 5, United States Code.
(4)
Consultation
The
Secretary shall seek input from nongovernmental organizations regarding their
independent opinion of specific facilities.
(d)
Compliance
mechanisms
(1)
Agreements
(A)
New
agreements
Compliance with applicable standards of the Secretary
and all applicable regulations, and meaningful financial penalties for failure
to comply, shall be a material term in any new contract, memorandum of
agreement, or any renegotiation, modification, or renewal of an existing
contract or agreement, including fee negotiations, executed with detention
facilities.
(B)
Existing
agreements
Not later than 180 days after the date of the
enactment of this Act, the Secretary shall secure a modification incorporating
these terms for any existing contracts or agreements that will not be
renegotiated, renewed, or otherwise modified.
(C)
Cancellation of
agreements
Unless the Secretary provides a reasonable extension
to a specific detention facility that is negotiating in good faith, contracts
or agreements with detention facilities that are not modified within 1 year of
the date of the enactment of this Act will be cancelled.
(D)
Provision of
information
In making modifications under this paragraph, the
Secretary shall require that detention facilities provide to the Secretary all
contracts, memoranda of agreement, evaluations, and reviews regarding the
facility on a regular basis. The Secretary shall make these materials publicly
available.
(2)
Financial
penalties
(A)
Requirement to
impose
Subject to subparagraph (C), the Secretary shall impose
meaningful financial penalties upon facilities that fail to comply with
applicable detention standards issued by the Secretary and other applicable
regulations.
(B)
Timing of
imposition
Financial penalties imposed under subparagraph (A)
shall be imposed immediately after a facility fails to achieve an adequate or
the equivalent median score in any performance evaluation.
(C)
Waiver
The
requirements of subparagraph (A) may be waived if the facility corrects the
noted deficiencies and receives an adequate score in not more than 90
days.
(D)
Multiple
offenders
In cases of persistent and substantial non-compliance,
including scoring less than adequate or the equivalent median score in 2
consecutive inspections, the Secretary shall terminate contracts or agreements
with such facilities within 60 days, or in the case of facilities operated by
the Secretary, such facilities shall be closed within 90 days.
(e)
Reporting
requirements
(1)
Objectives
Not
later than June 30 of each year, the Secretary shall prepare and submit to the
Committee on the Judiciary of the Senate and the Committee on the Judiciary of
the House of Representatives a report on inspection and oversight activities of
detention facilities.
(2)
Contents
Each
report submitted under paragraph (1) shall include—
(A) a description of
each detention facility found to be in noncompliance with applicable detention
standards issued by the Department and other applicable regulations;
(B) a description of
the actions taken by the Department to remedy any findings of noncompliance or
other identified problems, including financial penalties, contract or agreement
termination, or facility closure; and
(C) information
regarding whether the actions described in subparagraph (B) resulted in
compliance with applicable detention standards and regulations.
3717.
Procedures for
bond hearings and filing of notices to appear
(a)
Aliens in
custody
Section 236 (8 U.S.C.
1226) is amended by adding at the end the following:
(f)
Procedures for
custody hearings
For any alien taken into custody under any
provision of this Act, with the exception of minors being transferred to or in
the custody of the Office of Refugee Resettlement, the following shall
apply:
(1) The Secretary of
Homeland Security shall, without unnecessary delay and not later than 72 hours
after the alien is taken into custody, file the Notice to Appear or other
relevant charging document with the immigration court having jurisdiction over
the location where the alien was apprehended, and serve such notice on the
alien.
(2) The Secretary
shall immediately determine whether the alien shall remain in custody or be
released and, without unnecessary delay and not later than 72 hours after the
alien was taken into custody, serve upon the alien the custody decision
specifying the reasons for continued custody and the amount of bond if
any.
(3) The Attorney
General shall ensure the alien has the opportunity to appear before an
immigration judge for a custody determination hearing promptly after service of
the Secretary’s custody decision. The immigration judge may, on the Secretary’s
motion and upon a showing of good cause, postpone a custody determination
hearing for no more than 72 hours after service of the custody decision, except
that in no case shall the hearing occur more than seven days (including
weekends and holidays) after the alien was taken into custody.
(4) The immigration
judge shall advise the alien of the right to postpone the custody determination
hearing and shall, on the oral or written request of the individual, postpone
the custody determination hearing for a period of no more than 14 days.
(5) Except for aliens
that the immigration judge has determined are deportable as described in
section 236A and 236(c), the immigration judge shall review the custody
determination de novo and may detain the alien only if the Secretary
demonstrates that no conditions, including the use of alternatives to detention
that maintain custody over the alien, will reasonably assure the appearance of
the alien as required and the safety of any other person and the community. For
aliens detained under 236(c), the immigration judge may review the custody
determination if the Secretary agrees the alien is not a danger to the
community and alternatives to detention exist that assure the appearance of the
alien as required and the safety of any other person and the community.
(6) In the case of any
alien remaining in custody after a custody determination, the Attorney General
shall provide de novo custody determination hearings before an immigration
judge every 90 days so long as the alien remains in custody. The alien may
obtain a de novo custody redetermination hearing upon a showing of good
cause.
(7) The Secretary
shall inform the alien of his or her rights under this paragraph at the time
the alien is first taken into
custody.
.
(b)
Stipulated
removal
Section 240(d) (8
U.S.C. 1229a) is amended to read as follows:
(d)
Stipulated
removal
The Attorney General shall provide by regulation for the
entry by an immigration judge of an order of removal stipulated to by the alien
(or the alien's representative) and the Service. An immigration judge may enter
a stipulated removal order only upon a finding at an in-person hearing that the
stipulation is voluntary, knowing and intelligent. A stipulated order shall
constitute a conclusive determination of the alien's removability from the
United
States.
.
3718.
Sanctions for
countries that delay or prevent repatriation of their nationals
Section 243(d) (8 U.S.C. 1253(d)) is amended
to read as follows:
(d)
Discontinuing
granting visas to nationals of countries that deny or delay accepting
aliens
Notwithstanding section 221(c), if the Secretary of
Homeland Security determines, in consultation with the Secretary of State, that
the government of a foreign country denies or unreasonably delays accepting
aliens who are citizens, subjects, nationals, or residents of that country
after the Secretary asks whether the government will accept an alien under this
section, or after a determination that the alien is inadmissible under
paragraph (6) or (7) of section 212(a), the Secretary of State shall order
consular officers in that foreign country to discontinue granting visas, or
classes of visas until the Secretary of Homeland Security notifies the
Secretary of State that the country has accepted the
aliens.
.
3719.
Gross
violations of human rights
(a)
Inadmissibility
of certain aliens
Section
212(a)(3)(E)(iii) of the Immigration and Nationality Act (8 U.S.C.
1182(a)(3)(E)(iii)) is amended to read as follows:
(iii)
Commission of acts of torture,
extrajudicial killings, war crimes, or widespread or systematic attacks on
civilians
Any alien who
planned, ordered, assisted, aided and abetted, committed, or otherwise
participated, including through command responsibility, in the commission
of—
(I) any act of torture
(as defined in section 2340 of title 18, United States Code);
(II) any extrajudicial
killing (as defined in section 3(a) of the Torture Victim Protection Act of
1991 (28 U.S.C. 1350 note)) under color of law of any foreign nation;
(III) a war crime (as
defined in section 2441 of title 18, United States Code); or
(IV) a widespread or
systematic attack directed against a civilian population, with knowledge of the
attack, murder, extermination, enslavement, forcible transfer of population,
arbitrary detention, rape, sexual slavery, enforced prostitution, forced
pregnancy, enforced sterilization, or any other form of sexual violence of
comparable gravity;
(V) persecution on
political racial, national, ethnic, cultural, religious, or gender
grounds;
(VI) enforced
disappearance of persons; or
(VII) other inhumane
acts of a similar character intentionally causing great suffering or serious
bodily or mental injury,
is in
admissible.
.
(b)
Nonapplicability
of confidentiality requirement with respect to visa records
The
President may make public, without regard to the requirements under section
222(f) of the Immigration and Nationality Act (8 U.S.C. 1202(f)), with respect
to confidentiality of records pertaining to the issuance or refusal of visas or
permits to enter the United States, the names of aliens deemed inadmissible on
the basis of section 212(a)(3)(E)(iii) of the Immigration and Nationality Act,
as amended by subsection (a).
IV
Reforms to
nonimmigrant visa programs
A
Employment-based
nonimmigrant visas
4101.
Market-based
H–1B visa limits
(a)
In
general
Section 214(g) (8
U.S.C. 1184(g)) is amended—
(1) in paragraph
(1)—
(A) in the matter
preceding subparagraph (A), by striking (beginning with fiscal year
1992); and
(B) by amending
subparagraph (A) to read as follows:
(A) under section
101(a)(15)(H)(i)(b) may not exceed—
(i) 110,000 for the
first fiscal year beginning after the date of the enactment the
Border Security, Economic Opportunity, and
Immigration Modernization Act; and
(ii) the number
calculated under paragraph (9) for succeeding fiscal year;
or
;
(2) by redesignating
paragraph (10) as subparagraph (D) of paragraph (9);
(3) by redesignating
paragraph (9) as paragraph (10); and
(4) by inserting after
paragraph (8) the following:
(9)
(A) Except as provided in
subparagraphs (B) and (C), the allocation of nonimmigrant visas under section
101(a)(15)(H)(i)(b) for each fiscal year after the first fiscal year beginning
after the date of the enactment of the Border
Security, Economic Opportunity, and Immigration Modernization Act
shall be equal to the sum of—
(i) the allocation of
such visas for the most recently completed fiscal year; and
(ii) the product
of—
(I) the allocation of
such visas for the most recently completed fiscal year; multiplied by
(II) the High Skilled
Jobs Demand Index for such fiscal year calculated under subparagraph
(C).
(B)
(i) The number of visas
calculated under subparagraph (A) for any fiscal year shall not be less than
110,000 or more than 180,000.
(ii) The number of
visas calculated under subparagraph (A) for any fiscal year may not be more
than 10,000 more than, or less than 10,000 less than, the allocation of such
visas for the previous fiscal year.
(C) The High Skilled
Jobs Demand Index calculated under this subparagraph for a fiscal year is the
percentage equal to the sum of—
(i) 1/2
of a fraction—
(I) the numerator of
which is the number of nonimmigrant visas under section 101(a)(15)(H)(i)(b)
petitioned for during the previous fiscal year minus the numerical limitation
of such visas determined under paragraph (1) for the previous fiscal year;
and
(II) the denominator
of which is the numerical limitation of such visas determined under paragraph
(1) for the previous fiscal year; and
(ii) 1/2
of a fraction—
(I) the numerator of
which is the average number of specified unemployed persons for the previous
fiscal year minus the average number of specified unemployed persons for such
fiscal year; and
(II) the denominator
of which is the average number of specified unemployed persons for such fiscal
year.
(D) If the actual
number of visas under section 101(a)(15)(H)(i)(b) applied for during a previous
fiscal year is not available at the time the Secretary determines the numerical
limitation under subparagraph (C) for the following fiscal year, the Secretary
may estimate such number based on a statistical extrapolation of the number of
applications for such visas received at the time such estimate is made.
(E) For purposes of
subparagraph (C), the term specified unemployed persons means,
with respect to any fiscal year, the number of unemployed persons in the
management, professional, and related occupations category of
the employment report released by the Bureau of Labor
Statistics.
.
(b)
Increase in
allocation for STEM nonimmigrants
Section 214(g)(5)(C) (8 U.S.C.
1184(g)(5)(C)) is amended to read as follows:
(C) has earned a
master's or higher, in a field of science, technology, engineering, or math
included in the Department of Education’s Classification of Instructional
Programs taxonomy within the summary groups of computer and information
sciences and support services, engineering, mathematics and statistics, and
physical sciences, from a United States institution of higher education (as
defined in section 101(a) of the Higher Education Act of 1965 (20 U.S.C.
1001(a)) until the number of aliens who are exempted from such numerical
limitation during such year exceed
25,000.
.
(c)
Publication
(1)
Data summarizing
petitions
The Secretary shall timely upload to a public website
data that summarizes the adjudication of nonimmigrant petitions under section
101(a)(15)(H)(i)(b) of the Immigration and Nationality Act (8 U.S.C.
1101(a)(15)(H)(i)(b)) during each fiscal year.
(2)
Annual numerical
limitation
As soon as practicable and no later than March 2 of
each fiscal year, the Secretary shall publish in the Federal Register the
numerical limitation determined under section 214(g)(1)(A) for such fiscal
year.
(d)
Effective date
and application
The amendments made by subsection (a) shall take
effect on the first day of the first fiscal year beginning after the date of
the enactment of this Act and apply to applications for nonimmigrant visas
under section 101(a)(15)(H)(i)(b) of the Immigration and Nationality Act (8
U.S.C. 1101(a)(15)(H)(i)(b)) for such fiscal year.
4102.
Employment
authorization for dependents of employment-based nonimmigrants
Section 214(c) (8 U.S.C. 1184(c)) is
amended—
(1) by striking Attorney General
each place such term appears and inserting Secretary of Homeland
Security; and
(2) in paragraph (2), by amending subparagraph
(E) to read as follows:
(E)
(i) In the case of an alien spouse admitted
under section 101(a)(15)(L), who is accompanying or following to join a
principal alien admitted under such section, the Secretary of Homeland Security
shall—
(I) authorize the alien spouse to engage in
employment in the United States; and
(II) provide the spouse with an
employment authorized endorsement or other appropriate work
permit.
(ii) In the case of an alien spouse admitted
under section 101(a)(15)(H)(i), who is accompanying or following to join a
principal alien admitted under such section, the Secretary of Homeland Security
shall—
(I) authorize the alien spouse to engage in
employment in the United States only if such spouse is a national of a foreign
country that permits reciprocal employment; and
(II) provide such a spouse with an
employment authorized endorsement or other appropriate work
permit, if appropriate.
(iii)
(I) In clause (ii), the term foreign
country that permits reciprocal employment means a foreign country that
permits a spouse who is a national of the United States and is accompanying or
following to join the employment-based nonimmigrant husband or wife of such
spouse to be employed in such foreign country based on that status.
(II) In subclause (I), the term
employment-based nonimmigrant means an individual who is
admitted to a foreign country to perform employment similar to the employment
described in section
101(a)(15)(H)(i)(b).
.
4103.
Eliminating
impediments to worker mobility
(a)
Deference to
prior approvals
Section 214(c) (8 U.S.C. 1184(c)), as amended by
section 4102, is further amended by adding at the end the following:
(15) Subject to
paragraph (2)(D) and subsection (g) and section 104(c) and subsections (a) and
(b) of section 106 of the American Competitiveness in the Twenty-first Century
Act of 2000 (Public Law 106–313; 8 U.S.C. 1184 note), the Secretary of Homeland
Security shall give deference to a prior approval of a petition in reviewing a
petition to extend the status of a nonimmigrant admitted under subparagraph
(H)(i)(b) or (L) of section 101(a)(15) if the petition involves the same alien
and petitioner unless the Secretary determines that—
(A) there was a
material error with regard to the previous petition approval;
(B) a substantial
change in circumstances has taken place;
(C) new material
information has been discovered that adversely impacts the eligibility of the
employer or the nonimmigrant; or
(D) in the Secretary's
discretion, such extension should not be
approved.
.
(b)
Effect of
employment termination
Section 214(n) (8 U.S.C. 1184(n)) is
amended by adding at the end the following:
(3) A nonimmigrant
admitted under section 101(a)(15)(H)(i)(b) whose employment relationship
terminates before the expiration of the nonimmigrant's period of authorized
admission shall be deemed to have retained such legal status throughout the
entire 60-day period beginning on the date such employment is terminated. A
nonimmigrant who files a petition to extend, change, or adjust their status at
any point during such period shall be deemed to have lawful status under
section 101(a)(15)(H)(i)(b) while that petition is
pending.
.
(c)
Visa
revalidation
Section 222(c) (8 U.S.C. 1202(c)) is amended—
(1) by inserting
(1) before Every alien; and
(2) by adding at the
end the following:
(2) The Secretary of
State may, at the Secretary's discretion, renew in the United States the visa
of an alien admitted under subparagraph (A), (E), (G), (H), (I), (L), (N), (O),
(P), (R), or (W) section 101(a)(15) if the alien has remained eligible for such
status and qualifies for a waiver of interview as provided for in subsection
(h)(1)(D).
.
(d)
Interview
waivers for low risk visa applicants
Section 222(h)(1) (8 U.S.C. 1202(h)(1)) is
amended—
(1) in subparagraph (B)(iv), by striking
or at the end;
(2) in subparagraph
(C)(ii), by striking and at the end and inserting
or; and
(3) by adding at the
end the following:
(D) by the Secretary
of State, in consultation with the Secretary of Homeland Security, for such
aliens or classes of aliens—
(i) that the Secretary
determines generally represent a low security risk;
(ii) for which an
in-person interview would not add material benefit to the adjudication
process;
(iii) unless the
Secretary of State, after a review of all standard database and biometric
checks, the visa application, and other supporting documents, determines that
an interview is unlikely to reveal derogatory information; and
(iv) except that in
every case, the Secretary of State retains the right to require an applicant to
appear for an interview;
and
.
4104.
STEM Education
and Training
(a)
Fee
Section
212(a)(5)(A) (8 U.S.C. 1182(a)(5)(A)) is amended by adding at the end the
following:
(v)
Fee
An
employer shall submit, along with an application for a certification under this
subparagraph, a fee of $500 which shall be deposited in the STEM Education and
Training Account established by section
286(s).
.
(b)
Use of
fee
Section 286(s) (8 U.S.C.
1356(s)) is amended to read as follows:
(s)
STEM Education and Training
Account
(1)
In
general
There is established in the general fund of the Treasury
a separate account, which shall be known as the STEM Education and
Training Account. Notwithstanding any other section of this title,
there shall be deposited as offsetting receipts into the account all fees
collected under section 212(a)(5)(A)(v).
(2)
Low-income stem
scholarship program
Sixty percent of the amounts deposited into
the STEM Education and Training Account shall remain available to the Director
of the National Science Foundation until expended for scholarships described in
section 414(d) of the American Competitiveness and Workforce Improvement Act of
1998 (42 U.S.C. 1869c) for low-income students enrolled in a program of study
leading to a degree in science, technology, engineering, or mathematics.
(3)
National science
foundation competitive grant program for k–12 science, technology, engineering
and mathematics education
(A)
In
general
Fifteen percent of the amounts deposited into the STEM
Education and Training Account shall remain available to the Director of the
National Science Foundation until expended to carry out a direct or matching
grant program to support improvement in K–12 education, including through
private-public partnerships.
(B)
Types of
programs covered
The Director shall award grants to such
programs, including those which support the development and implementation of
standards-based instructional materials models and related student assessments
that enable K–12 students to acquire an understanding of science, technology,
engineering, and mathematics, as well as to develop critical thinking skills;
provide systemic improvement in training K–12 teachers and education for
students in science, technology, engineering, and mathematics, including by
supporting efforts to promote gender-equality among students receiving such
instruction; support the professional development of K–12 science, technology,
engineering and mathematics teachers in the use of technology in the classroom;
stimulate system-wide K–12 reform of science, technology, engineering, and
mathematics in rural, economically disadvantaged regions of the United States;
provide externships and other opportunities for students to increase their
appreciation and understanding of science, technology, engineering, and
mathematics (including summer institutes sponsored by an institution of higher
education for students in grades 7–12 that provide instruction in such fields);
involve partnerships of industry, educational institutions, and community
organizations to address the educational needs of disadvantaged communities;
provide college preparatory support to expose and prepare students for careers
in science, technology, engineering, and mathematics; and provide for carrying
out systemic reform activities under section 3(a)(1) of the National Science
Foundation Act of 1950 (42 U.S.C. 1862(a)(1)).
(4)
Stem capacity
building at minority-serving institutions
(A)
In
general
Twelve percent of the amounts deposited into the STEM
Education and Training Account shall remain available to the Director of the
National Science Foundation until expended to establish or expand programs to
award grants on a competitive, merit-reviewed basis to enhance the quality of
undergraduate science, technology, engineering, and mathematics education at
minority-serving institutions of higher education and to increase the retention
and graduation rates of students pursuing degrees in such fields at such
institutions.
(B)
Types of
programs covered
Grants awarded under this paragraph shall be
awarded to—
(i) minority-serving
institutions of higher education for—
(I) activities to
improve courses and curriculum in science, technology, engineering, and
mathematics;
(II) efforts to
promote gender equality among students enrolled in such courses;
(III) faculty
development;
(IV) stipends for
undergraduate students participating in research; and
(V) other activities
consistent with subparagraph (A), as determined by the Director; and
(ii) to other
institutions of higher education to partner with the institutions described in
clause (i) for—
(I) faculty and
student development and exchange;
(II) research
infrastructure development;
(III) joint research
projects; and
(IV) identification
and development of minority and low-income candidates for graduate studies in
science, technology, engineering and mathematics degree programs.
(C)
Institutions
included
In this paragraph, the term minority-serving
institutions of higher education shall include—
(i) colleges eligible
to receive funds under the Act of August 30, 1890 (7 U.S.C. 321–326a and 328),
including Tuskegee University;
(ii) 1994
Institutions, as defined in section 532 of the Equity in Educational Land-Grant
Status Act of 1994 (7 U.S.C. 301 note); and
(iii) Hispanic-serving
institutions, as defined in section 502(a)(5) of the Higher Education Act of
1965 (20 U.S.C. 1101a(a)(5)).
(5)
STEM job
training
Ten percent of amounts deposited into the STEM Education
and Training Account shall remain available to the Secretary of Labor until
expended for—
(A) demonstration
programs and projects described in section 414(c) of the American
Competitiveness and Workforce Improvement Act of 1998; and
(B) training programs
in the fields of science, technology, engineering, and mathematics for persons
who have served honorably in the Armed Forces of the United States and have
retired or are retiring from such service.
(6)
Use of fees for
duties relating to petitions
One and one-half percent of the
amounts deposited into the STEM Education and Training Account shall remain
available to the Secretary of Homeland Security until expended to carry out
duties under paragraphs (1) (E) or (F) of section 204(a) (related to petitions
for immigrants described in section 203(b)) and under paragraphs (1) and (9) of
section 214(c) (related to petitions made for nonimmigrants described in
section 101(a)(15)(H)(i)(b)).
(7)
Use of fees for
application processing and enforcement
One and one-half percent
of the amounts deposited into the STEM Education and Training Account shall
remain available to the Secretary of Labor until expended for decreasing the
processing time for applications under section 212(a)(5)(A) and section
212(n)(1).
.
B
H–1B visa fraud
and abuse protections
1
H–1B Employer
Application Requirements
4211.
Modification
of application requirements
(a)
General
application requirements
(1)
Wage
rates
(A)
In
general
Section 212(n)(1)(A)
(8 U.S.C. 1182(n)(1)(A)) is amended—
(i) clause (i)—
(I) in the matter preceding subclause (I), by
inserting if the employer is not an H–1B-dependent employer,
before is offering;
(II) in subclause (I),
by striking question, or and inserting question;
or;
(III) in subclause
(II), by striking employment, and inserting
employment; and
(IV) in the
undesignated material following subclause (II), by striking application,
and and inserting application;; and
(ii) by striking
clause (ii) and inserting the following:
(ii) if the employer
is an H–1B-dependent employer, is offering and will offer to H–1B
nonimmigrants, during the period of authorized employment for each H–1B
nonimmigrant, wages that are not less than the level 2 wages set out in
subsection (p); and
(iii) will provide
working conditions for H–1B nonimmigrants that will not adversely affect the
working conditions of other workers similarly
employed.
.
(2)
Strengthening
the prevailing wage system
(A)
In
general
Section 212(p) (8
U.S.C. 1182(p)) is amended to read as follows:
(p)
Computation of
prevailing wage level
(1)
In
general
(A)
Surveys
For employers of nonimmigrants admitted
pursuant to section 101(a)(15)(H)(i)(b), the Secretary of Labor shall make
available to employers a governmental survey to determine the prevailing wage
for each occupational classification by metropolitan statistical area in the
United States. Such survey, or other survey approved by the Secretary of Labor,
shall provide 3 levels of wages commensurate with experience, education, and
level of supervision. Such wage levels shall be determined as follows:
(i) The first level shall be the mean of the
lowest two-thirds of wages surveyed, but in no case less than 80 percent of the
mean of the wages surveyed.
(ii) The second level
shall be the mean of wages surveyed.
(iii) The third level
shall be the mean of the highest two-thirds of wages surveyed.
(B)
Educational,
Nonprofit, research, and governmental entities
In computing the
prevailing wage level for an occupational classification in an area of
employment for purposes of section 203(b)(1)(D) and subsections (a)(5)(A),
(n)(1)(A)(i)(II), and (t)(1)(A)(i)(II) of this section in the case of an
employee of—
(i) an institution of
higher education, or a related or affiliated nonprofit entity; or
(ii) a nonprofit
research organization or a governmental research organization;
the prevailing wage level shall
only take into account employees at such institutions and organizations in the
area of employment.
(2)
Payment of
prevailing wage
The
prevailing wage level required to be paid pursuant to section 203(b)(1)(D) and
subsections (a)(5)(A), (n)(1)(A)(i)(II), and (t)(1)(A)(i)(II) of this section
shall be 100 percent of the wage level determined pursuant to those
sections.
(3)
Professional
athlete
With respect to a
professional athlete (as defined in subsection (a)(5)(A)(iii)(II)) when the job
opportunity is covered by professional sports league rules or regulations, the
wage set forth in those rules or regulations shall be considered as not
adversely affecting the wages of United States workers similarly employed and
be considered the prevailing wage.
(4)
Wages for H–2B
employees
(A)
In
general
The wages paid to H–2B nonimmigrants employed by the
employer will be the greater of—
(i) the actual wage
level paid by the employer to other employees with similar experience and
qualifications for such position; or
(ii) the prevailing
wage level for the occupational classification of the position in the
geographic area of the employment, based on the best information available as
of the time of filing the application.
(B)
Best information
available
In subparagraph (A), the term best information
available, with respect to determining the prevailing wage for a
position, means—
(i) a controlling
collective bargaining agreement or Federal contract wage, if applicable;
(ii) if there is no
applicable wage under clause (i), the wage level commensurate with the
experience, training, and supervision required for the job based on Bureau of
Labor Statistics data; or
(iii) if the data
referred to in clause (ii) is not available, a legitimate and recent private
survey of the wages paid for such positions in the metropolitan statistical
area.
.
(3)
Wages for
educational, nonprofit, research, and governmental
entities
Section 212 is amended by adding at the end the
following:
(v)
Determination of
prevailing wage
In the case of a nonprofit institution of higher
education (as defined in section 101(a) of the Higher Education Act of 1965 (20
U.S.C. 1001(a)), a related or affiliated nonprofit entity, a nonprofit research
organization, or a Governmental research organization, the Secretary of Labor
shall determine such wage levels as follows:
(1) If the Secretary
of Labor uses, or makes available to employers, a governmental survey to
determine the prevailing wage, such survey shall provide at least 4 levels of
wages commensurate with experience, education, and the level of
supervision.
(2) If an existing
government survey has only 2 levels, 2 intermediate levels may be created by
dividing by 3, the difference between the 2 levels offered, adding the quotient
thus obtained to the first level and subtracting that quotient from the second
level .
(3) For institutions
of higher education, only teaching positions and research positions may be paid
using this special educational wage
level.
.
(b)
Internet posting
requirement
Section 212(n)(1)(C) (8 U.S.C. 1182(n)(1)(C)) is
amended—
(1) by redesignating
clause (ii) as subclause (II);
(2) by striking
(i) has provided and inserting the following:
(ii)
(I) has
provided
;
and
(3) by striking
sought, or and inserting sought; or;
(4) by inserting
before clause (ii), as redesignated by paragraph (2), the following:
(i) has advertised on
the Internet website maintained by the Secretary of Labor for the purpose of
such advertising, for at least 30 calendar days, a detailed description of each
position for which a nonimmigrant is sought that includes a description
of—
(I) the wage ranges
and other terms and conditions of employment;
(II) the minimum
education, training, experience, and other requirements for the position;
and
(III) the process for
applying for the position;
and
.
(c)
Application of
requirements to all employers
(1)
Nondisplacement
Section
212(n)(1)(E) (8 U.S.C. 1182(n)(1)(E)) is amended to read as follows:
(E)
(i)
(I) Subject to subclause
(II), in the case of an application filed by an employer that is not an
H–1B-dependent employer, the employer did not displace and will not displace a
United States worker (as defined in paragraph (4)) employed by the employer
within the period beginning 90 days before and ending 90 days after the date of
filing of any visa petition supported by the application.
(II) An employer who
is not an H–1B-dependent employer shall not be subject to clause (i) if the
number of United States workers employed by such employer in the same job zone
as the H–1B nonimmigrant has not decreased during the 1-year period ending on
the date of the labor condition application filed by the employer.
(ii)
(I) In the case of an application filed by an
H–1B-dependent employer, the employer did not displace and will not displace a
United States worker (as defined in paragraph (4)) employed by the employer
within the period beginning 180 days before and ending 180 days after the date
of the filing of any visa petition supported by the application.
(II) An application described in this clause is
an application filed on or after the date final regulations are first
promulgated to carry out this subparagraph, and before by an H–1B-dependent
employer (as defined in paragraph (3)) or by an employer that has been found,
on or after the date of the enactment of the American Competitiveness and
Workforce Improvement Act of 1998, under paragraph (2)(C) or (5) to have
committed a willful failure or misrepresentation during the 5-year period
preceding the filing of the application.
(iii) In this subparagraph, the term job
zone means a zone assigned to an occupation by—
(I) the Occupational
Information Network Database (O*NET) on the date of the enactment of this Act;
or
(II) such Database or
a similar successor database, as designated by the Secretary of Labor, after
the date of the enactment of this
Act.
.
(2)
Recruitment
Section
212(n)(1)(G) (8 U.S.C. 1182(n)(1)(G)) is amended to read as follows:
(G) An employer, prior
to filing the application—
(i) has advertised the
job on an Internet website maintained by the Secretary of Labor for the purpose
of such advertising;
(ii) has offered the
job to any United States worker who applies and is equally or better qualified
for the job for which the nonimmigrant or nonimmigrants is or are sought;
and
(iii) if the employer
is an H–1B-dependent employer, has taken good faith steps to recruit, in the
United States 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 under subparagraph (A), United States workers for the job for
which the nonimmigrant or nonimmigrants is or are
sought.
.
(d)
Outplacement
Section
212(n)(1)(F) (8 U.S.C. 1182(n)(1)(F)) is amended to read as follows:
(F)
(i) An H-1B-dependent
employer may not place, outsource, lease, or otherwise contract for the
services or placement of an H–1B nonimmigrant employee.
(ii) An employer that
is not an H-1B-dependent employer and not described in paragraph (3)(A)(i) may
not place, outsource, lease, or otherwise contract for the services or
placement of an H–1B nonimmigrant employee unless the employer pays a fee of
$500.
(iii) A fee collected
under clause (ii) shall be deposited in the Comprehensive Immigration Reform
Trust Fund established under section 6 of the Border Security, Economic Opportunity, and Immigration
Modernization
Act.
.
(e)
H–1B-dependent
employer defined
Section 212(n)(3) (8 U.S.C. 1182(n)(3)) is
amended to read as follows:
(3)
(A) For purposes of
complying with the requirements related to outplacement of an employee, the
term H–1B-dependent employer means an employer that—
(i) is not a nonprofit
institution of higher education, a nonprofit research organization, or an
employer whose primary line of business is healthcare and who is petitioning
for a physician, a nurse, or physical therapist or a substantially equivalent
healthcare occupation; and
(ii)
(I) in the case of an
employer that has 25 or fewer full-time equivalent employees who are employed
in the United States, employs more than 7 H-1B nonimmigrants;
(II) in the case of an
employer that has at least 26 but not more than 50 full-time equivalent
employees who are employed in the United States, employs more than 12 H-1B
nonimmigrant; or
(III) in the case of
an employer that has at least 51 full-time equivalent employees who are
employed in the United States, employs H-1B nonimmigrants in a number that is
equal to at least 15 percent of the number of such full-time equivalent
employees.
(B) In determining the
number of employees who are H–1B nonimmigrants under subparagraph (A)(ii), an
intending immigrant employee shall not count toward such
number
.
(f)
Intending
immigrants defined
Section 101(a) (8 U.S.C. 1101(a)) is amended
by adding at the end the following:
(53)
(A) The term
intending immigrant means, with respect to the number of aliens
employed by an employer, an alien who intends to work and reside permanently in
the United States, as evidenced by—
(i) for a covered
employer, an approved application for a labor certification or an application
that has been pending for longer than 1 year; or
(ii) a pending or
approved immigrant status petition filed for such alien.
(B) In this
paragraph:
(i) The term
covered employer means an employer of an alien that, during the
1-year period ending on the date the employer files an application for the
labor certification for such alien, has filed an immigrant status petition for
not less than 90 percent of the aliens for whom the employer filed an
application for a labor certification during such period. Labor certification
applications that have been pending for longer than 1 year may be treated for
this calculation as if the employer filed an immigrant status petition
(ii) The term
labor certification means an employment certification under
section 212(a)(5)(A).
(iii) The term
immigrant status petition means a petition filed under paragraph
(1), (2), or (3) of section 203(b).
(C) Notwithstanding
any other provision of law, for all—
(i) calculations under
this Act of the number of aliens admitted pursuant to subparagraph (H)(i)(b) or
(L) of paragraph (15) an intending immigrant shall be counted as an alien
lawfully admitted for permanent residence and shall not be counted as an
employee admitted pursuant to such a subparagraph; and
(ii) determinations of
the number of employees or United States workers employed by an employer, all
of the employees in any group treated as a single employer under subsection
(b), (c), (m), or (o) of section 414 of the Internal Revenue Code of 1986 shall
be counted.
.
4212.
Requirements
for admission of nonimmigrant nurses in health professional shortage
areas
(a)
Extension of
period of authorized admission
Section 212(m)(3) (8 U.S.C. 1182(m)(3))
is amended to read as follows:
(3) The initial period of authorized admission
as a nonimmigrant under section 101(a)(15)(H)(i)(c) shall be 3 years, and may
be extended once for an additional 3-year
period.
.
(b)
Number of
visas
Section 212(m)(4)
(8 U.S.C.
1182(m)(4)) is amended by striking 500. and
inserting 300..
(c)
Portability
Section 214(n) (8 U.S.C. 1184(n)),
as amended by section 4103(b), is further amended by adding at the end the
following:
(4)
(A) A nonimmigrant alien
described in subparagraph (B) who was previously issued a visa or otherwise
provided nonimmigrant status under section 101(a)(15)(H)(i)(c) is authorized to
accept new employment performing services as a registered nurse for a facility
described in section 212(m)(6) upon the filing by the prospective employer of a
new petition on behalf of such nonimmigrant as provided under subsection (c).
Employment authorization shall continue for such alien until the new petition
is adjudicated. If the new petition is denied, such authorization shall
cease.
(B) A nonimmigrant alien described in this
paragraph is a nonimmigrant alien—
(i) who has been
lawfully admitted into the United States;
(ii) on whose behalf an employer has filed a
nonfrivolous petition for new employment before the date of expiration of the
period of stay authorized by the Secretary of Homeland Security, except that,
if a nonimmigrant described in section 101(a)(15)(H)(i)(c) is terminated or
laid off by the nonimmigrant's employer, or otherwise ceases employment with
the employer, such petition for new employment shall be filed during the 45-day
period beginning on the date of such termination, lay off, or cessation;
and
(iii) who, subsequent
to such lawful admission, has not been employed without authorization in the
United States before the filing of such
petition.
.
(d)
Applicability
(1)
In
general
Beginning on the commencement date described in paragraph
(2), the amendments made by section 2 of the Nursing Relief for Disadvantaged
Areas Act of 1999 (Public Law 106–95; 113 Stat. 1313),
and the amendments made by this section, shall apply to classification
petitions filed for nonimmigrant status. This period shall be in addition to
the period described in section 2(e) of the Nursing Relief for Disadvantaged
Areas Act of 1999 (8 U.S.C. 1182 note).
(2)
Commencement
date
Not later than 60 days after the date of the enactment of
this Act, the Secretary shall determine whether regulations are necessary to
implement the amendments made by this section. If the Secretary determines that
no such regulations are necessary, the commencement date described in this
paragraph shall be the date of such determination. If the Secretary determines
that regulations are necessary to implement any amendment made by this section,
the commencement date described in this paragraph shall be the date on which
such regulations (in final form) take effect.
4213.
New
application requirements
Section 212(n)(1) (8 U.S.C. 1182(n)(1)) is
amended by inserting after clause (iii) of subparagraph (G) , as amended by
section 4211(c)(2),the following:
(H)
(i) The employer has not
advertised any available position specified in the application in an
advertisement that states or indicates that—
(I) such position is
only available to an individual who is or will be an H–1B nonimmigrant or an
alien participating in optional practical training pursuant to section
101(a)(15)(F)(i); or
(II) an individual who
is or will be an H–1B nonimmigrant or participant in such optional practical
training shall receive priority or a preference in the hiring process for such
position.
(ii) The employer has
not solely recruited individuals who are or who will be H–1B nonimmigrants or
participants in optional practical training pursuant to section
101(a)(15)(F)(i) to fill such position.
(I)
(i) If the employer (other
than an educational or research employer) employs 50 or more employees in the
United States, the sum of the number of such employees who are H–1B
nonimmigrants plus the number of such employees who are nonimmigrants described
in section 101(a)(15)(L) may not exceed—
(I) 75 percent of the
total number of employees, for fiscal year 2015;
(II) 65 percent of the
total number of employees, for fiscal year 2016; and
(III) 50 percent of
the total number of employees, for each fiscal year after fiscal year
2016.
(ii) In this
subparagraph:
(I) The term
educational or research employer means an employer that is a
nonprofit institution of higher education or a nonprofit research organization
described in section 501(c)(3) of the Internal Revenue Code of 1986 and exempt
from taxation under 501(a) of that Code.
(II) The term
H–1B nonimmigrant means an alien admitted as a nonimmigrant
pursuant to section 101(a)(15)(H)(i)(b).
(III) The term
L nonimmigrant means an alien admitted as a nonimmigrant
pursuant to section 101(a)(15)(L) to provide services to his or her employer
involving specialized knowledge.
(iii) In determining
the percentage of employees of an employer that are H–1B nonimmigrants or L
nonimmigrants under clause (i), an intending immigrant employee shall not count
toward such percentage.
(J) The employer shall submit to the Secretary
of Homeland Security an annual report that includes the Internal Revenue
Service Form W–2 Wage and Tax Statement filed by the employer for each H–1B
nonimmigrant employed by the employer during the previous
year.
.
4214.
Application
review requirements
(a)
Technical
amendment
Section 212(n)(1) (8 U.S.C. 1182(n)(1)), as amended by
section 4213, is further amended in the undesignated paragraph at the end, by
striking The employer and inserting the following:
(K) The
employer
.
(b)
Application
review requirements
Subparagraph (K) of such section 212(n)(1),
as designated by subsection (a), is amended—
(1) by inserting
and through the Department of Labor’s website, without charge.
after D.C.;
(2) by striking
only for completeness and inserting for completeness and
evidence of fraud or misrepresentation of material fact,;
(3) by striking
or obviously inaccurate and inserting , presents evidence
of fraud or misrepresentation of material fact, or is obviously
inaccurate;
(4) by striking
within 7 days of the and inserting not later than 14
after; and
(5) by adding at the
end the following: If the Secretary’s review of an application
identifies evidence of fraud or misrepresentation of material fact, the
Secretary may conduct an investigation and hearing in accordance with paragraph
(2)..
(c)
Filing of
petition for nonimmigrant worker
Section 212(n)(1) (8 U.S.C.
1182(n)(1)), as amended by section 4213, is further amended by adding at the
end the following:
(L) An I–129 Petition
for Nonimmigrant Worker (or similar successor form)—
(i) may be filed by an
employer with the Secretary of Homeland Security prior to the date the employer
receives an approved certification described in section 101(a)(15)(H)(i)(b)
from the Secretary of Labor; and
(ii) may not be
approved by the Secretary of Homeland Security until the date such
certification is
approved.
.
2
Investigation and
Disposition of Complaints Against H–1B Employers
4221.
General
modification of procedures for investigation and disposition
Subparagraph (A) of section 212(n)(2) (8
U.S.C. 1182(n)(2)) is amended—
(1) by striking
(A) Subject and inserting (A)(i) Subject;
(2) by striking
12 months and inserting 24 months;
(3) by striking the
last sentence; and
(4) by adding at the
end the following:
(ii)
(I) Upon the receipt of
such a complaint, the Secretary may initiate an investigation to determine if
such a failure or misrepresentation has occurred.
(II) The Secretary may
conduct voluntary surveys of the degree to which employers comply with the
requirements of this subsection.
(III) The Secretary
shall—
(aa) conduct annual
compliance audits of each employer with more than 100 employees who work in the
United States if more than 15 percent of such employees are H–1B nonimmigrants;
and
(bb) make available to
the public an executive summary or report describing the general findings of
the audits carried out pursuant to this
subclause.
.
4222.
Investigation,
working conditions, and penalties
Subparagraph (C) of section 212(n)(2) (8
U.S.C. 1182(n)(2)) is amended—
(1) in clause
(i)—
(A) in the matter
preceding subclause (I)—
(i) by striking
a condition of paragraph (1)(B), (1)(E), or (1)(F) and inserting
a condition under subparagraph (A), (B), (C)(i), (E), (F), (G)(i)(I),
(H), (I), or (J) of paragraph (1); and
(ii) by striking
(1)(C) and inserting (1)(C)(ii);
(B) in subclause
(I)—
(i) by striking
$1,000 and inserting $2,000; and
(ii) by striking
and at the end;
(C) in subclause (II),
by striking the period at the end and inserting a semicolon and
and; and
(D) by adding at the
end the following:
(III) an employer that
violates such subparagraph (A) shall be liable to any employee harmed by such
violations for lost wages and benefits.
;
and
(2) in clause
(ii)—
(A) in subclause
(I)—
(i) by striking
may and inserting shall; and
(ii) by striking
$5,000 and inserting $10,000;
(B) in subclause (II),
by striking the period at the end and inserting a semicolon and
and; and
(C) by adding at the
end the following:
(III) an employer that
violates such subparagraph (A) shall be liable to any employee harmed by such
violations for lost wages and benefits.
;
(3) in clause
(iii)—
(A) in the matter
preceding subclause (I), by striking 90 days both places it
appears and inserting 180 days;
(B) in subclause
(I)—
(i) by striking
may and inserting shall; and
(ii) by striking
and at the end;
(C) in subclause (II),
by striking the period at the end and inserting a semicolon and
and; and
(D) by adding at the
end the following:
(III) an employer that
violates subparagraph (A) of such paragraph shall be liable to any employee
harmed by such violations for lost wages and
benefits.
;
(4) in clause
(iv)—
(A) by inserting
to take, or threaten to take, a personnel action, or before
to intimidate;
(B) by inserting
(I) after (iv); and
(C) by adding at the
end the following:
(II) An employer that
violates this clause shall be liable to any H–1B nonimmigrant employee harmed
by such violation for lost wages and
benefits.
;
and
(5) in clause
(vi)—
(A) by amending
subclause (I) to read as follows:
(I) It is a violation
of this clause for an employer who has filed an application under this
subsection—
(aa) to require an
H–1B nonimmigrant to pay a penalty for ceasing employment with the employer
prior to a date agreed to by the nonimmigrant and the employer (the Secretary
shall determine whether a required payment is a penalty, and not liquidated
damages, pursuant to relevant State law); and
(bb) to fail to offer
to an H–1B nonimmigrant, during the nonimmigrant's period of authorized
employment, on the same basis, and in accordance with the same criteria, as the
employer offers to similarly situated United States workers, benefits and
eligibility for benefits, including—
(AA) the opportunity
to participate in health, life, disability, and other insurance plans;
(BB) the opportunity
to participate in retirement and savings plans; and
(CC) cash bonuses and
noncash compensation, such as stock options (whether or not based on
performance).
;
and
(B) in subclause
(III), by striking $1,000 and inserting
$2,000.
4223.
Initiation of
investigations
Subparagraph
(G) of section 212(n)(2) (8 U.S.C. 1182(n)(2)) is amended—
(1) in clause (i), by
striking if the Secretary and all that follows and inserting
with regard to the employer's compliance with the requirements of this
subsection.;
(2) in clause (ii), by
striking and whose identity and all that follows through
failure or failures. and inserting the Secretary of Labor
may conduct an investigation into the employer's compliance with the
requirements of this subsection.;
(3) in clause (iii),
by striking the last sentence;
(4) by striking
clauses (iv) and (v);
(5) by redesignating
clauses (vi), (vii), and (viii) as clauses (iv), (v), and (vi),
respectively;
(6) in clause (iv), as
so redesignated, by striking meet a condition described in clause (ii),
unless the Secretary of Labor receives the information not later than 12
months and inserting comply with the requirements under this
subsection, unless the Secretary of Labor receives the information not later
than 24 months;
(7) by amending clause
(v), as so redesignated, to read as follows:
(v) The Secretary of
Labor shall provide notice to an employer of the intent to conduct an
investigation. The notice shall be provided in such a manner, and shall contain
sufficient detail, to permit the employer to respond to the allegations before
an investigation is commenced. The Secretary is not required to comply with
this clause if the Secretary determines that such compliance would interfere
with an effort by the Secretary to investigate or secure compliance by the
employer with the requirements of this subsection. A determination by the
Secretary under this clause shall not be subject to judicial
review.
;
(8) in clause (vi), as
so redesignated, by striking An investigation and all that
follows through the determination. and inserting If the
Secretary of Labor, after an investigation under clause (i) or (ii), determines
that a reasonable basis exists to make a finding that the employer has failed
to comply with the requirements under this subsection, the Secretary shall
provide interested parties with notice of such determination and an opportunity
for a hearing in accordance with section 556 of title 5, United States Code,
not later than 120 days after the date of such determination.;
and
(9) by adding at the
end the following:
(vii) If the Secretary
of Labor, after a hearing, finds a reasonable basis to believe that the
employer has violated the requirements under this subsection, the Secretary
shall impose a penalty under subparagraph
(C).
.
4224.
Information
sharing
Subparagraph (H) of
section 212(n)(2) (8 U.S.C. 1182(n)(2)) is amended to read as follows:
(H) The Director of United States Citizenship
and Immigration Services shall provide the Secretary of Labor with any
information contained in the materials submitted by employers of H–1B
nonimmigrants as part of the adjudication process that indicates that the
employer is not complying with visa program requirements for H–1B
nonimmigrants. The Secretary may initiate and conduct an investigation related
to H–1B nonimmigrants and hearing under this paragraph after receiving
information of noncompliance under this subparagraph. This subparagraph may not
be construed to prevent the Secretary of Labor from taking action related to
wage and hour and workplace safety
laws.
.
3
Other
protections
4231.
Posting
available positions through the Department of Labor
(a)
Department of
Labor website
Section 212(n) (8 U.S.C. 1182(n)) is amended by
adding at the end following:
(6)
(A) Not later than 90 days
after the date of the enactment of the Border
Security, Economic Opportunity, and Immigration Modernization
Act, the Secretary of Labor shall establish a searchable Internet
website for posting positions as required by paragraph (1)(C). Such website
shall be available to the public without charge.
(B) The Secretary may
work with private companies or nonprofit organizations to develop and operate
the Internet website described in subparagraph (A).
(C) The Secretary may
promulgate rules, after notice and a period for comment, to carry out the
requirements of this
paragraph.
.
(b)
Requirement for
publication
The Secretary of Labor shall submit to Congress and
publish in the Federal Register and other appropriate media a notice of the
date that the Internet website required by paragraph (6) of section 212(n) of
such Act, as amended by subsection (a), will be operational.
(c)
Application
The
amendments made by subsection (a) shall apply to an application filed on or
after the date that is 30 days after the date described in subsection
(b).
4232.
H–1B
government authority and requirements
(a)
Immigration
documents
Section 204 (8 U.S.C. 1154) is amended by adding at the
end the following:
(m)
Employer To
provide immigration paperwork exchanged with Federal agencies
(1)
In
general
Not later than 30 days after a Labor Condition
Application is filed, an employer shall provide an employee or beneficiary of
such Application who is or seeking to be an nonimmigrant described in
subparagraph (H)(i)(b) of (L) of section 101(a)(15) with a copy the original of
all applications and petitions filed by the employer with the Department of
Labor or the Department of Homeland Security for such employee or
beneficiary.
(2)
Withholding of
financial or proprietary information
If a document required to be
provided to an employee or beneficiary under paragraph (1) includes any
financial or propriety information of the employer, the employer may redact
such information from the copies provided to such employee or
beneficiary.
.
(b)
Report on job
classification and wage determinations
Not later than 1 year
after the date of the enactment of this Act, the Comptroller General of the
United States shall prepare a report analyzing the accuracy and effectiveness
of the Secretary of Labor’s current job classification and wage determination
system. The report shall—
(1) specifically
address whether the systems in place accurately reflect the complexity of
current job types as well as geographic wage differences; and
(2) make
recommendations concerning necessary updates and modifications.
4233.
Requirements
for information for H–1B and L nonimmigrants
Section 214 (8 U.S.C. 1184), as amended by
section 3608, is further amended by adding at the end the following:
(t)
Requirements for
information for H–1B and L nonimmigrants
(1)
In
general
Upon issuing a visa to an applicant for nonimmigrant
status pursuant to subparagraph (H)(i)(b) or (L) of section 101(a)(15) who is
outside the United States, the issuing office shall provide the applicant
with—
(A) a brochure
outlining the obligations of the applicant’s employer and the rights of the
applicant with regard to employment under Federal law, including labor and wage
protections; and
(B) the contact
information for appropriate Federal agencies or departments that offer
additional information or assistance in clarifying such obligations and
rights.
(2)
Provision of
material
Upon the approval of an application of an applicant
referred to in paragraph (1), the applicant shall be provided with the material
described in subparagraphs (A) and (B) of paragraph (1)—
(A) by the issuing
officer of the Department of Homeland Security, if the applicant is inside the
United States; or
(B) by the appropriate
official of the Department of State, if the applicant is outside the United
States.
.
4234.
Filing fee for
H–1B-dependent employers
(a)
In
general
Notwithstanding any
other provision of law, there shall be a fee required to be submitted by an
employer with an application for admission of an H–1B nonimmigrant as
follows:
(1) For each of the
fiscal years 2015 through 2024, $5,000 for applicants that employ 50 or more
employees in the United States if more than 30 percent and less than 50 percent
of the applicant's employees are H–1B nonimmigrants or L nonimmigrants.
(2) For each of the
fiscal years 2015 through 2017, $10,000 for applicants that employ 50 or more
employees in the United States if more than 50 percent and less than 75 percent
of the applicant's employees are H–1B nonimmigrants or L nonimmigrants.
(b)
Definitions
In
this section:
(1)
Employer
The
term employer—
(A) means any entity
or entities treated as a single employer under subsection (b), (c), (m), or (o)
of section 414 of the Internal Revenue Code of 1986; and
(B) does not include a
nonprofit institution of higher education or a nonprofit research organization
described in section 501(c)(3) of the Internal Revenue Code of 1986 and exempt
from taxation under 501(a) of that Code that is—
(i) an institution of
higher education (as defined in section 101(a) of the Higher Education Act of
1965 (20 U.S.C. 1001(a))); or
(ii) a research
organization.
(2)
H–1B
nonimmigrant
The term H–1B nonimmigrant means an
alien admitted as a nonimmigrant pursuant to section 101(a)(15)(H)(i)(b) of the
Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(H)(i)(b)).
(3)
Intending
immigrant
The term intending immigrant has the
meaning given that term in paragraph (53) of section 101(a) of the Immigration
and Nationality Act (8 U.S.C. 1101(a)).
(4)
L
nonimmigrant
The term L nonimmigrant means an alien
admitted as a nonimmigrant pursuant to section 101(a)(15)(L) of the Immigration
and Nationality Act (8 U.S.C. 1101(a)(15)(L)) to provide services to the
alien's employer involving specialized knowledge.
(c)
Exception for
intending immigrants
In determining the percentage of employees
of an employer that are H–1B nonimmigrants or L nonimmigrants under subsection
(a), an intending immigrant employee shall not count toward such
percentage.
(d)
Conforming
amendment
Section 402 of the Act entitled An Act making
emergency supplemental appropriations for border security for the fiscal year
ending September 30, 2010, and for other purposes, approved August 13,
2010 (Public Law 111–230; 8 U.S.C. 1101 note) is amended by striking subsection
(b).
4235.
Providing
premium processing of employment-based visa petitions
Pursuant to section 286(u) of the
Immigration and Nationality Act (8 U.S.C. 1356(u)), the Secretary shall
establish and collect—
(1) a fee for premium
processing of employment-based immigrant petitions; and
(2) a fee for premium
processing of an administrative appeal of any decision on a permanent
employment-based immigrant petition.
4236.
Technical
correction
Section 212 (8
U.S.C. 1182) is amended by redesignating the second subsection (t), as added by
section 1(b)(2)(B) of the Act entitled An Act to amend and extend the
Irish Peace Process Cultural and Training Program Act of 1998 (Public
Law 108–449 (118 Stat. 3470)), as subsection (u).
4237.
Application
Except as specifically otherwise provided,
the amendments made by this subtitle shall apply to applications filed on or
after the date of the enactment of this Act.
C
L visa fraud and
abuse protections
4301.
Prohibition on
outplacement of L nonimmigrants
Subparagraph (F) of section 214(c)(2) (8
U.S.C. 1184(c)(2)) is amended to read as follows:
(F) The employer of an
alien described in section 101(a)(15)(L) shall not place, outsource, lease, or
otherwise contract for the services or placement of such alien with another
employer unless—
(i) the other employer
is an affiliate, subsidiary, or parent entity of the petitioning
employer;
(ii) such alien will
not be controlled or supervised principally by the employer with whom such
alien would be placed;
(iii) the placement of
such alien at the worksite of the other employer, who is not described in
clause (i), is not essentially an arrangement to provide labor for hire for the
other employer; and
(iv) the other
employer attests that the other employer has not displaced and will not
displace a United States worker during the period beginning 90 days prior to
and 90 days after the date the employer files the
application.
.
4302.
L employer
petition requirements for employment at new offices
Section 214(c)(2) (8 U.S.C. 1184(c)(2)) is
amended by adding at the end the following:
(G)
(i) If the beneficiary of a
petition under this paragraph is coming to the United States to open, or be
employed in, a new office, the petition may be approved for up to 12 months
only if—
(I) the alien has not
been the beneficiary of 2 or more petitions under this subparagraph during the
immediately preceding 2 years; and
(II) the employer
operating the new office has—
(aa) an adequate
business plan;
(bb) sufficient
physical premises to carry out the proposed business activities; and
(cc) the financial
ability to commence doing business immediately upon the approval of the
petition.
(ii) An extension of
the approval period under clause (i) may not be granted until the importing
employer submits an application to the Secretary of Homeland Security that
contains—
(I) evidence that the
importing employer meets the requirements of this subsection;
(II) evidence that the
beneficiary of the petition is eligible for nonimmigrant status under section
101(a)(15)(L);
(III) a statement
summarizing the original petition;
(IV) evidence that the
importing employer has complied with the business plan submitted under clause
(i)(I);
(V) evidence of the
truthfulness of any representations made in connection with the filing of the
original petition;
(VI) evidence that the
importing employer has been doing business at the new office through regular,
systematic, and continuous provision of goods and services;
(VII) a statement of
the duties the beneficiary has performed at the new office during the approval
period under clause (i) and the duties the beneficiary will perform at the new
office during the extension period granted under this clause;
(VIII) a statement
describing the staffing at the new office, including the number of employees
and the types of positions held by such employees;
(IX) evidence of wages
paid to employees;
(X) evidence of the
financial status of the new office; and
(XI) any other
evidence or data prescribed by the Secretary.
(iii) A new office
employing the beneficiary of an L–1 petition approved under this paragraph
shall do business only through regular, systematic, and continuous provision of
goods and services.
(iv) Notwithstanding
clause (ii), and subject to the maximum period of authorized admission set
forth in subparagraph (D), the Secretary of Homeland Security, in the
Secretary’s discretion, may approve a subsequently filed petition on behalf of
the beneficiary to continue employment at the office described in this
subparagraph for a period beyond the initially granted 12-month period if the
importing employer has been doing business at the new office through regular,
systematic, and continuous provision of goods and services for the 6 months
immediately preceding the date of extension of petition filing and demonstrates
that the failure to satisfy any of the requirements described in those
subclauses was directly caused by extraordinary circumstances, as determined by
the Secretary in the Secretary’s
discretion.
.
4303.
Cooperation
with Secretary of State
Section 214(c)(2) (8 U.S.C. 1184(c)(2)), as
amended by section 4302, is further amended by adding at the end the
following:
(H) For purposes of
approving petitions under this paragraph, the Secretary of Homeland Security
shall work cooperatively with the Secretary of State to verify the existence or
continued existence of a company or office in the United States or in a foreign
country.
.
4304.
Limitation on
employment of L nonimmigrants
Section 214(c)(2) (8 U.S.C. 1184(c)(2)), as
amended by sections 4302 and 4303, is further amended by adding at the end the
following:
(I)
(i) If the employer employs
50 or more employees in the United States, the sum of the number of such
employees who are H–1B nonimmigrants plus the number of such employees who are
L nonimmigrants may not exceed—
(I) 75 percent of the
total number of employees, for fiscal year 2015;
(II) 65 percent of the
total number of employees, for fiscal year 2016; and
(III) 50 percent of
the total number of employees, for each fiscal year after fiscal year
2016.
(ii) In this
subparagraph:
(I) The term
employer does not include a nonprofit institution of higher
education or a nonprofit research organization/an organization described in
section 501(c)(3) of the Internal Revenue Code of 1986 and exempt from taxation
under 501(a) of that Code that is—
(aa) an institution of
higher education (as defined in section 101(a) of the Higher Education Act of
1965 (20 U.S.C. 1001(a))); or
(bb) a research
organization.
(II) The term
H–1B nonimmigrant means an alien admitted as a nonimmigrant
pursuant to section 101(a)(15)(H)(i)(b).
(III) The term L
nonimmigrant means an alien admitted as a nonimmigrant pursuant to
section 101(a)(15)(L) to provide services to the alien's employer involving
specialized knowledge.
(iii) In determining
the percentage of employees of an employer that are H–1B nonimmigrants or L
nonimmigrants under clause (i), an intending immigrant employee shall not count
toward such percentage.
.
4305.
Filing fee for
L nonimmigrants
(a)
In
general
Notwithstanding any
other provision of law, the filing fee for an application for admission of an L
nonimmigrant shall be as follows:
(1) For each of the
fiscal years 2014 through 2024, $5,000 for applicants that employ 50 or more
employees in the United States if more than 30 percent and less than 50 percent
of the applicant's employees are H–1B nonimmigrants or L nonimmigrants.
(2) For each of the
fiscal years 2014 through 2017, $10,000 for applicants that employ 50 or more
employees in the United States if more than 50 percent and less than 75 percent
of the applicant's employees are H–1B nonimmigrants or L nonimmigrants.
(b)
Definitions
In
this section:
(1)
Employer
The
term employer does not include a nonprofit institution of higher
education or a nonprofit research organization/an organization described in
section 501(c)(3) of the Internal Revenue Code of 1986 and exempt from taxation
under 501(a) of that Code that is—
(A) an institution of
higher education (as defined in section 101(a) of the Higher Education Act of
1965 (20 U.S.C. 1001(a))); or
(B) a research
organization.
(2)
H–1B
nonimmigrant
The term H–1B nonimmigrant means an
alien admitted as a nonimmigrant pursuant to section 101(a)(15)(H)(i)(b) of the
Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(H)(i)(b)).
(3)
L
nonimmigrant
The term L nonimmigrant means an alien
admitted as a nonimmigrant pursuant to section 101(a)(15)(L) of the Immigration
and Nationality Act (8 U.S.C. 1101(a)(15)(L)) to provide services to the
alien's employer involving specialized knowledge.
(c)
Exception for
intending immigrants
In determining the percentage of employees
of an employer that are H–1B nonimmigrants or L nonimmigrants under subsection
(a), an intending immigrant employee shall not count toward such
percentage.
(d)
Conforming
amendment
Section 402 of the Act entitled An Act making
emergency supplemental appropriations for border security for the fiscal year
ending September 30, 2010, and for other purposes, approved August 13,
2010 (Public Law 111–230; 8 U.S.C. 1101 note), as amended by section 4234(d),
is further amended by striking subsections (a) and (c).
4306.
Investigation
and disposition of complaints against L nonimmigrant employers
Section 214(c)(2) (8 U.S.C. 1184(c)(2)), as
amended by sections 4302, 4303, and 4304 is further amended by adding at the
end the following:
(J)
(i) The Secretary of Homeland Security may
initiate an investigation of any employer that employs nonimmigrants described
in section 101(a)(15)(L) with regard to the employer's compliance with the
requirements of this subsection.
(ii)
(I) If the Secretary receives specific credible
information from a source who is likely to have knowledge of an employer's
practices, employment conditions, or compliance with the requirements under
this subsection, the Secretary may conduct an investigation into the employer's
compliance with the requirements of this subsection.
(II) The Secretary may withhold the identity of
a source referred to in subclause (I) from an employer and the identity of such
source shall not be subject to disclosure under section 552 of title 5, United
States Code.
(iii) The Secretary shall establish a procedure
for any person desiring to provide to the Secretary information described in
clause (ii)(I) that may be used, in whole or in part, as the basis for the
commencement of an investigation described in such clause, to provide the
information in writing on a form developed and provided by the Secretary and
completed by or on behalf of the person.
(iv) No investigation described in clause
(ii)(I) (or hearing described in clause (vi) based on such investigation) may
be conducted with respect to information about a failure to comply with the
requirements under this subsection, unless the Secretary receives the
information not later than 24 months after the date of the alleged
failure.
(v)
(I) Subject to subclause (III), before
commencing an investigation of an employer under clause (i) or (ii), the
Secretary shall provide notice to the employer of the intent to conduct such
investigation.
(II) The notice required by subclause (I) shall
be provided in such a manner, and shall contain sufficient detail, to permit
the employer to respond to the allegations before an investigation is
commenced.
(III) The Secretary is not required to comply
with this clause if the Secretary determines that to do so would interfere with
an effort by the Secretary to investigate or secure compliance by the employer
with the requirements of this subsection.
(IV) There shall be no judicial review of a
determination by the Secretary under this clause.
(vi) If the Secretary, after an investigation
under clause (i) or (ii), determines that a reasonable basis exists to make a
finding that the employer has failed to comply with the requirements under this
subsection, the Secretary shall provide the interested parties with notice of
such determination and an opportunity for a hearing in accordance with section
556 of title 5, United States Code, not later than 120 days after the date of
such determination. If such a hearing is requested, the Secretary shall make a
finding concerning the matter by not later than 120 days after the date of the
hearing.
(vii) If the Secretary, after a hearing, finds a
reasonable basis to believe that the employer has violated the requirements
under this subsection, the Secretary shall impose a penalty under subparagraph
(K).
(viii)
(I) The Secretary may conduct surveys of the
degree to which employers comply with the requirements under this
section.
(II) The Secretary shall—
(aa) conduct annual compliance audits of each
employer with more than 100 employees who work in the United States if more
than 15 percent of such employees are nonimmigrants described in 101(a)(15)(L);
and
(bb) make available to the public an executive
summary or report describing the general findings of the audits carried out
pursuant to this
subclause.
.
4307.
Penalties
Section 214(c)(2) (8 U.S.C. 1184(c)(2)), as
amended by sections 4302, 4303, 4304, and 4306, is further amended by adding at
the end the following:
(K)
(i) If the Secretary of
Homeland Security finds, after notice and an opportunity for a hearing, a
failure by an employer to meet a condition under subparagraph (F), (G), or (L)
or a misrepresentation of material fact in a petition to employ 1 or more
aliens as nonimmigrants described in section 101(a)(15)(L)—
(I) the Secretary
shall impose such administrative remedies (including civil monetary penalties
in an amount not to exceed $2,000 per violation) as the Secretary determines to
be appropriate;
(II) the Secretary may
not, during a period of at least 1 year, approve a petition for that employer
to employ 1 or more aliens as such nonimmigrants; and
(III) in the case of a
violation of subparagraph (J), the employer shall be liable to the employees
harmed by such violation for lost wages and benefits.
(ii) If the Secretary
finds, after notice and an opportunity for a hearing, a willful failure by an
employer to meet a condition under subparagraph (F), (G), or (L) or a willful
misrepresentation of material fact in a petition to employ 1 or more aliens as
nonimmigrants described in section 101(a)(15)(L)—
(I) the Secretary
shall impose such administrative remedies (including civil monetary penalties
in an amount not to exceed $10,000 per violation) as the Secretary determines
to be appropriate;
(II) the Secretary may
not, during a period of at least 2 years, approve a petition filed for that
employer to employ 1 or more aliens as such nonimmigrants; and
(III) in the case of a
violation of subparagraph (J), the employer shall be liable to the employees
harmed by such violation for lost wages and
benefits.
.
4308.
Prohibition on
retaliation against L nonimmigrants
Section 214(c)(2) (8 U.S.C. 1184(c)(2)), as
amended by sections 4302, 4303, 4303, 4306, and 4307, is further amended by
adding at the end the following:
(L)
(i) It is a violation of
this subparagraph for an employer who has filed a petition to import 1 or more
aliens as nonimmigrants described in section 101(a)(15)(L) to take, fail to
take, or threaten to take or fail to take, a personnel action, or to
intimidate, threaten, restrain, coerce, blacklist, discharge, or discriminate
in any other manner against an employee because the employee—
(I) has disclosed
information that the employee reasonably believes evidences a violation of this
subsection, or any rule or regulation pertaining to this subsection; or
(II) cooperates or
seeks to cooperate with the requirements of this subsection, or any rule or
regulation pertaining to this subsection.
(ii) In this
subparagraph, the term employee includes—
(I) a current
employee;
(II) a former
employee; and
(III) an applicant for
employment.
.
4309.
Reports on L
nonimmigrants
Section
214(c)(8) (8 U.S.C. 1184(c)(8)) is amended by inserting (L),
after (H),.
4310.
Application
The amendments made by this subtitle shall
apply to applications filed on or after the date of the enactment of this
Act.
4311.
Report on L
blanket petition process
(a)
Requirement for
report
Not later than 6
months after the date of the enactment of this Act, the Inspector General of
the Department of Homeland Security shall submit to the appropriate committees
of Congress a report regarding the use of blanket petitions under section
214(c)(2)(A) of the Immigration and Nationality Act (8 U.S.C. 1184(c)(2)(A)).
Such report shall assess the efficiency and reliability of the process for
reviewing such blanket petitions, including whether the process includes
adequate safeguards against fraud and abuse.
(b)
Appropriate
committees of Congress
In this section the term appropriate
committees of Congress means—
(1) the
Committee on Homeland Security and
Governmental Affairs of the Senate;
(2) the
Committee on the Judiciary of the
Senate;
(3) the
Committee on Homeland Security of the House of
Representatives; and
(4) the
Committee on the Judiciary of the House of
Representatives.
D
Other nonimmigrant
visas
4401.
Nonimmigrant
visas for students
(a)
Authorization of
dual intent for F nonimmigrants seeking bachelor's or graduate degrees
(1)
In
general
Section 101(a)(15)(F) (8 U.S.C. 1101(a)(15)(F)) is
amended to read as follows:
(F)
(i) an alien having a
residence in a foreign country who is a bona fide student qualified to pursue a
full course of study and who seeks to enter the United States temporarily and
solely for the purpose of pursuing such a course of study consistent with
section 214(m) at an accredited college, university, or language training
program, or at an established seminary, conservatory, academic high school,
elementary school, or other academic institution in the United States,
particularly designated by the alien and approved by the Secretary of Homeland
Security after consultation with the Secretary of Education, which institution
or place of study shall have agreed to report to the Secretary of Homeland
Security the termination of attendance of each nonimmigrant student, and if any
such institution of learning or place of study fails to make reports promptly
the approval shall be withdrawn, except that such an alien who is not seeking
to pursue a degree that is a bachelor's degree or a graduate degree shall have
a residence in a foreign country that the alien has no intention of
abandoning;
(ii) the alien spouse
and minor children of any alien described in clause (i) if accompanying or
following to join such an alien; and
(iii) an alien who is
a national of Canada or Mexico, who maintains actual residence and place of
abode in the country of nationality, who is described in clause (i) except that
the alien's qualifications for and actual course of study may be full or
part-time, and who commutes to the United States institution or place of study
from Canada or
Mexico.
.
(2)
Presumption of
status; intention To abandon foreign residence
Section 214 (8
U.S.C. 1184) is amended—
(A) in subsection (b),
by striking (L) or (V) and inserting (F), (L), or
(V); and
(B) in subsection (h),
by striking (H)(i)(b) or (c), and inserting (F),
(H)(i)(b), (H)(i)(c),.
(b)
Accreditation
requirement for colleges and universities
Section 101(a)(52) (8 U.S.C. 1101(a)(52))
is amended to read as follows:
(52) Except as
provided in section 214(m)(4), the term accredited college, university,
or language training program means a college, university, or language
training program that is accredited by an accrediting agency recognized by the
Secretary of
Education.
.
(c)
Other
requirements for academic institutions
Section 214(m) (8 U.S.C. 1184(m)) is
amended by adding at the end the following:
(3) The Secretary of Homeland Security, in the
Secretary's discretion, may require accreditation of an academic institution
(except for seminaries or other religious institutions) for purposes of section
101(a)(15)(F) if—
(A) that institution
is not already required to be accredited under section 101(a)(15)(F)(i);
(B) an appropriate
accrediting agency recognized by the Secretary of Education is able to provide
such accreditation; and
(C) the institution
has or will have 25 or more alien students accorded status as nonimmigrants
under clause (i) or (iii) of section 101(a)(15)(F) pursuing a course of study
at that institution.
(4) The Secretary of
Homeland Security, in the Secretary's discretion, may waive the accreditation
requirement in section 101(a)(15)(F)(i) with respect to an established college,
university, or language training program if the academic institution—
(A) is otherwise in
compliance with the requirements of such section; and
(B) is making a good
faith effort to satisfy the accreditation requirement.
(5)
(A) No person convicted of
an offense referred to in subparagraph (B) shall be permitted by any academic
institution having authorization for attendance by nonimmigrant students under
section 101(a)(15)(F)(i) to be involved with the institution as its principal,
owner, officer, board member, general partner, or other similar position of
substantive authority for the operations or management of the institution,
including serving as an individual designated by the institution to maintain
records required by the Student and Exchange Visitor Information System
established under section 641 of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (8 U.S.C. 1372).
(B) An offense
referred to in this subparagraph includes a violation, punishable by a term of
imprisonment of more than 1 year, of any of the following:
(i) Chapter 77 of
title 18, United States Code (relating to peonage, slavery and trafficking in
persons).
(ii) Chapter 117 of
title 18, United States Code (relating to transportation for illegal sexual
activity and related crimes).
(iii) Section 274 of
the Immigration and Nationality Act (8 U.S.C. 1324) (relating to unlawful
bringing of aliens into the United States).
(iv) Section 1546 of
title 18, United States Code (relating to fraud and misuse of visas, permits,
and other documents) relating to an academic institution's participation in the
Student and Exchange Visitor
Program.
.
(d)
Conforming
amendment
Section
212(a)(6)(G) (8 U.S.C. 1182(a)(6)(G)) is amended by striking section
214(l) and inserting section 214(m).
(e)
Effective
date
(1)
In
general
Except as provided in paragraph (2), the amendments made
by subsections (a), (b), and (c)—
(A) shall take effect
on the date that is 180 days after the date of the enactment of this Act;
and
(B) shall apply with
respect to applications for a nonimmigrant visa under section 101(a)(15)(F)(i)
of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(F)(i)) that are
filed on or after the effective date described in subparagraph (A).
(2)
Temporary
exception
(A)
In
general
During the 3-year period beginning on the date of the
enactment of this Act, an alien seeking to enter the United States to pursue a
course of study at a college or university that has been certified by the
Secretary may be granted a nonimmigrant visa under clause (i) or clause (iii)
of section 101(a)(15)(F) of the Immigration and Nationality Act (8 U.S.C.
1101(a)(15)(F)) without regard to whether or not that college or university has
been accredited or been denied accreditation by an entity described in section
101(a)(52) of such Act (8 U.S.C. 1101(a)(52)), as amended by subsection
(b).
(B)
Additional
requirement
An alien may not be granted a nonimmigrant visa under
subparagraph (A) if the college or university to which the alien seeks to
enroll does not—
(i) submit an
application for the accreditation of such institution to a regional or national
accrediting agency recognized by the Secretary of Education on or before the
date that is 1 year after the effective date described in paragraph (1)(A);
and
(ii) comply with the
applicable accrediting requirements of such agency.
4402.
Classification
for specialty occupation workers from free trade countries
(a)
Nonimmigrant
status
Section 101(a)(15)(E)(8 U.S.C. 1101(a)(15)(E)) is
amended—
(1) in the matter
preceding clause (i), by inserting , bilateral investment treaty, or
free trade agreement after treaty of commerce and
navigation;
(2) in clause (ii), by
striking or at the end; and
(3) by adding at the
end the following:
(iv) solely to perform
services in a specialty occupation in the United States if the alien is a
national of a country, other than Chile, Singapore, or Australia, with which
the United States has entered into a free trade agreement (regardless of
whether such an agreement is a treaty of commerce and navigation) and with
respect to whom the Secretary of Labor determines and certifies to the
Secretary of Homeland Security and the Secretary of State that the intending
employer has filed with the Secretary of Labor an attestation under section
212(t); or
(v) solely to perform
services in a specialty occupation in the United States if the alien is a
national of the Republic of Korea and with respect to whom the Secretary of
Labor determines and certifies to the Secretary of Homeland Security and the
Secretary of State that the intending employer has filed with the Secretary of
Labor an attestation under section
212(t);
.
(b)
Free trade
agreements
Section 214(g) (8 U.S.C. 1184(g)) is amended by adding
at the end the following:
(12)
(A) The free trade
agreements referred to in section 101(a)(15)(E)(iv) are defined as any free
trade agreement designated by the Secretary of Homeland Security with the
concurrence of the United States Trade Representative and the Secretary of
State.
(B) The Secretary of
State may not approve a number of initial applications submitted for aliens
described in section 101(a)(15)(E)(iv) that is more than 5,000 per fiscal year
for each country with which the United States has entered into a Free Trade
Agreement.
(C) The applicable
numerical limitation referred to in subparagraph (A) shall apply only to
principal aliens and not to the spouses or children of such
aliens.
.
(c)
Nonimmigrant
professionals
Section 212(t) (8 U.S.C. 1182(t)) is amended by
striking section 101(a)(15)(E)(iii) each place that term appears
and inserting clause (iii) or (iv) of section
101(a)(15)(E).
4403.
E–visa
reform
(a)
Nonimmigrant
category
Section 101(a)(15)(E)(iii) (8 U.S.C.
1101(a)(15)(E)(iii)) is amended by inserting , or solely to perform
services as an employee and who has at least a high school education or its
equivalent, or has, within 5 years, at least 2 years of work experience in an
occupation which requires at least 2 years of training or experience if the
alien is a national of the Republic of Ireland, after
Australia.
(b)
Temporary
admission
Section 212(d)(3)(A) (8 U.S.C. 1182(d)(3)(A)) is
amended to read as follows:
(A) Except as
otherwise provided in this subsection—
(i) an alien who is
applying for a nonimmigrant visa and who the consular officer knows or believes
to be ineligible for such visa under subsection (a) (other than subparagraphs
(A)(i)(I), (A)(ii), (A)(iii), (C), (E)(i), and (E)(ii) of paragraph (3) of such
subsection)—
(I) after approval by
the Secretary of Homeland Security of a recommendation by the Secretary of
State or by the consular officer that the alien be admitted temporarily despite
the alien's inadmissibility, may be granted such a visa and may be admitted
into the United States temporarily as a nonimmigrant, in the discretion of the
Secretary of Homeland Security; or
(II) absent such
recommendation and approval, be granted a nonimmigrant visa pursuant to section
101(a)(15)(E) if such ineligibility is based solely on conduct in violation of
paragraph (6), (7), or (9) of section 212(a) that occurred before the date of
the enactment of the Border Security,
Economic Opportunity, and Immigration Modernization Act;
and
(ii) an alien who is
inadmissible under subsection (a) (other than subparagraphs (A)(i)(I), (A)(ii),
(A)(iii), (C), (E)(i), and (E)(ii) of paragraph (3) of such subsection), is in
possession of appropriate documents or was granted a waiver from such document
requirement, and is seeking admission, may be admitted into the United States
temporarily as a nonimmigrant, in the discretion of the Secretary of Homeland
Security, who shall prescribe conditions, including exaction of such bonds as
may be necessary, to control and regulate the admission and return of
inadmissible aliens applying for temporary admission under this
paragraph.
.
(c)
Numerical
limitation
Section 214(g)(11)(B) (8 U.S.C. 1184(g)(11)(B)) is
amended by striking the period at the end and inserting for each of the
nationalities identified under section 101(a)(15)(E)(iii)..
4404.
Other changes
to nonimmigrant visas
(a)
Portability
Paragraphs (1) and (2) of section 214(n) (8
U.S.C. 1184(n)) are amended to read as follows:
(1) A nonimmigrant
alien described in paragraph (2) who was previously issued a visa or otherwise
provided nonimmigrant status under section 101(a)(15)(H)(i)(b) or
101(a)(15)(O)(i) is authorized to accept new employment pursuant to such
section upon the filing by the prospective employer of a new petition on behalf
of such nonimmigrant as provided under subsection (a). Employment authorization
shall continue for such alien until the new petition is adjudicated. If the new
petition is denied, such authorization shall cease.
(2) A nonimmigrant
alien described in this paragraph is a nonimmigrant alien—
(A) who has been
lawfully admitted into the United States;
(B) on whose behalf an
employer has filed a nonfrivolous petition for new employment before the date
of expiration of the period of stay authorized by the Secretary of Homeland
Security; and
(C) who, subsequent to
such lawful admission, has not been employed without authorization in the
United States before the filing of such
petition.
.
(b)
Waiver
The
undesignated material at the end of section 214(c)(3) (8 U.S.C. 1184(c)(3)) is
amended to read as follows:
The Secretary of Homeland Security
shall provide by regulation for the waiver of the consultation requirement
under subparagraph (A) in the case of aliens who have been admitted as
nonimmigrants under section 101(a)(15)(O)(i) because of extraordinary ability
in the arts or extraordinary achievement in motion picture or television
production and who seek readmission to perform similar services within 3 years
after the date of a consultation under such subparagraph provided that, in the
case of aliens admitted because of extraordinary achievement in motion picture
or television production, such waiver shall apply only if the prior
consultations by the appropriate union and management organization were
favorable or raised no objection to the approval of the petition. Not later
than 5 days after such a waiver is provided, the Secretary shall forward a copy
of the petition and all supporting documentation to the national office of an
appropriate labor
organization.
.
4405.
Treatment of
nonimmigrants during adjudication of application
Section 214 (8 U.S.C. 1184), as amended by
sections 3609 and 4233, is further amended by adding at the end the
following:
(u)
Treatment of
nonimmigrants during adjudication of application
A nonimmigrant
alien granted employment authorization pursuant to sections 101(a)(15)(A),
101(a)(15)(E), 101(a)(15)(G), 101(a)(15)(H), 101(a)(15)(I), 101(a)(15)(J),
101(a)(15)(L), 101(a)(15)(O), 101(a)(15)(P), 101(a)(15)(Q), 101(a)(15)(R),
214(e), and such other sections as the Secretary of Homeland Security may by
regulations prescribe whose status has expired but who has, or whose sponsoring
employer or authorized agent has, filed a timely application or petition for an
extension of such employment authorization and nonimmigrant status as provided
under subsection (a) is authorized to continue employment with the same
employer until the application or petition is adjudicated. Such authorization
shall be subject to the same conditions and limitations as the initial grant of
employment
authorization.
.
4406.
Nonimmigrant
elementary and secondary school students
Section 214(m)(1)(B) (8 U.S.C.
1184(m)(1)(B)) is amended striking unless— and all that follows
through (ii) and inserting unless.
E
JOLT Act
4501.
Short
titles
This subtitle may be
cited as the Jobs Originated through
Launching Travel Act of 2013 or the JOLT Act of 2013.
4502.
Premium
processing
Section 221 (8
U.S.C. 1201) is amended by inserting at the end the following:
(j)
Premium
processing
(1)
Pilot processing
service
Recognizing that the best solution for expedited
processing is low interview wait times for all applicants, the Secretary of
State shall nevertheless establish, on a limited, pilot basis only, a fee-based
premium processing service to expedite interview appointments. In establishing
a pilot processing service, the Secretary may—
(A) determine the
consular posts at which the pilot service will be available;
(B) establish the
duration of the pilot service;
(C) define the terms
and conditions of the pilot service, with the goal of expediting visa
appointments and the interview process for those electing to pay said fee for
the service; and
(D) resources
permitting, during the pilot service, consider the addition of consulates in
locations advantageous to foreign policy objectives or in highly populated
locales.
(2)
Fees
(A)
Authority to
collect
The Secretary of State is authorized to collect, and set
the amount of, a fee imposed for the premium processing service. The Secretary
of State shall set the fee based on all relevant considerations including, the
cost of expedited service.
(B)
Use of
fees
Fees collected under the authority of subparagraph (A) shall
be deposited as an offsetting collection to any Department of State
appropriation, to recover the costs of providing consular services. Such fees
shall remain available for obligation until expended.
(C)
Relationship to
other fees
Such fee is in addition to any existing fee currently
being collected by the Department of State.
(D)
Nonrefundable
Such
fee will be nonrefundable to the applicant.
(3)
Description of
premium processing
Premium processing pertains solely to the
expedited scheduling of a visa interview. Utilizing the premium processing
service for an expedited interview appointment does not establish the
applicant’s eligibility for a visa. The Secretary of State shall, if possible,
inform applicants utilizing the premium processing of potential delays in visa
issuance due to additional screening requirements, including necessary
security-related checks and clearances.
(4)
Report to
Congress
(A)
Requirement for
report
Not later than 18 months after the date of the enactment
of the JOLT Act of 2013, the
Secretary of State shall submit to the appropriate committees of Congress a
report on the results of the pilot service carried out under this
section.
(B)
Appropriate
committees of Congress defined
In this paragraph, the term
appropriate committees of Congress means—
(i) the Committee on
the Judiciary, the Committee on Foreign Relations, and the Committee on
Appropriations of the Senate; and
(ii) the Committee on
the Judiciary, the Committee on Foreign Affairs, and the Committee on
Appropriations of the House of
Representatives.
.
4503.
Encouraging
Canadian tourism to the United States
Section 214 (8 U.S.C. 1184), as amended by
sections 3609, 4233, and 4405, is further amended by adding at the end the
following:
(v)
Canadian
retirees
(1)
In
general
The Secretary of Homeland Security may admit as a visitor
for pleasure as described in section 101(a)(15)(B) any alien for a period not
to exceed 240 days, if the alien demonstrates, to the satisfaction of the
Secretary, that the alien—
(A) is a citizen of
Canada;
(B) is at least 55
years of age;
(C) maintains a
residence in Canada;
(D) owns a residence
in the United States or has signed a rental agreement for accommodations in the
United States for the duration of the alien's stay in the United States;
(E) is not
inadmissible under section 212;
(F) is not described
in any ground of deportability under section 237;
(G) will not engage in
employment or labor for hire in the United States; and
(H) will 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)).
(2)
Spouse
The
spouse of an alien described in paragraph (1) may be admitted under the same
terms as the principal alien if the spouse satisfies the requirements of
paragraph (1), other than subparagraph (D).
(3)
Immigrant
intent
In determining eligibility for admission under this
subsection, 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.
(4)
Period of
admission
During any single 365-day period, an alien may be
admitted as described in section 101(a)(15)(B) pursuant to this subsection for
a period not to exceed 240 days, beginning on the date of admission. Periods of
time spent outside the United States during such 240-day period shall not toll
the expiration of such 240-day
period.
.
4504.
Retiree
visa
(a)
Nonimmigrant
status
Section 101(a)(15) is
amended by inserting after subparagraph (W) the following:
(Y) subject to section
214(w), an alien who, after the date of the enactment of the
JOLT Act of 2013—
(i)
(I) uses at least $500,000
in cash to purchase 1 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;
(II) 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 as a
nonimmigrant described in this subparagraph; and
(III) resides for more
than 180 days per year in a residence in the United States that is worth at
least $250,000; and
(ii) the alien spouse
and children of the alien described in clause (i) if accompanying or following
to join the
alien.
.
(b)
Visa application
procedures
Section 214 (8 U.S.C. 1184), as amended by sections
3609, 4233, 4405, and 4503, is further amended by adding at the end the
following:
(w)
Visas of
nonimmigrants described in section
101(a)(15)(Y)
(1) The Secretary of
Homeland Security shall authorize the issuance of a nonimmigrant visa to any
alien described in section 101(a)(15)(Y) who submits a petition to the
Secretary that demonstrates, to the satisfaction of the Secretary, that the
alien—
(A) has purchased a
residence in the United States that meets the criteria set forth in section
101(a)(15)(Y)(i);
(B) is at least 55
years of age;
(C) possesses health
insurance coverage;
(D) is not
inadmissible under section 212; and
(E) will comply with
the terms set forth in paragraph (2).
(2) An alien who is
issued a visa under this subsection—
(A) shall reside in
the United States at a residence that meets the criteria set forth in section
101(a)(15)(Y)(i) for more than 180 days per year;
(B) is not authorized
to engage in employment in the United States, except for employment that is
directly related to the management of the residential property described in
section 101(Y)(i)(II);
(C) is 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)); and
(D) may renew such
visa every 3 years under the same terms and
conditions.
.
4505.
Incentives for
foreign visitors visiting the United States during low peak
seasons
The Secretary of State
shall make publically available, on a monthly basis, historical data, for the
previous 2 years, regarding the availability of visa appointments for each visa
processing post, to allow applicants to identify periods of low demand, when
wait times tend to be lower.
4506.
Visa waiver
program enhanced security and reform
(a)
Definitions
Section
217(c)(1) (8 U.S.C. 1187(c)(1)) is amended to read as follows:
(1)
Authority to
designate; definitions
(A)
Authority to
designate
The Secretary of Homeland Security, in consultation
with the Secretary of State, may designate any country as a program country if
that country meets the requirements under paragraph (2).
(B)
Definitions
In
this subsection:
(i)
Appropriate
congressional committees
The term appropriate congressional
committees means—
(I) the Committee on
Foreign Relations, the Committee on Homeland Security and Governmental Affairs,
and the Committee on the Judiciary of the Senate; and
(II) the Committee on
Foreign Affairs, the Committee on Homeland Security, and the Committee on the
Judiciary of the House of Representatives.
(ii)
Overstay
rate
(I)
Initial
designation
The term overstay rate means, with
respect to a country being considered for designation in the program, the ratio
of—
(aa) the number of
nationals of that country who were admitted to the United States on the basis
of a nonimmigrant visa under section 101(a)(15)(B) whose periods of authorized
stay ended during a fiscal year but who remained unlawfully in the United
States beyond such periods; to
(bb) the number of
nationals of that country who were admitted to the United States on the basis
of a nonimmigrant visa under section 101(a)(15)(B) whose periods of authorized
stay ended during that fiscal year.
(II)
Continuing
designation
The term overstay rate means, for each
fiscal year after initial designation under this section with respect to a
country, the ratio of—
(aa) the number of
nationals of that country who were admitted to the United States under this
section or on the basis of a nonimmigrant visa under section 101(a)(15)(B)
whose periods of authorized stay ended during a fiscal year but who remained
unlawfully in the United States beyond such periods; to
(bb) the number of
nationals of that country who were admitted to the United States under this
section or on the basis of a nonimmigrant visa under section 101(a)(15)(B)
whose periods of authorized stay ended during that fiscal year.
(III)
Computation of
overstay rate
In determining the overstay rate for a country, the
Secretary of Homeland Security may utilize information from any available
databases to ensure the accuracy of such rate.
(iii)
Program
country
The term program country means a country
designated as a program country under subparagraph
(A).
.
(b)
Technical and
conforming amendments
Section 217 (8 U.S.C. 1187) is
amended—
(1) by striking
Attorney General each place the term appears (except in
subsection (c)(11)(B)) and inserting Secretary of Homeland
Security; and
(2) in subsection
(c)—
(A) in paragraph
(2)(C)(iii), by striking Committee on the Judiciary and the Committee on
International Relations of the House of Representatives and the Committee on
the Judiciary and the Committee on Foreign Relations of the Senate and
inserting appropriate congressional committees;
(B) in paragraph
(5)(A)(i)(III), by striking Committee on the Judiciary, the Committee on
Foreign Affairs, and the Committee on Homeland Security, of the House of
Representatives and the Committee on the Judiciary, the Committee on Foreign
Relations, and the Committee on Homeland Security and Governmental Affairs of
the Senate and inserting appropriate congressional
committees; and
(C) in paragraph (7),
by striking subparagraph (E).
(c)
Designation of
program countries based on overstay rates
(1)
In
general
Section 217(c)(2)(A) (8 U.S.C. 1187(c)(2)(A)) is amended
to read as follows:
(A)
General
numerical limitations
(i)
Low nonimmigrant
visa refusal rate
The percentage of nationals of that country
refused nonimmigrant visas under section 101(a)(15)(B) during the previous full
fiscal year was not more than 3 percent of the total number of nationals of
that country who were granted or refused nonimmigrant visas under such section
during such year.
(ii)
Low
nonimmigrant overstay rate
The overstay rate for that country was
not more than 3 percent during the previous fiscal
year.
.
(2)
Qualification
criteria
Section 217(c)(3) (8 U.S.C. 1187(c)(3)) is amended to
read as follows:
(3)
Qualification
criteria
After designation as a program country under section
217(c)(2), a country may not continue to be designated as a program country
unless the Secretary of Homeland Security, in consultation with the Secretary
of State, determines, pursuant to the requirements under paragraph (5), that
the designation will be
continued.
.
(3)
Initial
period
Section 217(c) is further amended by striking paragraph
(4).
(4)
Continuing
designation
Section 217(c)(5)(A)(i)(II) (8 U.S.C.
1187(c)(5)(A)(i)(II)) is amended to read as follows:
(II) shall determine,
based upon the evaluation in subclause (I), whether any such designation under
subsection (d) or (f), or probation under subsection (f), ought to be continued
or
terminated;
.
(5)
Computation of
visa refusal rates; judicial review
Section 217(c)(6) (8 U.S.C.
1187(c)(6)) is amended to read as follows:
(6)
Computation of
visa refusal rates and judicial review
(A)
Computation of
visa refusal rates
For purposes of determining the eligibility of
a country to be designated as a program country, the calculation of visa
refusal rates shall not include any visa refusals which incorporate any
procedures based on, or are otherwise based on, race, sex, or disability,
unless otherwise specifically authorized by law or regulation.
(B)
Judicial
review
No court shall have jurisdiction under this section to
review any visa refusal, the Secretary of State’s computation of a visa refusal
rate, the Secretary of Homeland Security’s computation of an overstay rate, or
the designation or nondesignation of a country as a program
country.
.
(6)
Visa waiver
information
Section 217(c)(7) (8 U.S.C. 1187(c)(7)) is
amended—
(A) by striking
subparagraphs (B) through (D); and
(B) by striking
waiver
information.— and all that follows through In
refusing and inserting waiver information.—In refusing.
(7)
Waiver
authority
Section 217(c)(8) (8 U.S.C. 1187(c)(8)) is amended to
read as follows:
(8)
Waiver
authority
The Secretary of Homeland Security, in consultation
with the Secretary of State, may waive the application of paragraph (2)(A)(i)
for a country if—
(A) the country meets
all other requirements of paragraph (2);
(B) the Secretary of
Homeland Security determines that the totality of the country's security risk
mitigation measures provide assurance that the country's participation in the
program would not compromise the law enforcement, security interests, or
enforcement of the immigration laws of the United States;
(C) there has been a
general downward trend in the percentage of nationals of the country refused
nonimmigrant visas under section 101(a)(15)(B);
(D) the country
consistently cooperated with the Government of the United States on
counterterrorism initiatives, information sharing, preventing terrorist travel,
and extradition to the United States of individuals (including the country's
own nationals) who commit crimes that violate United States law before the date
of its designation as a program country, and the Secretary of Homeland Security
and the Secretary of State assess that such cooperation is likely to continue;
and
(E) the percentage of
nationals of the country refused a nonimmigrant visa under section
101(a)(15)(B) during the previous full fiscal year was not more than 10 percent
of the total number of nationals of that country who were granted or refused
such nonimmigrant
visas.
.
(d)
Termination of
designation; probation
Section 217(f) (8 U.S.C. 1187(f)) is
amended to read as follows:
(f)
Termination of
designation; probation
(1)
Definitions
In
this subsection:
(A)
Probationary
period
The term probationary period means the fiscal
year in which a probationary country is placed in probationary status under
this subsection.
(B)
Program
country
The term program country has the meaning
given that term in subsection (c)(1)(B).
(2)
Determination,
notice, and initial probationary period
(A)
Determination of
probationary status and notice of noncompliance
As part of each
program country’s periodic evaluation required by subsection (c)(5)(A), the
Secretary of Homeland Security shall determine whether a program country is in
compliance with the program requirements under subparagraphs (A)(ii) through
(F) of subsection (c)(2).
(B)
Initial
probationary period
If the Secretary of Homeland Security
determines that a program country is not in compliance with the program
requirements under subparagraphs (A)(ii) through (F) of subsection (c)(2), the
Secretary of Homeland Security shall place the program country in probationary
status for the fiscal year following the fiscal year in which the periodic
evaluation is completed.
(3)
Actions at the
end of the initial probationary period
At the end of the initial
probationary period of a country under paragraph (2)(B), the Secretary of
Homeland Security shall take 1 of the following actions:
(A)
Compliance
during initial probationary period
If the Secretary determines
that all instances of noncompliance with the program requirements under
subparagraphs (A)(ii) through (F) of subsection (c)(2) that were identified in
the latest periodic evaluation have been remedied by the end of the initial
probationary period, the Secretary shall end the country’s probationary
period.
(B)
Noncompliance
during initial probationary period
If the Secretary determines
that any instance of noncompliance with the program requirements under
subparagraphs (A)(ii) through (F) of subsection (c)(2) that were identified in
the latest periodic evaluation has not been remedied by the end of the initial
probationary period—
(i) the Secretary may
terminate the country’s participation in the program; or
(ii) on an annual
basis, the Secretary may continue the country’s probationary status if the
Secretary, in consultation with the Secretary of State, determines that the
country’s continued participation in the program is in the national interest of
the United States.
(4)
Actions at the
end of additional probationary periods
At the end of all
probationary periods granted to a country pursuant to paragraph (3)(B)(ii), the
Secretary shall take 1 of the following actions:
(A)
Compliance
during additional period
The Secretary shall end the country’s
probationary status if the Secretary determines during the latest periodic
evaluation required by subsection (c)(5)(A) that the country is in compliance
with the program requirements under subparagraphs (A)(ii) through (F) of
subsection (c)(2).
(B)
Noncompliance
during additional periods
The Secretary shall terminate the
country's participation in the program if the Secretary determines during the
latest periodic evaluation required by subsection (c)(5)(A) that the program
country continues to be in noncompliance with the program requirements under
subparagraphs (A)(ii) through (F) of subsection (c)(2).
(5)
Effective
date
The termination of a country's participation in the program
under paragraph (3)(B) or (4)(B) shall take effect on the first day of the
first fiscal year following the fiscal year in which the Secretary determines
that such participation shall be terminated. Until such date, nationals of the
country shall remain eligible for a waiver under subsection (a).
(6)
Treatment of
nationals after termination
For purposes of this subsection and
subsection (d)—
(A) nationals of a
country whose designation is terminated under paragraph (3) or (4) shall remain
eligible for a waiver under subsection (a) until the effective date of such
termination; and
(B) a waiver under
this section that is provided to such a national for a period described in
subsection (a)(1) shall not, by such termination, be deemed to have been
rescinded or otherwise rendered invalid, if the waiver is granted prior to such
termination.
(7)
Consultative
role of the Secretary of State
In this subsection, references to
subparagraphs (A)(ii) through (F) of subsection (c)(2) and subsection (c)(5)(A)
carry with them the consultative role of the Secretary of State as provided in
those
provisions.
.
(e)
Review of
overstay tracking methodology
Not later than 180 days after the
date of the enactment of this Act, the Comptroller General of the United States
shall conduct a review of the methods used by the Secretary—
(1) to track aliens
entering and exiting the United States; and
(2) to detect any such
alien who stays longer than such alien's period of authorized admission.
(f)
Evaluation of
electronic system for travel authorization
Not later than 90 days
after the date of the enactment of this Act, the Secretary shall submit to
Congress—
(1) an evaluation of
the security risks of aliens who enter the United States without an approved
Electronic System for Travel Authorization verification; and
(2) a description of
any improvements needed to minimize the number of aliens who enter the United
States without the verification described in paragraph (1).
(g)
Sense of
Congress on priority for review of program countries
It is the
sense of Congress that the Secretary, in the process of conducting evaluations
of countries participating in the visa waiver program under section 217 of the
Immigration and Nationality Act (8 U.S.C. 1187), should prioritize the reviews
of countries in which circumstances indicate that such a review is necessary or
desirable.
4507.
Expediting
entry for priority visitors
Section 7208(k)(4) of the Intelligence
Reform and Terrorism Prevention Act of 2004 (8 U.S.C. 1365b(k)(4)) is amended
to read as follows:
(4)
Expediting entry
for priority visitors
(A)
In
general
The Secretary of Homeland Security may expand the
enrollment across registered traveler programs to include eligible individuals
employed by international organizations, selected by the Secretary, which
maintain strong working relationships with the United States.
(B)
Requirements
An
individual may not be enrolled in a registered traveler program unless—
(i) the individual is
sponsored by an international organization selected by the Secretary under
subparagraph (A); and
(ii) the government
that issued the passport that the individual is using has entered into a
Trusted Traveler Arrangement with the Department of Homeland Security to
participate in a registered traveler program.
(C)
Security
requirements
An individual may not be enrolled in a registered
traveler program unless the individual has successfully completed all
applicable security requirements established by the Secretary, including
cooperation from the applicable foreign government, to ensure that the
individual does not pose a risk to the United States.
(D)
Discretion
Except
as provided in subparagraph (E), the Secretary shall retain unreviewable
discretion to offer or revoke enrollment in a registered traveler program to
any individual.
(E)
Ineligible
travelers
An individual who is a citizen of a state sponsor of
terrorism (as defined in section 301(13) of the Comprehensive Iran Sanctions,
Accountability, and Divestment Act of 2010 (22 U.S.C. 8541(13)) may not be
enrolled in a registered traveler
program.
.
4508.
Visa
processing
(a)
In
general
Notwithstanding any other provision of law and not later
than 90 days after the date of the enactment of this Act, the Secretary of
State shall—
(1) require United
States diplomatic and consular missions—
(A) to conduct visa
interviews for nonimmigrant visa applications determined to require a consular
interview in an expeditious manner, consistent with national security
requirements, and in recognition of resource allocation considerations, such as
the need to ensure provision of consular services to citizens of the United
States;
(B) to set a goal of
interviewing 80 percent of all nonimmigrant visa applicants, worldwide, within
3 weeks of receipt of application, subject to the conditions outlined in
subparagraph (A); and
(C) to explore
expanding visa processing capacity in China and Brazil, with the goal of
maintaining interview wait times under 15 work days on a consistent, year-round
basis, recognizing that demand can spike suddenly and unpredictably and that
the first priority of United States missions abroad is the protection of
citizens of the United States; and
(2) submit to the
appropriate committees of Congress a detailed strategic plan that describes the
resources needed to carry out paragraph (1)(A).
(b)
Appropriate
committees of Congress
In this section, the term
appropriate committees of Congress means—
(1) the Committee on
the Judiciary, the Committee on Foreign Relations, and the Committee on
Appropriations of the Senate; and
(2) the Committee on
the Judiciary, the Committee on Foreign Affairs, and the Committee on
Appropriations of the House of Representatives.
(c)
Semi-Annual
report
Not later than 30 days after the end of the first 6 months
after the implementation of subsection (a), and not later than 30 days after
the end of each subsequent quarter, the Secretary of State shall submit to the
appropriate committees of Congress a report that provides—
(1) data
substantiating the efforts of the Secretary of State to meet the requirements
and goals described in subsection (a);
(2) any factors that
have negatively impacted the efforts of the Secretary to meet such requirements
and goals; and
(3) any measures that
the Secretary plans to implement to meet such requirements and goals.
(d)
Savings
provision
(1)
In
general
Nothing in subsection (a) may be construed to affect a
consular officer’s authority—
(A) to deny a visa
application under section 221(g) of the Immigration and Nationality Act (8
U.S.C. 1201(g)); or
(B) to initiate any
necessary or appropriate security-related check or clearance.
(2)
Security
checks
The completion of a security-related check or clearance
shall not be subject to the time limits set out in subsection (a).
F
Reforms to the
H–2B Visa Program
4601.
Extension of
returning worker exemption to H–2B numerical limitation
(a)
In
general
(1)
In
general
Subparagraph (A) of paragraph (10) of section 214(g) (8
U.S.C. 1184(g)), as redesignated by section 4101(a)(3), is amended by striking
fiscal year 2004, 2005, or 2006 and inserting fiscal year
2013 shall not again be counted toward such limitation during fiscal years 2014
through 2018. .
(2)
Effective
period
The amendment made by paragraph (1) shall be effective
during the period beginning on the effective date described in subsection (c)
and ending on September 30, 2018.
(b)
Technical and
clarifying amendments
(1)
Nonimmigrant
status
Section 101(a)(15)(P) (8 U.S.C. 1101(a)(15)(P)) is
amended—
(A) in clause (iii),
by striking or at the end;
(B) in clause (iv), by
striking clause (i), (ii), or (iii), and inserting clause
(i), (ii), (iii), or (iv);
(C) by redesignating
clause (iv) as clause (v); and
(D) by inserting after
clause (iii) the following new clause:
(iv) is a ski
instructor seeking to enter the United States temporarily to perform
instructing services;
or
.
(2)
Authorized
period of stay; numerical limitation
Section 214(a)(2)(B) (8
U.S.C. 1184(a)(2)(B)) is amended in the second sentence—
(A) by inserting
or ski instructors after athletes; and
(B) by inserting
or ski instructor after athlete.
(3)
Construction
Nothing
in the amendments made by this subsection may be construed as preventing an
alien who is a ski instructor from obtaining nonimmigrant status under section
101(a)(15)(H)(ii)(b) of the Immigration and Nationality Act (8 U.S.C.
1101(a)(15)(H)(ii)(b)) if such alien is otherwise qualified for such
status.
(c)
Effective
date
The amendment made by subsection (a) shall take effect as if
enacted on January 1, 2013.
4602.
Other
requirements for H–2B employers
(a)
In
general
Section 214 (8 U.S.C. 1184), as amended by sections 3609,
4233, 4405, 4503, and 4504, is further amended by adding at the end the
following:
(x)
Requirements for
H–2B employers
(1)
H–2B
nonimmigrant defined
In this subsection the term H–2B
nonimmigrant means an alien admitted to the United States pursuant to
section 101(a)(15)(H)(ii)(B).
(2)
Non-displacement
of United States workers
An employer who seeks to employ an H–2B
nonimmigrant admitted in an occupational classification shall certify and
attest that the employer did not displace and will not displace a United States
worker employed by the employer in the same metropolitan statistical area where
such nonimmigrant will be hired within the period beginning 90 days before the
start date and ending on the end date for which the employer is seeking the
services of such nonimmigrant as specified on an application for labor
certification under this Act.
(3)
Transportation
costs
The employer shall pay the transportation costs, including
reasonable subsistence costs during the period of travel, for an H–2B
nonimmigrant hired by the employer—
(A) from the place of
recruitment to the place of such nonimmigrant's employment; and
(B) from the place of
employment to such nonimmigrant's place of permanent residence or a subsequent
worksite.
(4)
Payment of
fees
A fee related to the hiring of an H-2B 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 an H-2B
nonimmigrant.
(5)
H–2B
nonimmigrant labor certification application fees
(A)
In
general
To recover costs of carrying out labor certification
activities under the H-2B program, the Secretary of Labor shall impose a $500
fee on an employer that submits an application for an employment certification
for aliens granted H–2B nonimmigrant status to the Secretary of Labor under
this subparagraph on or after the date that is 30 days after the date of
enactment of the Border Security, Economic
Opportunity, and Immigration Modernization
Act.
.
(B)
Use of
fees
The fees collected under subparagraph (A) shall be deposited
in the Comprehensive Immigration Reform Trust Fund established under section 6
of the Border Security, Economic Opportunity,
and Immigration Modernization
Act.
.
(b)
Executives and
managers
Section 214 (8
U.S.C. 1184) is amended as follows:
(1) in subsection
(a)(1), by adding at the end “Aliens admitted under section 101(a)(15) should
include—
(A) executives and
managers employed by a firm or corporation or other legal entity or an
affiliate or subsidiary thereof who are principally stationed abroad and who
seek to enter the United States for periods of 90 days or less to oversee and
observe the United States operations of their related companies, and establish
strategic objectives when needed; or
(B) employees of
multinational corporations who enter the United States to observe the
operations of a related United States company and participate in select
leadership and development training activities, whether or not the activity is
part of a formal or classroom training program for a period not to exceed 180
days.
Nonimmigrant aliens admitted pursuant
to section 101(a)(15) and engaged in the activities described in the
subparagraph (A) or (B) may not receive a salary from a United States source,
except for incidental expenses for meals, travel, lodging and other basic
services.
.
(c)
Honoraria
Section
212(q) (8 U.S.C. 1182(q)) is amended to read as follows:
(q)
(1) Any alien admitted
under section 101(a)(15)(B) may accept an honorarium payment and associated
incidental expenses, for a usual academic activity or activities (lasting not
longer than 9 days at any single institution), as defined by the Attorney
General in consultation with the Secretary of Education, or for a performance,
appearance and participation in United States based programming, including
scripted or unscripted programming (with services not rendered for more than 60
days in a 6 month period) if the alien has received a letter of invitation from
the institution, organization, or media outlet, such payment is offered by an
institution, organization, or media outlet described in paragraph (2) and is
made for services conducted for the benefit of that institution, entity or
media outlet and if the alien has not accepted such payment or expenses from
more than 5 institutions, organizations, or media outlets in the previous
6-month period. Any alien who is admitted under section 101(a)(15)(B) or any
other valid visa may perform services under this section without reentering the
United States and without a letter of invitation, if the alien does not receive
any remuneration including an honorarium payment or incidental expenses, but
may receive prize money.
(2) An institution,
organization, or media outlet described in this paragraph—
(A) an institution of
higher education (as defined in section 101(a) of the Higher Education Act of
1965 (20 U.S.C. 1001(a))) or a related or affiliated nonprofit entity;
(B) a nonprofit
research organization or a Governmental research organization; and
(C) a broadcast
network, cable entity, production company, new media, internet and mobile based
companies, who create or distribute programming
content.
.
4603.
Nonimmigrants
participating in relief operations
Section 214 (8 U.S.C. 1184), as amended by
sections 3609, 4233, 4405, 4503, 4504, and 4602, is further amended by adding
at the end following:
(y)
Nonimmigrants
participating in relief operations
(1)
In
general
An alien coming
individually, or aliens coming as a group, to participate in relief operations,
including critical infrastructure repairs or improvements, needed in response
to a Federal or State declared emergency or disaster, may be admitted to the
United States pursuant to section 101(a)(15)(B) for a period of not more than
90 days if each such alien has been employed in a foreign country by 1 employer
for not less than 1 year prior to the date the alien is so admitted.
(2)
Prohibition on
income from a United States source
During a period of admission pursuant to
paragraph (1), an alien may not receive income from a United States source,
except for incidental expenses for meals, travel, lodging, and other basic
services.
.
4604.
Nonimmigrants
performing maintenance on common carriers
Section 214 (8 U.S.C. 1184), as amended by
sections 3609, 4233, 4405, 4503, 4504, 4602, and 4603, is further amended by
adding at the end following:
(z)
Nonimmigrants
performing maintenance on common carrier
(1)
In
general
An alien coming
individually, or aliens coming as a group, who possess specialized knowledge to
perform maintenance or repairs for common carriers, including to airlines,
cruise lines, and railways, if such maintenance or repairs are occurring to
equipment or machinery manufactured outside of the United States and are needed
for purposes relating to life, health, and safety, may be admitted to the
United States pursuant to section 101(a)(15)(B) for a period of not more than
90 days if each such alien has been employed in a foreign country by 1 employer
for not less than 1 year prior to the date the alien is so admitted.
(2)
Prohibition on
income from a United States source
During a period of admission pursuant to
paragraph (1), an alien may not receive a income from a United States source,
except for incidental expenses for meals, travel, lodging, and other basic
services.
(3)
Fee
(A)
In
general
An alien admitted pursuant to paragraph (1) shall pay a
fee of $500.
(B)
Use of
fee
The fees collected under subparagraph (A) shall be deposited
in the Comprehensive Immigration Reform Trust Fund established under section 6
of the Border Security, Economic Opportunity,
and Immigration Modernization
Act
.
G
W nonimmigrant
visas
4701.
Bureau of
Immigration and Labor Market Research
(a)
Definitions
In this section:
(1)
Bureau
Except
as otherwise specifically provided, the term Bureau means the
Bureau of Immigration and Labor Market Research established under subsection
(b).
(2)
Commissioner
The
term Commissioner means the Commissioner of the Bureau.
(3)
Construction
occupation
The term construction occupation means an
occupation defined by the Bureau of Labor Statistics as being within the
construction industry for the purposes of publishing the Bureau's workforce
statistics.
(4)
Metropolitan
statistical area
The term metropolitan statistical
area means a geographic area designated as a metropolitan statistical
area by the Director of the Office of Management and Budget.
(5)
Shortage
occupation
The term shortage occupation means an
occupation that the Commissioner determines is experiencing a shortage of
labor—
(A) throughout the
United States; or
(B) in a specific
metropolitan statistical area.
(6)
W visa
program
The term W visa program means the program
for the admission of nonimmigrant aliens described in subparagraph (W)(i) of
section 101(a)(15) of the Immigration and Nationality Act (8 U.S.C.
1101(a)(15)), as added by section 4702.
(7)
Zone 1
occupation
The term zone 1 occupation means an
occupation that requires little or no preparation and is classified as a zone 1
occupation on—
(A) the Occupational
Information Network Database (O*NET) on the date of the enactment of this Act;
or
(B) such Database or a
similar successor database, as designated by the Secretary of Labor, after the
date of the enactment of this Act.
(8)
Zone 2
occupation
The term zone 2 occupation means an
occupation that requires some preparation and is classified as a zone 2
occupation on—
(A) the Occupational
Information Network Database (O*NET) on the date of the enactment of this Act;
or
(B) such Database or a
similar successor database, as designated by the Secretary of Labor, after the
date of the enactment of this Act.
(9)
Zone 3
occupation
The term zone 3 occupation means an
occupation that requires medium preparation and is classified as a zone 3
occupation on—
(A) the Occupational
Information Network Database (O*NET) on the date of the enactment of this Act;
or
(B) such Database or a
similar successor database, as designated by the Secretary of Labor, after the
date of the enactment of this Act.
(b)
Establishment
There
is established a Bureau of Immigration and Labor Market Research as an
independent statistical agency within U.S. Citizenship and Immigration
Services.
(c)
Commissioner
The
head of the Bureau of Immigration and Labor Market Research is the
Commissioner, who shall be appointed by the President, by and with the advice
and consent of the Senate.
(d)
Duties
The
duties of the Commissioner are limited to the following:
(1) To devise a
methodology subject to publication in the Federal Register and an opportunity
for public comment to determine the annual change to the numerical limitation
for nonimmigrant aliens described in subparagraph (W)(i) of section 101(a)(15)
of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)), as added by
section 4702.
(2) To determine and
to publish in the Federal Register the annual change to the numerical
limitation for nonimmigrant aliens described in subparagraph (W)(i) of section
101(a)(15) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)), as
added by section 4702.
(3) With respect to
the W visa program, to supplement the recruitment methods employers may use to
attract such nonimmigrant aliens.
(4) With respect to
the W visa program, to devise a methodology subject to publication in the
Federal Register and an opportunity for public comment to designate shortage
occupations in zone 1 occupations, zone 2 occupations, and zone 3
occupations.
(5) With respect to
the W visa program, to designate shortage occupations in any zone 1 occupation,
zone 2 occupation, or zone 3 occupation and publish such occupations in the
Federal Register.
(6) With respect to
the W visa program, to conduct a survey once every 3 months of the unemployment
rate of zone 1 occupations, zone 2 occupations, or zone 3 occupations that are
construction occupations in each metropolitan statistical area.
(7) To study and
report to Congress on employment-based immigrant and nonimmigrant visa programs
in the United States and to make annual recommendations to improve such
programs.
(8) To carry out any
functions required to carry out the duties described in paragraphs (1) through
(7).
(e)
Determination of
changes to numerical limitations
The methodology required under
subsection (d)(1) shall be published in the Federal Register not later than 18
months after the date of the enactment of this Act.
(f)
Designation of
shortage occupations
(1)
Methods to
determine
The Commissioner shall—
(A) establish the
methodology to designate shortage occupations under subsection (d)(4);
and
(B) publish such
methodology in the Federal Register not later than 18 months after the date of
the enactment of this Act.
(2)
Petition by
employer
The methodology established under paragraph (1) shall
permit an employer to petition the Commissioner for a determination that a
particular occupation in a particular metropolitan statistical area is a
shortage occupation.
(3)
Requirement for
notice and comment
The methodology established under paragraph
(1) shall be effective only after publication in the Federal Register and an
opportunity for public comment.
(g)
Employee
expertise
The employees of the Bureau shall have the expertise
necessary to identify labor shortages in the United States and make
recommendations to the Commissioner on the impact of immigrant and nonimmigrant
aliens on labor markets in the United States, including expertise in economics,
labor markets, demographics and methods of recruitment of United States
workers.
(h)
Interagency
cooperation
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—
(1) provide data to
the Commissioner;
(2) conduct
appropriate surveys; and
(3) assist the
Commissioner in preparing the recommendations referred to subsection
(d)(5).
(i)
Budget
(1)
Report
Not
later than 1 year after the date of the enactment of this Act, the Director of
U.S. Citizenship and Immigration Services shall submit to Congress a report of
the estimated budget that the Bureau will need to carry out the duties
described in subsection (d).
(2)
Audit
The
Comptroller General of the United States shall submit to Congress a report that
is an audit of the budget prepared by the Director under paragraph (1).
(j)
Funding
(1)
Appropriation of
funds
There is hereby appropriated, out of any money in the
Treasury not otherwise appropriated, $20,000,000 to establish the
Bureau.
(2)
Use of W
nonimmigrant fees
The amounts collected for fees under section
220(e)(6)(B) of the Immigration and Nationality Act, as added by section 4703,
shall be used to establish and fund the Bureau.
(3)
Other
fees
The Secretary may establish other fees related to the hiring
of alien workers and use such fees to fund the Bureau.
4702.
Nonimmigrant
classification for W nonimmigrants
Section 101(a)(15)(W), as added by section
2211, is amended by inserting before clause (iii) the following:
(i) to perform
services or labor for a registered employer in a registered position (as those
terms are defined in section 220(a)) in accordance with the requirements under
section 220;
(ii) to accompany or
follow to join such an alien described in clause (i) as the spouse or child of
such
alien;
.
4703.
Admission of W
nonimmigrant workers
(a)
Admission of W
nonimmigrant workers
(1)
In
general
Title II (8 U.S.C. 1151 et seq.) is amended by adding at
the end the following:
220.
Admission of W
nonimmigrant workers
(a)
Definitions
In
this section:
(1)
Bureau
The
term Bureau means the Bureau of Immigration and Labor Market
Research established by section 4701 of the Border Security, Economic Opportunity, and Immigration
Modernization Act.
(2)
Certified
alien
The term certified alien means an alien that
the Secretary of State has certified is eligible to be a W nonimmigrant if the
alien is hired by a registered employer for a registered position.
(3)
Commissioner
The
term Commissioner means the Commissioner of the Bureau.
(4)
Construction
occupation
The term construction occupation means an
occupation defined by the Bureau of Labor Statistics as being within the
construction industry for the purposes of publishing the Bureau's workforce
statistics.
(5)
Department
Except
as otherwise provided, the term Department means the Department of
Homeland Security.
(6)
Eligible
occupation
The term eligible occupation means an
eligible occupation described in subsection (e)(3).
(7)
Employer
(A)
In
general
The term employer means any person or entity
hiring an individual for employment in the United States.
(B)
Treatment of
single employer
For purposes of determining the number of
employees or United States workers employed by an employer, a single entity
shall be treated as 1 employer.
(8)
Excluded
geographic location
The term excluded geographic
location means an excluded geographic location described in subsection
(f).
(9)
Metropolitan
statistical area
The term metropolitan statistical
area means a geographic area designated as a metropolitan statistical
area by the Director of the Office of Management and Budget.
(10)
Registered
employer
The term registered employer means an
employer that the Secretary has designated as a registered employer under
subsection (d).
(11)
Secretary
Except
as otherwise specifically provided, the term Secretary means the
Secretary of Homeland Security.
(12)
Single
entity
The term single entity means any group
treated as a single employer under subsection (b), (c), (m), or (o) of section
414 of the Internal Revenue Code of 1986.
(13)
Shortage
occupation
The term shortage occupation means a
shortage occupation designated by the Commissioner pursuant to section
4701(d)(4) of the Border Security, Economic
Opportunity, and Immigration Modernization Act.
(14)
Small
business
The term small business means an employer
that employs 25 or fewer full-time equivalent employees.
(15)
United States
worker
The term United States worker means an
individual who is—
(A) employed or
seeking employment in the United States; and
(B)
(i) a national of the
United States;
(ii) an alien lawfully
admitted for permanent residence;
(iii) an alien in
Registered Provisional Immigrant Status; or
(iv) any other alien
authorized to work in the United States with no limitation as to the alien's
employer.
(16)
W
nonimmigrant
The term W nonimmigrant means an alien
admitted as a nonimmigrant pursuant to section 101(a)(15)(W)(i).
(17)
W visa
program
The term W visa program means the program
for the admission of nonimmigrant aliens described in section
101(a)(15)(W)(i).
(18)
Zone 1
occupation
The term zone 1 occupation means an
occupation that requires little or no preparation and is classified as a zone 1
occupation on—
(A) the Occupational
Information Network Database (O*NET) on the date of the enactment of the
Border Security, Economic Opportunity, and
Immigration Modernization Act; or
(B) such Database or a
similar successor database, as designated by the Secretary of Labor, after the
date of the enactment of the Border Security,
Economic Opportunity, and Immigration Modernization Act.
(19)
Zone 2
occupation
The term zone 2 occupation means an
occupation that requires some preparation and is classified as a zone 2
occupation on—
(A) the Occupational
Information Network Database (O*NET) on the date of the enactment of the
Border Security, Economic Opportunity, and
Immigration Modernization Act; or
(B) such Database or a
similar successor database, as designated by the Secretary of Labor, after the
date of the enactment of the Border Security,
Economic Opportunity, and Immigration Modernization Act.
(20)
Zone 3
occupation
The term zone 3 occupation means an
occupation that requires medium preparation and is classified as a zone 3
occupation on—
(A) the Occupational
Information Network Database (O*NET) on the date of the enactment of the
Border Security, Economic Opportunity, and
Immigration Modernization Act; or
(B) such Database or a
similar successor database, as designated by the Secretary of Labor, after the
date of the enactment of the Border Security,
Economic Opportunity, and Immigration Modernization Act.
(b)
Admission into
the United States
(1)
W
nonimmigrants
Subject to this section, a certified alien is
eligible to be admitted to the United States as a W nonimmigrant if the alien
is hired by a registered employer for employment in a registered position in a
location that is not an excluded geographic location.
(2)
Spouse and minor
children
The alien spouse and minor children of a W
nonimmigrant—
(A) may be admitted to
the United States pursuant to clause (ii) of section 101(a)(15)(W) during the
period of the principal W nonimmigrant's admission;
(B) is authorized to
engage in employment in the United States during such period of admission;
and
(C) shall be provided
with employment authorization or other appropriate work permit.
(c)
W
nonimmigrants
(1)
Certified
alien
(A)
Application
An
alien seeking to be a W nonimmigrant shall apply to the Secretary of State at a
United States embassy or consulate in a foreign country to be a certified
alien.
(B)
Criteria
An
alien is eligible to be a certified alien if the alien—
(i) is not
inadmissible under this Act;
(ii) passes a criminal
background check;
(iii) agrees to accept
only registered positions in the United States; and
(iv) meets other
criteria as established by the Secretary.
(2)
W nonimmigrant
status
Only an alien that is a certified alien may be admitted to
the United States as a W nonimmigrant.
(3)
Initial
employment
A W nonimmigrant shall report to such nonimmigrant's
initial employment in a registered position not later than 14 days after such
nonimmigrant is admitted to the United States.
(4)
Term of
admission
(A)
Initial
term
A certified alien may be granted W nonimmigrant status for
an initial period of 3 years.
(B)
Renewal
A
W nonimmigrant may renew his or her status as a W nonimmigrant for additional
3-year periods. Such a renewal may be made while the W nonimmigrant is in the
United States and shall not require the alien to depart the United
States.
(5)
Periods of
unemployment
A W nonimmigrant—
(A) may be unemployed
for a period of not more than 60 consecutive days; and
(B) shall depart the
United States if such W nonimmigrant is unable to obtain such employment during
such period.
(6)
Travel
A
W nonimmigrant may travel outside the United States and be readmitted to the
United States. Such travel may not extend the period of authorized admission of
such W nonimmigrant.
(d)
Registered
employer
(1)
Application
An
employer seeking to be a registered employer shall submit an application to the
Secretary. Each such application shall include the following:
(A) Documentation to
establish that the employer is a bona-fide employer.
(B) The employer's
Federal tax identification number or employer identification number registered
with the Internal Revenue Service.
(C) The number of W
nonimmigrants the employer estimates it will seek to employ annually.
(2)
Referral for
fraud investigation
The Secretary may refer an application
submitted under paragraph (1) or subsection (e)(1)(A) to the Fraud Detection
and National Security Directorate of U.S. Citizenship and Immigration Services
if there is evidence of fraud for potential investigation.
(3)
Ineligible
employers
(A)
In
general
Notwithstanding any other applicable penalties under law,
the Secretary may deny an employer’s application to be a registered employer if
the Secretary determines, after notice and an opportunity for a hearing, that
the employer submitting such application—
(i) has, with respect
to the application required under paragraph (1), including any attestations
required by law—
(I) knowingly
misrepresented a material fact;
(II) knowingly made a
fraudulent statement; or
(III) knowingly failed
to comply with the terms of such attestations; or
(ii) failed to
cooperate in the audit process in accordance with regulations promulgated by
the Secretary;
(iii) has been
convicted of an offense set out in chapter 77 of title 18, United States Code,
or any conspiracy to commit such offenses, or any human trafficking offense
under State or territorial law;
(iv) has, within 2
years prior to the date of application—
(I) received a final
adjudication of having committed any hazardous occupation orders violation
resulting in injury or death under the child labor provisions contained in
section 12 of the Fair Labor Standards Act of 1938 (29 U.S.C. 211) and any
pertinent regulation;
(II) received a final
adjudication assessing a civil money penalty for any repeated or willful
violation of the minimum wage provisions of section 6 of the Fair Labor
Standards Act of 1938 (29 U.S.C. 206); or
(III) received a final
adjudication assessing a civil money penalty for any repeated or willful
violation of the overtime provisions of section 7 of the Fair Labor Standards
Act of 1938 or any regulations thereunder, other than a repeated violation that
is self-reported (29 U.S.C. 207); or
(v) has, within 2
years prior to the date of application, received a final adjudication for a
willful violation or repeated serious violations involving injury or
death—
(I) of section 5 of
the Occupational Safety and Health Act of 1970 (29 U.S.C. 654);
(II) of any standard,
rule, or order promulgated pursuant to section 6 of the Occupational Safety and
Health Act of 1970 (29 U.S.C. 655); or
(III) of a plan
approved under section 18 of the Occupational Safety and Health Act of 1970 (29
U.S.C. 667).
(B)
Length of
ineligibility
(i)
Temporary
ineligibility
An employer described in subparagraph (A) may be
ineligible to be a registered employer for a period that is not less than the
time period determined by the Secretary and not more than 3 years.
(ii)
Permanent
ineligibility
An employer who has been convicted of any offense
set out in chapter 77 of title 18, United States Code, or any conspiracy to
commit such offenses, or any human trafficking offense under State or
territorial law shall be permanently ineligible to be a registered
employer.
(4)
Term of
registration
The Secretary shall approve applications meeting the
criteria of this subsection for a term of 3 years.
(5)
Renewal
An
employer may submit an application to renew the employer's status as a
registered employer for additional 3-year periods.
(6)
Fee
At
the time an employer's application to be a registered employer or to renew such
status 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.
(7)
Continued
eligibility
Each registered employer shall submit to the
Secretary an annual report that demonstrates that the registered employer has
provided the wages and working conditions the registered employer agreed to
provide to its employees.
(e)
Registered
positions
(1)
In
general
(A)
Application
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 such application shall include a description of each such
position.
(B)
Attestation
An
application submitted under subparagraph (A) shall include an attestation of
the following:
(i) The number of
employees of the employer.
(ii) The occupational
category, as classified by the Secretary of Labor, for which the registered
position is sought.
(iii) Whether the
occupation for which the registered position is sought is a shortage
occupation.
(iv) The wages to be
paid to W nonimmigrants employed by the employer in the registered position,
including a position in a shortage occupation, will be the greater of—
(I) the actual wage
level paid by the employer to other employees with similar experience and
qualifications for such position; or
(II) the prevailing
wage level for the occupational classification of the position in the
metropolitan statistical area of the employment, based on the best information
available as of the time of filing the application.
(v) The working
conditions for W nonimmigrants will not adversely affect the working conditions
of other workers employed in similar positions.
(vi) The employer has
carried out the recruiting activities required by paragraph (2)(B).
(vii) There is no
qualified United States worker who has applied for the position and who is
ready, willing, and able to fill such position pursuant to the requirements in
subparagraphs (B) and (C) of paragraph (2).
(viii) There is not a
strike, lockout, or work stoppage in the course of a labor dispute in the
occupation at the place of employment at which the W nonimmigrant will be
employed. If such strike, lockout, or work stoppage occurs following submission
of the application, the employer will provide notification in accordance with
all applicable regulations.
(ix)
(I) The employer has not
laid off and will not layoff a United States worker during the period beginning
90 days prior to and ending 90 days after the date the employer files an
application for designation of a position for which the W nonimmigrant is
sought or hires such W nonimmigrant, unless the employer has notified such
United States worker of the position and documented the legitimate reasons that
such United States worker is not qualified or available for the
position.
(II) A United States
worker is not laid off for purposes of this subparagraph if, at the time such
worker’s employment is terminated, such worker is not employed in the same
occupation and in the same metropolitan statistical area where the registered
position referred to in subclause (I) is located.
(C)
Best information
available
In subparagraph (B)(iv)(II), the term best
information available, with respect to determining the prevailing wage
for a position, means—
(i) a controlling
collective bargaining agreement or Federal contract wage, if applicable;
(ii) if there is no
applicable wage under clause (i), the wage level commensurate with the
experience, training, and supervision required for the job based on Bureau of
Labor Statistics data; or
(iii) if the data
referred to in clause (ii) is not available, a legitimate and recent private
survey of the wages paid for such positions in the metropolitan statistical
area.
(D)
Permit
The
Secretary shall provide each registered employer whose application submitted
under subparagraph (A) is approved with a permit that includes the number and
description of such employer's approved registered positions.
(E)
Term of
registration
The approval of a registered position under
subparagraph (A) is for a term that begins on the date of such approval and
ends on the earlier of—
(i) the date the
employer's status as a registered employer is terminated;
(ii) three years after
the date of such approval; or
(iii) upon proper
termination of the registered position by the employer.
(2)
Requirements
(A)
Eligible
occupation
Each registered position shall be for a position in an
eligible occupation as described in paragraph (3).
(B)
Recruitment of
United States workers
(i)
Requirements
A
position may not be a registered position unless the registered
employer—
(I) advertises the
position for a period of 30 days, including the wage range, location, and
proposed start date—
(aa) on the Internet
website maintained by the Secretary of Labor for the purpose of such
advertising; and
(bb) with the
workforce agency of the State where the position will be located; and
(II) carries out not
less than 3 of the recruiting activities described in subparagraph (C).
(ii)
Duration of
advertising
The 30 day periods required by item (aa) of (bb) of
clause (i)(I) may occur at the same time.
(C)
Recruiting
activities
The recruiting activities described in this
subparagraph, with respect to a position for which the employer is seeking a W
nonimmigrant, shall consist of any combination of the following as defined by
the Secretary of Homeland Security:
(i) Advertising such
position at job fairs.
(ii) Advertising such
position on the employer’s external website.
(iii) Advertising such
position on job search Internet websites.
(iv) Advertising such
position using presentations or postings at vocational, career technical
schools, community colleges, high schools, or other educational or training
sites.
(v) Posting such
position with trade associations.
(vi) Utilizing a
search firm to seek applicants for such position.
(vii) Advertising such
position through recruitment programs with placement offices at vocational
schools, career technical schools, community colleges, high schools, or other
educational or training sites.
(viii) Advertising
such position through advertising or postings with local libraries, journals,
or newspapers.
(ix) Seeking a
candidate for such position through an employee referral program with
incentives.
(x) Advertising such
position through advertising on radio or television.
(xi) Advertising such
position through advertising, postings, or presentations with newspapers,
Internet websites, job fairs, or community events targeted to constituencies
designed to increase employee diversity.
(xii) Advertising such
position through career day presentations at local high schools or community
organizations.
(xiii) Providing
in-house training.
(xiv) Providing
third-party training.
(xv) Advertising such
position through recruitment, educational, or other cooperative programs
offered by the employer and a local economic development authority.
(xvi) Advertising such
position twice in the Sunday ads in the primary daily circulation newspaper in
the area.
(xvii) Any other
recruitment activities determined to be appropriate to be added by the
Commissioner.
(3)
Eligible
occupation
(A)
In
general
An occupation is an eligible occupation if the
occupation—
(i) is a zone 1
occupation, a zone 2 occupation, or zone 3 occupation; and
(ii) is not an
excluded occupation under subparagraph (B).
(B)
Excluded
occupations
(i)
Occupations
requiring college degrees
An occupation that is listed in the
Occupational Outlook Handbook published by the Bureau of Labor Statistics (or
similar successor publication) that is classified as requiring an individual
with a bachelor’s degree or higher level of education may not be an eligible
occupation.
(ii)
Computer
occupations
An occupation in the field of computer operation,
computer programming, or computer repair may not be an eligible
occupation.
(C)
Publication
The
Secretary of Labor shall publish the eligible occupations, designated as zone 1
occupations, zone 2 occupations, or zone 3 occupations, on an on-going basis on
a publicly available website.
(4)
Filling of
vacancies
If a W nonimmigrant terminates employment in a
registered position or is terminated from such employment by the registered
employer, such employer may fill that vacancy by hiring—
(A) a certified
alien;
(B) a W
nonimmigrant;
(C) a United States
worker; or
(D) an alien who is
the beneficiary of a petition for a visa described in section 203(b)(3).
(5)
Period of
approval
(A)
In
general
Except as provided in subparagraph (B), a registered
position shall be approved by the Secretary for a period of 3 years.
(B)
Intending
immigrants
(i)
Extension of
period
A registered position shall continue to be a registered
position at the end of the 3-year period referred to in subparagraph (A) if the
W nonimmigrant hired for such position is the beneficiary of a petition for
immigrant status filed by the registered employer pursuant to this Act.
(ii)
Termination of
period
The term of a registration position extended under clause
(i) shall terminate on the date that is the earlier of—
(I) the date the
petition referred to in clause (i) for a W nonimmigrant is approved or denied
by the Secretary; or
(II) the date of the
termination of such W nonimmigrant’s employment with the registered
employer.
(6)
Fees
(A)
Registration
fee
(i)
In
general
At the time a registered position is approved for a
registered employer, such employer shall pay a registration fee in an amount
determined by the Secretary.
(ii)
Use of
fee
A fee collected under clause (i) shall be used to fund any
aspect of the operation of the W visa program.
(B)
Additional
fee
(i)
In
general
In addition to the fee required by subparagraph (A), a
registered employer shall pay an additional fee for each approved registered
position as follows:
(I) A fee of $1,750
for the registered position if the registered employer is a small business and
more than 50 percent and less than 75 percent of the employees of the
registered employees are not United States workers.
(II) A fee of $3,500
for the registered position if the registered employer is a small business and
more than 75 percent of the employees of the registered employees are not
United States workers.
(III) A fee of $3,500
for the registered position if the registered employer is not a small business
and more than 15 percent and less than 30 percent of the employees of the
registered employees are not United States workers.
(ii)
Use of
fee
A fee collected under clause (i) shall be used to fund the
operations of the Bureau.
(C)
Prohibition on
other fees
A registered employer may not be required to pay an
additional fee under subparagraph (B) if the registered employer is a small
business.
(7)
Prohibition on
registered positions for certain employers
The Secretary may not
approve an application for a registered position for an employer if the
employer is not a small business and 30 percent or more of the employees of the
employer are not United States workers.
(f)
Excluded
geographic location
No W nonimmigrant may be hired by a
registered employer for an eligible occupation located in a metropolitan
statistical area that has an unemployment rate that is more than 8
1/2 percent as reported in the most recent month preceding
the date that the application is submitted to the Secretary unless—
(1) the Commissioner
has identified the eligible occupation as a shortage occupation; or
(2) the Secretary
approves the registered position under subsection (g)(4).
(g)
Numerical
limitation
(1)
Registered
positions
(A)
In
general
Subject to paragraphs (3) and (4), the maximum number of
registered positions that may be approved by the Secretary for a year is as
follows:
(i) For the first year
aliens are admitted as W nonimmigrants, 20,000.
(ii) For the second
such year, 35,000.
(iii) For the third
such year, 55,000.
(iv) For the fourth
such year, 75,000.
(v) For each year
after the fourth such year, the level calculated for that year under paragraph
(2).
(B)
Dates
The
first year referred to in subparagraph (A)(i) shall begin on April 1, 2015 and
end on March 31, 2016, unless the Secretary determines that such first year
shall begin on October 1, 2015 and end on September 30, 2016.
(2)
Years after year
4
(A)
Current year and
preceding year
In this paragraph—
(i) the term
current year shall refer to the 12-month period for which the
calculation of the numerical limits under this paragraph is being performed;
and
(ii) the term
preceding year shall refer to the 12-month period immediately
preceding the current year.
(B)
Numerical
limitation
Subject to subparagraph (D), the number of registered
positions that may be approved by the Secretary for a year after the fourth
year referred to in paragraph (1)(A)(iv) shall be equal to the sum of—
(i) the number of such
registered positions available under this paragraph for the preceding year;
and
(ii) the product
of—
(I) the number of such
registered positions available under this paragraph for the preceding year;
multiplied by
(II) the index for the
current year calculated under subparagraph (C).
(C)
Index
The
index calculated under this subparagraph for a current year equals 1 plus the
sum of—
(i) one-fifth of a
fraction—
(I) the numerator of
which is the number of registered positions that registered employers applied
to have approved under subsection (e)(1) for the preceding year minus the
number of registered positions approved under subsection (e) for the preceding
year; and
(II) the denominator
of which is the number of registered positions approved under subsection (e)
for the preceding year;
(ii) one-fifth of a
fraction—
(I) the numerator of
which is the number of registered positions the Commissioner recommends be
available under this subparagraph for the current year minus the number of
registered positions available under this subsection for the preceding year;
and
(II) the denominator
of which is the number of registered positions available under this subsection
for the preceding year;
(iii) three-tenths of
a fraction—
(I) the numerator of
which is the number of unemployed United States workers for the preceding year
minus the number of unemployed United States workers for the current year;
and
(II) the denominator
of which is the number of unemployed United States workers for the preceding
year; and
(iv) three-tenths of a
fraction—
(I) the numerator of
which is the number of job openings as set out in the Job Openings and Labor
Turnover Survey of the Bureau of Labor Statistics for the current year minus
such number of job openings for the preceding year; and
(II) the denominator
of which is the number of such job openings for the preceding year;
(D)
Minimum and
maximum levels
The number of registered positions calculated
under subparagraph (B) for a 12-month period may not be less than 20,000 or
more than 200,000.
(3)
Additional
registered positions for shortage occupations
In addition to the
number of registered positions made available for a year under paragraph (1),
the Secretary shall make available for a year an additional number of
registered positions for shortage occupations in a particular metropolitan
statistical area.
(4)
Special
allocations of registered positions
(A)
Authority to
make available
In addition to the number of registered positions
made available for a year under paragraph (1) or (3), the Secretary shall make
additional registered positions available for the year for a specific
registered employer if—
(i)
(I) the maximum number of
registered positions available under paragraph (1) have been approved for the
year and none remain available for allocation; or
(II) such registered
employer is located in a metropolitan statistical area that has an unemployment
rate that is more than 8 1/2 percent as reported in the
most recent month preceding the date that the application is submitted to the
Secretary; and
(ii) such registered
employer has carried out not less than 7 of the recruiting activities described
in subsection (e)(2)(C) and posts the position, including the wage range,
location, and initial date of employment, for not less than 30 days—
(I) on the Internet
website maintained by the Secretary of Labor for the purpose of such
advertising; and
(II) with the
workforce agency of the State where the position will be located.
(B)
Duration of
posting
The 30 day periods required by subclauses (I) or (II) of
subparagraph (A)(iii) may occur at the same time.
(C)
Wages
A
W nonimmigrant hired to perform an eligible occupation pursuant to a registered
position made available under this paragraph may not be paid less than the
greater of—
(i) the level 4 wage
set out in the Foreign Labor Certification Data Center Online Wage Library (or
similar successor website) maintained by the Secretary of Labor for such
occupation in that metropolitan statistical area; or
(ii) the mean of the
highest two-thirds of wages surveyed for such occupation in that metropolitan
statistical area.
(D)
Reduction of
future registered positions
Each registered position made
available for a year under this paragraph shall reduce by 1 the number of
registered positions made available under paragraph (g)(1) for the following
year or the earliest possible year for which a registered position is
available. The limitation contained in paragraph (h)(4) shall not be reduced by
any registered position made available under this paragraph.
(5)
Other
consideration
In no event shall the number of visas issued under
section 101(a)(15)(W)(i) exceed the number of registered positions in
existence.
(h)
Allocation of
registered positions
(1)
In
general
(A)
First 6-month
period
The number of registered positions available for the
6-month period beginning on the first day of a year is 50 percent of the
maximum number of registered positions available for such year under subsection
(g)(1). Such registered positions shall be allocated as described in this
subsection.
(B)
Second 6-month
period
The number of registered positions available for the
6-month period ending on the last day of a year is the maximum number of
registered positions available for such year under subsection (g)(1) minus the
number of registered positions approved during the 6-month period referred to
in subsection (A). Such registered positions shall be allocated as described in
this subsection.
(2)
Shortage
occupations
(A)
In
general
For the first month of each 6-month period referred to in
subparagraph (A) or (B) of paragraph (1) a registered position may not be
created in an occupation that is not a shortage occupation.
(B)
Initial
designations
Subparagraph (A) shall not apply in any period for
which the Commissioner has not designated any shortage occupations.
(3)
Small
businesses
During the second, third, and fourth months of each
6-month period referred to in subparagraph (A) or (B) of paragraph (1),
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 such
registered positions not approved for such small businesses during such months
shall be available for any registered employer during the last 2 months of each
such 6-month period.
(4)
Meat, poultry,
and fish cutters and trimmers
In addition to the number of
registered positions made available for a year under paragraph (1) or (3) of
such section (g), the Secretary shall make additional registered positions
available for the year for occupations designated by the Secretary of Labor as
Meat, Poultry, and Fish Cutters and Trimmers. The numerical limitation for such
additional registered positions shall be no more than 10 percent of the annual
numerical limitation provided for in such paragraph (1).
(5)
Limitation for
construction occupations
(A)
In
general
Subject to subparagraph (B), not more than 33 percent of
the registered positions made available under subsection (g)(1) for a year may
be granted to perform work in a construction occupation.
(B)
Maximum
level
Notwithstanding subparagraph (A), the number of registered
positions granted to perform work in a construction occupation under subsection
(g)(1) may not exceed 15,000 for a year and 7,500 for any 6-month
period.
(C)
Prohibition for
occupations with high unemployment
(i)
In
general
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 that metropolitan statistical area was more than
81/2 percent.
(ii)
Determination
of unemployment rate
The unemployment rate used in clause (i)
shall be determined—
(I) using the most
recent survey taken by the Bureau; or
(II) if a survey
referred to in subclause (I) is not available, a recent and legitimate private
survey.
(i)
Portability
A
W nonimmigrant who is admitted to the United States for employment by a
registered employer may—
(1) terminate such
employment for any reason; and
(2) seek and accept
employment with another registered employer in any other registered position
within the terms and conditions of the W nonimmigrants visa.
(j)
Promotion
A
registered employer who has applied for a registered position in a shortage
occupation may promote the W nonimmigrant hired for that registered position to
a registered position in an occupation that is not a shortage occupation if the
W nonimmigrant has been employed with that employer for a period of not less
than 12 months. Such a promotion shall not increase the total number of
registered positions available to that employer.
(k)
Prohibition 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.
(l)
W nonimmigrant
protections
(1)
Applicability of
laws
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 United States worker employed in a similar position with the employer
because of the alien's status as a nonimmigrant worker.
(2)
Waiver of rights
prohibited
(A)
In
general
A W nonimmigrant may not be required to waive any
substantive rights or protections under this Act.
(B)
Construction
Nothing
under this paragraph may be construed to affect the interpretation of any other
law.
(3)
Prohibition on
treatment as independent contractors
(A)
In
general
Notwithstanding any other provision of law—
(i) a W nonimmigrant
is prohibited from being treated as an independent contractor under any Federal
or State law; and
(ii) no person,
including an employer or labor contractor and any persons who are affiliated
with or contract with an employer or labor contractor, may treat a W
nonimmigrant as an independent contractor.
(B)
Construction
Subparagraph
(A) may not be construed to prevent registered employers who operate as
independent contractors from employing W nonimmigrants.
(4)
Payment of
fees
(A)
In
general
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.
(B)
Excluded
costs
The cost of round trip transportation from a certified
alien's home to the location of a registered position and the cost of obtaining
a foreign passport are not fees required to be paid by the employer.
(5)
Tax
responsibilities
An employer shall comply with all applicable
Federal, State, and local tax laws with respect to each W nonimmigrant employed
by the employer.
(6)
Whistleblower
protection
(A)
Prohibited
activities
It shall be 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—
(i) discloses
information to the employer or any other person that the employee or former
employee reasonably believes demonstrates a violation of this section;
or
(ii) cooperates or
seeks to cooperate in an investigation or other proceeding concerning
compliance with the requirements of this section.
(m)
Complaint
process
The Secretary shall establish a process for the receipt,
investigation, and disposition of complaints with respect to—
(1) the failure of a
registered employer to meet a condition of this section; or
(2) the lay off or
non-hiring of a United States worker as required by this section.
(n)
Enforcement
(1)
In
general
The Secretary shall promulgate regulations for the
receipt, investigation, and disposition of complaints by an aggrieved W
nonimmigrant respecting a violation of this section.
(2)
Filing
deadline
No investigation or hearing shall be conducted on a
complaint concerning a violation under this section unless the complaint was
filed not later than 6 months after the date of such violation.
(3)
Reasonable
basis
The Secretary shall conduct an investigation under this
subsection if there is reasonable basis to believe that a violation of this
section has occurred. The process established under this subsection shall
provide that, not later than 30 days after a complaint is filed, the Secretary
shall determine if there is reasonable cause to find such a violation.
(4)
Notice and
hearing
(A)
In
general
Not later than 60 days after the Secretary makes a
determination of reasonable basis under paragraph (3), the Secretary shall
issue a notice to the interested parties and offer an opportunity for a hearing
on the complaint, in accordance with section 556 of title 5, United States
Code.
(B)
Hearing
deadline
Not later than 60 days after the date of a hearing under
this paragraph, the Secretary shall make a finding on the matter.
(5)
Attorney's
fees
(A)
Award
A
complainant who prevails in an action under this subsection with respect to a
claim related to wages or compensation for employment, or a claim for a
violation of subsection (l) or (m), shall be entitled to an award of reasonable
attorney's fees and costs.
(B)
Frivolous
complaints
A complainant who files a frivolous complaint for an
improper purpose under this subsection shall be liable for the reasonable
attorney’s fees and costs of the person named in the complaint.
(6)
Power of the
Secretary
The Secretary may bring an action in any court of
competent jurisdiction—
(A) to seek remedial
action, including injunctive relief;
(B) to recover the
damages described in this subsection and subsection (o); or
(C) to ensure
compliance with terms and conditions described in subsection (l)(6).
(7)
Procedures in
addition to other rights of employees
The rights and remedies
provided to W nonimmigrants under this section are in addition to any other
contractual or statutory rights and remedies of the workers, and are not
intended to alter or affect such rights and remedies.
(o)
Penalties
(1)
In
general
If, after notice and an opportunity for a hearing, the
Secretary finds a violation of this section, the Secretary may impose
administrative remedies and penalties, including—
(A) back wages;
(B) benefits;
and
(C) civil monetary
penalties.
(2)
Civil
penalties
The Secretary may impose, as a civil penalty—
(A) for a violation of
this subsection—
(i) a fine in an
amount not more than $2,000 per violation per affected worker and $4,000 per
violation per affected worker for each subsequent violation;
(ii) if the violation
was willful, a fine in an amount not more than $5,000 per violation per
affected worker;
(iii) if the violation
was willful and if in the course of such violation a United States worker was
harmed, a fine in an amount not more than $25,000 per violation per affected
worker; or
(B) for knowingly
failing to materially comply with the terms of representations made in
petitions, applications, certifications, or attestations under this
section—
(i) a fine in an
amount not more than $4,000 per aggrieved worker; and
(ii) upon the occasion
of a third offense of failure to comply with representations, a fine in an
amount not to exceed $5,000 per affected worker and designation as an
ineligible employer, recruiter, or broker for purposes of any immigrant or
nonimmigrant program.
(3)
Criminal
penalty
Any person who misrepresents the number of full-time
equivalent employees of an employer or the number of employees of a person who
are United States workers for the purpose of reducing a fee under subsection
(e)(6) or avoiding the limitation in subsection (e)(7), shall be fined in
accordance with title 18, United States Code, in an amount up to $25,000 or
imprisoned not more than 1 year, or both.
(p)
Monitoring
(1)
Requirement to
monitor
The Secretary shall monitor the movement of W
nonimmigrants in registered positions through—
(A) the Employment
Verification System described in section 274A(d); and
(B) the electronic
monitoring system described in paragraph (2).
(2)
Electronic
monitoring system
The Secretary, through U.S. Citizenship and
Immigration Services, shall implement an electronic monitoring system to
monitor presence and employment of W nonimmigrants. Such system shall be
modeled on the Student and Exchange Visitor Information System (SEVIS) and
SEVIS II tracking system of U.S. Immigration and Customs
Enforcement.
.
(2)
Table of
contents amendment
The table of contents in the first section (8
U.S.C. 1101 et seq.) is amended by adding after the item relating to section
219 the following:
Sec. 220. Admission of W
nonimmigrant workers..
(b)
Intention to
abandon foreign residence
Section 214(h) (8 U.S.C. 1184(h)) is
amended by striking or (V) and inserting (V), or
(W).
H
Investing in new
venture, entrepreneurial startups, and technologies
4801.
Nonimmigrant
INVEST visas
(a)
INVEST
nonimmigrant category
Section
101(a)(15) (8 U.S.C. 1101(a)(15)), as amended by sections 2231, 4504, and 4702,
is further amended by inserting after the material added by section 2231, the
following:
(X) subject to the
definitions in section 203(b)(6), is a qualified entrepreneur who has
demonstrated, during the 3-year period ending on the date on which the alien
filed an initial petition for nonimmigrant status described in this clause
that—
(i) a qualified
venture capitalist, a qualified super angel investor, a qualified government
entity, a qualified community development financial institution, or such other
entity or set of investors, as determined by the Secretary, has devoted a
qualified investment of not less than $100,000 to the alien’s United States
business entity; or
(ii) the alien’s
United States business entity has created no fewer than 3 qualified jobs and
during the 2-year period ending on such date has generated not less than
$250,000 in annual revenue in the United
States.
.
(b)
Admission of
INVEST nonimmigrants
Section 214 (8 U.S.C. 1184) is amended by
adding at the end the following:
(s)
INVEST
nonimmigrant visas
(1)
Definitions
The
definitions in section 203(b)(6)(A) apply in this subsection.
(2)
Initial period
of authorized admission
The
period of authorized status as a nonimmigrant described in section
101(a)(15)(X) shall be for an initial 3-year period.
(3)
Renewal of
admission
Subject to
paragraph (4), the initial period of authorized nonimmigrant status described
in paragraph (2) may be renewed for additional 3-year periods if during the
most recent 3-year period that the alien was granted such status—
(A) the alien’s United
States business entity has created no fewer than 3 qualified jobs and a
qualified venture capitalist, a qualified super angel investor, a qualified
government entity, a qualified community development financial institution, or
such other entity or set of investors as determined by the Secretary, has
devoted a qualified investment of not less than $250,000 to the alien's United
States business entity; or
(B) the alien’s United
States business entity has created no fewer than 3 qualified jobs and, during
the 2 year period ending on the date that the alien petitioned for an
extension, has generated not less than $200,000 in annual revenue within the
United States.
(4)
Waiver of
renewal requirements
The Secretary may renew an alien's status as
a nonimmigrant described in section 101(a)(15)(X) for up to two 1-year periods
if the alien—
(A) does not meet the
criteria of paragraph (3); and
(B) meets the criteria
established by the Secretary, in consultation with the Secretary of Commerce,
for approving renewals under this subclause which shall include finding
that—
(i) the alien has made
substantial progress in meeting such criteria; and
(ii) such renewal that
is economically beneficial to the United States.
(5)
Attestation
The
Secretary may require an alien seeking status under section 101(a)(15)(X) to
attest, under penalties of perjury, to the alien's
qualifications.
.
4802.
INVEST
immigrant visa
(a)
Establishment of
INVEST nonimmigrant visa
Section 203(b) (8 U.S.C. 1153(b)) is
amended—
(1) by redesignating
paragraph (6) as paragraph (7); and
(2) by inserting after
paragraph (5) the following:
(6)
INVEST
immigrants
(A)
Definitions
In
this paragraph, section 101(a)(15)(X), and section 214(s):
(i)
Qualified
community development financial institution
The term
qualified community development financial institution is defined
as provided under section 1805.201 45D(c) of title 12, Code of Federal
Regulations, or any similar successor regulations.
(ii)
Qualified
entrepreneur
The term qualified entrepreneur means
an individual who—
(I) has a significant
ownership interest, which need not constitute a majority interest, in a United
States business entity;
(II) is employed in a
senior executive position of such United States business entity;
(III) submits a
business plan to U.S. Citizenship and Immigration Services; and
(IV) had a substantial
role in the founding or early-stage growth and development of such United
States business entity.
(iii)
Qualified
government entity
The term qualified government
entity means an agency or instrumentality of the United States or of a
State, local, or tribal government.
(iv)
Qualified
investment
The term qualified investment—
(I) means an
investment in a qualified entrepreneur's United States business entity that
is—
(aa) an equity
purchase;
(bb) a secured
loan;
(cc) a convertible
debt note;
(dd) a public
securities offering;
(ee) a research and
development award from a qualified government entity;
(ff) other investment
determined appropriate by the Secretary; or
(gg) a combination of
the investments described in items (aa) through (ff); and
(II) may not include
an investment from such qualified entrepreneur, the parents, spouse, son or
daughter of such qualified entrepreneur, or from any corporation, company,
association, firm, partnership, society, or joint stock company over which such
qualified entrepreneur has a substantial ownership interest.
(v)
Qualified
job
The term qualified job means a full-time
position of United States business entity owned by a qualified entrepreneur
that—
(I) is located in the
United States;
(II) has been filled
by an individual who is not the qualified entrepreneur or the spouse, son, or
daughter of the qualified entrepreneur for at least 2 years; and
(III) pays a wage that
is not less than 250 percent of the Federal minimum wage.
(vi)
Qualified super
angel investor
The term qualified super angel
investor means an individual or organized group of individuals investing
directly or through a legal entity—
(I) each of whom is an
accredited investor, as defined in section 230.501(a) of title 17, Code of
Federal Regulations, or any similar successor regulation, investing the funds
owned by such individual or organized group in a qualified entrepreneur's
United States business entity;
(II)
(aa) if an individual, is a
citizen of the United States or an alien lawfully admitted for permanent
residence; or
(bb) if an organized
group or legal entity, a majority of the individuals investing through such
group or entity are citizens of the United States or aliens lawfully admitted
for permanent residence; and
(III) each of whom in
the previous 3 years has made qualified investments in a total amount
determined to be appropriate by the Secretary, that is not less than $50,000,
in United States business entities which are less than 5 years old.
(vii)
Qualified
venture capitalist
The term qualified venture
capitalist means an entity—
(I) that—
(aa) is a venture
capital operating company, as defined in section 2510.3-110(d) of title 29,
Code of Federal Regulations (or any successor thereto); or
(bb) has management
rights, as defined in, and to the extent required by, such section 2510.3-110
(d) (or successor thereto), in its portfolio companies;
(II) that has capital
commitments of not less than $10,000,000; and
(III) the investment
adviser, as defined in section 202 of the Investment Advisers Act of 1940 (15
U.S.C. 80b-2), for which—
(aa) has its primary
office location in the United States;
(bb) is owned,
directly or indirectly, by individuals, the majority of whom are citizens of
the United States or aliens lawfully admitted for permanent residence in the
United States;
(cc) has been advising
such entity or other similar funds or entities for at least 2 years; and
(dd) has made, on
behalf of such entity or a similar fund or entity, at least 2 investments of
not less than $500,000 during each of the most recent 2 years.
(viii)
Secretary
Except
as otherwise specifically provided, the term Secretary means the
Secretary of Homeland Security.
(ix)
Senior
executive position
The term senior executive
position includes the position of chief executive officer, chief
technology officer, and chief operating officer.
(x)
United States
business entity
The term business entity means any
corporation, company, association, firm, partnership, society, or joint stock
company that is organized under the laws of the United States or any State and
that conducts business in the United States that is not—
(I) a private fund, as
defined in 202(a) of the Investment Advisers Act of 1940 (15 U.S.C.
80b-2);
(II) a commodity pool,
as defined in section 1a of the Commodity Exchange Act (7 U.S.C. 1a);
(III) an investment
company, as defined in section 3 of the Investment Company Act of 1940 (15
U.S.C. 80a-3); or
(IV) an issuer that
would be an investment company but for an exemption provided in—
(aa) section 3(c) of
the Investment Company Act of 1940 (15 U.S.C. 80a-3(c); or
(bb) section 270.3a-7
of title 17 of the Code of Federal Regulations or any similar successor
regulation.
(B)
In
general
Visas shall be available, in a number not to exceed
10,000 for each fiscal year, to qualified immigrants seeking to enter the
United States for the purpose of creating new businesses, as described in this
paragraph.
(C)
Eligibility
An
alien is eligible for a visa under this paragraph if—
(i)
(I) the alien is a
qualified entrepreneur;
(II) the alien
maintained valid nonimmigrant status in the United States for at least 2
years;
(III) during the
3-year period ending on the date the alien files an initial petition for such
status under this section—
(aa) (AA) the alien has a
significant ownership in a United States business entity that has created no
fewer than 5 qualified jobs; and
(BB) a qualified
venture capitalist, a qualified super angel investor, a qualified government
entity, a qualified community development financial institution, or such other
entity or set of investors, as determined by the Secretary, has devoted a
qualified investment of not less than $500,000 to the alien's United States
business entity; or
(bb) (AA) the alien has a
significant ownership interest in a United States business entity that has
created no fewer than 5 qualified jobs; and
(BB) during the 2-year
period ending on such date has generated not less than $750,000 in annual
revenue within the United States; and
(IV) no more than 2
other aliens have received nonimmigrant status under this section on the basis
of an alien's ownership of such business entity;
(ii)
(I) the alien is a
qualified entrepreneur;
(II) the alien
maintained valid nonimmigrant status in the United States for at least 3 years
prior to the date of filing an application for such status;
(III) the alien holds
an advanced degree in a field of science, technology, engineering, and
mathematics, approved by the Secretary; and
(IV) during the 3-year
period ending on the date the alien files an initial petition for such status
under this section—
(aa) (AA) the alien has a
significant ownership interest in a United States business entity that has
created no fewer than 4 qualified jobs; and
(BB) a qualified
venture capitalist, a qualified super angel investor, a qualified government
entity, a qualified community development financial institution, or such other
entity or set of investors, as determined by the Secretary, has devoted a
qualified investment of not less than $500,000 to the alien's United States
business entity; or
(bb) (AA) the alien has a
significant ownership interest in a United States business entity that has
created no fewer than 3 qualified jobs; and
(BB) during the 2-year
period ending on such date has generated not less than $500,000 in annual
revenue within the United States; and
(V) no more than 3
other aliens have received nonimmigrant status under this section on the basis
of an alien's ownership of such business entity.
(D)
Attestation
The
Secretary may require an alien seeking visa under this paragraph to attest,
under penalties of perjury, to the alien's
qualifications.
.
(b)
Petition
Section
204(a)(1)(H) (8 U.S.C. 1154(a)(1)(H)) is amended—
(1) by striking
203(b)(5) and inserting paragraph (5) or (6) of section
203(b); and
(2) by striking
Attorney General and inserting Secretary of Homeland
Security.
4803.
Administration
and oversight
(a)
Regulations
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 heads of other relevant Federal
agencies and department, shall promulgate regulations to carry out the
amendments made by this subtitle. Such regulations shall ensure that such
amendments are implemented in a manner that is consistent with the protection
of national security and promotion United States economic growth, job creation,
and competitiveness.
(b)
Modification of
dollar amounts
(1)
In
general
The Secretary may from time to time prescribe regulations
increasing or decreasing any dollar amount specified in paragraph (6) of
section 203(b) of the Immigration and Nationality Act, as added by section _2,
subparagraph (X) of section 101(a)(15) of such Act, as added by section 4801,
or subsection (s) of section 214, as added by 4802.
(2)
Automatic
adjustment
Unless a dollar amount referred to in paragraph (1) is
adjusted by the Secretary under paragraph (1), such dollar amounts shall
automatically adjust on January 1, 2016 by the percentage change in the
Consumer Price Index (CPI–U) during fiscal year 2015, and on every fifth
subsequent January 1 by the percentage change in the CPI-U during the previous
five fiscal years, for any petition filed to classify an alien under this
paragraph on or after the date of each automatic adjustment.
(c)
Other
authority
The Secretary, in the Secretary's unreviewable
discretion, may deny or revoke the approval of a petition seeking
classification of an alien under this paragraph or any other petition,
application, or benefit based upon the previous or concurrent filing or
approval of a petition for classification of an alien under this paragraph, if
the Secretary determines, in the Secretary's sole and unreviewable discretion,
that the approval or continuation of such petition, application, or benefit is
contrary to the national interest of the United States or for other good
cause.
1.
Short title; table of
contents
(a)
Short
title
This Act may be cited
as the Border Security, Economic
Opportunity, and Immigration Modernization Act.
(b)
Table of
contents
The table of contents for this Act is as follows:
Sec. 1. Short title; table of
contents.
Sec. 2. Statement of congressional
findings.
Sec. 3. Effective date triggers.
Sec. 4. Southern Border Security
Commission.
Sec. 5. Comprehensive Southern Border Security
Strategy and Southern Border Fencing Strategy.
Sec. 6. Comprehensive Immigration Reform
Funds.
Sec. 7. Reference to the
Immigration and Nationality
Act.
Sec. 8. Definitions.
Sec. 9. Grant accountability.
TITLE I—Border Security
Sec. 1101. Definitions.
Sec. 1102. Additional U.S. Customs and Border
Protection officers.
Sec. 1103. National Guard support to secure the
Southern border.
Sec. 1104. Enhancement of existing border
security operations.
Sec. 1105. Border security on certain Federal
land.
Sec. 1106. Equipment and
technology.
Sec. 1107. Access to emergency
personnel.
Sec. 1108. Southwest Border Region Prosecution
Initiative.
Sec. 1109. Interagency
collaboration.
Sec. 1110. State Criminal Alien Assistance
Program.
Sec. 1111. Use of force.
Sec. 1112. Training for border security and
immigration enforcement officers.
Sec. 1113. Department of Homeland Security
Border Oversight Task Force.
Sec. 1114. Ombudsman for Immigration Related
Concerns of the Department of Homeland Security.
Sec. 1115. Protection of family values in
apprehension programs.
Sec. 1116. Reports.
Sec. 1117. Severability and
delegation.
Sec. 1118. Prohibition on land border crossing
fees.
Sec. 1119. Human Trafficking
Reporting.
Sec. 1120. Rule of construction.
Sec. 1121. Limitations on dangerous deportation
practices.
TITLE II—Immigrant visas
Subtitle A—Registration and adjustment of
registered provisional immigrants
Sec. 2101. Registered provisional immigrant
status.
Sec. 2102. Adjustment of status of registered
provisional immigrants.
Sec. 2103. The DREAM Act.
Sec. 2104. Additional requirements.
Sec. 2105. Criminal penalty.
Sec. 2106. Grant program to assist eligible
applicants.
Sec. 2107. Conforming amendments to the Social
Security Act.
Sec. 2108. Government contracting and
acquisition of real property interest.
Sec. 2109. Long-term legal residents of the
Commonwealth of the Northern Mariana Islands.
Sec. 2110. Rulemaking.
Sec. 2111. Statutory construction.
Subtitle B—Agricultural Worker
Program
Sec. 2201. Short title.
Sec. 2202. Definitions.
Chapter 1—Program for earned status adjustment
of agricultural workers
SUBCHAPTER A—Blue card status
Sec. 2211. Requirements for blue card
status.
Sec. 2212. Adjustment to permanent resident
status.
Sec. 2213. Use of information.
Sec. 2214. Reports on blue cards.
Sec. 2215. Authorization of
appropriations.
SUBCHAPTER B—Correction of social security
records
Sec. 2221. Correction of social security
records.
Chapter 2—Nonimmigrant agricultural visa
program
Sec. 2231. Nonimmigrant classification for
nonimmigrant agricultural workers.
Sec. 2232. Establishment of nonimmigrant
agricultural worker program.
Sec. 2233. Transition of H-2A Worker
Program.
Sec. 2234. Reports to Congress on nonimmigrant
agricultural workers.
Chapter 3—Other provisions
Sec. 2241. Rulemaking.
Sec. 2242. Reports to Congress.
Sec. 2243. Benefits integrity
programs.
Sec. 2244. Effective date.
Subtitle C—Future immigration
Sec. 2301. Merit-based points track
one.
Sec. 2302. Merit-based track two.
Sec. 2303. Repeal of the diversity visa
program.
Sec. 2304. Worldwide levels and recapture of
unused immigrant visas.
Sec. 2305. Reclassification of spouses and
minor children of lawful permanent residents as immediate
relatives.
Sec. 2306. Numerical limitations on individual
foreign states.
Sec. 2307. Allocation of immigrant
visas.
Sec. 2308. Inclusion of communities adversely
affected by a recommendation of the Defense Base Closure and Realignment
Commission as targeted employment areas.
Sec. 2309. V nonimmigrant visas.
Sec. 2310. Fiancée and fiancé child status
protection.
Sec. 2311. Equal treatment for all
stepchildren.
Sec. 2312. Modification of adoption age
requirements.
Sec. 2313. Relief for orphans, widows, and
widowers.
Sec. 2314. Discretionary authority with respect
to removal, deportation, or inadmissibility of citizen and resident immediate
family members.
Sec. 2315. Waivers of
inadmissibility.
Sec. 2316. Continuous presence.
Sec. 2317. Global health care
cooperation.
Sec. 2318. Extension and improvement of the
Iraqi special immigrant visa program.
Sec. 2319. Extension and improvement of the
Afghan special immigrant visa program.
Sec. 2320. Special Immigrant Nonminister
Religious Worker Program.
Sec. 2321. Special immigrant status for certain
surviving spouses and children.
Sec. 2322. Reunification of certain families of
Filipino veterans of World War II.
Subtitle D—Conrad State 30 and physician
access
Sec. 2401. Conrad State 30 Program.
Sec. 2402. Retaining physicians who have
practiced in medically underserved communities.
Sec. 2403. Employment protections for
physicians.
Sec. 2404. Allotment of Conrad 30
waivers.
Sec. 2405. Amendments to the procedures,
definitions, and other provisions related to physician immigration.
Subtitle E—Integration
Sec. 2501. Definitions.
Chapter 1—Citizenship and New
Americans
SUBCHAPTER A—Office of Citizenship and New
Americans
Sec. 2511. Office of Citizenship and New
Americans.
SUBCHAPTER B—Task Force on New
Americans
Sec. 2521. Establishment.
Sec. 2522. Purpose.
Sec. 2523. Membership.
Sec. 2524. Functions.
Chapter 2—Public-private
partnership
Sec. 2531. Establishment of United States
Citizenship Foundation.
Sec. 2532. Funding.
Sec. 2533. Purposes.
Sec. 2534. Authorized activities.
Sec. 2535. Council of directors.
Sec. 2536. Powers.
Sec. 2537. Initial Entry, Adjustment, and
Citizenship Assistance Grant Program.
Sec. 2538. Pilot program to promote immigrant
integration at State and local levels.
Sec. 2539. Naturalization
ceremonies.
Chapter 3—Funding
Sec. 2541. Authorization of
appropriations.
Chapter 4—Reduce barriers to
naturalization
Sec. 2551. Waiver of English requirement for
senior new Americans.
Sec. 2552. Filing of applications not requiring
regular internet access.
Sec. 2553. Permissible use of assisted housing
by battered immigrants.
TITLE III—Interior enforcement
Subtitle A—Employment Verification
System
Sec. 3101. Unlawful employment of unauthorized
aliens.
Sec. 3102. Increasing security and integrity of
social security cards.
Sec. 3103. Increasing security and integrity of
immigration documents.
Sec. 3104. Responsibilities of the Social
Security Administration.
Sec. 3105. Improved prohibition on
discrimination based on national origin or citizenship status.
Sec. 3106. Rulemaking.
Sec. 3107. Office of the Small Business and
Employee Advocate.
Subtitle B—Protecting United States
workers
Sec. 3201. Protections for victims of serious
violations of labor and employment law or crime.
Sec. 3202. Employment Verification System
Education Funding.
Sec. 3203. Directive to the United States
Sentencing Commission.
Subtitle C—Other provisions
Sec. 3301. Funding.
Sec. 3302. Effective date.
Sec. 3303. Mandatory exit system.
Sec. 3304. Identity-theft resistant manifest
information for passengers, crew, and non-crew onboard departing aircraft and
vessels.
Sec. 3305. Profiling.
Sec. 3306. Enhanced penalties for certain drug
offenses on Federal lands.
Subtitle D—Asylum and refugee
provisions
Sec. 3401. Time limits and efficient
adjudication of genuine asylum claims.
Sec. 3402. Refugee family
protections.
Sec. 3403. Clarification on designation of
certain refugees.
Sec. 3404. Asylum determination
efficiency.
Sec. 3405. Stateless persons in the United
States.
Sec. 3406. U visa accessibility.
Sec. 3407. Work authorization while
applications for U and T visas are pending.
Sec. 3408. Representation at overseas refugee
interviews.
Sec. 3409. Law enforcement and national
security checks.
Sec. 3410. Tibetan refugee
assistance.
Sec. 3411. Termination of asylum or refugee
status.
Sec. 3412. Asylum clock.
Subtitle E—Shortage of immigration court
resources for removal proceedings
Sec. 3501. Shortage of immigration court
personnel for removal proceedings.
Sec. 3502. Improving immigration court
efficiency and reducing costs by increasing access to legal
information.
Sec. 3503. Office of Legal Access
Programs.
Sec. 3504. Codifying Board of Immigration
Appeals.
Sec. 3505. Improved training for immigration
judges and Board Members.
Sec. 3506. Improved resources and technology
for immigration courts and Board of Immigration Appeals.
Sec. 3507. Transfer of responsibility for
trafficking protections.
Subtitle F—Prevention of trafficking in persons
and abuses involving workers recruited abroad
Sec. 3601. Definitions.
Sec. 3602. Disclosure.
Sec. 3603. Prohibition on
discrimination.
Sec. 3604. Recruitment fees.
Sec. 3605. Registration.
Sec. 3606. Bonding requirement.
Sec. 3607. Maintenance of lists.
Sec. 3608. Amendment to the Immigration and
Nationality Act.
Sec. 3609. Responsibilities of Secretary of
State.
Sec. 3610. Enforcement provisions.
Sec. 3611. Detecting and preventing child
trafficking.
Sec. 3612. Protecting child trafficking
victims.
Sec. 3613. Rule of construction.
Sec. 3614. Regulations.
Subtitle G—Interior enforcement
Sec. 3701. Criminal street gangs.
Sec. 3702. Banning habitual drunk drivers from
the United States.
Sec. 3703. Sexual abuse of a minor.
Sec. 3704. Illegal entry.
Sec. 3705. Reentry of removed
alien.
Sec. 3706. Penalties relating to vessels and
aircraft.
Sec. 3707. Reform of passport, visa, and
immigration fraud offenses.
Sec. 3708. Combating schemes to defraud
aliens.
Sec. 3709. Inadmissibility and removal for
passport and immigration fraud offenses.
Sec. 3710. Directives related to passport and
document fraud.
Sec. 3711. Inadmissible aliens.
Sec. 3712. Organized and abusive human
smuggling activities.
Sec. 3713. Preventing criminals from renouncing
citizenship during wartime.
Sec. 3714. Diplomatic security
service.
Sec. 3715. Secure alternatives
programs.
Sec. 3716. Oversight of detention
facilities.
Sec. 3717. Procedures for bond hearings and
filing of notices to appear.
Sec. 3718. Sanctions for countries that delay
or prevent repatriation of their nationals.
Sec. 3719. Gross violations of human
rights.
Sec. 3720. Reporting and record-keeping
requirements relating to the detention of aliens.
Sec. 3721. Powers of immigration officers and
employees at sensitive locations.
Subtitle H—Protection of Children Affected by
Immigration Enforcement
Sec. 3801. Short title.
Sec. 3802. Definitions.
Sec. 3803. Apprehension procedures for
immigration enforcement-related activities.
Sec. 3804. Access to children, State and local
courts, child welfare agencies, and consular officials.
Sec. 3805. Mandatory training.
Sec. 3806. Rulemaking.
Sec. 3807. Severability.
TITLE IV—Reforms to nonimmigrant visa
programs
Subtitle A—Employment-based nonimmigrant
visas
Sec. 4101. Market-based H–1B Visa
limits.
Sec. 4102. Employment authorization for
dependents of employment-based nonimmigrants.
Sec. 4103. Eliminating impediments to worker
mobility.
Sec. 4104. STEM education and
training.
Sec. 4105. H–1B and L Visa fees.
Subtitle B—H–1B visa fraud and abuse
protections
Chapter 1—H–1B Employer Application
Requirements
Sec. 4211. Modification of application
requirements.
Sec. 4212. Requirements for admission of
nonimmigrant nurses in health professional shortage areas.
Sec. 4213. New application
requirements.
Sec. 4214. Application review
requirements.
Chapter 2— Investigation and Disposition of
Complaints Against H–1B Employers
Sec. 4221. General modification of procedures
for investigation and disposition.
Sec. 4222. Investigation, working conditions,
and penalties.
Sec. 4223. Initiation of
investigations.
Sec. 4224. Information sharing.
Sec. 4225. Transparency of high-skilled
immigration programs.
Chapter 3—Other protections
Sec. 4231. Posting available positions through
the Department of Labor.
Sec. 4232. Requirements for information for
H–1B and L nonimmigrants.
Sec. 4233. Filing fee for H–1B-dependent
employers.
Sec. 4234. Providing premium processing of
employment-based visa petitions.
Sec. 4235. Technical correction.
Sec. 4236. Application.
Sec. 4237. Portability for beneficiaries of
immigrant petitions.
Subtitle C—L visa fraud and abuse
protections
Sec. 4301. Prohibition on outplacement of L
nonimmigrants.
Sec. 4302. L employer petition requirements for
employment at new offices.
Sec. 4303. Cooperation with Secretary of
State.
Sec. 4304. Limitation on employment of L
nonimmigrants.
Sec. 4305. Filing fee for L
nonimmigrants.
Sec. 4306. Investigation and disposition of
complaints against L nonimmigrant employers.
Sec. 4307. Penalties.
Sec. 4308. Prohibition on retaliation against L
nonimmigrants.
Sec. 4309. Reports on L
nonimmigrants.
Sec. 4310. Application.
Sec. 4311. Report on L blanket petition
process.
Subtitle D—Other nonimmigrant visas
Sec. 4401. Nonimmigrant visas for
students.
Sec. 4402. Classification for specialty
occupation workers from free trade countries.
Sec. 4403. E–visa reform.
Sec. 4404. Other changes to nonimmigrant
visas.
Sec. 4405. Treatment of nonimmigrants during
adjudication of application.
Sec. 4406. Nonimmigrant elementary and
secondary school students.
Sec. 4407. J–1 Summer Work Travel Visa Exchange
Visitor Program fee.
Sec. 4408. J visa eligibility for speakers of
certain foreign languages.
Sec. 4409. F–1 Visa fee.
Sec. 4410. Pilot program for remote B
nonimmigrant visa interviews.
Sec. 4411. Providing consular officers with
access to all terrorist databases and requiring heightened scrutiny of
applications for admission from persons listed on terrorist
databases.
Sec. 4412. Visa revocation
information.
Sec. 4413. Status for certain battered spouses
and children.
Sec. 4414. Nonimmigrant crewmen landing
temporarily in Hawaii.
Sec. 4415. Treatment of compact of free
association migrants.
Subtitle E—JOLT Act
Sec. 4501. Short titles.
Sec. 4502. Premium processing.
Sec. 4503. Encouraging Canadian tourism to the
United States.
Sec. 4504. Retiree visa.
Sec. 4505. Incentives for foreign visitors
visiting the United States during low peak seasons.
Sec. 4506. Visa waiver program enhanced
security and reform.
Sec. 4507. Expediting entry for priority
visitors.
Sec. 4508. Visa processing.
Sec. 4509. B Visa fee.
Subtitle F—Reforms to the H–2B Visa
Program
Sec. 4601. Extension of returning worker
exemption to H–2B numerical limitation.
Sec. 4602. Other requirements for H–2B
employers.
Sec. 4603. Executives and managers.
Sec. 4604. Honoraria.
Sec. 4605. Nonimmigrants participating in
relief operations.
Sec. 4606. Nonimmigrants performing maintenance
on common carriers.
Subtitle G—W nonimmigrant visas
Sec. 4701. Bureau of Immigration and Labor
Market Research.
Sec. 4702. Nonimmigrant classification for W
nonimmigrants.
Sec. 4703. Admission of W nonimmigrant
workers.
Subtitle H—Investing in new venture,
entrepreneurial startups, and technologies
Sec. 4801. Nonimmigrant INVEST
visas.
Sec. 4802. INVEST immigrant visa.
Sec. 4803. Administration and
oversight.
Sec. 4804. Permanent authorization of EB–5
Regional Center Program.
Sec. 4805. Conditional permanent resident
status for employment-based immigrants, spouses, and children.
Sec. 4806. EB–5 Visa reforms.
Sec. 4807. Authorization of
appropriations.
Subtitle I—Student and Exchange Visitor
Programs
Sec. 4901. Short title.
Sec. 4902. SEVIS and SEVP defined.
Sec. 4903. Increased criminal
penalties.
Sec. 4904. Accreditation
requirement.
Sec. 4905. Other academic
institutions.
Sec. 4906. Penalties for failure to comply with
SEVIS reporting requirements.
Sec. 4907. Visa fraud.
Sec. 4908. Background checks.
Sec. 4909. Revocation of authority to issue
Form I–20 of flight schools not certified by the Federal Aviation
Administration.
Sec. 4910. Revocation of
accreditation.
Sec. 4911. Report on risk
assessment.
Sec. 4912. Implementation of GAO
recommendations.
Sec. 4913. Implementation of SEVIS
II.
2.
Statement of
congressional findings
Congress makes the following
findings:
(1) The passage of this Act
recognizes that the primary tenets of its success depend on securing the
sovereignty of the United States of America and establishing a coherent and
just system for integrating those who seek to join American society.
(2) We have a right, and
duty, to maintain and secure our borders, and to keep our country safe and
prosperous. As a Nation founded, built and sustained by immigrants we also have
a responsibility to harness the power of that tradition in a balanced way that
secures a more prosperous future for America.
(3) We have always welcomed
newcomers to the United States and will continue to do so. But in order to
qualify for the honor and privilege of eventual citizenship, our laws must be
followed. The world depends on America to be strong—economically, militarily
and ethically. The establishment of a stable, just, and efficient immigration
system only supports those goals. As a Nation, we have the right and
responsibility to make our borders safe, to establish clear and just rules for
seeking citizenship, to control the flow of legal immigration, and to eliminate
illegal immigration, which in some cases has become a threat to our national
security.
(4) All parts of this Act are
premised on the right and need of the United States to achieve these goals, and
to protect its borders and maintain its sovereignty.
3.
Effective date
triggers
(a)
Definitions
In
this section:
(1)
Commission
The
term Commission means the Southern Border Security Commission
established pursuant to section 4.
(2)
Comprehensive southern
border security strategy
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.
(3)
Effective
control
The term effective control means the ability
to achieve and maintain, in a Border Patrol sector—
(A) persistent surveillance;
and
(B) an effectiveness rate of
90 percent or higher.
(4)
Effectiveness
rate
The effectiveness rate, in the case of a border
sector, is the percentage calculated by dividing the number of apprehensions
and turn backs in the sector during a fiscal year by the total number of
illegal entries in the sector during such fiscal year.
(5)
Southern
border
The term Southern border means the
international border between the United States and Mexico.
(6)
Southern border fencing
strategy
The term Southern Border Fencing Strategy
means the strategy established by the Secretary pursuant to section 5(b) that
identifies where fencing (including double-layer fencing), infrastructure, and
technology, including at ports of entry, should be deployed along the Southern
border.
(b)
Border security
goal
The Department's border security goal is to achieve and
maintain effective control in all border sectors along the Southern
border.
(c)
Triggers
(1)
Processing of
applications for registered provisional immigrant status
Not
earlier than the date upon which the Secretary has submitted to Congress the
Notice of Commencement of implementation of the Comprehensive Southern Border
Security Strategy and the Southern Border Fencing Strategy under section 5 of
this Act, the Secretary may commence processing applications for registered
provisional immigrant status pursuant to section 245B of the Immigration and
Nationality Act, as added by section 2101 of this Act.
(2)
Adjustment of status of
registered provisional immigrants
(A)
In
general
Except as provided in subparagraph (B), the Secretary may
not adjust the status of aliens who have been granted registered provisional
immigrant status, except for aliens granted blue card status under section 2201
of this Act or described in section 245D(b) of the Immigration and Nationality
Act, until the Secretary, after consultation with the Comptroller General of
the United States, submits to the President and Congress a written
certification that—
(i) the Comprehensive
Southern Border Security Strategy has been submitted to Congress and is
substantially deployed and substantially operational;
(ii) the Southern Border
Fencing Strategy has been submitted to Congress, implemented, and is
substantially completed;
(iii) the Secretary has
implemented the mandatory employment verification system required by section
274A of the Immigration and Nationality Act (8 U.S.C. 1324a), as amended by
section 3101, for use by all employers to prevent unauthorized workers from
obtaining employment in the United States; and
(iv) the Secretary 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.
(B)
Exception
The
Secretary shall permit registered provisional immigrants to apply for an
adjustment to lawful permanent resident status if—
(i)
(I) litigation or a
force majeure has prevented 1 or more of the conditions described in clauses
(i) through (iv) of subparagraph (A) from being implemented; or
(II) the implementation of
subparagraph (A) has been held unconstitutional by the Supreme Court of the
United States or the Supreme Court has granted certiorari to the litigation on
the constitutionality of implementation of subparagraph (A); and
(ii) 10 years have elapsed
since the date of the enactment of this Act.
(d)
Waiver of legal
requirements necessary for improvement at borders
Notwithstanding
any other provision of law, the Secretary is authorized to waive all legal
requirements that the Secretary determines to be necessary to ensure
expeditious construction of the barriers, roads, or other physical tactical
infrastructure needed to fulfill the requirements under this section. Any
determination by the Secretary under this section shall be effective upon
publication in the Federal Register of a notice that specifies each law that is
being waived and the Secretary's explanation for the determination to waive
that law. The waiver shall expire on the later of the date on which the
Secretary submits the written certification that the Southern Border Fencing
Strategy is substantially completed as specified in subsection (c)(2)(A)(ii) or
the date that the Secretary submits the written certification that the
Comprehensive Southern Border Security Strategy is substantially deployed and
substantially operational as specified in subsection (c)(2)(A)(i).
(e)
Federal court
review
(1)
In
general
The district courts of the United States shall have
exclusive jurisdiction to hear all causes or claims arising from any action
undertaken, or any decision made, by the Secretary under subsection (d). A
cause of action or claim may only be brought alleging a violation of the
Constitution of the United States. The court does not have jurisdiction to hear
any claim not specified in this paragraph.
(2)
Time for filing
complaint
If a cause or claim under paragraph (1) is not filed
within 60 days after the date of the contested action or decision by the
Secretary, the claim shall be barred.
(3)
Appellate
review
An interlocutory or final judgment, decree, or order of
the district court may be reviewed only upon petition for a writ of certiorari
to the Supreme Court of the United States.
4.
Southern Border Security
Commission
(a)
Establishment
If
the Secretary certifies that the Department has not achieved effective control
in all border sectors during any fiscal year beginning before the date that is
5 years after the date of the enactment of this Act, not later than 60 days
after such certification, there shall be established a commission to be known
as the Southern Border Security Commission (referred to in this
section as the Commission).
(b)
Composition
(1)
In
general
The Commission shall be composed of—
(A) 2 members who shall be
appointed by the President;
(B) 2 members who shall be
appointed by the President pro tempore of the Senate, of which—
(i) 1 shall be appointed upon
the recommendation of the leader in the Senate of the political party that is
not the political party of the President; and
(ii) 1 shall be appointed
upon the recommendation of the leader in the Senate of the other political
party;
(C) 2 members who shall be
appointed by the Speaker of the House of Representatives, of which—
(i) 1 shall be appointed upon
the recommendation of the leader in the House of Representatives of the
political party that is not the political party of the President; and
(ii) 1 shall be appointed
upon the recommendation of the leader in the House of Representatives of the
other political party; and
(D) 4 members, consisting of
1 member from each of the States along the Southern border, who shall
be—
(i) the Governor of such
State; or
(ii) appointed by the
Governor of each such State.
(2)
Qualification for
appointment
Appointed members of the Commission shall be
distinguished individuals noted for their knowledge and experience in the field
of border security at the Federal, State, or local level.
(3)
Time of
appointment
The appointments required by paragraph (1) shall be
made not later than 60 days after the Secretary makes a certification described
in subsection (a).
(4)
Chair
At
the first meeting of the Commission, a majority of the members of the
Commission present and voting shall elect the Chair of the Commission.
(5)
Vacancies
Any
vacancy of the Commission shall not affect its powers, but shall be filled in
the manner in which the original appointment was made.
(6)
Rules
The
Commission shall establish the rules and procedures of the Commission which
shall require the approval of at least 6 members of the Commission.
(c)
Duties
The
Commission's primary responsibility shall be to make recommendations to the
President, the Secretary, and Congress on policies to achieve and maintain the
border security goal specified in section 3(b) by achieving and
maintaining—
(1) the capability to engage
in, and engaging in, persistent surveillance in border sectors along the
Southern border; and
(2) an effectiveness rate of
90 percent or higher in all border sectors along the Southern border.
(d)
Report
Not
later than 180 days after the end of the 5-year period described in subsection
(a), the Commission shall submit to the President, the Secretary, and Congress
a report setting forth specific recommendations for policies for achieving and
maintaining the border security goals specified in subsection (c). The report
shall include, at a minimum, recommendations for the personnel, infrastructure,
technology, and other resources required to achieve and maintain an
effectiveness rate of 90 percent or higher in all border sectors.
(e)
Travel
expenses
Members of the Commission shall be allowed travel
expenses, including per diem in lieu of subsistence rates authorized for
employees of agencies under subchapter I of chapter 57 of title 5, United
States Code, while away from their homes or regular places of business in the
performance of services for the Commission.
(f)
Administrative
support
The Secretary shall provide the Commission such staff and
administrative services as may be necessary and appropriate for the Commission
to perform its functions. Any employee of the executive branch of Government
may be detailed to the Commission without reimbursement to the agency of that
employee and such detail shall be without interruption or loss of civil service
or status or privilege.
(g)
Comptroller General
review
The Comptroller General of the United States shall review
the recommendations in the report submitted under subsection (d) in order to
determine—
(1) whether any of the
recommendations are likely to achieve effective control in all border
sectors;
(2) which recommendations are
most likely to achieve effective control; and
(3) whether such
recommendations are feasible within existing budget constraints.
(h)
Termination
The
Commission shall terminate 30 days after the date on which the report is
submitted under subsection (d).
5.
Comprehensive Southern
Border Security Strategy and Southern Border Fencing Strategy
(a)
Comprehensive Southern
Border Security Strategy
(1)
In
general
Not later than 180 days after the date of the enactment
of this Act, the Secretary shall submit a strategy, to be known as the
Comprehensive Southern Border Security Strategy, for achieving
and maintaining effective control between the ports of entry in all border
sectors along the Southern border, to—
(A) the
Committee on Homeland Security and
Governmental Affairs of the Senate;
(B) the
Committee on Homeland Security of the House of
Representatives;
(C) the
Committee on Appropriations of the
Senate;
(D) the
Committee on Appropriations of the House of
Representatives;
(E) the
Committee on the Judiciary of the
Senate;
(F) the
Committee on the Judiciary of the House of
Representatives; and
(G) the Comptroller General
of the United States.
(2)
Elements
The
Comprehensive Southern Border Security Strategy shall specify—
(A) the priorities that must
be met for the strategy to be successfully executed;
(B) the capabilities that
must be obtained to meet each of the priorities referred to in subparagraph
(A), including—
(i) surveillance and
detection capabilities developed or used by the Department of Defense to
increase situational awareness; and
(ii) the requirement for
stationing sufficient Border Patrol agents and Customs and Border Protection
officers between and at ports of entry along the Southern border; and
(C) the resources, including
personnel, infrastructure, and technology that must be procured and
successfully deployed to obtain the capabilities referred to in subparagraph
(B), including—
(i) fixed, mobile, and agent
portable surveillance systems; and
(ii) unarmed, unmanned aerial
systems and unarmed, fixed-wing aircraft and necessary and qualified staff and
equipment to fully utilize such systems.
(3)
Additional elements
regarding execution
The Comprehensive Southern Border Security
Strategy shall describe—
(A) how the resources
referred to in paragraph (2)(C) will be properly aligned with the priorities
referred to in paragraph (2)(A) to ensure that the strategy will be
successfully executed;
(B) the interim goals that
must be accomplished to successfully implement the strategy; and
(C) the schedule and
supporting milestones under which the Department will accomplish the interim
goals referred to in subparagraph (B).
(4)
Implementation
(A)
In
general
The Secretary shall commence the implementation of the
Comprehensive Southern Border Security Strategy immediately after submitting
the strategy under paragraph (1).
(B)
Notice of
commencement
Upon commencing the implementation of the strategy,
the Secretary shall submit a notice of commencement of such implementation
to—
(i) Congress; and
(ii) the Comptroller General
of the United States.
(5)
Semiannual
reports
(A)
In
general
Not later than 180 days after the Comprehensive Southern
Border Security Strategy is submitted under paragraph (1), and every 180 days
thereafter, the Secretary shall submit a report on the status of the
Department's implementation of the strategy to—
(i) the
Committee on Homeland Security and
Governmental Affairs of the Senate;
(ii) the
Committee on Homeland Security of the House of
Representatives;
(iii) the
Committee on Appropriations of the
Senate;
(iv) the
Committee on Appropriations of the House of
Representatives;
(v) the
Committee on the Judiciary of the
Senate;
(vi) the
Committee on the Judiciary of the House of
Representatives; and
(vii) the Comptroller General
of the United States.
(B)
Elements
Each
report submitted under subparagraph (A) shall include—
(i) a detailed description of
the steps the Department has taken, or plans to take, to execute the strategy
submitted under paragraph (1), including the progress made toward achieving the
interim goals and milestone schedule established pursuant to subparagraphs (B)
and (C) of paragraph (3);
(ii) a detailed description
of—
(I) any impediments
identified in the Department's efforts to execute the strategy;
(II) the actions the
Department has taken, or plans to take, to address such impediments; and
(III) any additional measures
developed by the Department to measure the state of security along the Southern
border; and
(iii) for each Border Patrol
sector along the Southern border—
(I) the effectiveness rate
for each individual Border Patrol sector and the aggregated effectiveness
rate;
(II) the number of recidivist
apprehensions, sorted by Border Patrol sector; and
(III) the recidivism rate for
all unique subjects that received a criminal consequence through the
Consequence Delivery System process.
(C)
Annual
review
The Comptroller General of the United States shall conduct
an annual review of the information contained in the semiannual reports
submitted by the Secretary under this paragraph and submit an assessment of the
status and progress of the Southern Border Security Strategy to the committees
set forth in subparagraph (A).
(b)
Southern Border Fencing
Strategy
(1)
Establishment
Not
later than 180 days after the date of the enactment of this Act, the Secretary
shall establish a strategy, to be known as the Southern Border Fencing
Strategy, to identify where fencing (including double-layer fencing),
infrastructure, and technology, including at ports of entry, should be deployed
along the Southern border.
(2)
Submission
The
Secretary shall submit the Southern Border Fencing Strategy to Congress and the
Comptroller General of the United States for review.
(3)
Notice of
commencement
Upon commencing the implementation of the Southern
Border Fencing Strategy, the Secretary shall submit a notice of commencement of
the implementation of the Strategy to Congress and the Comptroller General of
the United States.
(4)
Consultation
(A)
In
general
In implementing the Southern Border Fencing Strategy
required by this subsection, the Secretary shall consult with the Secretary of
the Interior, the Secretary of Agriculture, States, local governments, Indian
tribes, and property owners in the United States to minimize the impact on the
environment, culture, commerce, and quality of life for the communities and
residents located near the sites at which such fencing is to be
constructed.
(B)
Savings
provision
Nothing in this paragraph may be construed to—
(i) create or negate any
right of action for a State or local government or other person or entity
affected by this subsection; or
(ii) affect the eminent
domain laws of the United States or of any State.
(5)
Limitation on
requirements
Notwithstanding paragraph (1), nothing in this
subsection shall require the Secretary to install fencing, or infrastructure
that directly results from the installation of such fencing, in a particular
location along the Southern border, if the Secretary determines that the use or
placement of such resources is not the most appropriate means to achieve and
maintain effective control over the Southern border at such location.
6.
Comprehensive
Immigration Reform Funds
(a)
Comprehensive
Immigration Reform Trust Fund
(1)
Establishment
There
is established in the Treasury a separate account, to be known as the
Comprehensive Immigration Reform Trust Fund (referred to in this section as the
Trust Fund), consisting of—
(A) amounts transferred from
the general fund of the Treasury under paragraph (2)(A); and
(B) proceeds from the fees
described in paragraph (2)(B).
(2)
Deposits
(A)
Initial
funding
On the later of the date of the enactment of this Act or
October 1, 2013, $8,300,000,000 shall be transferred from the general fund of
the Treasury to the Trust Fund.
(B)
Ongoing
funding
Notwithstanding section 3302 of title 31, United States
Code, in addition to the funding described in subparagraph (A), and subject to
paragraphs (3)(B) and (4), the following amounts shall be deposited in the
Trust Fund:
(i)
Electronic travel
authorization system fees
Fees collected under section
217(h)(3)(B)(i)(II) of the Immigration and Nationality Act, as added by section
1102(c).
(ii)
Registered provisional
immigrant penalties
Penalties collected under section
245B(c)(10)(C) of the Immigration and Nationality Act, as added by section
2101.
(iii)
Blue card
penalty
Penalties collected under section 2211(b)(9)(C).
(iv)
Fine for adjustment
from blue card status
Fines collected under section 245F(a)(5) of
the Immigration and Nationality Act, as added by section 2212(a).
(v)
Penalties for false
statements in applications
Fines collected under section 245F(f)
of the Immigration and Nationality Act, as added by section 2212(a).
(vi)
Merit system green
card fees
Fees collected under section 203(c)(6) of the
Immigration and Nationality Act, as amended by section 2301(a)(2).
(vii)
H–1B and L visa
fees
Fees collected under section 281(d) of the Immigration and
Nationality Act, as added by section 4105.
(viii)
H–1B outplacement
fee
Fees collected under section 212(n)(1)(F)(ii) of the
Immigration and Nationality Act, as amended by section 4211(d).
(ix)
H–1B nonimmigrant
dependent employer fees
Fees collected under section
4233(a)(2).
(x)
L nonimmigrant
dependent employer fees
Fees collected under section
4305(a)(2).
(xi)
J–1 visa mitigation
fees
Fees collected under section 281(e) of the Immigration and
Nationality Act, as added by section 4407.
(xii)
F–1 visa
fees
Fees collected under section 281(f) of the Immigration and
Nationality Act, as added by section 4408.
(xiii)
Retiree visa
fees
Fees collected under section 214(w)(1)(B) of the Immigration
and Nationality Act, as added by section 4504(b).
(xiv)
Visitor visa
fees
Fees collected under section 281(g) of the Immigration and
Nationality Act, as added by section 4509.
(xv)
H–2B visa
fees
Fees collected under section 214(x)(5)(A) of the Immigration
and Nationality Act, as added by section 4602(a).
(xvi)
Nonimmigrants
performing maintenance on common carriers
Fees collected under
section 214(z) of the Immigration and Nationality Act, as added by section
4604.
(xvii)
X–1 visa
fees
Fees collected under section 214(s)(6) of the Immigration
and Nationality Act, as added by section 4801.
(xviii)
Penalty for
adjustment from registered provisional immigrant status
Penalties
collected under section 245C(c)(5)(B) of the Immigration and Nationality Act,
as added by section 2102.
(C)
Authority to adjust
fees
As necessary to carry out the purposes of this Act, the
Secretary may adjust the amounts of the fees and penalties set out under
subparagraph (B), except for the fines and penalties referred to in clauses
(ii), (iii), (iv), or (xviii) of such subparagraph.
(3)
Use of funds
(A)
Initial
funding
Of the amounts transferred to the Trust Fund pursuant to
paragraph (2)(A)—
(i) $3,000,000,000 shall
remain available for the 5-year period beginning on the date specified in
paragraph (2)(A) for use by the Secretary to carry out the Comprehensive
Southern Border Security Strategy;
(ii) $2,000,000,000 shall
remain available for the 10-year period beginning on the date specified in
paragraph (2)(A) for use by the Secretary to carry out programs, projects, and
activities recommended by the Commission pursuant to section 4(d) to achieve
and maintain the border security goal specified in section 3(b);
(iii) $1,500,000,000 shall be
made available to the Secretary, during the 5-year period beginning on the date
of the enactment of this Act, to procure and deploy fencing, infrastructure,
and technology in accordance with the Southern Border Fencing Strategy
established pursuant to section 5(b), not less than $1,000,000,000 of which
shall be used to deploy, repair, or replace fencing;
(iv) $750,000,000 shall
remain available for the 6-year period beginning on the date specified in
paragraph (2)(A) for use by the Secretary to expand and implement the mandatory
employment verification system, which shall be used as required by section 274A
of the Immigration and Nationality Act (8 U.S.C. 1324a), as amended by section
3101;
(v) $900,000,000 shall remain
available for the 8-year period beginning on the date specified in paragraph
(2)(A) for use by the Secretary of State to pay for one-time and startup costs
necessary to implement this Act; and
(vi) $150,000,000 shall
remain available for the 2-year period beginning on the date specified in
paragraph (2)(A) for use by the Secretary for transfer to the Secretary of
Labor, the Secretary of Agriculture, or the Attorney General, for initial costs
of implementing this Act.
(B)
Repayment of Trust Fund
expenses
The first $8,300,000,000 collected pursuant to the fees,
penalties, and fines referred to in clauses (ii), (iii), (iv), (vi), (xiii),
(xvii), and (xviii) of paragraph (2)(B) shall be collected, deposited in the
general fund of the Treasury, and used for Federal budget deficit reduction.
Collections in excess of $8,300,000,000 shall be deposited into the Trust Fund,
as specified in paragraph (2)(B).
(C)
Program
implementation
Amounts deposited into the Trust Fund pursuant to
paragraph (2)(B) shall be available during each of fiscal years 2014 through
2018 as follows:
(i) $50,000,000 to carry out
the activities referenced in section 1104(a)(1).
(ii) $50,000,000 to carry out
the activities referenced in section 1104(b).
(D)
Ongoing
funding
Subject to the availability of appropriations, amounts
deposited in the Trust Fund pursuant to paragraph (2)(B) are authorized to be
appropriated as follows:
(i) Such sums as may be
necessary to carry out the authorizations included in this Act.
(ii) Such sums as may be
necessary to carry out the operations and maintenance of border security and
immigration enforcement investments referenced in subparagraph (A).
(E)
Expenditure
plan
The Secretary, in consultation with the Attorney General and
the Secretary of Defense, shall submit to the
Committee on Appropriations of the
Senate, the Committee on
the Judiciary of the Senate, the
Committee on Appropriations of the House of
Representatives, and the Committee on the Judiciary of the House of
Representatives, in conjunction with the Comprehensive
Southern Border Strategy and the Southern Border Fencing Strategy, a plan for
expenditure that describes—
(i) the types and planned
deployment of fixed, mobile, video, and agent and officer portable surveillance
and detection equipment, including those recommended or provided by the
Department of Defense;
(ii) the number of Border
Patrol agents and Customs and Border Protection officers to be hired, including
a detailed description of which Border Patrol sectors and which land border
ports of entry they will be stationed;
(iii) the numbers and type of
unarmed, unmanned aerial systems and unarmed, fixed-wing and rotary aircraft,
including pilots, air interdiction agents, and support staff to fly or
otherwise operate and maintain the equipment;
(iv) the numbers, types, and
planned deployment of marine and riverine vessels, if any, including marine
interdiction agents and support staff to operate and maintain the
vessels;
(v) the locations, amount,
and planned deployment of fencing, including double layer fencing, tactical and
other infrastructure, and technology, including but not limited to fixed
towers, sensors, cameras, and other detection technology;
(vi) the numbers, types, and
planned deployment of ground-based mobile surveillance systems;
(vii) the numbers, types, and
planned deployment of tactical and other interoperable law enforcement
communications systems and equipment;
(viii) required construction,
including repairs, expansion, and maintenance, and location of additional
checkpoints, Border Patrol stations, and forward operating bases;
(ix) the number of additional
attorneys and support staff for the Office of the United States Attorney for
Tucson;
(x) the number of additional
support staff and interpreters in the Office of the Clerk of the Court for
Tucson;
(xi) the number of additional
personnel, including Marshals and Deputy Marshals for the United States
Marshals Office for Tucson;
(xii) the number of
additional magistrate judges for the southern border United States District
Courts;
(xiii) activities to be
funded by the Homeland Security Border Oversight Task Force;
(xiv) amounts and types of
grants to States and other entities;
(xv) amounts and activities
necessary to hire additional personnel and for start-up costs related to
upgrading software and information technology necessary to transition from a
voluntary E-Verify system to mandatory employment verification system under
section 274A of the Immigration and Nationality Act (8 U.S.C. 1324a) within 5
years;
(xvi) the number of
additional personnel and other costs associated with implementing the
immigration courts and removal proceedings mandated in subtitle E of title
III;
(xvii) the steps the
Commissioner of Social Security plans to take to create a fraud-resistant,
tamper-resistant, wear-resistant, and identity-theft resistant Social Security
card, including—
(I) the types of equipment
needed to create the card;
(II) the total estimated
costs for completion that clearly delineates costs associated with the
acquisition of equipment and transition to operation, subdivided by fiscal year
and including a description of the purpose by fiscal year for design,
pre-acquisition activities, production, and transition to operation;
(III) the number and type of
personnel, including contract personnel, required to research, design, test,
and produce the card; and
(IV) a detailed schedule for
production of the card, including an estimated completion date at the projected
funding level provided in this Act; and
(xviii) the operations and
maintenance costs associated with the implementation of clauses (i) through
(xvii).
(F)
Annual
revision
The expenditure plan required in (E) shall be revised
and submitted with the President’s budget proposals for fiscal year 2016, 2017,
2018, and 2019 pursuant to the requirements of section 1105(a) of title 31,
United States Code.
(G)
Commission expenditure
plan
(i)
Requirement for
plan
If the Southern Border Security Commission referenced in
section 4 is established, the Secretary shall submit to the appropriate
committees of Congress, not later than 60 days after the submission of the
review required by section 4(g), a plan for expenditure that achieves the
recommendations in the report required by section 4(d) and the review required
by section 4(g).
(ii)
Appropriate committees
of Congress defined
In clause (i), the term appropriate
committees of Congress means—
(I) the Committee on
Appropriations, the Committee on the Judiciary, and the Committee on Finance of
the Senate; and
(II) the Committee on
Appropriations, the Committee on the Judiciary, and the Committee on Ways and
Means of the House of Representatives.
(4)
Limitation on
collection
(A)
In
general
No fee deposited in the Trust Fund may be collected
except to the extent that the expenditure of the fee is provided for in advance
in an appropriations Act only to pay the costs of activities and services for
which appropriations are authorized to be funded from the Trust Fund.
(B)
Receipts collected as
offsetting receipts
Until the date of the enactment of an Act
making appropriations for the activities authorized under this Act through
September 30, 2014, the fees authorized by paragraph (2)(B) that are not
deposited into the general fund pursuant to paragraph (3)(B) may be collected
and shall be credited as to the Trust Fund to remain available until expended
only to pay the costs of activities and services for which appropriations are
authorized to be funded from the Trust Fund.
(b)
Comprehensive
Immigration Reform Startup Account
(1)
Establishment
There
is established in the Treasury a separate account, to be known as the
Comprehensive Immigration Reform Startup Account, (referred to
in this section as the Startup Account), consisting of amounts
transferred from the general fund of the Treasury under paragraph (2).
(2)
Deposits
There
is appropriated to the Startup Account, out of any funds in the Treasury not
otherwise appropriated, $3,000,000,000, to remain available until expended on
the later of the date that is—
(A) the date of the enactment
of this Act; or
(B) October 1, 2013.
(3)
Repayment of startup
costs
(A)
In
general
Notwithstanding section 286(m) of the Immigration and
Nationality Act (8 U.S.C. 1356(m)), 50 percent of fees collected under section
245B(c)(10)(A) of the Immigration and Nationality Act, as added by section 2101
of this Act, shall be deposited monthly in the general fund of the Treasury and
used for Federal budget deficit reduction until the funding provided by
paragraph (2) has been repaid.
(B)
Deposit in the
Immigration Examinations Fee Account
Fees collected in excess of
the amount referenced in subparagraph (A) shall be deposited in the Immigration
Examinations Fee Account, pursuant to section 286(m) of the Immigration and
Nationality Act (8 U.S.C. 1356(m)), and shall remain available until expended
pursuant to section 286(n) of the Immigration and Nationality Act (8 U.S.C.
1356(n)).
(4)
Use of
funds
The Secretary shall use the amounts transferred to the
Startup Account to pay for one-time and startup costs necessary to implement
this Act, including—
(A) equipment, information
technology systems, infrastructure, and human resources;
(B) outreach to the public,
including development and promulgation of any regulations, rules, or other
public notice;
(C) grants to community and
faith-based organizations; and
(D) anti-fraud programs and
actions related to implementation of this Act.
(5)
Expenditure
plan
Not later than 90 days after the date of the enactment of
this Act, the Secretary, in consultation with the Attorney General and the
Secretary of Defense, shall submit to the Committee on Appropriations and the
Committee on the Judiciary of the Senate and the Committee on Appropriations
and the Committee on the Judiciary of the House of Representatives, a plan for
expenditure of the one-time and startup funds in the Startup Account that
provides details on—
(A) the types of equipment,
information technology systems, infrastructure, and human resources;
(B) the plans for outreach to
the public, including development and promulgation of any regulations, rules,
or other public notice;
(C) the types and amounts of
grants to community and faith-based organizations; and
(D) the anti-fraud programs
and actions related to implementation of this Act.
(c)
Annual audits
(1)
Audits
required
Not later than October 1 each year beginning on or after
the date of the enactment of this Act, the Chief Financial Officer of the
Department of Homeland Security shall, in conjunction with the Inspector
General of the Department of Homeland Security, conduct an audit of the Trust
Fund.
(2)
Reports
Upon
completion of each audit of the Trust Fund under paragraph (1), the Chief
Financial Officer shall, in conjunction with the Inspector General, submit to
Congress, and make available to the public on an Internet website of the
Department available to the public, a jointly audited financial statement
concerning the Trust Fund.
(3)
Elements
Each
audited financial statement under paragraph (2) shall include the
following:
(A) The report of an
independent certified public accountant.
(B) A balance sheet reporting
admitted assets, liabilities, capital and surplus.
(C) A statement of cash
flow.
(D) Such other information on
the Trust Fund as the Chief Financial Officer, the Inspector General, or the
independent certified public accountant considers appropriate to facilitate a
comprehensive understanding of the Trust Fund during the year covered by the
financial statement.
(d)
Determination of
budgetary effects
(1)
Emergency designation
for congressional enforcement
In the Senate, amounts appropriated
by or deposited in the general fund of the Treasury pursuant to this section
are designated as an emergency requirement pursuant to section 403(a) of S.
Con. Res. 13 (111th Congress), the concurrent resolution on the budget for
fiscal year 2010.
(2)
Emergency designation
for statutory PAYGO
Amounts appropriated by or deposited in the
general fund of the Treasury pursuant to this section are designated as an
emergency requirement under section 4(g) of the Statutory Pay-As-You-Go Act of
2010 (Public Law 111–139; 2 U.S.C. 933(g)).
7.
Reference to the
Immigration and Nationality
Act
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 (8 U.S.C. 1101 et seq.).
8.
Definitions
In this Act:
(1)
Department
Except
as otherwise provided, the term Department means the Department of
Homeland Security.
(2)
Secretary
Except
as otherwise provided, the term Secretary means the Secretary of
Homeland Security.
9.
Grant
accountability
(a)
Definitions
In
this section:
(1)
Awarding
entities
The term awarding entities means the
Secretary of Homeland Security, the Director of the Federal Emergency
Management Agency (FEMA), the Chief of the Office of Citizenship and New
Americans, as designated by this Act, and the Director of the National Science
Foundation.
(2)
Nonprofit
organization
The term nonprofit organization means
an organization that is described in section 501(c)(3) of the Internal Revenue
Code of 1986 and is exempt from taxation under section 501(a) of such
Code.
(3)
Unresolved audit
finding
The term unresolved audit finding means a
finding in a final audit report conducted by the Inspector General of the
Department of Homeland Security, or the Inspector General for the National
Science Foundation for grants awarded by the Director of the National Science
Foundation, that the audited grantee has utilized grant funds for an
unauthorized expenditure or otherwise unallowable cost that is not closed or
resolved within 1 year from the date when the final audit report is
issued.
(b)
Accountability
All
grants awarded by awarding entities pursuant to this Act shall be subject to
the following accountability provisions:
(1)
Audit
requirement
(A)
Audits
Beginning
in the first fiscal year beginning after the date of the enactment of this
section, and in each fiscal year thereafter, the Inspector General of the
Department of Homeland Security, or the Inspector General for the National
Science Foundation for grants awarded by the Director of the National Science
Foundation, shall conduct audits of recipients of grants under this Act to
prevent waste, fraud, and abuse of funds by grantees. The Inspector Generals
shall determine the appropriate number of grantees to be audited each
year.
(B)
Mandatory
exclusion
A recipient of grant funds under this Act that is found
to have an unresolved audit finding shall not be eligible to receive grant
funds under this Act during the first 2 fiscal years beginning after the end of
the 1-year period described in subsection (a)(3).
(C)
Priority
In
awarding grants under this Act, the awarding entities shall give priority to
eligible applicants that did not have an unresolved audit finding during the 3
fiscal years before submitting an application for a grant under this
Act.
(D)
Reimbursement
If
an entity is awarded grant funds under this Act during the 2-fiscal-year period
during which the entity is barred from receiving grants under subparagraph (B),
the awarding entity shall—
(i) deposit an amount equal
to the amount of the grant funds that were improperly awarded to the grantee
into the General Fund of the Treasury; and
(ii) seek to recoup the costs
of the repayment to the fund from the grant recipient that was erroneously
awarded grant funds.
(2)
Nonprofit organization
requirements
(A)
Prohibition
An
awarding entity may not award a grant under this Act to a nonprofit
organization that holds money in offshore accounts for the purpose of avoiding
paying the tax described in section 511(a) of the Internal Revenue Code of
1986.
(B)
Disclosure
Each
nonprofit organization that is awarded a grant under this Act and uses the
procedures prescribed in regulations to create a rebuttable presumption of
reasonableness for the compensation of its officers, directors, trustees, and
key employees, shall disclose to the awarding entity, in the application for
the grant, the process for determining such compensation, including the
independent persons involved in reviewing and approving such compensation, the
comparability data used, and contemporaneous substantiation of the deliberation
and decision. Upon request, the awarding entity shall make the information
disclosed under this subparagraph available for public inspection.
(3)
Conference
expenditures
(A)
Limitation
No
amounts authorized to be appropriated to the Department of Homeland Security or
the National Science Foundation for grant programs under this Act may be used
by an awarding entity or by any individual or entity awarded discretionary
funds through a cooperative agreement under this Act to host or support any
expenditure for conferences that uses more than $20,000 in funds made available
by the Department of Homeland Security or the National Science Foundation
unless the Deputy Secretary for Homeland Security, or the Deputy Director of
the National Science Foundation, or their designee, provides prior written
authorization that the funds may be expended to host the conference.
(B)
Written
approval
Written approval under subparagraph (A) shall include a
written estimate of all costs associated with the conference, including the
cost of all food, beverages, audio-visual equipment, honoraria for speakers,
and entertainment.
(C)
Report
The
Deputy Secretary of Homeland Security and the Deputy Director of the National
Science Foundation shall submit an annual report to Congress on all conference
expenditures approved under this paragraph.
(4)
Annual
certification
Beginning in the first fiscal year beginning after
the date of the enactment of this subsection, each awarding entity shall submit
to Congress a report—
(A) indicating
whether—
(i) all audits issued by the
Offices of the Inspector General under paragraph (1) have been completed and
reviewed by the appropriate individuals;
(ii) all mandatory exclusions
required under paragraph (1)(B) have been issued; and
(iii) all reimbursements
required under paragraph (1)(D) have been made; and
(B) including a list of any
grant recipients excluded under paragraph (1) from the previous year.
I
Border Security
1101.
Definitions
In this title:
(1)
Northern
border
The term Northern border means the
international border between the United States and Canada.
(2)
Rural, high-trafficked
areas
The term rural, high-trafficked areas means
rural areas through which drugs and undocumented aliens are routinely smuggled,
as designated by the Commissioner of U.S. Customs and Border Protection.
(3)
Southern
border
The term Southern border means the
international border between the United States and Mexico.
(4)
Southwest border
region
The term Southwest border region means the
area in the United States that is within 100 miles of the Southern
border.
1102.
Additional U.S.
Customs and Border Protection officers
(a)
In
general
Not later than
September 30, 2017, the Secretary shall increase the number of trained U.S.
Customs and Border Protection officers by 3,500, compared to the number of such
officers as of the date of the enactment of this Act. The Secretary shall make
progress in increasing such number of officers during each of the fiscal years
2014 through 2017.
(b)
Construction
Nothing
in subsection (a) may be construed to preclude the Secretary from reassigning
or stationing U.S. Customs and Border Protection Officers and U.S. Border
Patrol Agents from the Northern border to the Southern border.
(c)
Funding
Section
217(h)(3)(B) (8 U.S.C. 1187(h)(3)(B)) is amended—
(1) in clause (i)—
(A) by striking No
later than 6 months after the date of enactment of the Travel Promotion Act of
2009, the and inserting The;
(B) in subclause (I), by
striking and at the end;
(C) by redesignating
subclause (II) as subclause (III); and
(D) by inserting after
subclause (I) the following:
(II) $16 for border
processing;
and
;
(2) in clause (ii), by
striking Amounts collected under clause (i)(II) and inserting
Amounts collected under clause (i)(II) shall be deposited into the
Comprehensive Immigration Reform Trust Fund established under section 6(a)(1)
of the Border Security, Economic Opportunity,
and Immigration Modernization Act. Amounts collected under clause
(i)(III); and
(3) by striking clause
(iii).
(d)
Corporation for Travel
Promotion
Section 9(d)(2)(B) of the Travel Promotion Act of 2009
(22 U.S.C. 2131(d)(2)(B)) is amended by striking For each of fiscal
years 2012 through 2015, and inserting For each fiscal year
after 2012,.
1103.
National Guard
support to secure the Southern border
(a)
In
general
With the approval of the Secretary of Defense, the
Governor of a State may order any unit or personnel of the National Guard of
such State to perform operations and missions under section 502(f) of title 32,
United States Code, in the Southwest Border region for the purposes of
assisting U.S. Customs and Border Protection in securing the Southern
border.
(b)
Assignment of
operations and missions
(1)
In
general
National Guard units and personnel deployed under
subsection (a) may be assigned such operations and missions specified in
subsection (c) as may be necessary to secure the Southern border.
(2)
Nature of
duty
The duty of National Guard personnel performing operations
and missions described in paragraph (1) shall be full-time duty under title 32,
United States Code.
(c)
Range of operations and
missions
The operations and missions assigned under subsection
(b) shall include the temporary authority—
(1) to construct fencing,
including double-layer and triple-layer fencing;
(2) to increase ground-based
mobile surveillance systems;
(3) to deploy additional
unmanned aerial systems and manned aircraft sufficient to maintain continuous
surveillance of the Southern border;
(4) to deploy and provide
capability for radio communications interoperability between U.S. Customs and
Border Protection and State, local, and tribal law enforcement agencies;
(5) to construct checkpoints
along the Southern border to bridge the gap to long-term permanent checkpoints;
and
(6) to provide assistance to
U.S. Customs and Border Protection, particularly in rural, high-trafficked
areas, as designated by the Commissioner of U.S. Customs and Border
Protection.
(d)
Materiel and logistical
support
The Secretary of Defense shall deploy such materiel and
equipment and logistical support as may be necessary to ensure success of the
operations and missions conducted by the National Guard under this
section.
(e)
Exclusion from National
Guard personnel strength limitations
National Guard personnel
deployed under subsection (a) shall not be included in—
(1) the calculation to
determine compliance with limits on end strength for National Guard personnel;
or
(2) limits on the number of
National Guard personnel that may be placed on active duty for operational
support under section 115 of title 10, United States Code.
1104.
Enhancement of
existing border security operations
(a)
Border crossing
prosecutions
(1)
In
general
From the amounts made available pursuant to the
appropriations in paragraph (3), funds shall be made available—
(A) to increase the number of
border crossing prosecutions in the Tucson Sector of the Southwest border
region to up to 210 prosecutions per day through increasing funding available
for—
(i) attorneys and
administrative support staff in the Office of the United States Attorney for
Tucson;
(ii) support staff and
interpreters in the Office of the Clerk of the Court for Tucson;
(iii) pre-trial
services;
(iv) activities of the
Federal Public Defender Office for Tucson; and
(v) additional personnel,
including Deputy United States Marshals in the United States Marshals Office
for Tucson to perform intake, coordination, transportation, and court security;
and
(B) reimburse Federal, State,
local, and tribal law enforcement agencies for any detention costs related to
the border crossing prosecutions carried out pursuant to subparagraph
(A).
(2)
Additional magistrate
judges to assist with increased caseload
The chief judge of the
United States District Court for the District of Arizona is authorized to
appoint additional full-time magistrate judges, who, consistent with the
Constitution and laws of the United States, shall have the authority to hear
cases and controversies in the judicial district in which the respective judges
are appointed.
(3)
Funding
There
are authorized to be appropriated, from the Comprehensive Immigration Reform
Trust Fund established under section 6(a)(1), such sums as may be necessary to
carry out this subsection.
(b)
Operation
Stonegarden
(1)
In
general
The Federal Emergency Management Agency shall enhance law
enforcement preparedness and operational readiness along the borders of the
United States through Operation Stonegarden. The amounts available under this
paragraph are in addition to any other amounts otherwise made available for
Operation Stonegarden. Not less than 90 percent of the amounts made available
under section 6(a)(3)(C)(ii) shall be allocated for grants and reimbursements
to law enforcement agencies in the States in the Southwest border region for
personnel, overtime, travel, and other costs related to combating illegal
immigration and drug smuggling in the Southwest border region. Allocations for
grants and reimbursements to law enforcement agencies under this paragraph
shall be made by the Federal Emergency Management Agency through a competitive
process.
(2)
Funding
There
are authorized to be appropriated, from the amounts made available under
section 6(a)(3)(A)(i), such sums as may be necessary to carry out this
subsection.
(c)
Infrastructure
improvements
(1)
Border patrol
stations
The Secretary shall—
(A) construct additional
Border Patrol stations in the Southwest border region that U.S. Border Patrol
determines are needed to provide full operational support in rural,
high-trafficked areas; and
(B) analyze the feasibility
of creating additional Border Patrol sectors along the Southern border to
interrupt drug trafficking operations.
(2)
Forward operating
bases
The Secretary shall enhance the security of the Southwest
border region by—
(A) establishing additional
permanent forward operating bases for the U.S. Border Patrol, as needed;
(B) upgrading the existing
forward operating bases to include modular buildings, electricity, and potable
water; and
(C) ensuring that forward
operating bases surveil and interdict individuals entering the United States
unlawfully immediately after such individuals cross the Southern border.
(3)
Safe and secure border
infrastructure
The Secretary and the Secretary of Transportation,
in consultation with the governors of the States in the Southwest border region
and the Northern border region, shall establish a grant program, which shall be
administered by the Secretary of Transportation and the General Services
Administration, to construct transportation and supporting infrastructure
improvements at existing and new international border crossings necessary to
facilitate safe, secure, and efficient cross border movement of people, motor
vehicles, and cargo.
(4)
Authorization of
appropriations
There is authorized to be appropriated for each of
fiscal years 2014 through 2018 such sums as may be necessary to carry out this
subsection.
(d)
Additional permanent
district court judgeships in southwest border States
(1)
In
general
The President shall appoint, by and with the advice and
consent of the Senate—
(A) 2 additional district
judges for the district of Arizona;
(B) 3 additional district
judges for the eastern district of California;
(C) 2 additional district
judges for the western district of Texas; and
(D) 1 additional district
judge for the southern district of Texas.
(2)
Conversions of
temporary district court judgeships
The existing judgeships for
the district of Arizona and the central district of California authorized by
section 312(c) of the 21st Century Department of Justice Appropriations
Authorization Act (28 U.S.C. 133 note; Public Law 107–273; 116 Stat. 1788), as
of the effective date of this Act, shall be authorized under section 133 of
title 28, United States Code, and the incumbents in those offices shall hold
the office under section 133 of title 28, United States Code, as amended by
this Act.
(3)
Technical and
conforming amendments
The table contained in section 133(a) of
title 28, United States Code, is amended—
(A) by striking the item
relating to the district of Arizona and inserting the following:
Arizona15
;
(B) by striking the item
relating to California and inserting the following:
California:
Northern14
Eastern9
Central28
Southern13
;
and
(C) by striking the item
relating to Texas and inserting the following:
Texas:
Northern12
Southern20
Eastern7
Western15
.
(4)
Increase in filing
fees
(A)
In
general
Section 1914(a) of title 28, United States Code, is
amended by striking $350 and inserting
$360.
(B)
Expenditure
limitation
Incremental amounts collected by reason of the
enactment of this paragraph shall be deposited as offsetting receipts in the
Judiciary Filing Fee special fund of the Treasury established
under section 1931 of title 28, United States Code. Such amounts shall be
available solely for the purpose of facilitating the processing of civil cases,
but only to the extent specifically appropriated by an Act of Congress enacted
after the date of the enactment of this Act.
(5)
Whistleblower
protection
(A)
In
general
No officer, employee, agent, contractor, or subcontractor
of the judicial branch may discharge, demote, threaten, suspend, harass, or in
any other manner discriminate against an employee in the terms and conditions
of employment because of any lawful act done by the employee to provide
information, cause information to be provided, or otherwise assist in an
investigation regarding any possible violation of Federal law or regulation, or
misconduct, by a judge, justice, or any other employee in the judicial branch,
which may assist in the investigation of the possible violation or
misconduct.
(B)
Civil
action
An employee injured by a violation of subparagraph (A)
may, in a civil action, obtain appropriate relief.
1105.
Border security on
certain Federal land
(a)
Definitions
In
this section:
(1)
Federal
lands
The term Federal lands includes all land under
the control of the Secretary concerned that is located within the Southwest
border region in the State of Arizona along the international border between
the United States and Mexico.
(2)
Secretary
concerned
The term Secretary concerned means—
(A) with respect to land
under the jurisdiction of the Secretary of Agriculture, the Secretary of
Agriculture; and
(B) with respect to land
under the jurisdiction of the Secretary of the Interior, the Secretary of the
Interior.
(b)
Support for border
security needs
To achieve effective control of Federal
lands—
(1) the Secretary concerned,
notwithstanding any other provision of law, shall authorize and provide U.S.
Customs and Border Protection personnel with immediate access to Federal lands
for security activities, including—
(A) routine motorized
patrols; and
(B) the deployment of
communications, surveillance, and detection equipment;
(2) the security activities
described in paragraph (1) shall be conducted, to the maximum extent
practicable, in a manner that the Secretary determines will best protect the
natural and cultural resources on Federal lands; and
(3) the Secretary concerned
may provide education and training to U.S. Customs and Border Protection
personnel on the natural and cultural resources present on individual Federal
land units.
(c)
Programmatic
environmental impact statement
(1)
In
general
After implementing subsection (b), the Secretary, in
consultation with the Secretaries concerned, shall prepare and publish in the
Federal Register a notice of intent to prepare a programmatic environmental
impact statement in accordance with the National Environmental Policy Act of
1969 (42 U.S.C. 4321 et seq.) to analyze the impacts of the activities
described in subsection (b).
(2)
Effect on processing
application and special use permits
The pending completion of a
programmatic environmental impact statement under this section shall not result
in any delay in the processing or approving of applications or special use
permits by the Secretaries concerned for the activities described in subsection
(b).
(3)
Amendment of land use
plans
The Secretaries concerned shall amend any land use plans,
as appropriate, upon completion of the programmatic environmental impact
statement described in subsection (b).
(4)
Scope of programmatic
environmental impact statement
The programmatic environmental
impact statement described in paragraph (1)—
(A) may be used to advise the
Secretary on the impact on natural and cultural resources on Federal lands;
and
(B) shall not control, delay,
or restrict actions by the Secretary to achieve effective control on Federal
lands.
(d)
Intermingled State and
private land
This section shall not apply to any private or
State-owned land within the boundaries of Federal lands.
1106.
Equipment and
technology
(a)
Enhancements
The
Commissioner of U.S. Customs and Border Protection, working through U.S. Border
Patrol, shall—
(1) deploy additional mobile,
video, and agent-portable surveillance systems, and unarmed, unmanned aerial
vehicles in the Southwest border region as necessary to provide 24-hour
operation and surveillance;
(2) operate unarmed unmanned
aerial vehicles along the Southern border for 24 hours per day and for 7 days
per week;
(3) deploy unarmed additional
fixed-wing aircraft and helicopters along the Southern border;
(4) acquire new rotorcraft
and make upgrades to the existing helicopter fleet;
(5) increase horse patrols in
the Southwest border region; and
(6) acquire and deploy
watercraft and other equipment to provide support for border-related maritime
anti-crime activities.
(b)
Limitation
(1)
In
general
Notwithstanding paragraphs (1) and (2) of subsection (a),
and except as provided in paragraph (2), U.S. Border Patrol may not operate
unarmed, unmanned aerial vehicles in the San Diego and El Centro Sectors,
except within 3 miles of the Southern border.
(2)
Exception
The
limitation under this subsection shall not restrict the maritime operations of
U.S. Customs and Border Protection.
(c)
Authorization of
appropriations
In addition to amounts otherwise authorized to be
appropriated, there is authorized to be appropriated to U.S. Customs and Border
Protection such sums as may be necessary to carry out subsection (a) during
fiscal years 2014 through 2018.
1107.
Access to emergency
personnel
(a)
Southwest border region
emergency communications grants
(1)
In
general
The Secretary, in consultation with the governors of the
States in the Southwest border region, shall establish a 2-year grant program,
to be administered by the Secretary, to improve emergency communications in the
Southwest border region.
(2)
Eligibility for
grants
An individual is eligible to receive a grant under this
subsection if the individual demonstrates that he or she—
(A) regularly resides or
works in the Southwest border region;
(B) is at greater risk of
border violence due to the lack of cellular service at his or her residence or
business and his or her proximity to the Southern border.
(3)
Use of
grants
Grants awarded under this subsection may be used to
purchase satellite telephone communications systems and service that—
(A) can provide access to
9–1–1 service; and
(B) are equipped with global
positioning systems.
(4)
Authorization of
appropriations
There is authorized to be appropriated such sums
as may be necessary to carry out the grant program established under this
subsection.
(b)
Interoperable
communications for law enforcement
(1)
Federal law
enforcement
There are authorized to be appropriated, to the
Department, the Department of Justice, and the Department of the Interior,
during the 5-year period beginning on the date of the enactment of this Act,
such sums as may be necessary—
(A) to purchase, through a
competitive procurement process, P25-compliant radios, which may include a
multi-band option, for Federal law enforcement agents working in the Southwest
border region in support of the activities of U.S. Customs and Border
Protection and U.S. Immigration and Customs Enforcement, including law
enforcement agents of the Drug Enforcement Administration, the Bureau of
Alcohol, Tobacco, Firearms and Explosives, the Department of the Interior, and
the Forest Service; and
(B) to upgrade, through a
competitive procurement process, the communications network of the Department
of Justice to ensure coverage and capacity, particularly when immediate access
is needed in times of crisis, in the Southwest Border region for appropriate
law enforcement personnel of the Department of Justice (including the Drug
Enforcement Administration and the Bureau of Alcohol, Tobacco, Firearms and
Explosives), the Department (including U.S. Immigration and Customs Enforcement
and U.S. Customs and Border Protection), the United States Marshals Service,
other Federal agencies, the State of Arizona, tribes, and local
governments.
(2)
State and local law
enforcement
(A)
Authorization of
appropriations
There is authorized to be appropriated to the
Department of Justice, during the 5-year period beginning on the date of the
enactment of this Act, such sums as may be necessary to purchase, through a
competitive procurement process, P25-compliant radios, which may include a
multi-band option, for State and local law enforcement agents working in the
Southwest border region.
(B)
Access to Federal
spectrum
If a State, tribal, or local law enforcement agency in
the Southwest border region experiences an emergency situation that
necessitates immediate communication with the Department of Justice, the
Department, the Department of the Interior, or any of their respective
subagencies, such law enforcement agency shall have access to the spectrum
assigned to such Federal agency for the duration of such emergency
situation.
1108.
Southwest Border
Region Prosecution Initiative
(a)
Reimbursement to State
and local prosecutors for federally initiated criminal cases
The
Attorney General shall reimburse State, county, tribal, and municipal
governments for costs associated with the prosecution, pretrial services and
detention, clerical support, and public defenders’ services associated with the
prosecution of federally initiated immigration-related criminal cases declined
by local offices of the United States Attorneys.
(b)
Exception
Reimbursement
under subsection (a) shall not be available, at the discretion of the Attorney
General, if the Attorney General determines that there is reason to believe
that the jurisdiction seeking reimbursement has engaged in unlawful conduct in
connection with immigration-related apprehensions.
(c)
Authorization of
appropriations
There is authorized to be appropriated such sums
as may be necessary to carry out subsection (a) during fiscal years 2014
through 2018.
1109.
Interagency
collaboration
The Assistant
Secretary of Defense for Research and Engineering shall collaborate with the
Under Secretary of Homeland Security for Science and Technology to identify
equipment and technology used by the Department of Defense that could be used
by U.S. Customs and Border Protection to improve the security of the Southern
border by—
(1) detecting border
tunnels;
(2) detecting the use of
ultralight aircraft;
(3) enhancing wide aerial
surveillance; and
(4) otherwise improving the
enforcement of such border.
1110.
State Criminal Alien
Assistance Program
(a)
SCAAP
Reauthorization
Section 241(i)(5)(C) (8 U.S.C. 1231(i)(5)) is
amended by striking 2011. and inserting
2015..
(b)
SCAAP assistance for
States
(1)
Assistance for States
incarcerating undocumented aliens charged with certain crimes
Section 241(i)(3)(A) (8 U.S.C.
1231(i)(3)(A)) is amended by inserting charged with or before
convicted.
(2)
Assistance for States
incarcerating unverified aliens
Section 241(i) (8 U.S.C. 1231(i)), as
amended by subsection (a), is further amended—
(A) by redesignating
paragraphs (4), (5), and (6), as paragraphs (5), (6), and (7),
respectively;
(B) in paragraph (7), as so
redesignated, by striking (5) and inserting (6);
and
(C) by adding after paragraph
(3) the following:
(4) In the case of an alien
whose immigration status is unable to be verified by the Secretary of Homeland
Security, and who would otherwise be an undocumented criminal alien if the
alien is unlawfully present in the United States, the Attorney General shall
compensate the State or political subdivision of the State for incarceration of
the alien, consistent with subsection
(i)(2).
.
1111.
Use of
force
Not later than 180 days
after the date of the enactment of this Act, the Secretary, in consultation
with the Assistant Attorney General for the Civil Rights Division of the
Department of Justice, shall issue policies governing the use of force by all
Department personnel that—
(1) require all Department
personnel to report each use of force; and
(2) establish procedures
for—
(A) accepting and
investigating complaints regarding the use of force by Department
personnel;
(B) disciplining Department
personnel who violate any law or Department policy relating to the use of
force; and
(C) reviewing all uses of
force by Department personnel to determine whether the use of force—
(i) complied with Department
policy; or
(ii) demonstrates the need
for changes in policy, training, or equipment.
1112.
Training for border
security and immigration enforcement officers
(a)
In
general
The Secretary shall
ensure that U.S. Customs and Border Protection officers, U.S. Border Patrol
agents, U.S. Immigration and Customs Enforcement officers and agents, United
States Air and Marine Division agents, and agriculture specialists stationed
within 100 miles of any land or marine border of the United States or at any
United States port of entry receive appropriate training, which shall be
prepared in collaboration with the Assistant Attorney General for the Civil
Rights Division of the Department of Justice, in—
(1) identifying and detecting
fraudulent travel documents;
(2) civil, constitutional,
human, and privacy rights of individuals;
(3) the scope of enforcement
authorities, including interrogations, stops, searches, seizures, arrests, and
detentions;
(4) the use of force policies
issued by the Secretary pursuant to section 1111;
(5) immigration laws,
including screening, identifying, and addressing vulnerable populations, such
as children, victims of crime and human trafficking, and individuals fleeing
persecution or torture;
(6) social and cultural
sensitivity toward border communities;
(7) the impact of border
operations on communities; and
(8) any particular
environmental concerns in a particular area.
(b)
Training for border
community liaison officers
The Secretary shall ensure that border
communities liaison officers in Border Patrol sectors along the international
borders between the United States and Mexico and between the United States and
Canada receive training to better—
(1) act as a liaison between
border communities and the Office for Civil Rights and Civil Liberties of the
Department and the Civil Rights Division of the Department of Justice;
(2) foster and
institutionalize consultation with border communities;
(3) consult with border
communities on Department programs, policies, strategies, and directives;
and
(4) receive Department
performance assessments from border communities.
(c)
Humane conditions of
confinement for children in U.S. Customs and Border Protection
custody
Not later than 90
days after the date of the enactment of this Act, the Secretary shall establish
standards to ensure that children in the custody of U.S. Customs and Border
Protection—
(1) are afforded adequate medical and mental
health care, including emergency medical and mental health care, when
necessary;
(2) receive adequate nutrition;
(3) are provided with climate-appropriate
clothing, footwear, and bedding;
(4) have basic personal hygiene and sanitary
products; and
(5) are permitted to make supervised phone
calls to family members.
1113.
Department of
Homeland Security Border Oversight Task Force
(a)
Establishment
(1)
In
general
There is established an independent task force, which
shall be known as the Department of Homeland Security Border Oversight Task
Force (referred to in this section as the DHS Task
Force).
(2)
Duties
The
DHS Task Force shall—
(A) review and make
recommendations regarding immigration and border enforcement policies,
strategies, and programs that take into consideration their impact on border
communities;
(B) recommend ways in which
the Border Communities Liaison Offices can strengthen relations and
collaboration between communities in the border regions and the Department, the
Department of Justice, and other Federal agencies that carry out such policies,
strategies, and programs;
(C) evaluate how the
policies, strategies, and programs of Federal agencies operating along the
international borders between the United States and Mexico and between the
United States and Canada protect the due process, civil, and human rights of
border residents, visitors, and migrants at and near such borders; and
(D) evaluate and make
recommendations regarding the training of border enforcement personnel
described in section 1112.
(3)
Membership
(A)
In
general
The DHS Task Force shall be composed of 29 members,
appointed by the President, who have expertise in migration, local crime
indices, civil and human rights, community relations, cross-border trade and
commerce, quality of life indicators, or other pertinent experience, of
whom—
(i) 12 members shall be from
the Northern border region and shall include—
(I) 2 local government
elected officials;
(II) 2 local law enforcement
officials;
(III) 2 civil rights
advocates;
(IV) 1 business
representative;
(V) 1 higher education
representative;
(VI) 1 private land owner
representative;
(VII) 1 representative of a
faith community; and
(VIII) 2 representatives of
U.S. Border Patrol; and
(ii) 17 members shall be from
the Southern border region and include—
(I) 3 local government
elected officials;
(II) 3 local law enforcement
officials;
(III) 3 civil rights
advocates;
(IV) 2 business
representatives;
(V) 1 higher education
representative;
(VI) 2 private land owner
representatives;
(VII) 1 representative of a
faith community; and
(VIII) 2 representatives of
U.S. Border Patrol.
(B)
Term of
service
Members of the Task Force shall be appointed for the
shorter of—
(i) 3 years; or
(ii) the life of the DHS Task
Force.
(C)
Chair, vice
chair
The members of the DHS Task Force shall elect a Chair and a
Vice Chair from among its members, who shall serve in such capacities for the
life of the DHS Task Force or until removed by the majority vote of at least 14
members.
(b)
Operations
(1)
Hearings
The
DHS Task Force may, for the purpose of carrying out its duties, hold hearings,
sit and act, take testimony, receive evidence, and administer oaths.
(2)
Recommendations
The
DHS Task Force may make findings or recommendations to the Secretary related to
the duties described in subsection (a)(2).
(3)
Response
Not
later than 180 days after receiving the findings and recommendations from the
DHS Task Force under paragraph (2), the Secretary shall issue a response that
describes how the Department has addressed, or will address, such findings and
recommendations. If the Secretary disagrees with any finding of the DHS Task
Force, the Secretary shall provide an explanation for the disagreement.
(4)
Information from
federal agencies
The Chair, or 16 members of the DHS Task Force,
may request statistics relating to the duties described in subsection (a)(2)
directly from any Federal agency, which shall, to the extent authorized by law,
furnish such information, suggestions, estimates, and statistics directly to
the DHS Task Force.
(5)
Compensation
Members
of the DHS Task Force shall serve without pay, but shall be reimbursed for
reasonable travel and subsistence expenses incurred in the performance of their
duties.
(c)
Report
Not
later than 2 years after its first meeting, the DHS Task Force shall submit a
final report to the President, Congress, and the Secretary that
contains—
(1) findings with respect to
the duties of the DHS Task Force; and
(2) recommendations regarding
border and immigration enforcement policies, strategies, and programs,
including—
(A) a recommendation as to
whether the DHS Task Force should continue to operate; and
(B) a description of any
duties for which the DHS Task Force should be responsible after the termination
date described in subsection (e).
(d)
Authorization of
appropriations
There are authorized to be appropriated such sums
as may be necessary to carry out this section for each of the fiscal years 2014
through 2017.
(e)
Sunset
The
DHS Task Force shall terminate operations 60 days after the date on which the
DHS Task Force submits the report described in subsection (c).
1114.
Ombudsman for
Immigration Related Concerns of the Department of Homeland Security
(a)
Establishment
Title I of the Homeland Security Act of
2002 (6 U.S.C. 111 et seq.) is amended by adding at the end the following new
section:
104.
Ombudsman for
Immigration Related Concerns
(a)
In
general
There shall be within the Department an Ombudsman for
Immigration Related Concerns (in this section referred to as the
Ombudsman). The individual appointed as Ombudsman shall have a
background in immigration law as well as civil and human rights law. The
Ombudsman shall report directly to the Deputy Secretary.
(b)
Functions
The
functions of the Ombudsman shall be as follows:
(1) To receive and resolve
complaints from individuals and employers and assist in resolving problems with
the immigration components of the Department.
(2) To conduct inspections of
the facilities or contract facilities of the immigration components of the
Department.
(3) To assist individuals and
families who have been the victims of crimes committed by aliens or violence
near the United States border.
(4) To identify areas in
which individuals and employers have problems in dealing with the immigration
components of the Department.
(5) To the extent
practicable, to propose changes in the administrative practices of the
immigration components of the Department to mitigate problems identified under
paragraph (4).
(6) To review, examine, and
make recommendations regarding the immigration and enforcement policies,
strategies, and programs of U.S. Customs and Border Protection, U.S.
Immigration and Customs Enforcement, and U.S. Citizenship and Immigration
Services.
(c)
Other
responsibilities
In addition to the functions specified in
subsection (b), the Ombudsman shall—
(1) monitor the coverage and
geographic allocation of local offices of the Ombudsman, including appointing a
local ombudsman for immigration related concerns; and
(2) evaluate and take
personnel actions (including dismissal) with respect to any employee of the
Ombudsman.
(d)
Request for
investigations
The Ombudsman shall have the authority to request
the Inspector General of the Department of Homeland Security to conduct
inspections, investigations, and audits.
(e)
Coordination with
Department components
The Director of U.S. Citizenship and
Immigration Services, the Assistant Secretary of Immigration and Customs
Enforcement, and the Commissioner of Customs and Border Protection shall each
establish procedures to provide formal responses to recommendations submitted
to such official by the Ombudsman.
(f)
Annual
reports
Not later than June 30 of each year, the Ombudsman shall
submit a report to the Committee on the
Judiciary of the Senate and the
Committee on the Judiciary of the House of
Representatives on the objectives of the Ombudsman for the
fiscal year beginning in such calendar year. Each report shall contain full and
substantive analysis, in addition to statistical information, and shall set
forth any recommendations the Ombudsman has made on improving the services and
responsiveness of U.S. Citizenship and Immigration Services, U.S. Immigration
and Customs Enforcement, and U.S. Customs and Border Protection and any
responses received from the Department regarding such
recommendations.
.
(b)
Repeal of superseded
authority
Section 452 of the Homeland Security Act of 2002 (6
U.S.C. 272) is repealed.
(c)
Clerical
amendments
The table of contents for the Homeland Security Act of
2002 is amended—
(1) by inserting after the
item relating to section 103 the following new item:
Sec. 104. Ombudsman for Immigration Related
Concerns.
;
and
(2) by striking the item
relating to section 452.
1115.
Protection of family
values in apprehension programs
(a)
Definitions
In this section:
(1)
Apprehended
individual
The term apprehended individual means
an individual apprehended by personnel of the Department of Homeland Security
or of a cooperating entity pursuant to a migration deterrence program carried
out at a border.
(2)
Border
The
term border means an international border of the United
States.
(3)
Child
Except
as otherwise specifically provided, the term child has the meaning
given to the term in section 101(b)(1) of the Immigration and Nationality Act
(8 U.S.C. 1101(b)(1)).
(4)
Cooperating
entity
The term cooperating entity means a State or
local entity acting pursuant to an agreement with the Secretary.
(5)
Migration deterrence
program
The term migration deterrence program means
an action related to the repatriation or referral for prosecution of 1 or more
apprehended individuals for a suspected or confirmed violation of the
Immigration and Nationality Act (8 U.S.C. 1001 et seq.) by the Secretary or a
cooperating entity.
(b)
Procedures for
migration deterrence programs at the border
(1)
Procedures
In
any migration deterrence program carried out at a border, the Secretary and
cooperating entities shall for each apprehended individual—
(A) as soon as practicable
after such individual is apprehended—
(i) inquire as to whether the
apprehended individual is—
(I) a parent, legal guardian,
or primary caregiver of a child; or
(II) traveling with a spouse
or child; and
(ii) ascertain whether
repatriation of the apprehended individual presents any humanitarian concern or
concern related to such individual’s physical safety; and
(B) ensure that, with respect
to a decision related to the repatriation or referral for prosecution of the
apprehended individual, due consideration is given—
(i) to the best interests of
such individual’s child, if any;
(ii) to family unity whenever
possible; and
(iii) to other public
interest factors, including humanitarian concerns and concerns related to the
apprehended individual's physical safety.
(c)
Mandatory
training
The Secretary, in
consultation with the Secretary of Health and Human Services, the Attorney
General, the Secretary of State, and independent immigration, child welfare,
family law, and human rights law experts, shall—
(1) develop and provide
specialized training for all personnel of U.S. Customs and Border Protection
and cooperating entities who come into contact with apprehended individuals in
all legal authorities, policies, and procedures relevant to the preservation of
a child’s best interest, family unity, and other public interest factors,
including those described in this Act; and
(2) require border
enforcement personnel to undertake periodic and continuing training on best
practices and changes in relevant legal authorities, policies, and procedures
pertaining to the preservation of a child’s best interest, family unity, and
other public interest factors, including those described in this Act.
(d)
Annual report on the
impact of migration deterrence programs at the border
(1)
Requirement for annual
report
Not later than 1 year after the date of the enactment of
this Act, and annually thereafter, the Secretary shall submit to Congress a
report that describes the impact of migration deterrence programs on parents,
legal guardians, primary caregivers of a child, individuals traveling with a
spouse or child, and individuals who present humanitarian considerations or
concerns related to the individual's physical safety.
(2)
Contents
Each
report submitted under paragraph (1) shall include for the previous 1-year
period an assessment of—
(A) the number of apprehended
individuals removed, repatriated, or referred for prosecution who are the
parent, legal guardian, or primary caregiver of a child who is a citizen of the
United States;
(B) the number of occasions
in which both parents, or the primary caretaker of such a child was removed,
repatriated, or referred for prosecution as part of a migration deterrence
program;
(C) the number of apprehended
individuals traveling with close family members who are removed, repatriated,
or referred for prosecution.
(D) the impact of migration
deterrence programs on public interest factors, including humanitarian concerns
and physical safety.
(e)
Regulations
Not later than 120 days after the date of
the enactment of this Act, the Secretary shall promulgate regulations to
implement this section.
1116.
Reports
(a)
Report on certain
border matters
The Secretary
shall submit a report to the Committee on
Homeland Security and Governmental Affairs of the Senate, the
Committee on Homeland Security of the House of
Representatives, the Committee on the Judiciary of the
Senate, and the Committee on
the Judiciary of the House of Representatives that sets
forth—
(1) the effectiveness rate
(as defined in section 2(a)(4)) for each Border Patrol sector along the
Northern border and the Southern border;
(2) the number of miles along
the Southern border that are under persistent surveillance;
(3) the monthly wait times
per passenger, including data on averages and peaks, for crossing the Northern
border and the Southern border, and the staffing of such border crossings;
and
(4) the allocations at each
port of entry along the Northern border and the Southern border.
(b)
Report on interagency
collaboration
The Under
Secretary of Defense for Acquisition, Technology, and Logistics and the Under
Secretary of Homeland Security for Science and Technology shall jointly submit
a report on the results of the interagency collaboration under section 1109
to—
(1) the
Committee on Armed Services of the
Senate;
(2) the
Committee on Homeland Security and
Governmental Affairs of the Senate;
(3) the
Committee on the Judiciary of the
Senate;
(4) the
Committee on Armed Services of the House of
Representatives;
(5) the
Committee on Homeland Security of the House of
Representatives; and
(6) the
Committee on the Judiciary of the House of
Representatives.
1117.
Severability and
delegation
(a)
Severability
If any provision of this Act or any
amendment made by this Act, or any application of such provision or amendment
to any person or circumstance, is held to be unconstitutional, the remainder of
the provisions of this Act and the amendments made by this Act and the
application of the provision or amendment to any other person or circumstance
shall not be affected.
(b)
Delegation
The
Secretary may delegate any authority provided to the Secretary under this Act
or an amendment made by this Act to the Secretary of Agriculture, the Attorney
General, the Secretary of Defense, the Secretary of Health and Human Services,
the Secretary of State, or the Commissioner of Social Security.
1118.
Prohibition on land
border crossing fees
The
Secretary shall not establish, collect, or otherwise impose a border crossing
fee for pedestrians or passenger vehicles at land ports of entry along the
Southern border or the Northern border, nor conduct any study relating to the
imposition of such a fee.
1119.
Human Trafficking
Reporting
(a)
Short
title
This section may be
cited as the Human Trafficking
Reporting Act of 2013.
(b)
Findings
Congress finds the following:
(1) Human trafficking is a
form of modern-day slavery.
(2) According to the
Trafficking Victims Protection Act of 2000 severe forms of trafficking
in persons means—
(A) sex trafficking in which
a commercial sex act is induced by force, fraud, or coercion, or in which the
person induced to perform such act has not attained 18 years of age; or
(B) the recruitment,
harboring, transportation, provision, or obtaining of a person for labor or
services, through the use of force, fraud, or coercion for the purpose of
subjection to involuntary servitude, peonage, debt bondage, or slavery.
(3) There is an acute need
for better data collection of incidents of human trafficking across the United
States in order to effectively combat severe forms of trafficking in
persons.
(4) The State Department’s
2012 Trafficking in Persons report found that—
(A) the United States is a
source, transit and destination country for men, women, and children,
subjected to forced labor, debt bondage, domestic servitude and sex
trafficking,; and
(B) the United States needs
to improve data collection on human trafficking cases at the federal,
state and local levels.
(5) The International
Organization for Migration has reported that in order to effectively combat
human trafficking there must be reliable and standardized data, however, the
following barriers for data collection exist:
(A) The illicit and
underground nature of human trafficking.
(B) The reluctance of victims
to share information with authorities.
(C) Insufficient human
trafficking data collection and research efforts by governments
worldwide.
(6) A 2009 report to the
Department of Health and Human Services entitled Human Trafficking Into and
Within the United States: A Review of the Literature found that the data
and methodologies for estimating the prevalence of human trafficking globally
and nationally are not well developed, and therefore estimates have varied
widely and changed significantly over time.
(7) The Federal Bureau of
Investigation compiles national crime statistics through the Uniform Crime
Reporting Program.
(8) Under current law, State
and local governments receiving Edward Byrne Memorial Justice Assistance grants
are required to share data on part 1 violent crimes with the Federal Bureau of
Investigation for inclusion in the Uniform Crime Reporting Program.
(9) The addition of severe
forms of trafficking in persons to the definition of part 1 violent crimes will
ensure that statistics on this heinous crime will be compiled and available
through the Federal Bureau of Investigation’s Uniform Crime Report.
(c)
Human trafficking To be
included in part 1 violent crimes for purposes of Byrne grants
Section 505 of the Omnibus Crime Control
and Safe Streets Act of 1968 (42 U.S.C. 3755) is amended by adding at the end
the following new subsection:
(i)
Part 1 violent crimes
To include human trafficking
For purposes of this section, the term
part 1 violent crimes shall include severe forms of trafficking in
persons, as defined in section 103(8) of the Trafficking Victims Protection Act
of 2000 (22 U.S.C.
7102(8)).
.
1120.
Rule of
construction
Nothing in this
Act may be construed to authorize the deployment, procurement, or construction
of fencing along the Northern border.
1121.
Limitations on
dangerous deportation practices
(a)
Certification
required
(1)
In
general
Not later than 1 year after the date of the enactment of
this Act, and every 180 days thereafter, the Secretary, except as provided in
paragraph (2), shall submit written certification to Congress that the
Department has only deported or otherwise removed a migrant from the United
States through an entry or exit point on the Southern border during daylight
hours.
(2)
Exception
The
certification required under paragraph (1) shall not apply to the deportation
or removal of a migrant otherwise described in that paragraph if—
(A) the manner of the
deportation or removal is justified by a compelling governmental
interest;
(B) the manner of the
deportation or removal is in accordance with an applicable Local Arrangement
for the Repatriation of Mexican Nationals entered into by the appropriate
Mexican Consulate; or
(C) the migrant is not an
unaccompanied minor and the migrant—
(i) is deported or removed
through an entry or exit point in the same sector as the place where the
migrant was apprehended; or
(ii) agrees to be deported or
removed in such manner after being notified of the intended manner of
deportation or removal.
(b)
Additional information
required
Not later than 1 year after the date of the enactment of
this Act, the Secretary shall submit to Congress a study of the Alien Transfer
Exit Program, which shall include—
(1) the specific locations on
the Southern border where lateral repatriations have occurred during the 1-year
period preceding the submission of the study;
(2) the performance measures
developed by U.S. Customs and Border Protection to determine if the Alien
Transfer Exit Program is deterring migrants from repeatedly crossing the border
or otherwise reducing recidivism; and
(3) the consideration given,
if any, to the rates of violent crime and the availability of infrastructure
and social services in Mexico near such locations.
(c)
Prohibition on
confiscation of property
Notwithstanding any other provision of
law, lawful, nonperishable belongings of a migrant that are confiscated by
personnel operating under Federal authority shall be returned to the migrant
before repatriation, to the extent practicable.
II
Immigrant visas
A
Registration and
adjustment of registered provisional immigrants
2101.
Registered
provisional immigrant status
(a)
Authorization
Chapter
5 of title II (8 U.S.C. 1255 et seq.) is amended by inserting after section
245A the following:
245B.
Adjustment of status of eligible entrants
before December 31, 2011, to that of registered provisional immigrant
(a)
In
general
Notwithstanding any other provision of law, the Secretary
of Homeland Security (referred to in this section and in sections 245C through
245F as the Secretary), after conducting the national security
and law enforcement clearances required under subsection (c)(8), may grant
registered provisional immigrant status to an alien who—
(1) meets the eligibility
requirements set forth in subsection (b);
(2) submits a completed
application before the end of the period set forth in subsection (c)(3);
and
(3) has paid the fee required
under subsection (c)(10)(A) and the penalty required under subsection
(c)(10)(C), if applicable.
(b)
Eligibility
requirements
(1)
In
general
An alien is not eligible for registered provisional
immigrant status unless the alien establishes, by a preponderance of the
evidence, that the alien meets the requirements set forth in this
subsection.
(2)
Physical
presence
(A)
In
general
The alien—
(i) shall be physically
present in the United States on the date on which the alien submits an
application for registered provisional immigrant status;
(ii) shall have been
physically present in the United States on or before December 31, 2011;
and
(iii) shall have maintained
continuous physical presence in the United States from December 31, 2011, until
the date on which the alien is granted status as a registered provisional
immigrant under this section.
(B)
Break in physical
presence
(i)
In
general
Except as provided in clause (ii), an alien who is absent
from the United States without authorization after the date of the enactment of
the Border Security, Economic Opportunity,
and Immigration Modernization Act does not meet the continuous
physical presence requirement set forth in subparagraph (A)(iii).
(ii)
Exception
An
alien who departed from the United States after December 31, 2011, will not be
considered to have failed to maintain continuous presence in the United States
if the alien's absences from the United States are brief, casual, and innocent
whether or not such absences were authorized by the Secretary.
(3)
Grounds for
ineligibility
(A)
In
general
Except as provided in subparagraph (B), an alien is
ineligible for registered provisional immigrant status if the Secretary
determines that the alien—
(i) has a conviction
for—
(I) an offense classified as
a felony in the convicting jurisdiction (other than a State or local offense
for which an essential element was the alien's immigration status or a
violation of this Act);
(II) an aggravated felony (as
defined in section 101(a)(43) at the time of the conviction);
(III) 3 or more misdemeanor
offenses (other than minor traffic offenses or State or local offenses for
which an essential element was the alien's immigration status or violations of
this Act) if the alien was convicted on different dates for each of the 3
offenses;
(IV) any offense under
foreign law, except for a purely political offense, which, if the offense had
been committed in the United States, would render the alien inadmissible under
section 212(a) (excluding the paragraphs set forth in clause (ii)) or removable
under section 237(a), except as provided in paragraph (3) of section
237(a);
(V) unlawful voting (as
defined in section 237(a)(6));
(ii) is inadmissible under
section 212(a), except that in determining an alien’s inadmissibility—
(I) paragraphs (4), (5), (7),
and (9)(B) of section 212(a) shall not apply;
(II) subparagraphs (A), (C),
(D), (F), and (G) of section 212(a)(6) and paragraphs (9)(C) and (10)(B) of
section 212(a) shall not apply unless based on the act of unlawfully entering
the United States after the date of the enactment of the
Border Security, Economic Opportunity, and
Immigration Modernization Act; and
(III) paragraphs (6)(B) and
(9)(A) of section 212(a) shall not apply unless the relevant conduct began on
or after the date on which the alien files an application for registered
provisional immigrant status under this section;
(iii) is an alien who the
Secretary knows or has reasonable grounds to believe, is engaged in or is
likely to engage after entry in any terrorist activity (as defined in section
212(a)(3)(B)(iv)); or
(iv) was, on April 16,
2013—
(I) an alien lawfully
admitted for permanent residence;
(II) an alien admitted as a
refugee under section 207 or granted asylum under section 208; or
(III) an alien who, according
to the records of the Secretary or the Secretary of State, is lawfully present
in the United States in any nonimmigrant status (other than an alien considered
to be a nonimmigrant solely due to the application of section 244(f)(4) or the
amendment made by section 702 of the Consolidated Natural Resources Act of 2008
(Public Law 110–229)), notwithstanding any unauthorized employment or other
violation of nonimmigrant status.
(B)
Waiver
(i)
In
general
The Secretary may waive the application of subparagraph
(A)(i)(III) or any provision of section 212(a) that is not listed in clause
(ii) on behalf of an alien for humanitarian purposes, to ensure family unity,
or if such a waiver is otherwise in the public interest. Any discretionary
authority to waive grounds of inadmissibility under section 212(a) conferred
under any other provision of this Act shall apply equally to aliens seeking
registered provisional status under this section.
(ii)
Exceptions
The
discretionary authority under clause (i) may not be used to waive—
(I) subparagraph (B), (C),
(D)(ii), (E), (G), (H), or (I) of section 212(a)(2);
(II) section
212(a)(3);
(III) subparagraph (A), (C),
(D), or (E) of section 212(a)(10); or
(IV) with respect to
misrepresentations relating to the application for registered provisional
immigrant status, section 212(a)(6)(C)(i).
(C)
Conviction
explained
For purposes of this paragraph, the term
conviction does not include a judgment that has been expunged, set
aside, or the equivalent.
(D)
Rule of
construction
Nothing in this paragraph may be construed to
require the Secretary to commence removal proceedings against an alien.
(4)
Applicability of other
provisions
Sections 208(d)(6) and 240B(d) shall not apply to any
alien filing an application for registered provisional immigrant status under
this section.
(5)
Dependent spouse and
children
(A)
In
general
Notwithstanding any other provision of law, the Secretary
may classify the spouse or child of a registered provisional immigrant as a
registered provisional immigrant dependent if the spouse or child—
(i) was physically present in
the United States on or before December 31, 2012, and has maintained continuous
presence in the United States from that date until the date on which the
registered provisional immigrant is granted such status, with the exception of
absences from the United States that are brief, casual, and innocent, whether
or not such absences were authorized by the Secretary; and
(ii) meets all of the
eligibility requirements set forth in this subsection, other than the
requirements of clause (ii) or (iii) of paragraph (2)(A).
(B)
Effect of termination
of legal relationship or domestic violence
If the spousal or
parental relationship between an alien who is granted registered provisional
immigrant status under this section and the alien’s spouse or child is
terminated due to death or divorce or the spouse or child has been battered or
subjected to extreme cruelty by the alien (regardless of whether the legal
relationship terminates), the spouse or child may apply for classification as a
registered provisional immigrant.
(C)
Effect of
disqualification of parent
Notwithstanding subsection (c)(3), if
the application of a spouse or parent for registered provisional immigrant
status is terminated or revoked, the husband, wife, or child of that spouse or
parent shall be eligible to apply for registered provisional immigrant status
independent of the parent or spouse.
(c)
Application
procedures
(1)
In
general
An alien, or the dependent spouse or child of such alien,
who meets the eligibility requirements set forth in subsection (b) may apply
for status as a registered provisional immigrant or a registered provisional
immigrant dependent, as applicable, by submitting a completed application form
to the Secretary during the application period set forth in paragraph (3), in
accordance with the final rule promulgated by the Secretary under the
Border Security, Economic Opportunity, and
Immigration Modernization Act. An applicant for registered
provisional immigrant status shall be treated as an applicant for
admission.
(2)
Payment of
taxes
(A)
In
general
An alien may not file an application for registered
provisional immigrant status under paragraph (1) unless the applicant has
satisfied any applicable Federal tax liability.
(B)
Definition of
applicable federal tax liability
In this paragraph, the term
applicable Federal tax liability means all Federal income taxes
assessed in accordance with section 6203 of the Internal Revenue Code of
1986.
(C)
Demonstration of
compliance
An applicant may demonstrate compliance with this
paragraph by submitting appropriate documentation, in accordance with
regulations promulgated by the Secretary, in consultation with the Secretary of
the Treasury.
(3)
Application
period
(A)
Initial
period
Except as provided in subparagraph (B), the Secretary may
only accept applications for registered provisional immigrant status from
aliens in the United States during the 1-year period beginning on the date on
which the final rule is published in the Federal Register pursuant to paragraph
(1).
(B)
Extension
If
the Secretary determines, during the initial period described in subparagraph
(A), that additional time is required to process applications for registered
provisional immigrant status or for other good cause, the Secretary may extend
the period for accepting applications for such status for an additional 18
months.
(4)
Application
form
(A)
Required
information
(i)
In
general
The application form referred to in paragraph (1) shall
collect such information as the Secretary determines to be necessary and
appropriate, including, for the purpose of understanding immigration
trends—
(I) an explanation of how,
when, and where the alien entered the United States;
(II) the country in which the
alien resided before entering the United States; and
(III) other demographic
information specified by the Secretary.
(ii)
Privacy
protections
Information described in subclauses (I) through (III)
of clause (i), which shall be provided anonymously by the applicant on the
application form referred to in paragraph (1), shall be subject to the same
confidentiality provisions as those set forth in section 9 of title 13, United
States Code.
(iii)
Report
The
Secretary shall submit a report to Congress that contains a summary of the
statistical data about immigration trends collected pursuant to clause
(i).
(B)
Family
application
The Secretary shall establish a process through which
an alien may submit a single application under this section on behalf of the
alien, his or her spouse, and his or her children who are residing in the
United States.
(C)
Interview
The
Secretary may interview applicants for registered provisional immigrant status
under this section to determine whether they meet the eligibility requirements
set forth in subsection (b).
(5)
Aliens apprehended
before or during the application period
If an alien who is
apprehended during the period beginning on the date of the enactment of the
Border Security, Economic Opportunity, and
Immigration Modernization Act and the end of the application
period described in paragraph (3) appears prima facie eligible for registered
provisional immigrant status, to the satisfaction of the Secretary, the
Secretary—
(A) shall provide the alien
with a reasonable opportunity to file an application under this section during
such application period; and
(B) may not remove the
individual until a final administrative determination is made on the
application.
(6)
Eligibility after
departure
(A)
In
general
An alien who departed from the United States while
subject to an order of exclusion, deportation, or removal, or pursuant to an
order of voluntary departure and who is outside of the United States, or who
has reentered the United States illegally after December 31, 2011 without
receiving the Secretary's consent to reapply for admission under section
212(a)(9), shall not be eligible to file an application for registered
provisional immigrant status.
(B)
Waiver
The
Secretary, in the Secretary's sole and unreviewable discretion, subject to
subparagraph (D), may waive the application of subparagraph (A) on behalf of an
alien if the alien—
(i) is the spouse or child of
a United States citizen or lawful permanent resident;
(ii) is the parent of a child
who is a United States citizen or lawful permanent resident;
(iii) meets the requirements
set forth in clauses (ii) and (iii) of section 245D(b)(1)(A); or
(iv) meets the requirements
set forth in section 245D(b)(1)(A)(ii), is 16 years or older on the date on
which the alien applies for registered provisional immigrant status, and was
physically present in the United States for an aggregate period of not less
than 3 years during the 6-year period immediately preceding the date of the
enactment of the Border Security, Economic
Opportunity, and Immigration Modernization Act.
(C)
Eligibility
Subject
to subparagraph (D) and notwithstanding subsection (b)(2), section 241(a)(5),
or a prior order of exclusion, deportation, or removal, an alien described in
subparagraph (B) who is otherwise eligible for registered provisional immigrant
status may file an application for such status.
(D)
Crime victims' rights
to notice and consultation
Prior to applying, or exercising, any
authority under this paragraph, or ruling upon an application allowed under
subparagraph (C) the Secretary shall—
(i) determine whether or not
an alien described under subparagraph (B) or (C) has a conviction for any
criminal offense;
(ii) in consultation with the
agency that prosecuted the criminal offense under clause (i), if the agency, in
the sole discretion of the agency, is willing to cooperate with the Secretary,
make all reasonable efforts to identify each victim of a crime for which an
alien determined to be a criminal under clause (i) has a conviction;
(iii) in consultation with
the agency that prosecuted the criminal offense under clause (i), if the
agency, in the sole discretion of the agency, is willing to cooperate with the
Secretary, make all reasonable efforts to provide each victim identified under
clause (ii) with written notice that the alien is being considered for a waiver
under this paragraph, specifying in such notice that the victim may—
(I) take no further
action;
(II) request written
notification by the Secretary of any subsequent application for waiver filed by
the criminal alien under this paragraph and of the final determination of the
Secretary regarding such application; or
(III) not later than 60 days
after the date on which the victim receives written notice under this clause,
request a consultation with the Secretary relating to whether the application
of the offender should be granted and if the victim cannot be located or if no
response is received from the victim within the designated time period, the
Secretary shall proceed with adjudication of the application; and
(iv) at the request of a
victim under clause (iii), consult with the victim to determine whether or not
the Secretary should, in the case of an alien who is determined under clause
(i) to have a conviction for any criminal offense, exercise waiver authority
for an alien described under subparagraph (B), or grant the application of an
alien described under subparagraph (C).
(E)
Crime victims' right to
intervention
In addition to the victim notification and
consultation provided for in subparagraph (D), the Secretary shall allow the
victim of a criminal alien described under subparagraph (B) or (C) to request
consultation regarding, or notice of, any application for waiver filed by the
criminal alien under this paragraph, including the final determination of the
Secretary regarding such application.
(F)
Confidentiality
protections for crime victims
The Secretary and the Attorney
General may not make an adverse determination of admissibility or deportability
of any alien who is a victim and not lawfully present in the United States
based solely on information supplied or derived in the process of
identification, notification, or consultation under this paragraph.
(G)
Reports
required
Not later than September 30 of each fiscal year in which
the Secretary exercises authority under this paragraph to rule upon the
application of a criminal offender allowed under subparagraph (C), the
Secretary shall submit to the Committee on the Judiciary of the Senate and the
Committee on the Judiciary of the House of Representatives a report detailing
the execution of the victim identification and notification process required
under subparagraph (D), which shall include—
(i) the total number of
criminal offenders who have filed an application under subparagraph (C) and the
crimes committed by such offenders;
(ii) the total number of
criminal offenders whose application under subparagraph (C) has been granted
and the crimes committed by such offenders; and
(iii) the total number of
victims of criminal offenders under clause (ii) who were not provided with
written notice of the offender’s application and the crimes committed against
the victims.
(H)
Definition
In
this paragraph, the term victim has the meaning given the term in
section 503(e) of the Victims' Rights and Restitution Act of 1990 (42 U.S.C.
10607(e)).
(7)
Suspension of removal
during application period
(A)
Protection from
detention or removal
A registered provisional immigrant may not
be detained by the Secretary or removed from the United States, unless—
(i) the Secretary determines
that—
(I) such alien is, or has
become, ineligible for registered provisional immigrant status under subsection
(b)(3); or
(II) the alien's registered
provisional immigrant status has been revoked under subsection (d)(2).
(B)
Aliens in removal
proceedings
Notwithstanding any other provision of this
Act—
(i) if the Secretary
determines that an alien, during the period beginning on the date of the
enactment of this section and ending on the last day of the application period
described in paragraph (3), is in removal, deportation, or exclusion
proceedings before the Executive Office for Immigration Review and is prima
facie eligible for registered provisional immigrant status under this
section—
(I) the Secretary shall
provide the alien with the opportunity to file an application for such status;
and
(II) upon motion by the
Secretary and with the consent of the alien or upon motion by the alien, the
Executive Office for Immigration Review shall—
(aa) terminate such
proceedings without prejudice to future proceedings on any basis; and
(bb) provide the alien a
reasonable opportunity to apply for such status; and
(ii) if the Executive Office
for Immigration Review determines that an alien, during the period beginning on
the date of the enactment of this section and ending on the last day of the
application period described in paragraph (3), is in removal, deportation, or
exclusion proceedings before the Executive Office for Immigration Review and is
prima facie eligible for registered provisional immigrant status under this
section—
(I) the Executive Office of
Immigration Review shall notify the Secretary of such determination; and
(II) if the Secretary does
not dispute the determination of prima facie eligibility within 7 days after
such notification, the Executive Office for Immigration Review, upon consent of
the alien, shall—
(aa) terminate such
proceedings without prejudice to future proceedings on any basis; and
(bb) permit the alien a
reasonable opportunity to apply for such status.
(C)
Treatment of certain
aliens
(i)
In
general
If an alien who meets the eligibility requirements set
forth in subsection (b) is present in the United States and has been ordered
excluded, deported, or removed, or ordered to depart voluntarily from the
United States under any provision of this Act—
(I) notwithstanding such
order or section 241(a)(5), the alien may apply for registered provisional
immigrant status under this section; and
(II) if the alien is granted
such status, the alien shall file a motion to reopen the exclusion,
deportation, removal, or voluntary departure order, which motion shall be
granted unless 1 or more of the grounds of ineligibility is established by
clear and convincing evidence.
(ii)
Limitations on motions
to reopen
The limitations on motions to reopen set forth in
section 240(c)(7) shall not apply to motions filed under clause (i)(II).
(D)
Period pending
adjudication of application
(i)
In
general
During the period beginning on the date on which an alien
applies for registered provisional immigrant status under paragraph (1) and the
date on which the Secretary makes a final decision regarding such application,
the alien—
(I) may receive advance
parole to reenter the United States if urgent humanitarian circumstances compel
such travel;
(II) may not be detained by
the Secretary or removed from the United States unless the Secretary makes a
prima facie determination that such alien is, or has become, ineligible for
registered provisional immigrant status under subsection (b)(3);
(III) shall not be considered
unlawfully present for purposes of section 212(a)(9)(B); and
(IV) shall not be considered
an unauthorized alien (as defined in section 274A(h)(3)).
(ii)
Evidence of
application filing
As soon as practicable after receiving each
application for registered provisional immigrant status, the Secretary shall
provide the applicant with a document acknowledging the receipt of such
application.
(iii)
Continuing
employment
An employer who knows that an alien employee is an
applicant for registered provisional immigrant status or will apply for such
status once the application period commences is not in violation of section
274A(a)(2) if the employer continues to employ the alien pending the
adjudication of the alien employee's application.
(iv)
Effect of
departure
Section 101(g) shall not apply to an alien
granted—
(I) advance parole under
clause (i)(I) to reenter the United States; or
(II) registered provisional
immigrant status.
(8)
Security and law
enforcement clearances
(A)
Biometric and
biographic data
The Secretary may not grant registered
provisional immigrant status to an alien or an alien dependent spouse or child
under this section unless such alien submits biometric and biographic data in
accordance with procedures established by the Secretary.
(B)
Alternative
procedures
The Secretary shall provide an alternative procedure
for applicants who cannot provide the biometric data required under
subparagraph (A) because of a physical impairment.
(C)
Clearances
(i)
Data
collection
The Secretary shall collect, from each alien applying
for status under this section, biometric, biographic, and other data that the
Secretary determines to be appropriate—
(I) to conduct national
security and law enforcement clearances; and
(II) to determine whether
there are any national security or law enforcement factors that would render an
alien ineligible for such status.
(ii)
Additional security
screening
The Secretary, in consultation with the Secretary of
State and other interagency partners, shall conduct an additional security
screening upon determining, in the Secretary’s opinion based upon information
related to national security, that an alien or 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 that contains groups or organizations that pose a threat, to the
national security of the United States.
(iii)
Prerequisite
The
required clearances and screenings described in clauses (i)(I) and (ii) shall
be completed before the alien may be granted registered provisional immigrant
status.
(9)
Duration of status and
extension
(A)
In
general
The initial period of authorized admission for a
registered provisional immigrant—
(i) shall remain valid for 6
years unless revoked pursuant to subsection (d)(2); and
(ii) may be extended for
additional 6-year terms if—
(I) the alien remains
eligible for registered provisional immigrant status;
(II) the alien meets the
employment requirements set forth in subparagraph (B);
(III) the alien has
successfully passed background checks that are equivalent to the background
checks described in section 245D(b)(1)(E); and
(IV) such status was not
revoked by the Secretary for any reason.
(B)
Employment or education
requirement
Except as provided in subparagraphs (D) and (E) of
section 245C(b)(3), an alien may not be granted an extension of registered
provisional immigrant status under this paragraph unless the alien establishes
that, during the alien's period of status as a registered provisional
immigrant, the alien—
(i)
(I) was regularly
employed throughout the period of admission as a registered provisional
immigrant, allowing for brief periods lasting not more than 60 days; and
(II) is not likely to become
a public charge (as determined under section 212(a)(4)); or
(ii) is able to demonstrate
average income or resources that are not less than 100 percent of the Federal
poverty level throughout the period of admission as a registered provisional
immigrant.
(C)
Payment of
taxes
An applicant may not be granted an extension of registered
provisional immigrant status under subparagraph (A)(ii) unless the applicant
has satisfied any applicable Federal tax liability in accordance with paragraph
(2).
(10)
Fees and
penalties
(A)
Standard processing
fee
(i)
In
general
Aliens who are 16 years of age or older and are applying
for registered provisional immigrant status under paragraph (1), or for an
extension of such status under paragraph (9)(A)(ii), shall pay a processing fee
to the Department of Homeland Security in an amount determined by the
Secretary.
(ii)
Recovery of
costs
The processing fee authorized under clause (i) shall be set
at a level that is sufficient to recover the full costs of processing the
application, including any costs incurred—
(I) to adjudicate the
application;
(II) to take and process
biometrics;
(III) to perform national
security and criminal checks, including adjudication;
(IV) to prevent and
investigate fraud; and
(V) to administer the
collection of such fee.
(iii)
Authority to limit
fees
The Secretary, by regulation, may—
(I) limit the maximum
processing fee payable under this subparagraph by a family, including spouses
and unmarried children younger than 21 years of age; and
(II) exempt defined classes
of individuals, including individuals described in section 245B(c)(13), from
the payment of the fee authorized under clause (i).
(B)
Deposit and use of
processing fees
Fees collected under subparagraph (A)(i)—
(i) shall be deposited into
the Immigration Examinations Fee Account pursuant to section 286(m); and
(ii) shall remain available
until expended pursuant to section 286(n).
(C)
Penalty
(i)
Payment
In
addition to the processing fee required under subparagraph (A), aliens not
described in section 245D(b)(A)(ii) who are 21 years of age or older and are
filing an application under this subsection shall pay a $1,000 penalty to the
Department of Homeland Security.
(ii)
Installments
The
Secretary shall establish a process for collecting payments required under
clause (i) that permits the penalty under that clause to be paid in periodic
installments that shall be completed before the alien may be granted an
extension of status under paragraph (9)(A)(ii).
(iii)
Deposit
Penalties
collected pursuant to this subparagraph shall be deposited into the
Comprehensive Immigration Reform Trust Fund established under section 6(a)(1)
of the Border Security, Economic Opportunity,
and Immigration Modernization Act.
(11)
Adjudication
(A)
Failure to submit
sufficient evidence
The Secretary shall deny an application
submitted by an alien who fails to submit—
(i) requested initial
evidence, including requested biometric data; or
(ii) any requested additional
evidence by the date required by the Secretary.
(B)
Amended
application
An alien whose application for registered provisional
immigrant status is denied under subparagraph (A) may file an amended
application for such status to the Secretary if the amended application—
(i) is filed within the
application period described in paragraph (3); and
(ii) contains all the
required information and fees that were missing from the initial
application.
(12)
Evidence of registered
provisional immigrant status
(A)
In
general
The Secretary shall issue documentary evidence of
registered provisional immigrant status to each alien whose application for
such status has been approved.
(B)
Documentation
features
Documentary evidence provided under subparagraph
(A)—
(i) shall be machine-readable
and tamper-resistant, and shall contain a digitized photograph;
(ii) shall, during the
alien’s authorized period of admission, and any extension of such authorized
admission, serve as a valid travel and entry document for the purpose of
applying for admission to the United States;
(iii) may be accepted during
the period of its validity by an employer as evidence of employment
authorization and identity under section 274A(b)(1)(B);
(iv) shall indicate that the
alien is authorized to work in the United States for up to 3 years; and
(v) shall include such other
features and information as may be prescribed by the Secretary.
(13)
DACA
recipients
Unless the Secretary determines that an alien who was
granted Deferred Action for Childhood Arrivals (referred to in this paragraph
as DACA) pursuant to the Secretary’s memorandum of June 15,
2012, has engaged in conduct since the alien was granted DACA that would make
the alien ineligible for registered provisional immigrant status, the Secretary
may grant such status to the alien if renewed national security and law
enforcement clearances have been completed on behalf of the alien.
(d)
Terms and conditions of
registered provisional immigrant status
(1)
Conditions of
registered provisional immigrant status
(A)
Employment
Notwithstanding
any other provision of law, including section 241(a)(7), a registered
provisional immigrant shall be authorized to be employed in the United States
while in such status.
(B)
Travel outside the
united states
A registered provisional immigrant may travel
outside of the United States and may be admitted, if otherwise admissible, upon
returning to the United States without having to obtain a visa if—
(i) the alien is in
possession of—
(I) valid, unexpired
documentary evidence of registered provisional immigrant status that complies
with subsection (c)(12); or
(II) a travel document, duly
approved by the Secretary, that was issued to the alien after the alien's
original documentary evidence was lost, stolen, or destroyed;
(ii) the alien's absence from
the United States did not exceed 180 days, unless the alien's failure to timely
return was due to extenuating circumstances beyond the alien's control;
(iii) the alien meets the
requirements for an extension as described in subclauses (I) and (III) of
paragraph (9)(A); and
(iv) the alien establishes
that the alien is not inadmissible under subparagraph (A)(i), (A)(iii), (B), or
(C) of section 212(a)(3).
(C)
Admission
An
alien granted registered provisional immigrant status under this section shall
be considered to have been admitted and lawfully present in the United States
in such status as of the date on which the alien’s application was
filed.
(D)
Clarification of
status
An alien granted registered provisional immigrant
status—
(i) is lawfully admitted to
the United States; and
(ii) may not be classified as
a nonimmigrant or as an alien who has been lawfully admitted for permanent
residence.
(2)
Revocation
(A)
In
general
The Secretary may revoke the status of a registered
provisional immigrant at any time after providing appropriate notice to the
alien, and after the exhaustion or waiver of all applicable administrative
review procedures under section 245E(c), if the alien—
(i) no longer meets the
eligibility requirements set forth in subsection (b);
(ii) knowingly used
documentation issued under this section for an unlawful or fraudulent
purpose;
(iii) is convicted of
fraudulently claiming or receiving a Federal means-tested benefit (as defined
and implemented in section 403 of the Personal Responsibility and Work
Opportunity Reconciliation Act of 1996 (8 U.S.C. 1613)) after being granted
registered provisional immigrant status; or
(iv) was absent from the
United States—
(I) for any single period
longer than 180 days in violation of the requirements set forth in paragraph
(1)(B)(ii); or
(II) for more than 180 days
in the aggregate during any calendar year, unless the alien's failure to timely
return was due to extenuating circumstances beyond the alien's control.
(B)
Additional
evidence
In determining whether to revoke an alien's status under
subparagraph (A), the Secretary may require the alien—
(i) to submit additional
evidence; or
(ii) to appear for an
interview.
(C)
Invalidation of
documentation
If an alien’s registered provisional immigrant
status is revoked under subparagraph (A), any documentation issued by the
Secretary to such alien under subsection (c)(12) shall automatically be
rendered invalid for any purpose except for departure from the United
States.
(3)
Ineligibility for
public benefits
(A)
In
general
An alien who has been granted registered provisional
immigrant status under this section is not eligible for any Federal
means-tested public benefit (as defined and implemented in section 403 of the
Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (8
U.S.C. 1613)).
(B)
Audits
The
Secretary of Health and Human Services shall conduct regular audits to ensure
that registered provisional immigrants are not fraudulently receiving any of
the benefits described in subparagraph (A).
(4)
Treatment of registered
provisional immigrants
A noncitizen granted registered
provisional immigrant status under this section shall be considered lawfully
present in the United States for all purposes while such noncitizen remains in
such status, except that the noncitizen—
(A) is not entitled to the
premium assistance tax credit authorized under section 36B of the Internal
Revenue Code of 1986 for his or her coverage;
(B) shall be subject to the
rules applicable to individuals not lawfully present that are set forth in
subsection (e) of such section;
(C) shall be subject to the
rules applicable to individuals not lawfully present that are set forth in
section 1402(e) of the Patient Protection and Affordable Care Act (42 U.S.C.
18071); and
(D) shall be subject to the
rules applicable to individuals not lawfully present set forth in section
5000A(d)(3) of the Internal Revenue Code of 1986.
(5)
Assignment of social
security number
(A)
In
general
The Commissioner of Social Security, in coordination with
the Secretary, shall implement a system to allow for the assignment of a Social
Security number and the issuance of a Social Security card to each alien who
has been granted registered provisional immigrant status under this
section.
(B)
Use of
information
The Secretary shall provide the Commissioner of
Social Security with information from the applications filed by aliens granted
registered provisional immigrant status under this section and such other
information as the Commissioner determines to be necessary to assign a Social
Security account number to such aliens. The Commissioner may use information
received from the Secretary under this subparagraph to assign Social Security
account numbers to such aliens and to administer the programs of the Social
Security Administration. The Commissioner may maintain, use, and disclose such
information only as permitted under section 552a of title 5, United States Code
(commonly known as the Privacy Act of 1974) and other applicable Federal
laws.
(e)
Dissemination of information on registered
provisional immigrant program
As soon as practicable after the date of
the enactment of the Border Security,
Economic Opportunity, and Immigration Modernization Act, the
Secretary, in cooperation with entities approved by the Secretary, and in
accordance with a plan adopted by the Secretary, shall broadly disseminate, in
the most common languages spoken by aliens who would qualify for registered
provisional immigrant status under this section, to television, radio, print,
and social media to which such aliens would likely have access—
(1) the procedures for applying for such
status;
(2) the terms and conditions of such status;
and
(3) the eligibility requirements for such
status.
.
(b)
Enlistment in the armed
forces
Section 504(b)(1) of title 10, United States Code, is
amended by adding at the end the following:
(D) An alien who has been
granted registered provisional immigrant status under section 245B of the
Immigration and Nationality
Act.
.
2102.
Adjustment of status
of registered provisional immigrants
(a)
In
general
Chapter 5 of title II
(8 U.S.C. 1255 et seq.) is amended by inserting after section 245B, as added by
section 2101 of this title, the following:
245C.
Adjustment of status of registered
provisional immigrants
(a)
In
general
Subject to section 245E(d) and section 2302(c)(3) of the
Border Security, Economic Opportunity, and
Immigration Modernization Act, the Secretary may adjust the
status of a registered provisional immigrant to that of an alien lawfully
admitted for permanent residence if the registered provisional immigrant
satisfies the eligibility requirements set forth in subsection (b).
(b)
Eligibility
requirements
(1)
Registered provisional
immigrant status
(A)
In
general
The alien was granted registered provisional immigrant
status under section 245B and remains eligible for such status.
(B)
Continuous physical
presence
The alien establishes, to the satisfaction of the
Secretary, that the alien was not continuously absent from the United States
for more than 180 days in any calendar year during the period of admission as a
registered provisional immigrant, unless the alien's absence was due to
extenuating circumstances beyond the alien's control.
(C)
Maintenance of waivers
of inadmissibility
The grounds of inadmissibility set forth in
section 212(a) that were previously waived for the alien or made inapplicable
under section 245B(b) shall not apply for purposes of the alien’s adjustment of
status under this section.
(D)
Pending revocation
proceedings
If the Secretary has notified the applicant that the
Secretary intends to revoke the applicant’s registered provisional immigrant
status under section 245B(d)(2)(A), the Secretary may not approve an
application for adjustment of status under this section unless the Secretary
makes a final determination not to revoke the applicant’s status.
(2)
Payment of
taxes
(A)
In
general
An applicant may not file an application for adjustment
of status under this section unless the applicant has satisfied any applicable
Federal tax liability.
(B)
Definition of
applicable federal tax liability
In subparagraph (A), the term
applicable Federal tax liability means all Federal income taxes
assessed in accordance with section 6203 of the Internal Revenue Code of 1986
since the date on which the applicant was authorized to work in the United
States as a registered provisional immigrant under section 245B(a).
(C)
Compliance
The
applicant may demonstrate compliance with subparagraph (A) by submitting such
documentation as the Secretary, in consultation with the Secretary of the
Treasury, may require by regulation.
(3)
Employment
requirement
(A)
In
general
Except as provided in subparagraphs (D) and (E), an alien
applying for adjustment of status under this section shall establish that,
during his or her period of status as a registered provisional immigrant, he or
she—
(i)
(I) was regularly
employed throughout the period of admission as a registered provisional
immigrant, allowing for brief periods lasting not more than 60 days; and
(II) is not likely to become
a public charge (as determined under section 212(a)(4)); or
(ii) can demonstrate average
income or resources that are not less than 125 percent of the Federal poverty
level throughout the period of admission as a registered provisional
immigrant.
(B)
Evidence of
employment
(i)
Documents
An
alien may satisfy the employment requirement under subparagraph (A)(i) by
submitting, to the Secretary, records that—
(I) establish, by the
preponderance of the evidence, compliance with such employment requirement;
and
(II) have been maintained by
the Social Security Administration, the Internal Revenue Service, or any other
Federal, State, or local government agency.
(ii)
Other
documents
An alien who is unable to submit the records described
in clause (i) may satisfy the employment or education requirement under
subparagraph (A) by submitting to the Secretary at least 2 types of reliable
documents not described in clause (i) that provide evidence of employment or
education, including—
(I) bank records;
(II) business records;
(III) employer
records;
(IV) records of a labor
union, day labor center, or organization that assists workers in
employment;
(V) sworn affidavits from
nonrelatives who have direct knowledge of the alien's work or education, that
contain—
(aa) the name, address, and
telephone number of the affiant;
(bb) the nature and duration
of the relationship between the affiant and the alien; and
(cc) other verification or
information;
(VI) remittance records;
and
(VII) school records from
institutions described in subparagraph (D).
(iii)
Additional documents
and restrictions
The Secretary may—
(I) designate additional
documents that may be used to establish compliance with the requirement under
subparagraph (A); and
(II) set such terms and
conditions on the use of affidavits as may be necessary to verify and confirm
the identity of any affiant or to otherwise prevent fraudulent
submissions.
(C)
Satisfaction of
employment requirement
An alien may not be required to satisfy
the employment requirements under this section with a single employer.
(D)
Education
permitted
An alien may satisfy the requirement under subparagraph
(A), in whole or in part, by providing evidence of full-time attendance
at—
(i) an institution of higher
education (as defined in section 102(a) of the Higher Education Act of 1965 (20
U.S.C. 1002(a)));
(ii) a secondary school,
including a public secondary school (as defined in section 9101 of the
Elementary and Secondary Education Act of 1965 (20 U.S.C. 7801));
(iii) an education, literacy,
or career and technical training program (including vocational training) that
is designed to lead to placement in postsecondary education, job training, or
employment through which the alien is working toward such placement; or
(iv) an education program
assisting students either in obtaining a high school equivalency diploma,
certificate, or its recognized equivalent under State law (including a
certificate of completion, certificate of attendance, or alternate award), or
in passing a General Educational Development exam or other equivalent
State-authorized exam or completed other applicable State requirements for high
school equivalency.
(E)
Authorization of
exceptions and waivers
(i)
Exceptions based on age
or disability
The employment and education requirements under
this paragraph shall not apply to any alien who—
(I) is younger than 21 years
of age on the date on which the alien files an application for the first
extension of the initial period of authorized admission as a registered
provisional immigrant;
(II) is at least 60 years of
age on the date on which the alien files an application for an extension of
registered provisional immigrant status or at least 65 years of age on the date
on which the alien's application for adjustment of status is filed under this
section; or
(III) has a physical or
mental disability (as defined in section 3(2) of the Americans with
Disabilities Act of 1990 (42 U.S.C. 12102(2))) or as a result of pregnancy if
such condition is evidenced by the submission of documentation prescribed by
the Secretary.
(ii)
Family
exceptions
The employment and education requirements under this
paragraph shall not apply to any alien who is a dependent registered
provisional immigrant under subsection (b)(5).
(iii)
Temporary
exceptions
The employment and education requirements under this
paragraph shall not apply during any period during which the alien—
(I) was on medical leave,
maternity leave, or other employment leave authorized by Federal law, State
law, or the policy of the employer;
(II) is or was the primary
caretaker of a child or another person who requires supervision or is unable to
care for himself or herself; or
(III) was unable to work due
to circumstances outside the control of the alien.
(iv)
Waiver
The
Secretary may waive the employment or education requirements under this
paragraph with respect to any individual alien who demonstrates extreme
hardship to himself or herself or to a spouse, parent, or child who is a United
States citizen or lawful permanent resident.
(4)
English skills
(A)
In
general
Except as provided under subparagraph (C), a registered
provisional immigrant who is 16 years of age or older shall establish that he
or she—
(i) meets the requirements
set forth in section 312; or
(ii) is satisfactorily
pursuing a course of study, pursuant to standards established by the Secretary
of Education, in consultation with the Secretary, to achieve an understanding
of English and knowledge and understanding of the history and Government of the
United States, as described in section 312(a).
(B)
Relation to
naturalization examination
A registered provisional immigrant who
demonstrates that he or she meets the requirements set forth in section 312 may
be considered to have satisfied such requirements for purposes of becoming
naturalized as a citizen of the United States.
(C)
Exceptions
(i)
Mandatory
Subparagraph
(A) shall not apply to any person who is unable to comply with the requirements
under that subparagraph because of a physical or developmental disability or
mental impairment.
(ii)
Discretionary
The
Secretary may waive all or part of subparagraph (A) for a registered
provisional immigrant who is 70 years of age or older on the date on which an
application is filed for adjustment of status under this section.
(5)
Military selective
service
The alien shall provide proof of registration under the
Military Selective Service Act (50 U.S.C. App. 451 et seq.), if the alien is
subject to such registration on or after the date on which the alien's
application for registered provisional immigrant status is granted.
(c)
Application
procedures
(1)
In
general
Beginning on the date described in paragraph (2), a
registered provisional immigrant, or a registered provisional immigrant
dependent, who meets the eligibility requirements set forth in subsection (b)
may apply for adjustment of status to that of an alien lawfully admitted for
permanent residence by submitting an application to the Secretary that includes
the evidence required, by regulation, to demonstrate the applicant's
eligibility for such adjustment.
(2)
Back of the
line
The status of a registered provisional immigrant may not be
adjusted to that of an alien lawfully admitted for permanent residence under
this section until after the Secretary of State certifies that immigrant visas
have become available for all approved petitions for immigrant visas that were
filed under sections 201 and 203 before the date of the enactment of the
Border Security, Economic Opportunity, and
Immigration Modernization Act.
(3)
Interview
The
Secretary may interview applicants for adjustment of status under this section
to determine whether they meet the eligibility requirements set forth in
subsection (b).
(4)
Security and law
enforcement clearances
The Secretary may not adjust the status of
a registered provisional immigrant under this section until renewed national
security and law enforcement clearances have been completed with respect to the
registered provisional immigrant, to the satisfaction of the Secretary.
(5)
Fees and
penalties
(A)
Processing
fees
(i)
In
general
The Secretary shall impose a processing fee on applicants
for adjustment of status under this section at a level sufficient to recover
the full cost of processing such applications, including costs associated
with—
(I) adjudicating the
applications;
(II) taking and processing
biometrics;
(III) performing national
security and criminal checks, including adjudication;
(IV) preventing and
investigating fraud; and
(V) the administration of the
fees collected.
(ii)
Authority to limit
fees
The Secretary, by regulation, may—
(I) limit the maximum
processing fee payable under this subparagraph by a family, including spouses
and children; and
(II) exempt other defined
classes of individuals from the payment of the fee authorized under clause
(i).
(iii)
Deposit and use of
fees
Fees collected under this subparagraph—
(I) shall be deposited into
the Immigration Examinations Fee Account pursuant to section 286(m); and
(II) shall remain available
until expended pursuant to section 286(n).
(B)
Penalties
(i)
In
general
In addition to the processing fee required under
subparagraph (A) and the penalty required under section 245B(c)(6)(D), an alien
who was 21 years of age or older on the date on which the
Border Security, Economic Opportunity, and
Immigration Modernization Act was originally introduced in the
Senate and is filing an application for adjustment of status under this section
shall pay a $1,000 penalty to the Secretary unless the alien meets the
requirements under section 245D(b).
(ii)
Installments
The
Secretary shall establish a process for collecting payments required under
clause (i) through periodic installments.
(iii)
Deposit, allocation,
and spending of penalties
Penalties collected under this
subparagraph—
(I) shall be deposited into
the Comprehensive Immigration Trust Fund established under section 6(a)(1) of
the Border Security, Economic Opportunity,
and Immigration Modernization Act; and
(II) may be used for the
purposes set forth in section 6(a)(3)(B) of such
Act.
.
(b)
Limitation on
registered provisional immigrants
An alien admitted as a
registered provisional immigrant under section 245B of the Immigration and
Nationality Act, as added by subsection (a), may only adjust status to an alien
lawfully admitted for permanent resident status under section 245C or 245D of
such Act or section 2302.
(c)
Naturalization
Section
319 (8 U.S.C. 1430) is amended—
(1) in the section heading,
by striking and employees of
certain nonprofit organizations and inserting
, employees of certain
nonprofit organizations, and other long-term lawful
residents; and
(2) by adding at the end the
following:
(f) Any 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 upon compliance with all the requirements under
this title except the provisions of section 316(a)(1) if such person,
immediately preceding the date on which the person filed an application for
naturalization—
(1) has resided continuously
within the United States, after being lawfully admitted for permanent
residence, for at least 3 years;
(2) during the 3-year period
immediately preceding such filing date, has been physically present in the
United States for periods totaling at least 50 percent of such period;
and
(3) has resided within the
State or in the jurisdiction of the U.S. Citizenship and Immigration Services
field office in the United States in which the applicant filed such application
for at least 3
months.
.
2103.
The DREAM
Act
(a)
Short
title
This section may be
cited as the Development, Relief, and
Education for Alien Minors Act of 2013 or the
DREAM Act
2013.
(b)
Adjustment of status
for certain aliens who entered the United States as
children
Chapter 5 of title II (8 U.S.C. 1255 et seq.) is amended
by inserting after section 245C, as added by section 2102 of this title, the
following:
245D.
Adjustment of status
for certain aliens who entered the United States as children
(a)
Definitions
In this section:
(1)
Institution of higher
education
The term institution of higher education
has the meaning given such term in section 102 of the Higher Education Act of
1965 (20 U.S.C. 1002), except that the term does not include institutions
described in subsection (a)(1)(C) of such section.
(2)
Secretary
The
term Secretary means the Secretary of Homeland Security.
(3)
Uniformed
services
The term Uniformed Services has the meaning
given the term uniformed services in section 101(a)(5) of title
10, United States Code.
(b)
Adjustment of status
for certain aliens who entered the united states as children
(1)
Requirements
(A)
In
general
The Secretary may adjust the status of a registered
provisional immigrant to the status of a lawful permanent resident if the
immigrant demonstrates that he or she—
(i) has been a registered
provisional immigrant for at least 5 years;
(ii) was younger than 16
years of age on the date on which the alien initially entered the United
States;
(iii) has earned a high
school diploma, a commensurate alternative award from a public or private high
school or secondary school, or has obtained a general education development
certificate recognized under State law, or a high school equivalency diploma in
the United States;
(iv)
(I) has acquired a
degree from an institution of higher education or has completed at least 2
years, in good standing, in a program for a bachelor's degree or higher degree
in the United States; or
(II) has served in the
Uniformed Services for at least 4 years and, if discharged, received an
honorable discharge; and
(v) has provided a list of
each secondary school (as that term is defined in section 9101 of the
Elementary and Secondary Education Act of 1965 (20 U.S.C. 7801)) that the alien
attended in the United States.
(B)
Hardship
exception
(i)
In
general
The Secretary may adjust the status of a registered
provisional immigrant to the status of a lawful permanent resident if the
alien—
(I) satisfies the
requirements under clauses (i), (ii), (iii), and (v) of subparagraph (A);
and
(II) demonstrates compelling
circumstances for the inability to satisfy the requirement under subparagraph
(A)(iv).
(C)
Citizenship
requirement
(i)
In
general
Except as provided in clause (ii), the Secretary may not
adjust the status of an alien to lawful permanent resident status under this
section unless the alien demonstrates that the alien satisfies the requirements
under section 312(a).
(ii)
Exception
Clause
(i) shall not apply to an alien whose physical or developmental disability or
mental impairment prevents the alien from meeting the requirements such
section.
(D)
Submission of biometric
and biographic data
The Secretary may not adjust the status of an
alien to lawful permanent resident status unless the alien—
(i) submits biometric and
biographic data, in accordance with procedures established by the Secretary;
or
(ii) complies with an
alternative procedure prescribed by the Secretary, if the alien is unable to
provide such biometric data because of a physical impairment.
(E)
Background
checks
(i)
Requirement for
background checks
The Secretary shall utilize biometric,
biographic, and other data that the Secretary determines appropriate—
(I) to conduct national
security and law enforcement background checks of an alien applying for lawful
permanent resident status under this section; and
(II) to determine whether
there is any criminal, national security, or other factor that would render the
alien ineligible for such status.
(ii)
Completion of
background checks
The Secretary may not adjust an alien's status
to the status of a lawful permanent resident under this subsection until the
national security and law enforcement background checks required under clause
(i) have been completed with respect to the alien, to the satisfaction of the
Secretary.
(2)
Application for lawful
permanent resident status
(A)
In
general
A registered provisional immigrant seeking lawful
permanent resident status shall file an application for such status in such
manner as the Secretary may require.
(B)
Adjudication
(i)
In
general
The Secretary shall evaluate each application filed by a
registered provisional immigrant under this paragraph to determine whether the
alien meets the requirements under paragraph (1).
(ii)
Adjustment of status
if favorable determination
If the Secretary determines that the
alien meets the requirements under paragraph (1), the Secretary shall notify
the alien of such determination and adjust the status of the alien to lawful
permanent resident status, effective as of the date of such
determination.
(iii)
Adverse
determination
If the Secretary determines that the alien does not
meet the requirements under paragraph (1), the Secretary shall notify the alien
of such determination.
(C)
DACA
recipients
The Secretary may adopt streamlined procedures for
applicants for adjustment to lawful permanent resident status under this
section who were granted Deferred Action for Childhood Arrivals pursuant to the
Secretary’s memorandum of June 15, 2012.
(3)
Treatment for purposes
of naturalization
(A)
In
general
An alien granted lawful permanent resident status under
this section shall be considered, for purposes of title III—
(i) to have been lawfully
admitted for permanent residence; and
(ii) to have been in the
United States as an alien lawfully admitted to the United States for permanent
residence during the period the alien was a registered provisional
immigrant.
(B)
Limitation on application for
naturalization
An alien may
not apply for naturalization while the alien is in registered provisional
immigrant status, except for an alien described in paragraph (1)(A)(ii)
pursuant to section 328 or
329.
.
(c)
Exemption from
numerical limitations
Section 201(b)(1) (8 U.S.C. 1151(b)(1)) is
amended—
(1) by redesignating
subparagraph (E) as subparagraph (F); and
(2) by inserting after
subparagraph (D) the following:
(E) Aliens whose status is
adjusted to permanent resident status under section 245C or
245D.
.
(d)
Restoration of State
option To determine residency for purposes of higher education
(1)
Repeal
Section
505 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996
(8 U.S.C. 1623) is repealed.
(2)
Effective
date
The repeal under paragraph (1) shall take effect as if
included in the original enactment of the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (division C of Public Law 104–208).
(e)
Naturalization
Section
328(a) (8 U.S.C. 1439(a)) is amended by inserting , without having been
lawfully admitted to the United States for permanent resident, and
after naturalized.
(f)
Limitation on Federal
student assistance
Notwithstanding any other provision of law,
aliens granted registered provisional immigrant status and who initially
entered the United States before reaching 16 years of age and aliens granted
blue card status shall be eligible only for the following assistance under
title IV of the Higher Education Act of 1965 (20 U.S.C. 1070 et seq.):
(1) Student loans under parts
D and E of such title IV (20 U.S.C. 1087a et seq. and 1087aa et seq.), subject
to the requirements of such parts.
(2) Federal work-study
programs under part C of such title IV (42 U.S.C. 2751 et seq.), subject to the
requirements of such part.
(3) Services under such title
IV (20 U.S.C. 1070 et seq.), subject to the requirements for such
services.
2104.
Additional
requirements
(a)
In
general
Chapter 5 of title II
(8 U.S.C. 1255 et seq.) is amended by inserting after section 245C, as added by
section 2102 of this title, the following:
245E.
Additional
requirements relating to registered provisional immigrants and others
(a)
Disclosures
(1)
Prohibited
disclosures
Except as otherwise provided in this subsection, no
officer or employee of any Federal agency may—
(A) use the information
furnished in an application for lawful status under section 245B, 245C, or 245D
for any purpose other than to make a determination on any application by the
alien for any immigration benefit or protection;
(B) make any publication
through which information furnished by any particular applicant can be
identified; or
(C) permit anyone other than
the sworn officers, employees, and contractors of such agency or of another
entity approved by the Secretary to examine any individual application for
lawful status under section 245B, 245C, or 245D.
(2)
Required
disclosures
The Secretary shall provide the information furnished
in an application filed under section 245B, 245C, or 245D and any other
information derived from such furnished information to—
(A) a law enforcement agency,
intelligence agency, national security agency, a component of the Department of
Homeland Security, court, or grand jury, consistent with law, in connection
with—
(i) a criminal investigation
or prosecution of any felony not related to the applicant’s immigration status;
or
(ii) a national security
investigation or prosecution; and
(B) an official coroner for
purposes of affirmatively identifying a deceased individual, whether or not the
death of such individual resulted from a crime.
(3)
Auditing and evaluation
of information
The Secretary may—
(A) audit and evaluate
information furnished as part of any application filed under section 245B,
245C, or 245D for purposes of identifying immigration fraud or fraud schemes;
and
(B) use any evidence detected
by means of audits and evaluations for purposes of investigating, prosecuting,
referring for prosecution, or denying or terminating immigration
benefits.
(b)
Employer
protections
(1)
Use of employment
records
Copies of employment records or other evidence of
employment provided by an alien or by an alien's employer in support of an
alien's application for registered provisional immigrant status under section
245B may not be used in a civil or criminal prosecution or investigation of
that employer under section 274A or the Internal Revenue Code of 1986 for the
prior unlawful employment of that alien regardless of the adjudication of such
application or reconsideration by the Secretary of such alien's prima facie
eligibility determination. Employers that provide unauthorized aliens with
copies of employment records or other evidence of employment pursuant to an
application for registered provisional immigrant status shall not be subject to
civil and criminal liability pursuant to section 274A for employing such
unauthorized aliens.
(2)
Limit on
applicability
The protections for employers and aliens under
paragraph (1) shall not apply if the aliens or employers submit employment
records that are deemed to be fraudulent.
(c)
Administrative
review
(1)
Exclusive
administrative review
Administrative review of a determination
respecting an application for status under section 245B, 245C, 245D, or 245F or
section 2211 of the Agricultural Worker
Program Act of 2013 shall be conducted solely in accordance with
this subsection.
(2)
Administrative
appellate review
(A)
Establishment of
administrative appellate authority
The Secretary shall establish
or designate an appellate authority to provide for a single level of
administrative appellate review of a determination with respect to applications
for, or revocation of, status under sections 245B, 245C, and 245D.
(B)
Single appeal for each
administrative decision
(i)
In
general
An alien in the United States whose application for
status under section 245B, 245C, or 245D has been denied or revoked may file
with the Secretary not more than 1 appeal of each decision to deny or revoke
such status.
(ii)
Notice of
appeal
A notice of appeal filed under this subparagraph shall be
filed not later than 90 days after the date of service of the decision of
denial or revocation, unless the delay was reasonably justifiable.
(C)
Review by
Secretary
Nothing in this paragraph may be construed to limit the
authority of the Secretary to certify appeals for review and final
administrative decision.
(D)
Denial of petitions for
dependents
Appeals of a decision to deny or revoke a petition
filed by a registered provisional immigrant pursuant to regulations promulgated
under section 245B to classify a spouse or child of such alien as a registered
provisional immigrant shall be subject to the administrative appellate
authority described in subparagraph (A).
(E)
Stay of
removal
Aliens seeking administrative review shall not be removed
from the United States until a final decision is rendered establishing
ineligibility for status under section 245B, 245C, or 245D.
(3)
Record for
review
Administrative appellate review under paragraph (2) shall
be de novo and based solely upon—
(A) the administrative record
established at the time of the determination on the application; and
(B) any additional newly
discovered or previously unavailable evidence.
(4)
Unlawful
presence
During the period in which an alien may request
administrative review under this subsection, and during the period that any
such review is pending, the alien shall not be considered unlawfully
present in the United States for purposes of section
212(a)(9)(B).
(d)
Privacy and civil
liberties
(1)
In
general
The Secretary, in accordance with subsection (a)(1),
shall require appropriate administrative and physical safeguards to protect the
security, confidentiality, and integrity of personally identifiable information
collected, maintained, and disseminated pursuant to sections 245B, 245C, and
245D.
(2)
Assessments
Notwithstanding
the privacy requirements set forth in section 222 of the Homeland Security Act
(6 U.S.C. 142) and the E-Government Act of 2002 (Public Law 107–347), the
Secretary shall conduct a privacy impact assessment and a civil liberties
impact assessment of the legalization program established under sections 245B,
245C, and 245D during the pendency of the interim final regulations required to
be issued under section 2110 of the Border
Security, Economic Opportunity, and Immigration Modernization
Act.
.
(b)
Judicial
review
Section 242 (8 U.S.C.
1252) is amended—
(1) in subsection (a)(2)—
(A) in subparagraph (B), by inserting
the exercise of discretion arising under after no court
shall have jurisdiction to review;
(B) in subparagraph (D), by
striking raised upon a petition for review filed with an appropriate
court of appeals in accordance with this section;
(2) in subsection (b)(2), by
inserting or, in the case of a decision rendered under section 245E(c),
in the judicial circuit in which the petitioner resides after
proceedings; and
(3) by adding at the end the
following:
(h)
Judicial review of
eligibility determinations relating to status under chapter 5
(1)
Direct
review
If an alien's application under section 245B, 245C, 245D,
or 245F or section 2211 of the Agricultural
Worker Program Act of 2013 is denied, or is revoked after the
exhaustion of administrative appellate review under section 245E(c), the alien
may seek review of such decision, in accordance with chapter 7 of title 5,
United States Code, before the United States district court for the district in
which the person resides.
(2)
Status during
review
While a review described in paragraph (1) is
pending—
(A) the alien shall not be
deemed to accrue unlawful presence for purposes of section 212(a)(9);
(B) any unexpired grant of
voluntary departure under section 240B shall be tolled; and
(C) the court shall have the
discretion to stay the execution of any order of exclusion, deportation, or
removal.
(3)
Review after removal
proceedings
An alien may seek judicial review of a denial or
revocation of approval of the alien's application under section 245B, 245C, or
245D in the appropriate United States court of appeal 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 under
paragraph (1).
(4)
Standard for judicial
review
(A)
Basis
Judicial
review of a denial, or revocation of an approval, of an application under
section 245B, 245C, or 245D shall be based upon the administrative record
established at the time of the review.
(B)
Authority to
remand
The reviewing court may remand a case under this
subsection to the Secretary for consideration of additional evidence if the
court finds that—
(i) the additional evidence
is material; and
(ii) there were reasonable
grounds for failure to adduce the additional evidence before the
Secretary.
(C)
Scope of
review
Notwithstanding any other provision of law, judicial
review of all questions arising from a denial, or revocation of an approval, of
an application under section 245B, 245C, or 245D shall be governed by the
standard of review set forth in section 706 of title 5, United States
Code.
(5)
Remedial
powers
(A)
Jurisdiction
Notwithstanding
any other provision of law, the United States 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 the
Border Security, Economic Opportunity, and
Immigration Modernization Act, or the amendments made by such
Act, that is arbitrary, capricious, or otherwise contrary to law.
(B)
Scope of
relief
The United States district courts may order any
appropriate relief in a clause or claim described in subparagraph (A) without
regard to exhaustion, ripeness, or other standing requirements (other than
constitutionally-mandated requirements), if the court determines that—
(i) the resolution of such
cause or claim will serve judicial and administrative efficiency; or
(ii) a remedy would otherwise
not be reasonably available or practicable.
(6)
Challenges to the
validity of the system
(A)
In
general
Except as provided in paragraph (5), any claim that
section 245B, 245C, 245D, or 245E or any regulation, written policy, or written
directive, issued or unwritten policy or practice initiated by or under the
authority of the Secretary to implement such sections, violates the
Constitution of the United States or is otherwise in violation of law is
available exclusively in an action instituted in United States District Court
in accordance with the procedures prescribed in this paragraph.
(B)
Savings
provision
Except as provided in subparagraph (C), nothing in
subparagraph (A) may be construed to preclude an applicant under 245B, 245C, or
245D from asserting that an action taken or a decision made by the Secretary
with respect to the applicant's status was contrary to law.
(C)
Class
actions
Any claim described in subparagraph (A) that is brought
as a class action shall be brought in conformity with—
(i) the Class Action Fairness
Act of 2005 (Public Law 109–2); and
(ii) the Federal Rules of
Civil Procedure.
(D)
Preclusive
effect
The final disposition of any claim brought under
subparagraph (A) shall be preclusive of any such claim asserted by the same
individual in a subsequent proceeding under this subsection.
(E)
Exhaustion and stay of
proceedings
(i)
In
general
No claim brought under this paragraph shall require the
plaintiff to exhaust administrative remedies under section 245E(c).
(ii)
Stay
authorized
Nothing in this paragraph may be construed to prevent
the court from staying proceedings under this paragraph to permit the Secretary
to evaluate an allegation of an unwritten policy or practice or to take
corrective action. In determining whether to issue such a stay, the court shall
take into account any harm the stay may cause to the
claimant.
.
(c)
Rule of
construction
Section 244(h) of the Immigration and Nationality
Act (8 U.S.C. 1254a(h)) shall not limit the authority of the Secretary to
adjust the status of an alien under section 245C or 245D of the Immigration and
Nationality Act, as added by this subtitle.
(d)
Effect of failure to
register on eligibility for immigration benefits
Failure to
comply with section 264.1(f) of title 8, Code of Federal Regulations or with
removal orders or voluntary departure agreements based on such section for acts
committed before the date of the enactment of this Act shall not affect the
eligibility of an alien to apply for a benefit under the Immigration and
Nationality Act (8 U.S.C. 1101 et seq.).
(e)
Clerical
amendment
The table of contents is amended by inserting after the
item relating to section 245A the following:
Sec. 245B. Adjustment of status of eligible
entrants before December 31, 2011, to that of registered provisional
immigrant.
Sec. 245C. Adjustment of status of registered
provisional immigrants.
Sec. 245D. Adjustment of status for certain
aliens who entered the United States as children.
Sec. 245E. Additional requirements relating to
registered provisional immigrants and
others.
.
2105.
Criminal
penalty
(a)
In
general
Chapter 69 of title
18, United States Code, is amended by adding at the end the following:
1430.
Improper use of
information relating to registered provisional immigrant
applications
Any person who
knowingly uses, publishes, or permits information described in section 245E(a)
of the Immigration and Nationality Act to be examined in violation of such
section shall be fined not more than
$10,000.
.
(b)
Deposit of
fines
All criminal penalties collected under section 1430 of
title 18, United States Code, as added by subsection (a), shall be deposited
into the Comprehensive Immigration Reform Trust Fund established under section
6(a)(1).
(c)
Clerical
amendment
The table of sections in chapter 69 of title 18, United
States Code, is amended by adding at the end the following:
1430. Improper use of information relating to
registered provisional immigrant
applications.
.
2106.
Grant program to
assist eligible applicants
(a)
Establishment
The
Secretary may establish, within U.S. Citizenship and Immigration Services, a
program to award grants, on a competitive basis, to eligible nonprofit
organizations that will use the funding to assist eligible applicants under
section 245B, 245C, 245D, or 245F of the Immigration and Nationality Act or
section 2211 of this Act by providing them with the services described in
subsection (c).
(b)
Eligible nonprofit
organization
The term eligible nonprofit
organization means a nonprofit, tax-exempt organization, including a
community, faith-based or other immigrant-serving organization, whose staff has
demonstrated qualifications, experience, and expertise in providing quality
services to immigrants, refugees, persons granted asylum, or persons applying
for such statuses.
(c)
Use of
funds
Grant funds awarded under this section may be used for the
design and implementation of programs that provide—
(1) information to the public
regarding the eligibility and benefits of registered provisional immigrant
status authorized under section 245B of the Immigration and Nationality Act and
blue card status authorized under section 2211, particularly to individuals
potentially eligible for such status;
(2) assistance, within the
scope of authorized practice of immigration law, to individuals submitting
applications for registered provisional immigrant status or blue card status,
including—
(A) screening prospective
applicants to assess their eligibility for such status;
(B) completing applications
and petitions, including providing assistance in obtaining the requisite
documents and supporting evidence;
(C) applying for any waivers
for which applicants and qualifying family members may be eligible; and
(D) providing any other
assistance that the Secretary or grantees consider useful or necessary to apply
for registered provisional immigrant status or blue card status;
(3) assistance, within the
scope of authorized practice of immigration law, to individuals seeking to
adjust their status to that of an alien admitted for permanent residence under
section 245C or 245F of the Immigration and Nationality Act; and
(4) assistance, within the
scope of authorized practice of immigration law, and instruction, to
individuals—
(A) on the rights and
responsibilities of United States citizenship;
(B) in civics and
civics-based English as a second language; and
(C) in applying for United
States citizenship.
(d)
Source of grant
funds
(1)
Application
fees
The Secretary may use up to $50,000,000 from the
Comprehensive Immigration Reform Trust Fund established under section 6(a)(1)
to carry out this section.
(2)
Authorization of
appropriations
(A)
Amounts
authorized
In addition to the amounts made available under
paragraph (1), there are authorized to be appropriated such sums as may be
necessary for each of the fiscal years 2014 through 2018 to carry out this
section.
(B)
Availability
Any
amounts appropriated pursuant to subparagraph (A) shall remain available until
expended.
2107.
Conforming amendments
to the Social Security Act
(a)
Correction of Social
Security records
(1)
In
general
Section 208(e)(1) of the Social Security Act (42 U.S.C.
408(e)(1)) is amended—
(A) in subparagraph (B)(ii),
by striking or at the end;
(B) in subparagraph (C), by
striking the comma at the end and inserting a semicolon;
(C) by inserting after
subparagraph (C) the following:
(D) who is granted status as
a registered provisional immigrant under section 245B or 245D of the
Immigration and Nationality Act; or
(E) whose status is adjusted
to that of lawful permanent resident under section 245C of the Immigration and
Nationality Act,
;
and
(D) in the undesignated
matter at the end, by inserting , or in the case of an alien described
in subparagraph (D) or (E), if such conduct is alleged to have occurred before
the date on which the alien submitted an application under section 245B of such
Act for classification as a registered provisional immigrant before the
period at the end.
(2)
Effective
date
The amendments made by paragraph (1) shall take effect on
the first day of the tenth month that begins after the date of the enactment of
this Act.
(b)
State discretion
regarding termination of parental rights
(1)
In
general
A compelling reason
for a State not to file (or to join in the filing of) a petition to terminate
parental rights under section 475(5)(E) of the Social Security Act (42 U.S.C.
675(5)(E)) shall include—
(A) the removal of the parent from the United
States, unless the parent is unfit or unwilling to be a parent of the child;
or
(B) the involvement of the parent in (including
detention pursuant to) an immigration proceeding, unless the parent is unfit or
unwilling to be a parent of the child.
(2)
Conditions
Before a State may file to terminate the
parental rights under such section 475(5)(E), the State (or the county or other
political subdivision of the State, as applicable) shall make reasonable
efforts—
(A) to identify, locate, and contact
(including, if appropriate, through the diplomatic or consular offices of the
country to which the parent was removed or in which a parent or relative
resides)—
(i) any parent of the child who is in
immigration detention;
(ii) any parent of the child who has been
removed from the United States; and
(iii) if possible, any potential adult relative
of the child (as described in section 471(a)(29));
(B) to notify such parent or relative of the
intent of the State (or the county or other political subdivision of the State,
as applicable) to file (or to join in the filing of) a petition referred to in
paragraph (1); or
(C) to reunify the child with any such parent
or relative; and
(D) to provide and document appropriate
services to the parent or relative.
(3)
Conforming
amendment
Section 475(5)(E)(ii) of the Social Security Act (42
U.S.C. 675(5)(E)) is amended by inserting , including the reason set
forth in section 2107(b)(1) of the Border
Security, Economic Opportunity, and Immigration Modernization
Act after child.
(c)
Children separated from
parents and caregivers
(1)
State plan for foster
care and adoption assistance
Section 471(a) of the Social
Security Act (42 U.S.C. 671(a)) is amended—
(A) by amending paragraph
(19) to read as follows:
(19) provides that the State
shall give preference to an adult relative over a nonrelated caregiver when
determining a placement for a child if—
(A) the relative caregiver
meets all relevant State child protection standards; and
(B) the standards referred to
in subparagraph (A) ensure that the immigration status alone of a parent, legal
guardian, or relative shall not disqualify the parent, legal guardian, or
relative from being a placement for a
child;
;
and
(B) in paragraph (32), by
striking and at the end;
(C) in paragraph (33), by
striking the period at the end and inserting ; and; and
(D) by adding at the end the
following:
(34) provides that the State
shall—
(A) ensure that the case
manager for a separated child is capable of communicating in the native
language of such child and of the family of such child, or an interpreter who
is so capable is provided to communicate with such child and the family of such
child at no cost to the child or to the family of such child;
(B) coordinate with the
Department of Homeland Security to ensure that parents who wish for their child
to accompany them to their country of origin are given adequate time and
assistance to obtain a passport and visa, and to collect all relevant vital
documents, such as birth certificate, health, and educational records and other
information;
(C) coordinate with State
agencies regarding alternate documentation requirements for a criminal records
check or a fingerprint-based check for a caregiver that does not have Federal
or State-issued identification;
(D) preserve, to the greatest
extent practicable, the privacy and confidentiality of all information gathered
in the course of administering the care, custody, and placement of, and follow
up services provided to, a separated child, consistent with the best interest
of such child, by not disclosing such information to other government agencies
or persons (other than a parent, legal guardian, or relative caregiver or such
child), except that the head of the State agency (or the county or other
political subdivision of the State, as applicable) may disclose such
information, after placing a written record of the disclosure in the file of
the child—
(i) to a consular official
for the purpose of reunification of a child with a parent, legal guardian, or
relative caregiver who has been removed or is involved in an immigration
proceeding, unless the child has refused contact with, or the sharing of
personal or identifying information with, the government of his or her country
of origin;
(ii) when authorized to do so
by the child (if the child has attained 18 years of age) if the disclosure is
consistent with the best interest of the child; or
(iii) to a law enforcement
agency if the disclosure would prevent imminent and serious harm to another
individual; and
(E) not less frequently than
annually, compile, update, and publish a list of entities in the State that are
qualified to provide legal representation services for a separated child, in a
language such that a child can read and
understand.
.
(2)
Additional information
to be included in case plan
Section 475 of such Act (42 U.S.C.
675) is amended—
(A) in paragraph (1), by
adding at the end the following:
(H) In the case of a
separated child with respect to whom the State plan requires the State to
provide services under section 471(a)(34)—
(i) the location of the
parent or legal guardian described in paragraph (9)(A) from whom the child has
been separated; and
(ii) a written record of each
disclosure to a government agency or person (other than such a parent, legal
guardian, or relative) of information gathered in the course of tracking the
care, custody, and placement of, and follow-up services provided to, the
child.
;
and
(B) by adding at the end the
following:
(9) The term separated
child means an individual who—
(A) has a parent or legal
guardian who has been—
(i) detained by a Federal,
State, or local law enforcement agency in the enforcement of an immigration
law; or
(ii) removed from the United
States as a result of a violation of such a law; and
(B) is in foster care under
the responsibility of a
State.
.
(3)
Effective
date
The amendments made by this subsection shall take effect on
the 1st day of the 1st calendar quarter that begins after the 1-year period
that begins on the date of the enactment of this Act.
2108.
Government
contracting and acquisition of real property interest
(a)
Exemption from
government contracting and hiring rules
(1)
In
general
A determination by a Federal agency to use a procurement
competition exemption under section 253(c) of title 41, United States Code, or
to use the authority granted in paragraph (2), for the purpose of implementing
this title and the amendments made by this title is not subject to challenge by
protest to the Government Accountability Office under sections 3551 and 3556 of
title 31, United States Code, or to the Court of Federal Claims, under section
1491 of title 28, United States Code. An agency shall immediately advise the
Congress of the exercise of the authority granted under this paragraph.
(2)
Government contracting
exemption
The competition requirement under section 253(a) of
title 41, United States Code, 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—
(A) determines that the
waiver or modification is necessary; and
(B) submits an explanation
for such determination to the Committee
on Homeland Security and Governmental Affairs of the Senate
and the Committee on Homeland Security of the
House of Representatives.
(3)
Hiring rules
exemption
Notwithstanding any other provision of law, the
Secretary 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. Nothing in
chapter 71 of title 5, United States Code, shall affect the authority of any
Department management official to hire term, temporary limited or part-time
employees under this paragraph.
(b)
Authority to waive
annuity limitations
Section 824(g)(2)(B) of the Foreign Service
Act of 1980 (22 U.S.C. 4064(g)(2)(B)) is amended by striking
2009 and inserting 2017.
(c)
Authority to acquire
leaseholds
Notwithstanding
any other provision of law, the Secretary may acquire a leasehold interest in
real property, and may provide in a lease entered into under this subsection
for the construction or modification of any facility on the leased property, if
the Secretary determines that the acquisition of such interest, and such
construction or modification, are necessary in order to facilitate the
implementation of this title and the amendments made by this title.
2109.
Long-term legal
residents of the Commonwealth of the Northern Mariana Islands
Section (6)(e) of the Joint Resolution
entitled A Joint Resolution to approve the Covenant to Establish
a Commonwealth of the Northern Mariana Islands in Political Union with the
United States of America, and for other purposes, approved
March 24, 1976 (48 U.S.C. 1806(e)), as added by section 702 of the Consolidated
Natural Resources Act of 2008 (Public Law 110–229; 122 Stat. 854), is amended
by adding at the end the following:
(6)
Special provision
regarding long-term residents of the commonwealth
(A)
CNMI-only resident
status
Notwithstanding paragraph (1), an alien described in
subparagraph (B) may, upon the application of the alien, be admitted as an
immigrant to the Commonwealth subject to the following rules:
(i) The alien shall be
treated as an immigrant lawfully admitted for permanent residence in the
Commonwealth only, including permitting entry to and exit from the
Commonwealth, until the earlier of the date on which—
(I) the alien ceases to
permanently reside in the Commonwealth; or
(II) the alien’s status is
adjusted under this paragraph or section 245 of the Immigration and Nationality
Act (8 U.S.C. 1255) to that of an alien lawfully admitted for permanent
residence in accordance with all applicable eligibility requirements.
(ii) The Secretary of
Homeland Security shall establish a process for such aliens to apply for
CNMI-only permanent resident status during the 90-day period beginning on the
first day of the sixth month after the date of the enactment of this
paragraph.
(iii) Nothing in this
subparagraph may be construed to provide any alien granted status under this
subparagraph with public assistance to which the alien is not otherwise
entitled.
(B)
Aliens
described
An alien is described in this subparagraph if the
alien—
(i) is lawfully present in
the Commonwealth under the immigration laws of the United States;
(ii) is otherwise admissible
to the United States under the Immigration and Nationality Act (8 U.S.C. 1101
et seq.);
(iii) resided continuously
and lawfully in the Commonwealth from November 28, 2009, through the date of
the enactment of this paragraph;
(iv) is not a citizen of the
Republic of the Marshall Islands, the Federated States of Micronesia, or the
Republic of Palau; and
(v)
(I) was born in the
Northern Mariana Islands between January 1, 1974 and January 9, 1978;
(II) was, on May 8, 2008, and
continues to be as of the date of the enactment of this paragraph, a permanent
resident (as defined in section 4303 of title 3 of the Northern Mariana Islands
Commonwealth Code, in effect on May 8, 2008);
(III) is the spouse or child
(as defined in section 101(b)(1) of the Immigration and Nationality Act (8
U.S.C. 1101(b)(1))), of an alien described in subclauses (I) or (II);
(IV) was, on May 8, 2008, an
immediate relative (as defined in section 4303 of title 3 of the Northern
Mariana Islands Commonwealth Code, in effect on May 8, 2008, of a United States
citizen, notwithstanding the age of the United States citizen, and continues to
be such an immediate relative on the date of the application described in
subparagraph (A);
(V) resided in the Northern
Mariana Islands as a guest worker under Commonwealth immigration law for at
least 5 years before May 8, 2008 and is presently resident under CW–1 status;
or
(VI) is the spouse or child
(as defined in section 101(b)(1) of the Immigration and Nationality Act (8
U.S.C. 1101(b)(1))), of the alien guest worker described in subclause (V) and
is presently resident under CW–2 status.
(C)
Adjustment for long
term and permanent residents
Beginning on the date that is 5
years after the date of the enactment of the Border Security, Economic Opportunity, and Immigration
Modernization Act, an alien described in subparagraph (B) may
apply to receive an immigrant visa or to adjust his or her status to that of an
alien lawfully admitted for permanent
residence.
.
2110.
Rulemaking
(a)
In
general
Not later than 1 year
after the date of the enactment of this Act, the Secretary, the Attorney
General, and the Secretary of State separately shall issue interim final
regulations to implement this subtitle and the amendments made by this
subtitle, which shall take effect immediately upon publication in the Federal
Register.
(b)
Application procedures;
processing fees; documentation
The interim final regulations
issued under subsection (a) shall include—
(1) the procedures by which
an alien, and the dependent spouse and children of such alien may apply for
status under section 245B of the Immigration and Nationality Act, as added by
section 2101 of this Act, as a registered provisional immigrant or a registered
provisional immigrant dependent, as applicable, including the evidence required
to demonstrate eligibility for such status or to be included in each
application for such status;
(2) the criteria to be used
by the Secretary to determine—
(A) the maximum processing
fee payable under sections 245B(c)(10)(B) and 245C(c)(5)(A) of such Act by a
family, including spouses and unmarried children younger than 21 years of age;
and
(B) which individuals will be
exempt from such fees;
(3) the documentation
required to be submitted by the applicant to demonstrate compliance with
section 245C(b)(3) of such Act; and
(4) the procedures for a
registered provisional immigrant to apply for adjustment of status under
section 245C or 245D of such Act, including the evidence required to be
submitted with such application to demonstrate the applicant's eligibility for
such adjustment.
(c)
Exemption from National
Environmental Policy Act
Any
decision by the Secretary concerning any rulemaking action, plan, or program
described in this section shall not be considered to be a major Federal action
subject to review under the National Environmental Policy Act of 1969 (42
U.S.C. 4321 et seq.).
2111.
Statutory
construction
Except as
specifically provided, nothing in this subtitle, or any amendment made by this
subtitle, 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.
B
Agricultural Worker
Program
2201.
Short
title
This subtitle may be
cited as the Agricultural Worker
Program Act of 2013.
2202.
Definitions
In this subtitle:
(1)
Blue card
status
The term blue card status means the status of
an alien who has been lawfully admitted into the United States for temporary
residence under section 2211.
(2)
Agricultural
employment
The term agricultural employment has the
meaning given such term in section 3 of the Migrant and Seasonal Agricultural
Worker Protection Act (29 U.S.C. 1802), without regard to whether the specific
service or activity is temporary or seasonal.
(3)
Child
The
term child has the meaning given the term in section 101(b)(1) of
the Immigration and Nationality Act (8 U.S.C. 1101(b)(1)).
(4)
Employer
The
term employer means any person or entity, including any farm labor
contractor and any agricultural association, that employs workers in
agricultural employment.
(5)
Qualified designated
entity
The term qualified designated entity
means—
(A) a qualified farm labor
organization or an association of employers designated by the Secretary;
or
(B) any other entity that the
Secretary designates as having substantial experience, demonstrated competence,
and a history of long-term involvement in the preparation and submission of
application for adjustment of status under title II of the Immigration and
Nationality Act (8 U.S.C. 1151 et seq.).
(6)
Work
day
The term work day means any day in which the
individual is employed 5.75 or more hours in agricultural employment.
1
Program for earned status
adjustment of agricultural workers
A
Blue card status
2211.
Requirements for blue
card status
(a)
Requirements for blue
card status
Notwithstanding any other provision of law, the
Secretary, after conducting the national security and law enforcement
clearances required under section 245B(c)(4), may grant blue card status to an
alien who—
(1)
(A) performed
agricultural employment in the United States for not fewer than 575 hours or
100 work days during the 2-year period ending on December 31, 2012; or
(B) is the spouse or child of
an alien described in subparagraph (A) and was physically present in the United
States on or before December 31, 2012, and has maintained continuous presence
in the United States from that date until the date on which the alien is
granted blue card status, with the exception of absences from the United States
that are brief, casual, and innocent, whether or not such absences were
authorized by the Secretary;
(2) submits a completed
application before the end of the period set forth in subsection (b)(2);
and
(3) is not ineligible under
paragraph (3) or (4) of section 245B(b) of the Immigration and Nationality Act
(other than a nonimmigrant alien admitted to the United States for agricultural
employment described in section 101(a)(15)(H)(ii)(a) of such Act.
(b)
Application
(1)
In
general
An alien who meets the eligibility requirements set forth
in subsection (a)(1), may apply for blue card status and that alien’s spouse or
child may apply for blue card status as a dependent, by submitting a completed
application form to the Secretary during the application period set forth in
paragraph (2) in accordance with the final rule promulgated by the Secretary
pursuant to subsection (e).
(2)
Submission
The
Secretary shall provide that the alien shall be able to submit an application
under paragraph (1)—
(A) if the applicant is
represented by an attorney or a nonprofit religious, charitable, social
service, or similar organization recognized by the Board of Immigration Appeals
under section 292.2 of title 8, Code of Federal Regulations; or
(B) to a qualified entity if
the applicant consents to the forwarding of the application to the
Secretary.
(3)
Application
period
(A)
Initial
period
Except as provided in subparagraph (B), the Secretary may
only accept applications for blue card status for a 1-year period from aliens
in the United States beginning on the date on which the final rule is published
in the Federal Register pursuant to subsection (f), except that qualified
nonimmigrants who have participated in the H–2A Program may apply from outside
of the United States.
(B)
Extension
If
the Secretary determines, during the initial period described in subparagraph
(A), that additional time is required to process applications for blue card
status or for other good cause, the Secretary may extend the period for
accepting applications for an additional 18 months.
(4)
Application
form
(A)
Required
information
The application form referred to in paragraph (1)
shall collect such information as the Secretary determines necessary and
appropriate.
(B)
Family
application
The Secretary shall establish a process through which
an alien may submit a single application under this section on behalf of the
alien, his or her spouse, and his or her children, who are residing in the
United States.
(C)
Interview
The
Secretary may interview applicants for blue card status to determine whether
they meet the eligibility requirements set forth in subsection (a)(1).
(5)
Aliens apprehended
before or during the application period
If an alien, who is
apprehended during the period beginning on the date of the enactment of this
Act and ending on the application period described in paragraph (3), appears
prima facie eligible for blue card status, the Secretary—
(A) shall provide the alien
with a reasonable opportunity to file an application under this section during
such application period; and
(B) may not remove the
individual until a final administrative determination is made on the
application.
(6)
Suspension of removal
during application period
(A)
Protection from
detention or removal
An alien granted blue card status may not be
detained by the Secretary or removed from the United States unless—
(i) such alien is, or has
become, ineligible for blue card status; or
(ii) the alien’s blue card
status has been revoked.
(B)
Aliens in removal
proceedings
Notwithstanding any other provision of the
Immigration and Nationality Act (8 U.S.C. 1101 et seq.)—
(i) if the Secretary
determines that an alien, during the period beginning on the date of the
enactment of this section and ending on the last day of the application period
described in paragraph (2), is in removal, deportation, or exclusion
proceedings before the Executive Office for Immigration Review and is prima
facie eligible for blue card status under this section—
(I) the Secretary shall
provide the alien with the opportunity to file an application for such status;
and
(II) upon motion by the
Secretary and with the consent of the alien or upon motion by the alien, the
Executive Office for Immigration Review shall—
(aa) terminate such
proceedings without prejudice to future proceedings on any basis; and
(bb) provide the alien a
reasonable opportunity to apply for such status; and
(ii) if the Executive Office
for Immigration Review determines that an alien, during the application period
described in paragraph (2), is in removal, deportation, or exclusion
proceedings before the Executive Office for Immigration Review and is prima
facie eligible for blue card status under this section—
(I) the Executive Office of
Immigration Review shall notify the Secretary of such determination; and
(II) if the Secretary does
not dispute the determination of prima facie eligibility within 7 days after
such notification, the Executive Office for Immigration Review, upon consent of
the alien, shall—
(aa) terminate such
proceedings without prejudice to future proceedings on any basis; and
(bb) permit the alien a
reasonable opportunity to apply for such status.
(C)
Treatment of certain
aliens
(i)
In
general
If an alien who meets the eligibility requirements set
forth in subsection (a) is present in the United States and has been ordered
excluded, deported, or removed, or ordered to depart voluntarily from the
United States under any provision of this Act—
(I) notwithstanding such
order or section 241(a)(5) of the Immigration and Nationality Act (8 U.S.C.
1231(a)(5)), the alien may apply for blue card status under this section;
and
(II) if the alien is granted
such status, the alien shall file a motion to reopen the exclusion,
deportation, removal, or voluntary departure order, which motion shall be
granted unless 1 or more of the grounds of ineligibility is established by
clear and convincing evidence.
(ii)
Limitations on motions
to reopen
The limitations on motions to reopen set forth in
section 240(c)(7) of the Immigration and Nationality Act (8 U.S.C. 1229a(c)(7))
shall not apply to motions filed under clause (i)(II).
(D)
Period pending
adjudication of application
(i)
In
general
During the period beginning on the date on which an alien
applies for blue card status under this subsection and the date on which the
Secretary makes a final decision regarding such application, the alien—
(I) may receive advance
parole to reenter the United States if urgent humanitarian circumstances compel
such travel;
(II) may not be detained by
the Secretary or removed from the United States unless the Secretary makes a
prima facie determination that such alien is, or has become, ineligible for
blue card status;
(III) shall not be considered
unlawfully present for purposes of section 212(a)(9)(B) of the Immigration and
Nationality Act (8 U.S.C. 1182(a)(9)(B)); and
(IV) shall not be considered
an unauthorized alien (as defined in section 274A(h)(3) of the Immigration and
Nationality Act (8 U.S.C. 1324a(h)(3))).
(ii)
Evidence of
application filing
As soon as practicable after receiving each
application for blue card status, the Secretary shall provide the applicant
with a document acknowledging the receipt of such application.
(iii)
Continuing
employment
An employer who knows an alien employee is an
applicant for blue card status or will apply for such status once the
application period commences is not in violation of section 274A(a)(2) of the
Immigration and Nationality Act (8 U.S.C. 1324a(a)(2)) if the employer
continues to employ the alien pending the adjudication of the alien employee's
application.
(iv)
Effect of
departure
Section 101(g) of the Immigration and Nationality Act
(8 U.S.C. 1101(g)) shall not apply to an alien granted—
(I) advance parole under
clause (i)(I) to reenter the United States; or
(II) blue card status.
(7)
Security and law
enforcement clearances
(A)
Biometric and
biographic data
The Secretary may not grant blue card status to
an alien or an alien dependent spouse or child under this section unless such
alien submits biometric and biographic data in accordance with procedures
established by the Secretary.
(B)
Alternative
procedures
The Secretary shall provide an alternative procedure
for applicants who cannot provide the standard biometric data required under
subparagraph (A) because of a physical impairment.
(C)
Clearances
(i)
Data
collection
The Secretary shall collect, from each alien applying
for status under this section, biometric, biographic, and other data that the
Secretary determines to be appropriate—
(I) to conduct national
security and law enforcement clearances; and
(II) to determine whether
there are any national security or law enforcement factors that would render an
alien ineligible for such status.
(ii)
Prerequisite
The
required clearances described in clause (i)(I) shall be completed before the
alien may be granted blue card status.
(8)
Duration of
status
After the date that is 8 years after the date regulations
are published under this section, no alien may remain in blue card
status.
(9)
Fees and
penalties
(A)
Standard processing
fee
(i)
In
general
Aliens who are 16 years of age or older and are applying
for blue card status under paragraph (2), or for an extension of such status,
shall pay a processing fee to the Department in an amount determined by the
Secretary.
(ii)
Recovery of
costs
The processing fee authorized under clause (i) shall be set
at a level that is sufficient to recover the full costs of processing the
application, including any costs incurred—
(I) to adjudicate the
application;
(II) to take and process
biometrics;
(III) to perform national
security and criminal checks, including adjudication;
(IV) to prevent and
investigate fraud; and
(V) to administer the
collection of such fee.
(iii)
Authority to limit
fees
The Secretary, by regulation, may—
(I) limit the maximum
processing fee payable under this subparagraph by a family, including spouses
and unmarried children younger than 21 years of age; and
(II) exempt defined classes
of individuals from the payment of the fee authorized under clause (i).
(B)
Deposit and use of
processing fees
Fees collected pursuant to subparagraph
(A)(i)—
(i) shall be deposited into
the Immigration Examinations Fee Account pursuant to section 286(m); and
(ii) shall remain available
until expended pursuant to section 286(n).
(C)
Penalty
(i)
Payment
In
addition to the processing fee required under subparagraph (A), aliens who are
21 years of age or older and are applying for blue card status under paragraph
(2) shall pay a $100 penalty to the Department.
(ii)
Deposit
Penalties
collected pursuant to clause (i) shall be deposited into the Comprehensive
Immigration Reform Trust Fund established under section 6(a)(1).
(10)
Adjudication
(A)
Failure to submit
sufficient evidence
The Secretary shall deny an application
submitted by an alien who fails to submit—
(i) requested initial
evidence, including requested biometric data; or
(ii) any requested additional
evidence by the date required by the Secretary.
(B)
Amended
application
An alien whose application for blue card status is
denied under subparagraph (A) may file an amended application for such status
to the Secretary if the amended application—
(i) is filed within the
application period described in paragraph (3); and
(ii) contains all the
required information and fees that were missing from the initial
application.
(11)
Evidence of blue card
status
(A)
In
general
The Secretary shall issue documentary evidence of blue
card status to each alien whose application for such status has been
approved.
(B)
Documentation
features
Documentary evidence provided under subparagraph
(A)—
(i) shall be machine-readable
and tamper-resistant, and shall contain a digitized photograph;
(ii) shall, during the
alien’s authorized period of admission, and any extension of such authorized
admission, serve as a valid travel and entry document for the purpose of
applying for admission to the United States;
(iii) may be accepted during
the period of its validity by an employer as evidence of employment
authorization and identity under section 274A(b)(1)(B) of the Immigration and
Nationality Act (8 U.S.C. 1324a(b)(1)(B)); and
(iv) shall include such other
features and information as the Secretary may prescribe.
(c)
Terms and conditions of
blue card status
(1)
Conditions of blue card
status
(A)
Employment
Notwithstanding
any other provision of law, including section 241(a)(7) of the Immigration and
Nationality Act (8 U.S.C. 1231(a)(7)), an alien with blue card status shall be
authorized to be employed in the United States while in such status.
(B)
Travel outside the
united states
An alien with blue card status may travel outside
of the United States and may be admitted, if otherwise admissible, upon
returning to the United States without having to obtain a visa if—
(i) the alien is in
possession of—
(I) valid, unexpired
documentary evidence of blue card status that complies with subsection (b)(11);
or
(II) a travel document that
has been approved by the Secretary and was issued to the alien after the
alien’s original documentary evidence was lost, stolen, or destroyed;
(ii) the alien’s absence from
the United States did not exceed 180 days, unless the alien’s failure to timely
return was due to extenuating circumstances beyond the alien’s control;
and
(iii) the alien establishes
that the alien is not inadmissible under subparagraph (A)(i), (A)(iii), (B), or
(C) of section 212(a)(3) of the Immigration and Nationality Act (8 U.S.C.
1182(a)(3)).
(C)
Admission
An
alien granted blue card status shall be considered to have been admitted in
such status as of the date on which the alien’s application was filed.
(D)
Clarification of
status
An alien granted blue card status—
(i) is lawfully admitted to
the United States; and
(ii) may not be classified as
a nonimmigrant or as an alien who has been lawfully admitted for permanent
residence.
(2)
Revocation
(A)
In
general
The Secretary may revoke blue card status at any time
after providing appropriate notice to the alien, and after the exhaustion or
waiver of all applicable administrative review procedures under section 245E(c)
of the Immigration and Nationality Act, as added by section 2104(a) of this
Act, if the alien—
(i) no longer meets the
eligibility requirements for blue card status;
(ii) knowingly used
documentation issued under this section for an unlawful or fraudulent purpose;
or
(iii) was absent from the
United States for—
(I) any single period longer
than 180 days in violation of the requirement under paragraph (1)(B)(ii);
or
(II) for more than 180 days
in the aggregate during any calendar year, unless the alien’s failure to timely
return was due to extenuating circumstances beyond the alien’s control.
(B)
Additional
evidence
(i)
In
general
In determining whether to revoke an alien’s status under
subparagraph (A), the Secretary may require the alien—
(I) to submit additional
evidence; or
(II) to appear for an
interview.
(ii)
Effect of
noncompliance
The status of an alien who fails to comply with any
requirement imposed by the Secretary under clause (i) shall be revoked unless
the alien demonstrates to the Secretary’s satisfaction that such failure was
reasonably excusable.
(C)
Invalidation of
documentation
If an alien’s blue card status is revoked under
subparagraph (A), any documentation issued by the Secretary to such alien under
subsection (b)(11) shall automatically be rendered invalid for any purpose
except for departure from the United States.
(3)
Ineligibility for
public benefits
An alien who has been granted blue card status is
not eligible for any Federal means-tested public benefit (as such term is
defined and implemented in section 403 of the Personal Responsibility and Work
Opportunity Reconciliation Act of 1996 (8 U.S.C. 1613)).
(4)
Treatment of blue card
status
A noncitizen granted blue card status shall be considered
lawfully present in the United States for all purposes while such noncitizen
remains in such status, except that the noncitizen—
(A) is not entitled to the
premium assistance tax credit authorized under section 36B of the Internal
Revenue Code of 1986 for his or her coverage;
(B) shall be subject to the
rules applicable to individuals who are not lawfully present set forth in
subsection (e) of such section;
(C) shall be subject to the
rules applicable to individuals who are not lawfully present set forth in
section 1402(e) of the Patient Protection and Affordable Care Act (42 U.S.C.
18071(e)); and
(D) shall be subject to the
rules applicable to individuals not lawfully present set forth in section
5000A(d)(3) of the Internal Revenue Code of 1986.
(5)
Adjustment to
registered provisional immigrant status
The Secretary may adjust
the status of an alien who has been granted blue card status to the status of a
registered provisional immigrant under section 245B of the Immigration and
Nationality Act if the Secretary determines that the alien is unable to fulfill
the agricultural service requirement set forth in section 245F(a)(1) of such
Act.
(d)
Record of
employment
(1)
In
general
Each employer of an alien granted blue card status shall
annually provide—
(A) a written record of
employment to the alien; and
(B) a copy of such record to
the Secretary of Agriculture.
(2)
Civil
penalties
(A)
In
general
If the Secretary finds, after notice and an opportunity
for a hearing, that an employer of an alien granted blue card status has
knowingly failed to provide the record of employment required under paragraph
(1) or has provided a false statement of material fact in such a record, the
employer shall be subject to a civil penalty in an amount not to exceed $500
per violation.
(B)
Limitation
The
penalty under subparagraph (A) for failure to provide employment records shall
not apply unless the alien has provided the employer with evidence of
employment authorization provided under subsection (c).
(C)
Deposit of civil
penalties
Civil penalties collected under this paragraph shall be
deposited in the Comprehensive Immigration Reform Trust Fund established under
section 6(a)(1).
(3)
Termination of
obligation
The obligation under paragraph (1) shall terminate on
the date that is 8 years after the date of the enactment of this Act.
(4)
Employer
protections
(A)
Use of employment
records
Copies of employment records or other evidence of
employment provided by an alien or by an alien's employer in support of an
alien's application for blue card status may not be used in a civil or criminal
prosecution or investigation of that employer under section 274A of the
Immigration and Nationality Act (8 U.S.C. 1324a) or the Internal Revenue Code
of 1986 for the prior unlawful employment of that alien regardless of the
adjudication of such application or reconsideration by the Secretary of such
alien's prima facie eligibility determination. Employers that provide
unauthorized aliens with copies of employment records or other evidence of
employment pursuant to an application for blue card status shall not be subject
to civil and criminal liability pursuant to such section 274A for employing
such unauthorized aliens.
(B)
Limit on
applicability
The protections for employers and aliens under
subparagraph (A) shall not apply if the aliens or employers submit employment
records that are deemed to be fraudulent.
(e)
Rulemaking
Not
later than 1 year after the date of the enactment of this Act, the Secretary,
in consultation with the Secretary of Agriculture, shall issue final
regulations to implement this chapter.
2212.
Adjustment to
permanent resident status
(a)
In
general
Chapter 5 of title II (8 U.S.C. 1255 et seq.) is amended
by inserting after section 245E, as added by section 2104 of this Act, the
following:
245F.
Adjustment to
permanent resident status for agricultural workers
(a)
In
general
Except as provided in subsection (b), and not earlier
than 5 years after the date of the enactment of the
Border Security, Economic Opportunity, and
Immigration Modernization Act, the Secretary shall adjust the
status of an alien granted blue card status to that of an alien lawfully
admitted for permanent residence if the Secretary determines that the following
requirements are satisfied:
(1)
Qualifying
employment
Except as provided in paragraph (3), the alien—
(A) during the 8-year period
beginning on the date of the enactment of the Border Security, Economic Opportunity, and Immigration
Modernization Act, performed not less than 100 work days of
agricultural employment during each of 5 years; or
(B) during the 5-year period
beginning on such date of enactment, performed not less than 150 work days of
agricultural employment during each of 3 years.
(2)
Evidence
An
alien may demonstrate compliance with the requirement under paragraph (1) by
submitting—
(A) the record of employment
described in section 2211(d) of the Border
Security, Economic Opportunity, and Immigration Modernization
Act;
(B) documentation that may be
submitted under subsection (e)(4); or
(C) any other documentation
designated by the Secretary for such purpose.
(3)
Extraordinary
circumstances
(A)
In
general
In determining whether an alien has met the requirement
under paragraph (1), the Secretary may credit the alien with not more than 12
additional months of agricultural employment in the United States to meet such
requirement if the alien was unable to work in agricultural employment due
to—
(i) pregnancy, disabling
injury, or disease that the alien can establish through medical records;
(ii) illness, disease, or
other special needs of a child that the alien can establish through medical
records;
(iii) severe weather
conditions that prevented the alien from engaging in agricultural employment
for a significant period of time; or
(iv) termination from
agricultural employment, if the Secretary determines that—
(I) the termination was
without just cause; and
(II) the alien was unable to
find alternative agricultural employment after a reasonable job search.
(B)
Effect of
determination
A determination under subparagraph (A)(iv), with
respect to an alien, shall not be conclusive, binding, or admissible in a
separate or subsequent judicial or administrative action or proceeding between
the alien and a current or prior employer of the alien or any other
party.
(4)
Application
period
The alien applies for adjustment of status before the
alien's blue card status expires.
(5)
Fine
The
alien pays a fine of $400 to the Secretary, which shall be deposited into the
Comprehensive Immigration Reform Trust Fund established under section 6(a)(1)
of the Border Security, Economic Opportunity,
and Immigration Modernization Act.
(b)
Grounds for denial of
adjustment of status
(1)
In
general
The Secretary may not adjust the status of an alien
granted blue card status if the alien—
(A) is no longer eligible for
blue card status; or
(B) failed to perform the
qualifying employment requirement under subsection (a)(1), considering any
amount credited by the Secretary under subsection (a)(3).
(2)
Maintenance of waivers
of inadmissibility
The grounds of inadmissibility set forth in
section 212(a) that were previously waived for the alien or made inapplicable
shall not apply for purposes of the alien’s adjustment of status under this
section.
(3)
Pending revocation
proceedings
If the Secretary has notified the applicant that the
Secretary intends to revoke the applicant’s blue card status, the Secretary may
not approve an application for adjustment of status under this section unless
the Secretary makes a final determination not to revoke the applicant’s
status.
(4)
Payment of
taxes
(A)
In
general
An applicant may not file an application for adjustment
of status under this section unless the applicant has satisfied any applicable
Federal tax liability.
(B)
Definition of
applicable federal tax liability
In this paragraph, the term
applicable federal tax liability means all Federal income taxes
assessed in accordance with section 6203 of the Internal Revenue Code of 1986
since the date on which the applicant was authorized to work in the United
States in blue card status.
(C)
Compliance
The
applicant may demonstrate compliance with subparagraph (A) by submitting such
documentation as the Secretary, in consultation with the Secretary of the
Treasury, may require by regulation.
(c)
Spouses and
children
Notwithstanding any other provision of law, the
Secretary shall grant permanent resident status to the spouse or child of an
alien whose status was adjusted under subsection (a) if—
(1) the spouse or child
(including any individual who was a child on the date such alien was granted
blue card status) applies for such status;
(2) the principal alien
includes the spouse and children in an application for adjustment of status to
that of a lawful permanent resident; and
(3) the spouse or child is
not ineligible for such status under section 245B.
(d)
Numerical limitations
do not apply
The numerical limitations under sections 201 and 202
shall not apply to the adjustment of aliens to lawful permanent resident status
under this section.
(e)
Submission of
applications
(1)
Interview
The
Secretary may interview applicants for adjustment of status under this section
to determine whether they meet the eligibility requirements set forth in this
section.
(2)
Fees
(A)
In
general
Applicants for adjustment of status under this section
shall pay a processing fee to the Secretary in an amount that will ensure the
recovery of the full costs of adjudicating such applications, including—
(i) the cost of taking and
processing biometrics;
(ii) expenses relating to
prevention and investigation of fraud; and
(iii) costs relating to the
administration of the fees collected.
(B)
Authority to limit
fees
The Secretary, by regulation—
(i) may limit the maximum
processing fee payable under this paragraph by a family, including spouses and
unmarried children younger than 21 years of age; and
(ii) may exempt individuals
described in section 245B(c)(10) and other defined classes of individuals from
the payment of the fee under subparagraph (A).
(3)
Disposition of
fees
All fees collected under paragraph (2)(A)—
(A) shall be deposited into
the Immigration Examinations Fee Account pursuant to section 286(m); and
(B) shall remain available
until expended pursuant to section 286(n).
(4)
Documentation of work
history
(A)
Burden of
proof
An alien applying for blue card status under section 2211
of the Border Security, Economic Opportunity,
and Immigration Modernization Act or for adjustment of status
under subsection (a) shall provide evidence that the alien has worked the
requisite number of hours or days required under subsection (a)(1) of such
section 2211 or subsection (a)(3) of this section, as applicable.
(B)
Timely production of
records
If an employer or farm labor contractor employing such an
alien has kept proper and adequate records respecting such employment, the
alien’s burden of proof under subparagraph (A) may be met by securing timely
production of those records under regulations to be promulgated by the
Secretary.
(C)
Sufficient
evidence
An alien may meet the burden of proof under subparagraph
(A) to establish that the alien has performed the days or hours of work
referred to in subparagraph (A) by producing sufficient evidence to show the
extent of that employment as a matter of just and reasonable inference.
(f)
Penalties for false
statements in applications
(1)
Criminal
penalty
Any person who—
(A) files an application for
blue card status under section 2211 of the Border Security, Economic Opportunity, and Immigration
Modernization Act or an adjustment of status under this section
and knowingly and willfully falsifies, conceals, or covers up a material fact
or makes any false, fictitious, or fraudulent statements or representations, or
makes or uses any false writing or document knowing the same to contain any
false, fictitious, or fraudulent statement or entry; or
(B) creates or supplies a
false writing or document for use in making such an application,
shall
be fined in accordance with title 18, United States Code, imprisoned not more
than 5 years, or both.
(2)
Inadmissibility
An
alien who is convicted of a crime under paragraph (1) shall be deemed
inadmissible to the United States on the ground described in section
212(a)(6)(C)(i).
(3)
Deposit
Fines
collected under paragraph (1) shall be deposited into the Comprehensive
Immigration Reform Trust Fund established under section 6(a)(1) of the
Border Security, Economic Opportunity, and
Immigration Modernization Act.
(g)
Eligibility for legal
services
Section 504(a)(11) of the Departments of Commerce,
Justice, and State, the Judiciary, and Related Agencies Appropriations Act,
1996 (Public Law 104–134; 110 Stat. 1321–55) may not be construed to prevent a
recipient of funds under the Legal Services Corporation Act (42 U.S.C. 2996 et
seq.) from providing legal assistance directly related to an application for
blue card status under section 2211 of the Border Security, Economic Opportunity, and Immigration
Modernization Act, to an individual who has been granted blue
card status, or for an application for an adjustment of status under this
section.
(h)
Administrative and
judicial review
Aliens applying for blue card status under
section 2211 of the Border Security, Economic
Opportunity, and Immigration Modernization Act or adjustment to
permanent resident status under this section shall be entitled to the rights
and subject to the conditions applicable to other classes of aliens under
sections 242(h) and 245E.
(i)
Applicability of other
provisions
The provisions set forth in section 245E which are
applicable to aliens described in section 245B, 245C, and 245D shall apply to
aliens applying for blue card status under section 2211 of the
Border Security, Economic Opportunity, and
Immigration Modernization Act or adjustment to permanent resident
status under this section.
(j)
Limitation on blue card
status
An alien granted blue card status under section 2211 of
the Border Security, Economic Opportunity,
and Immigration Modernization Act may only adjust status to an
alien lawfully admitted for permanent residence under this section, section
245C of this Act, or section 2302 of the Border Security, Economic Opportunity, and Immigration
Modernization Act.
(k)
Definitions
In
this section:
(1)
Blue card
status
The term blue card status means the status of
an alien who has been lawfully admitted into the United States for temporary
residence under section 2211 of the Border
Security, Economic Opportunity, and Immigration Modernization
Act.
(2)
Agricultural
employment
The term agricultural employment has the
meaning given such term in section 3 of the Migrant and Seasonal Agricultural
Worker Protection Act (29 U.S.C. 1802), without regard to whether the specific
service or activity is temporary or seasonal.
(3)
Employer
The
term employer means any person or entity, including any farm labor
contractor and any agricultural association, that employs workers in
agricultural employment.
(4)
Work
day
The term work day means any day in which the
individual is employed 5.75 or more hours in agricultural
employment.
.
(b)
Conforming
amendment
Section 201(b)(1) (8 U.S.C. 1151(b)(1), as amended by
section 2103(c), is further amended by adding at the end the following:
(G) Aliens granted lawful
permanent resident status under section
245F.
.
(c)
Clerical
amendment
The table of contents, as amended by section 2104(e),
is further amended by inserting after the item relating to section 245E the
following:
Sec. 245F. Adjustment to permanent resident
status for agricultural
workers.
.
2213.
Use of
information
Beginning not
later than the first day of the application period described in section
2211(b)(3), the Secretary, in cooperation with qualified designated entities,
shall broadly disseminate information respecting the benefits that aliens may
receive under this subchapter and the requirements that an alien is required to
meet to receive such benefits.
2214.
Reports on blue
cards
Not later than September
30, 2013, and annually thereafter for the next 8 years, the Secretary shall
submit a report to Congress that identifies, for the previous fiscal
year—
(1) the number of aliens who
applied for blue card status;
(2) the number of aliens who
were granted blue card status;
(3) the number of aliens who
applied for an adjustment of status pursuant to section 245F(a) of the
Immigration and Nationality Act, as added by section 2212; and
(4) the number of aliens who
received an adjustment of status pursuant such section 245F(a).
2215.
Authorization of
appropriations
There are
authorized to be appropriated to the Secretary such sums as may be necessary to
implement this subchapter, including any sums needed for costs associated with
the initiation of such implementation, for fiscal years 2013 and 2014.
B
Correction of social
security records
2221.
Correction of social
security records
(a)
In
general
Section 208(e)(1) of the Social Security Act (42 U.S.C.
408(e)(1)) is amended—
(1) in subparagraph (B)(ii),
by striking or at the end;
(2) in subparagraph (C), by
inserting or at the end;
(3) by inserting after
subparagraph (C) the following:
(D) who is granted blue card
status under the Agricultural Worker Program
Act of 2013,
;
and
(4) by striking
1990. and inserting 1990, or in the case of an alien
described in subparagraph (D), if such conduct is alleged to have occurred
before the date on which the alien was granted blue card status under section
2211(a) of the Agricultural Worker Program
Act of 2013..
(b)
Effective
date
The amendments made by subsection (a) shall take effect on
the first day of the seventh month that begins after the date of the enactment
of this Act.
2
Nonimmigrant agricultural
visa program
2231.
Nonimmigrant
classification for nonimmigrant agricultural workers
Section 101(a)(15) (8 U.S.C. 1101(a)(15)) is
amended by adding at the end the following:
(W) an alien having a
residence in a foreign country who is coming to the United States for a
temporary period—
(iii)
(I) to perform services
or labor in agricultural employment and who has a written contract that
specifies the wages, benefits, and working conditions of such full-time
employment in an agricultural occupation with a designated agricultural
employer for a specified period of time; and
(II) who meets the
requirements under section 218A for a nonimmigrant visa described in this
clause; or
(iv)
(I) to perform services
or labor in agricultural employment and who has an offer of full-time
employment in an agricultural occupation from a designated agricultural
employer for such employment and is not described in clause (i); and
(II) who meets the
requirements under section 218A for a nonimmigrant visa described in this
clause.
.
2232.
Establishment of
nonimmigrant agricultural worker program
(a)
In
general
Chapter 2 of title II (8 U.S.C. 1181 et seq.) is amended
by inserting after section 218 the following:
218A.
Nonimmigrant
agricultural worker program
(a)
Definitions
In
this section and in clauses (iii) and (iv) of section 101(a)(15)(W):
(1)
Agricultural
employment
The term agricultural employment has the
meaning given such term in section 3 of the Migrant and Seasonal Agricultural
Worker Protection Act (29 U.S.C. 1802), without regard to whether the specific
service or activity is temporary or seasonal.
(2)
At-will agricultural
worker
The term at-will agricultural worker means an
alien present in the United States pursuant to section
101(a)(15)(W)(iv).
(3)
Blue
card
The term blue card means an employment
authorization and travel document issued to an alien granted blue card status
under section 2211(a) of the Agricultural
Worker Program Act of 2013.
(4)
Contract agricultural
worker
The term contract agricultural worker means
an alien present in the United States pursuant to section
101(a)(15)(W)(iii).
(5)
Designated agricultural
employer
The term designated agricultural employer
means an employer who is registered with the Secretary of Agriculture pursuant
to subsection (e)(1).
(6)
Electronic job
registry
The term Electronic Job Registry means the
Electronic Job Registry of a State workforce agency (or similar successor
registry).
(7)
Employer
Except
as otherwise provided, the term employer means any person or
entity, including any farm labor contractor and any agricultural association,
that employs workers in agricultural employment.
(8)
Nonimmigrant
agricultural worker
The term nonimmigrant agricultural
worker mean a nonimmigrant described in clause (iii) or (iv) of section
101(a)(15)(W).
(9)
Program
The
term Program means the Nonimmigrant Agricultural Worker Program
established under subsection (b).
(10)
Secretary
Except
as otherwise specifically provided, the term Secretary means the
Secretary of Agriculture.
(11)
United States
worker
The term United States worker means an
individual who—
(A) is a national of the
United States; or
(B) is an alien who—
(i) is lawfully admitted for
permanent residence;
(ii) is admitted as a refugee
under section 207;
(iii) is granted asylum under
section 208;
(iv) holds a blue card;
or
(v) is an immigrant otherwise
authorized by this Act or by the Secretary of Homeland Security to be employed
in the United States.
(b)
Requirements
(1)
Employer
An
employer may not employ an alien for agricultural employment under the Program
unless such employer is a designated agricultural employer and complies with
the terms of this section.
(2)
Worker
An
alien may not be employed for agricultural employment under the Program unless
such alien is a nonimmigrant agricultural worker and complies with the terms of
this section.
(c)
Numerical
limitation
(1)
First 5 years of
program
(A)
In
general
Subject to paragraph (2), the worldwide level of visas
for nonimmigrant agricultural workers for the fiscal year during which the
first visa is issued to a nonimmigrant agricultural worker and for each of the
following 4 fiscal years shall be equal to—
(i) 112,333; and
(ii) the numerical adjustment
made by the Secretary for such fiscal year in accordance with paragraph
(2).
(B)
Quarterly
allocation
The annual allocation of visas described in
subparagraph (A) shall be evenly allocated between the 4 quarters of the fiscal
year unless the Secretary determines that an alternative allocation would
better accommodate the seasonal demand for visas. Any unused visas in a quarter
shall be added to the allocation for the subsequent quarter of the same fiscal
year.
(C)
Effect of 2nd or
subsequent designated agricultural employer
A nonimmigrant
agricultural worker who has a valid visa issued under this section that counted
against the allocation described in subparagraph (A) shall not be recounted
against the allocation if the worker is petitioned for by a subsequent
designated agricultural employer.
(2)
Annual adjustments for
first 5 years of program
(A)
In
general
The Secretary, in consultation with the Secretary of
Labor, and after reviewing relevant evidence submitted by agricultural
producers and organizations representing agricultural workers, may increase or
decrease, as appropriate, the worldwide level of visas under paragraph (1) for
each of the 5 fiscal years referred to in paragraph (1) after considering
appropriate factors, including—
(i) a demonstrated shortage
of agricultural workers;
(ii) the level of
unemployment and underemployment of agricultural workers during the preceding
fiscal year;
(iii) the number of
applications for blue card status;
(iv) the number of blue card
visa applications approved;
(v) the number of
nonimmigrant agricultural workers sought by employers during the preceding
fiscal year;
(vi) the estimated number of
United States workers, including blue card workers, who worked in agriculture
during the preceding fiscal year;
(vii) the number of
nonimmigrant agricultural workers issued a visa in the most recent fiscal year
who remain in the United States in compliance with the terms of such
visa;
(viii) the number of United
States workers who accepted jobs offered by employers using the Electronic Job
Registry during the preceding fiscal year;
(ix) any growth or
contraction of the United States agricultural industry that has increased or
decreased the demand for agricultural workers; and
(x) any changes in the real
wages paid to agricultural workers in the United States as an indication of a
shortage or surplus of agricultural labor.
(B)
Notification;
implementation
The Secretary shall notify the Secretary of
Homeland Security of any change to the worldwide level of visas for
nonimmigrant agricultural workers. The Secretary of Homeland Security shall
implement such changes.
(C)
Emergency
procedures
The Secretary shall establish, by regulation,
procedures for immediately adjusting an annual allocation under paragraph (1)
for labor shortages, as determined by the Secretary. The Secretary shall make a
decision on a petition for an adjustment of status not later than 30 days after
receiving such petition.
(3)
Sixth and subsequent
years of program
The Secretary, in consultation with the
Secretary of Labor, shall establish the worldwide level of visas for
nonimmigrant agricultural workers for each fiscal year following the fiscal
years referred to in paragraph (1) after considering appropriate factors,
including—
(A) a demonstrated shortage
of agricultural workers;
(B) the level of unemployment
and underemployment of agricultural workers during the preceding fiscal
year;
(C) the number of
applications for blue card status;
(D) the number of blue card
visa applications approved;
(E) the number of
nonimmigrant agricultural workers sought by employers during the preceding
fiscal year;
(F) the estimated number of
United States workers, including blue card workers, who worked in agriculture
during the preceding fiscal year;
(G) the number of
nonimmigrant agricultural workers issued a visa in the most recent fiscal year
who remain in the United States in compliance with the terms of such
visa;
(H) the number of United
States workers who accepted jobs offered by employers using the Electronic Job
Registry during the preceding fiscal year;
(I) any growth or contraction
of the United States agricultural industry that has increased or decreased the
demand for agricultural workers; and
(J) any changes in the real
wages paid to agricultural workers in the United States as an indication of a
shortage or surplus of agricultural labor.
(4)
Emergency
procedures
The Secretary shall establish, by regulation,
procedures for immediately adjusting an annual allocation under paragraph (3)
for labor shortages, as determined by the Secretary. The Secretary shall make a
decision on a petition for an adjustment of status not later than 30 days after
receiving such petition
(d)
Requirements for
nonimmigrant agricultural workers
(1)
Eligibility for
nonimmigrant agricultural worker status
(A)
In
general
An alien is not eligible to be admitted to the United
States as a nonimmigrant agricultural worker if the alien—
(i) violated a material term
or condition of a previous admission as a nonimmigrant agricultural worker
during the most recent 3-year period (other than a contract agricultural worker
who voluntarily abandons his or her employment before the end of the contract
period or whose employment is terminated by the employer for cause);
(ii) has not obtained
successful clearance of any security and criminal background checks required by
the Secretary of Homeland Security or any other examination required under this
Act; or
(iii)
(I) departed from the
United States while subject to an order of exclusion, deportation, or removal,
or pursuant to an order of voluntary departure; and
(II)
(aa) is outside of the
United States; or
(bb) has reentered the United
States illegally after December 31, 2012, without receiving consent to the
alien's reapplication for admission under section 212(a)(9).
(B)
Waiver
The
Secretary of Homeland Security may waive the application of subparagraph
(A)(iii) on behalf of an alien if the alien—
(i) is the spouse or child of
a United States citizen or lawful permanent resident;
(ii) is the parent of a child
who is a United States citizen or lawful permanent resident;
(iii) meets the requirements
set forth in clause (ii) or (iii) of section 245D(b)(1)(A); or
(iv)
(I) meets the
requirements set forth in section 245D(b)(1)(A)(ii);
(II) is 16 years or older on
the date on which the alien applies for nonimmigrant agricultural status;
and
(III) was physically present
in the United States for an aggregate period of not less than 3 years during
the 6-year period immediately preceding the date of the enactment of this
section.
(2)
Term of stay for
nonimmigrant agricultural workers
(A)
In general
(i)
Initial
admission
A nonimmigrant agricultural worker may be admitted into
the United States in such status for an initial period of 3 years.
(ii)
Renewal
A
nonimmigrant agricultural worker may renew such worker's period of admission in
the United States for 1 additional 3-year period.
(B)
Break in
presence
A nonimmigrant agricultural worker who has been admitted
to the United States for 2 consecutive periods under subparagraph (A) is
ineligible to renew the alien's nonimmigrant agricultural worker status until
such alien—
(i) returns to a residence
outside the United States for a period of not less than 3 months; and
(ii) seeks to reenter the
United States under the terms of the Program as a nonimmigrant agricultural
worker.
(3)
Loss of status
(A)
In
general
An alien admitted as a nonimmigrant agricultural worker
shall be ineligible for such status and shall be required to depart the United
States if such alien—
(i) after the completion of
his or her contract with a designated agricultural employer, is not employed in
agricultural employment by a designated agricultural employer; or
(ii) is an at-will
agricultural worker and is not continuously employed by a designated
agricultural employer in agricultural employment as an at-will agricultural
worker.
(B)
Exception
Subject
to subparagraph (C), a nonimmigrant agricultural worker has not violated
subparagraph (A) if the nonimmigrant agricultural worker is not employed in
agricultural employment for a period not to exceed 60 days.
(C)
Waiver
Notwithstanding
subparagraph (B), the Secretary of Homeland Security may waive the application
of clause (i) or (ii) of subparagraph (A) for a nonimmigrant agricultural
worker who was not employed in agricultural employment for a period of more
than 60 days if such period of unemployment was due to—
(i) the injury of such
worker; or
(ii) a natural disaster
declared by the Secretary.
(D)
Tolling of employment
requirement
A nonimmigrant agricultural worker may leave the
United States for up to 60 days in any fiscal year while in such status. During
the period in which the worker is outside of the United States, the 60-day
limit specified in subparagraph (B) shall be tolled.
(4)
Portability of
status
(A)
Contract agricultural
workers
(i)
In
general
Except as provided in clause (ii), an alien who entered
the United States as a contract agricultural worker may—
(I) seek employment as a
nonimmigrant agricultural worker with a designated agricultural employer other
than the designated agricultural employer with whom the employee had a contract
described in section 101(a)(15)(W)(iii)(I); and
(II) accept employment with
such new employer after the date the contract agricultural worker completes
such contract.
(ii)
Voluntary abandonment;
termination for cause
A contract agricultural worker who
voluntarily abandons his or her employment before the end of the contract
period or whose employment is terminated for cause by the employer—
(I) may not accept subsequent
employment with another designated agricultural employer without first
departing the United States and reentering pursuant to a new offer of
employment; and
(II) is not entitled to the
75 percent payment guarantee described in subsection (e)(4)(B).
(iii)
Termination by mutual
agreement
The termination of an employment contract by mutual
agreement of the designated agricultural employer and the contract agricultural
worker shall not be considered voluntary abandonment for purposes of clause
(ii).
(B)
At-will agricultural
workers
An alien who entered the United States as an at-will
agricultural worker may seek employment as an at-will agricultural worker with
any other designated agricultural employer referred to in section
101(a)(15)(W)(iv)(I).
(5)
Prohibition on
geographic limitation
A nonimmigrant visa issued to a
nonimmigrant agricultural worker—
(A) shall not limit the
geographical area within which such worker may be employed;
(B) shall not limit the type
of agricultural employment such worker may perform; and
(C) shall restrict such
worker to employment with designated agricultural employers.
(6)
Treatment of spouses
and children
A spouse or child of a nonimmigrant agricultural
worker—
(A) shall not be entitled to
a visa or any immigration status by virtue of the relationship of such spouse
or child to such worker; and
(B) may be provided status as
a nonimmigrant agricultural worker if the spouse or child is independently
qualified for such status.
(e)
Employer
requirements
(1)
Designated agricultural
employer status
(A)
Registration
requirement
Each employer seeking to employ nonimmigrant
agricultural workers shall register for designated agricultural employer status
by submitting to the Secretary, through the Farm Service Agency in the
geographic area of the employer or electronically to the Secretary, a
registration that includes—
(i) the employer's employer
identification number; and
(ii) a registration fee, in
an amount determined by the Secretary, which shall be used for the costs of
administering the program.
(B)
Criteria
The
Secretary shall grant designated agricultural employer status to an employer
who submits a registration for such status that includes—
(i) documentation that the
employer is engaged in agriculture;
(ii) the estimated number of
nonimmigrant agricultural workers the employer will need each year;
(iii) the anticipated periods
during which the employer will need such workers; and
(iv) documentation
establishing need for a specified agricultural occupation or
occupations.
(C)
Designation
(i)
Registration
number
The Secretary shall assign each employer that meets the
criteria established pursuant to subparagraph (B) with a designated
agricultural employer registration number.
(ii)
Term of
designation
Each employer granted designated agricultural
employer status under this paragraph shall retain such status for a term of 3
years. At the end of such 3-year term, the employer may renew the registration
for another 3-year term if the employer meets the requirements set forth in
subparagraphs (A) and (B).
(D)
Assistance
In
carrying out the functions described in this subsection, the Secretary may work
through the Farm Service Agency, or any other agency in the Department of
Agriculture—
(i) to assist agricultural
employers with the registration process under this paragraph by providing such
employers with—
(I) technical assistance and
expertise;
(II) internet access for
submitting such applications; and
(III) a nonelectronic means
for submitting such registrations; and
(ii) to provide resources
about the Program, including best practices and compliance related assistance
and resources or training to assist in retention of such workers to
agricultural employers.
(E)
Deposit of registration
fee
Fees collected pursuant to subparagraph (A)(ii)—
(i) shall be deposited into
the Immigration Examinations Fee Account pursuant to section 286(m); and
(ii) shall remain available
until expended pursuant to section 286(n).
(2)
Nonimmigrant
agricultural worker petition process
(A)
In
general
Not later than 45 days before the date on which
nonimmigrant agricultural workers are needed, a designated agricultural
employer seeking to employ such workers shall submit a petition to the
Secretary of Homeland Security that includes the employer’s designated
agricultural employer registration number.
(B)
Attestation
An
petition submitted under subparagraph (A) shall include an attestation of the
following:
(i) The number of named or
unnamed nonimmigrant agricultural workers the designated agricultural employer
is seeking to employ during the applicable period of employment.
(ii) The total number of
contract agricultural workers and of at-will agricultural workers the employer
will require for each occupational category.
(iii) The anticipated period,
including expected beginning and ending dates, during which such employees will
be needed.
(iv) Evidence of contracts or
written disclosures of employment terms and conditions in accordance with the
Migrant and Seasonal Agricultural Worker Protection Act (29 U.S.C. 1801 et
seq.), which have been disclosed or provided to the nonimmigrant agricultural
workers, or a sample of such contract or disclosure for unnamed workers.
(v) The information submitted
to the State workforce agency pursuant to paragraph (3)(A)(i).
(vi) The record of United
States workers described in paragraph (3)(A)(iii) on the date of the
request.
(vii) Evidence of offers of
employment made to United States workers as required under paragraph
(3)(B).
(viii) The employer will
comply with the additional program requirements for designated agricultural
employers described in paragraph (4).
(C)
Employment
authorization when changing employers
Nonimmigrant agricultural
workers in the United States who are identified in a petition submitted
pursuant to subparagraph (A) and are in lawful status may commence employment
with their designated agricultural employer after such employer has submitted
such petition to the Secretary of Homeland Security.
(D)
Review
The
Secretary of Homeland Security shall review each petition submitted by
designated agricultural employers under this paragraph for completeness or
obvious inaccuracies. Unless the Secretary of Homeland Security determines that
the petition is incomplete or obviously inaccurate, the Secretary shall accept
the petition. The Secretary shall establish a procedure for the processing of
petitions filed under this subsection. Not later than 7 working days after the
date of the filing, the Secretary, by electronic or other means assuring
expedited delivery, shall submit a copy of notice of approval or denial of the
petition to the petitioner and, in the case of approved petitions, to the
appropriate immigration officer at the port of entry or United States
consulate, as appropriate, if the petitioner has indicated that the alien
beneficiary or beneficiaries will apply for a visa or admission to the United
States.
(3)
Employment of united states
workers
(A)
Recruitment
(i)
Filing a job opportunity with local office
of state workforce agency
Not
later than 60 days before the date on which the employer desires to employ a
nonimmigrant agricultural worker, the employer shall submit the job opportunity
for such worker to the local office of the State workforce agency where the job
site is located and authorize the posting of the job opportunity on the
appropriate Department of Labor Electronic Job Registry for a period of 45
days.
(ii)
Construction
Nothing
in clause (i) may be construed to cause a posting referred to in clause (i) to
be treated as an interstate job order under section 653.500 of title 20, Code
of Federal Regulations (or similar successor regulation).
(iii)
Record of united
states workers
An employer shall keep a record of all eligible,
able, willing, and qualified United States workers who apply for agricultural
employment with the employer for the agricultural employment for which the
nonimmigrant agricultural nonimmigrant workers are sought.
(B)
Requirement to
hire
(i)
United states
workers
An employer may not seek a nonimmigrant agricultural
worker for agricultural employment unless the employer offers such employment
to any equally or better qualified United States worker who will be available
at the time and place of need and who applies for such employment during the
45-day recruitment period referred to in subparagraph (A)(i).
(ii)
Exception
Notwithstanding
clause (i), the employer may offer the job to a nonimmigrant agricultural
worker instead of an alien in blue card status if—
(I) such worker was
previously employed by the employer as an H–2A worker;
(II) such worker worked for
the employer for 3 years during the most recent 4-year period; and
(III) the employer pays such
worker the adverse effect wage rate calculated under subsection
(f)(5)(B).
(4)
Additional program
requirements for designated agricultural employers
Each
designated agricultural employer shall comply with the following
requirements:
(A)
No displacement of
united states workers
(i)
In
general
The employer shall not displace a United States worker
employed by the employer, other than for good cause, during the period of
employment of the nonimmigrant agricultural worker and for a period of 30 days
preceding such period in the occupation and at the location of employment for
which the employer seeks to employ nonimmigrant agricultural workers.
(ii)
Labor
dispute
The employer shall not employ a nonimmigrant agricultural
worker for a specific job for which the employer is requesting a nonimmigrant
agricultural worker because the former occupant of the job is on strike or
being locked out in the course of a labor dispute.
(B)
Guarantee of employment
for contract agricultural workers
(i)
Offer to contract
worker
The employer shall guarantee to offer contract
agricultural workers employment for the hourly equivalent of at least 75
percent of the work days of the total period of employment, beginning with the
first work day after the arrival of the worker at the place of employment and
ending on the expiration date specified in the job offer. In this clause, the
term hourly equivalent means the number of hours in the work days
as stated in the job offer and shall exclude the worker’s Sabbath and Federal
holidays. If the employer affords the contract agricultural worker less
employment than the number of hours required under this subparagraph, the
employer shall pay such worker the amount the worker would have earned had the
worker worked the guaranteed number of hours.
(ii)
Failure to
work
Any hours which the worker fails to work, up to a maximum of
the number of hours specified in the job offer for a work day, when the worker
has been offered an opportunity to do so, and all hours of work actually
performed (including voluntary work in excess of the number of hours specified
in the job offer in a work day, on the worker’s Sabbath, or on Federal
holidays) may be counted by the employer in calculating whether the period of
guaranteed employment has been met.
(iii)
Contract
impossibility
If, before the expiration of the period of
employment specified in the job offer, the services of a contract agricultural
worker are no longer required for reasons beyond the control of the employer
due to any form of natural disaster, including a flood, hurricane, freeze,
earthquake, fire, drought, plant or animal disease or pest infestation, or
regulatory drought, before the guarantee in clause (i) is fulfilled, the
employer—
(I) may terminate the
worker’s employment;
(II) shall fulfill the
employment guarantee described in clause (i) for the work days that have
elapsed from the first work day after the arrival of the worker to the
termination of employment;
(III) shall make efforts to
transfer the worker to other comparable employment acceptable to the worker;
and
(IV) if such a transfer does
not take place, shall provide the return transportation required under
subparagraph (J).
(C)
Workers’
compensation
(i)
Requirement to
provide
If a job referred to in paragraph (3) is not covered by
the State workers’ compensation law, the employer shall provide, at no cost to
the nonimmigrant agricultural worker, insurance covering injury and disease
arising out of, and in the course of, such job.
(ii)
Benefits
The
insurance required to be provided under clause (i) shall provide benefits at
least equal to those provided under and pursuant to the State workers’
compensation law for comparable employment.
(D)
Prohibition for use for
nonagricultural services
The employer may not employ a
nonimmigrant agricultural worker for employment other than agricultural
employment.
(E)
Wages
The
employer shall pay not less than the wage required under subsection (f).
(F)
Deduction of
wages
The employer shall make only deductions from a nonimmigrant
agricultural worker’s wages that are authorized by law and are reasonable and
customary in the occupation and area of employment of such worker.
(G)
Requirement to provide
housing or a housing allowance
(i)
In
general
Except as provided in clauses (iv) and (v), a designated
agricultural employer shall offer to provide a nonimmigrant agricultural worker
with housing at no cost in accordance with clause (ii) or (iii).
(ii)
Housing
An
employer may provide housing to a nonimmigrant agricultural worker that
meets—
(I) applicable Federal
standards for temporary labor camps; or
(II) applicable local
standards (or, in the absence of applicable local standards, State standards)
for rental or public accommodation housing or other substantially similar class
of habitation.
(iii)
Housing
payments
(I)
Public
housing
If the employer arranges public housing for nonimmigrant
agricultural workers through a State, county, or local government program and
such public housing units normally require payments from tenants, such payments
shall be made by the employer directly to the landlord.
(II)
Deposits
Deposits
for bedding or other similar incidentals related to housing shall not be
collected from workers by employers who provide housing for such
workers.
(III)
Damages
The
employer may require any worker who is responsible for damage to housing that
did not result from normal wear and tear related to habitation to reimburse the
employer for the reasonable cost of repairing such damage.
(iv)
Housing allowance
alternative
(I)
In
general
The employer may provide a reasonable housing allowance
instead of providing housing under clause (i). Upon the request of a worker
seeking assistance in locating housing, the employer shall make a good faith
effort to assist the worker in identifying and locating housing in the area of
intended employment. An employer who offers a housing allowance to a worker or
assists a worker in locating housing, which the worker occupies, shall not be
deemed a housing provider under section 203 of the Migrant and Seasonal
Agricultural Worker Protection Act (29 U.S.C. 1823) solely by virtue of
providing such housing allowance. No housing allowance may be used for housing
that is owned or controlled by the employer.
(II)
Certification
requirement
Contract agricultural workers may only be provided a
housing allowance if the Governor of the State in which the place of employment
is located certifies to the Secretary that there is adequate housing available
in the area of intended employment for migrant farm workers and contract
agricultural workers who are seeking temporary housing while employed in
agricultural work. Such certification shall expire after 3 years unless renewed
by the Governor of the State.
(III)
Amount of
allowance
(aa)
Nonmetropolitan
counties
If the place of employment of the workers provided an
allowance under this clause is a nonmetropolitan county, the amount of the
housing allowance under this clause shall be equal to the average fair market
rental for existing housing in nonmetropolitan counties in the State in which
the place of employment is located, as established by the Secretary of Housing
and Urban Development pursuant to section 8(c) of the United States Housing Act
of 1937 (42 U.S.C. 1437f(c)), based on a 2-bedroom dwelling unit and an
assumption of 2 persons per bedroom.
(bb)
Metropolitan
counties
If the place of employment of the workers provided an
allowance under this clause is a metropolitan county, the amount of the housing
allowance under this clause shall be equal to the average fair market rental
for existing housing in metropolitan counties in the State in which the place
of employment is located, as established by the Secretary of Housing and Urban
Development pursuant to section 8(c) of the United States Housing Act of 1937
(42 U.S.C. 1437f(c)), based on a 2-bedroom dwelling unit and an assumption of 2
persons per bedroom.
(v)
Exception for commuting
workers
Nothing in this subparagraph may be construed to require
an employer to provide housing or a housing allowance to workers who reside
outside of the United States if their place of residence is within normal
commuting distance and the job site is within 50 miles of an international land
border of the United States.
(H)
Worksite transportation
for contract workers
During the period a designated agricultural
employer employs a contract agricultural worker, such employer shall, at the
employer's option, provide or reimburse the contract agricultural worker for
the cost of daily transportation from the contract worker's living quarters to
the contract agricultural worker's place of employment.
(I)
Reimbursement of
transportation to the place of employment
(i)
In
general
A nonimmigrant agricultural worker shall be reimbursed by
the first employer for the cost of the worker’s transportation and subsistence
from the place from which the worker came from to the place of first
employment.
(ii)
Limitation
The
amount of reimbursement provided under clause (i) to a worker shall not exceed
the lesser of—
(I) the actual cost to the
worker of the transportation and subsistence involved; or
(II) the most economical and
reasonable common carrier transportation charges and subsistence costs for the
distance involved.
(J)
Reimbursement of
transportation from place of employment
(i)
In
general
A contract agricultural worker who completes at least 27
months under his or her contract with the same designated agricultural employer
shall be reimbursed by that employer for the cost of the worker's
transportation and subsistence from the place of employment to the place from
which the worker came from abroad to work for the employer.
(ii)
Limitation
The
amount of reimbursement required under clause (i) shall not exceed the lesser
of—
(I) the actual cost to the
worker of the transportation and subsistence involved; or
(II) the most economical and
reasonable common carrier transportation charges and subsistence costs for the
distance involved.
(f)
Wages
(1)
Wage rate
requirement
(A)
In
general
A nonimmigrant agricultural worker employed by a
designated agricultural employer shall be paid not less than the wage rate for
such employment set forth in paragraph (3).
(B)
Workers paid on a piece
rate or other incentive basis
If an employer pays by the piece
rate or other incentive method and requires 1 or more minimum productivity
standards as a condition of job retention, such standards shall be specified in
the job offer and be no more than those which have been normally required (at
the time of the employee’s first application for designated employer status) by
other employers for the activity in the geographic area of the job, unless the
Secretary approves a higher standard.
(2)
Job categories
(A)
In
general
For purposes of paragraph (1), each nonimmigrant
agricultural worker employed by such employer shall be assigned to 1 of the
following standard occupational classifications, as defined by the Bureau of
Labor Statistics:
(i) First-Line Supervisors of
Farming, Fishing, and Forestry Workers (45–1011).
(ii) Animal Breeders
(45–2021).
(iii) Graders and Sorters,
Agricultural Products (45–2041).
(iv) Agricultural equipment
operator (45–2091).
(v) Farmworkers and Laborers,
Crop, Nursery, and Greenhouse (45–2092).
(vi) Farmworkers, Farm, Ranch
and Aquacultural Animals (45–2093).
(B)
Determination of
classification
A nonimmigrant agricultural worker is employed in
a standard occupational classification described in clause (i), (ii), (iii),
(iv), (v), or (vi) of subparagraph (A) if the worker performs activities
associated with that occupational classification, as specified on the
employer's petition, for at least 75 percent of the time in a semiannual
employment period.
(3)
Determination of wage
rate
(A)
Calendar years 2014
through 2016
The wage rate under this subparagraph for calendar
years 2014 through 2016 shall be the higher of—
(i) the applicable Federal,
State, or local minimum wage; or
(ii)
(I) for the category
described in paragraph (2)(A)(iii)—
(aa) $9.37 for calendar year
2014;
(bb) $9.60 for calendar year
2015; and
(cc) $9.84 for calendar year
2016;
(II) for the category
described in paragraph (2)(A)(iv)—
(aa) $11.30 for calendar year
2014;
(bb) $11.58 for calendar year
2015; and
(cc) $11.87 for calendar year
2016;
(III) for the category
described in paragraph (2)(A)(v)—
(aa) $9.17 for calendar year
2014;
(bb) $9.40 for calendar year
2015; and
(cc) $9.64 for calendar year
2016; and
(IV) for the category
described in paragraph (2)(A)(vi)—
(aa) $10.82 for calendar year
2014;
(bb) $11.09 for calendar year
2015; and
(cc) $11.37 for calendar year
2016.
(B)
Subsequent
years
The Secretary shall increase the hourly wage rates set
forth in clauses (i) through (iv) of subparagraph (A), for each calendar year
after the calendar years described in subparagraph (A) by an amount equal
to—
(i) 1.5 percent, if the
percentage increase in the Employment Cost Index for wages and salaries during
the previous calendar year, as calculated by the Bureau of Labor Statistics, is
less than 1.5 percent;
(ii) the percentage increase
in such Employment Cost Index, if such percentage increase is between 1.5
percent and 2.5 percent, inclusive; or
(iii) 2.5 percent, if such
percentage increase is greater than 2.5 percent.
(C)
Agricultural
supervisors and animal breeders
Not later than September 1, 2015,
and annually thereafter, the Secretary, in consultation with the Secretary of
Labor, shall establish the required wage for the next calendar year for each of
the job categories set out in clauses (i) and (ii) of paragraph (2)(A).
(D)
Survey by bureau of
labor statistics
Not later than April 15, 2015, the Bureau of
Labor Statistics shall consult with the Secretary to expand the Occupational
Employment Statistics Survey to survey agricultural producers and contractors
and produce improved wage data by State and the job categories set out in
clauses (i) through (vi) of subparagraph (A).
(4)
Consideration
In
determining the wage rate under paragraph (3)(C), the Secretary may consider
appropriate factors, including—
(A) whether the employment of
additional alien workers at the required wage will adversely affect the wages
and working conditions of workers in the United States similarly
employed;
(B) whether the employment in
the United States of an alien admitted under section 101(a)(15)(H)(ii)(a) or
unauthorized aliens in the agricultural workforce has depressed wages of United
States workers engaged in agricultural employment below the levels that would
otherwise have prevailed if such aliens had not been employed in the United
States;
(C) whether wages of
agricultural workers are sufficient to support such workers and their families
at a level above the poverty thresholds determined by the Bureau of
Census;
(D) the wages paid workers in
the United States who are not employed in agricultural employment but who are
employed in comparable employment;
(E) the continued exclusion
of employers of nonimmigrant alien workers in agriculture from the payment of
taxes under chapter 21 of the Internal Revenue Code of 1986 (26 U.S.C. 3101 et
seq.) and chapter 23 of such Code (26 U.S.C. 3301 et seq.);
(F) the impact of farm labor
costs in the United States on the movement of agricultural production to
foreign countries;
(G) a comparison of the
expenses and cost structure of foreign agricultural producers to the expenses
incurred by agricultural producers based in the United States; and
(H) the accuracy and
reliability of the Occupational Employment Statistics Survey.
(5)
Adverse effect wage
rate
(A)
Prohibition of
modification
The adverse effect wage rates in effect on April 15,
2013, for nonimmigrants admitted under 101(a)(15)(H)(ii)(a)—
(i) shall remain in effect
until the date described in section 2233 of the
Agricultural Worker Program Act of
2013; and
(ii) may not be modified
except as provided in subparagraph (B).
(B)
Exception
Until
the Secretary establishes the wage rates required under paragraph (3)(C), the
adverse effect wage rates in effect on the date of the enactment of the
Agricultural Worker Program Act of
2013 shall be—
(i) deemed to be such wage
rates; and
(ii) after September 1, 2015,
adjusted annually in accordance with paragraph (3)(B).
(C)
Nonpayment of fica and
futa taxes
An employer employing nonimmigrant agricultural
workers shall not be required to pay and withhold from such workers—
(i) the tax required under
section 3101 of the Internal Revenue Code of 1986; or
(ii) the tax required under
section 3301 of the Internal Revenue Code of 1986.
(6)
Preferential treatment
of aliens prohibited
(A)
In
general
Except as provided in subparagraph (B), employers seeking
to hire United States workers shall offer the United States workers not less
than the same benefits, wages, and working conditions that the employer is
offering, intends to offer, or will provide to nonimmigrant agricultural
workers. No job offer may impose on United States workers any restrictions or
obligations that will not be imposed on the employer’s nonimmigrant
agricultural workers.
(B)
Exception
Notwithstanding
subparagraph (A), a designated agricultural employer is not required to provide
housing or a housing allowance to United States workers.
(g)
Worker protections and
dispute resolution
(1)
Equality of
treatment
Nonimmigrant agricultural workers shall not be denied
any right or remedy under any Federal, State, or local labor or employment law
applicable to United States workers engaged in agricultural employment.
(2)
Applicability of the
migrant and seasonal agricultural worker protection act
(A)
Migrant and seasonal
agricultural worker protection act
Nonimmigrant agricultural
workers shall be considered migrant agricultural workers for purposes of the
Migrant and Seasonal Agricultural Worker Protection Act (29 U.S.C. 1801 et
seq.).
(B)
Eligibility of
nonimmigrant agricultural workers for certain legal assistance
A
nonimmigrant agricultural worker shall be considered to be lawfully admitted
for permanent residence for purposes of establishing eligibility for legal
services under the Legal Services Corporation Act (42 U.S.C. 2996 et seq.) on
matters relating to wages, housing, transportation, and other employment
rights.
(C)
Mediation
(i)
Free mediation
services
The Federal Mediation and Conciliation Service shall be
available to assist in resolving disputes arising under this section between
nonimmigrant agricultural workers and designated agricultural employers without
charge to the parties.
(ii)
Complaint
If
a nonimmigrant agricultural worker files a complaint under section 504 of the
Migrant and Seasonal Agricultural Worker Protection Act (29 U.S.C. 1854), not
later than 60 days after the filing of proof of service of the complaint, a
party to the action may file a request with the Federal Mediation and
Conciliation Service to assist the parties in reaching a satisfactory
resolution of all issues involving all parties to the dispute.
(iii)
Notice
Upon
filing a request under clause (ii) and giving of notice to the parties, the
parties shall attempt mediation within the period specified in clause
(iv).
(iv)
90-day
limit
The Federal Mediation and Conciliation Service may conduct
mediation or other nonbinding dispute resolution activities for a period not to
exceed 90 days beginning on the date on which the Federal Mediation and
Conciliation Service receives a request for assistance under clause (ii) unless
the parties agree to an extension of such period.
(v)
Authorization of
appropriations
(I)
In
general
Subject to clause (II), there are authorized to be
appropriated to the Federal Mediation and Conciliation Service $500,000 for
each fiscal year to carry out this subparagraph.
(II)
Mediation
Notwithstanding
any other provision of law, the Director of the Federal Mediation and
Conciliation Service is authorized—
(aa) to conduct the mediation
or other dispute resolution activities from any other account containing
amounts available to the Director; and
(bb) to reimburse such
account with amounts appropriated pursuant to subclause (I).
(vi)
Private
mediation
If all parties agree, a private mediator may be
employed as an alternative to the Federal Mediation and Conciliation
Service.
(3)
Other
rights
Nonimmigrant agricultural workers shall be entitled to the
rights granted to other classes of aliens under sections 242(h) and
245E.
(4)
Waiver of
rights
Agreements by nonimmigrant agricultural workers to waive
or modify any rights or protections under this section shall be considered void
or contrary to public policy except as provided in a collective bargaining
agreement with a bona fide labor organization.
(h)
Enforcement
authority
(1)
Investigation of
complaints
(A)
Aggrieved person or
third-party complaints
(i)
Process
The
Secretary of Labor shall establish a process for the receipt, investigation,
and disposition of complaints respecting a designated agricultural employer's
failure to meet a condition specified in subsection (e), or an employer's
misrepresentation of material facts in a petition under subsection
(e)(2).
(ii)
Filing
Any
aggrieved person or organization, including bargaining representatives, may
file a complaint referred to in clause (i) not later than 1 year after the date
of the failure or misrepresentation, respectively.
(iii)
Investigation or
hearing
The Secretary of Labor shall conduct an investigation if
there is reasonable cause to believe that such failure or misrepresentation has
occurred.
(B)
Determination on
complaint
Under such process, the Secretary of Labor shall
provide, not later than 30 days after the date on which such a complaint is
filed, for a determination as to whether or not a reasonable basis exists to
make a finding described in subparagraph (C), (D), (E), or (F). If the
Secretary of Labor determines that such a reasonable basis exists, the
Secretary of Labor shall provide for notice of such determination to the
interested parties and an opportunity for a hearing on the complaint, in
accordance with section 556 of title 5, United States Code, within 60 days
after the date of the determination. If such a hearing is requested, the
Secretary of Labor shall make a finding concerning the matter not later than 60
days after the date of the hearing. In the case of similar complaints
respecting the same applicant, the Secretary of Labor may consolidate the
hearings under this subparagraph on such complaints.
(C)
Failure to meet
conditions
If the Secretary of Labor finds, after notice and
opportunity for a hearing, a failure to meet a condition under subsection (e)
or (f), or a material misrepresentation of fact in a petition under subsection
(e)(2)—
(i) the Secretary of Labor
shall notify the Secretary of such finding and may, in addition, impose such
other administrative remedies (including civil money penalties in an amount not
to exceed $1,000 per violation) as the Secretary of Labor determines to be
appropriate; and
(ii) the Secretary may
disqualify the designated agricultural employer from the employment of
nonimmigrant agricultural workers for a period of 1 year.
(D)
Willful failures and
willful misrepresentations
If the Secretary of Labor finds, after
notice and opportunity for hearing, a willful failure to meet a condition under
subsection (e) or (f) or a willful misrepresentation of a material fact in an
registration or petition under paragraph (1) or (2) of subsection (e)—
(i) the Secretary of Labor
shall notify the Secretary of such finding and may, in addition, impose such
other administrative remedies (including civil money penalties in an amount not
to exceed $5,000 per violation) as the Secretary of Labor determines to be
appropriate;
(ii) the Secretary of Labor
may seek appropriate legal or equitable relief; and
(iii) the Secretary may
disqualify the designated agricultural employer from the employment of
nonimmigrant agricultural workers for a period of 2 years.
(E)
Displacement of united
states workers
If the Secretary of Labor finds, after notice and
opportunity for hearing, a willful failure to meet a condition under subsection
(e) or (f) or a willful misrepresentation of a material fact in an registration
or petition under paragraph (1) or (2) of subsection (e), in the course of
which failure or misrepresentation the employer displaced a United States
worker employed by the employer during the period of employment on the
employer's petition under subsection (e)(2) or during the period of 30 days
preceding such period of employment—
(i) the Secretary of Labor
shall notify the Secretary of such finding and may, in addition, impose such
other administrative remedies (including civil money penalties in an amount not
to exceed $15,000 per violation) as the Secretary of Labor determines to be
appropriate; and
(ii) the Secretary may
disqualify the employer from the employment of nonimmigrant agricultural
workers for a period of 3 years.
(F)
Failures to pay wages
or required benefits
If the Secretary of Labor finds, after
notice and opportunity for a hearing, that the employer has failed to pay the
wages, or provide the housing allowance, transportation, subsistence
reimbursement, or guarantee of employment required under subsections (e)(4) and
(f), the Secretary of Labor shall assess payment of back wages, or other
required benefits, due any United States worker or nonimmigrant agricultural
worker employed by the employer in the specific employment in question. The
back wages or other required benefits required under subsections (e) and (f)
shall be equal to the difference between the amount that should have been paid
and the amount that actually was paid to such worker.
(G)
Disposition of
penalties
Civil penalties collected under this paragraph shall be
deposited into the Comprehensive Immigration Reform Trust Fund established
under section 6(a)(1) of the Border Security,
Economic Opportunity, and Immigration Modernization Act.
(2)
Limitations on civil
money penalties
The Secretary of Labor shall not impose total
civil money penalties with respect to a petition under subsection (e)(2) in
excess of $90,000.
(3)
Election
A
nonimmigrant agricultural worker who has filed an administrative complaint with
the Secretary of Labor may not maintain a civil action unless a complaint based
on the same violation filed with the Secretary of Labor under paragraph (1) is
withdrawn before the filing of such action, in which case the rights and
remedies available under this subsection shall be exclusive.
(4)
Preclusive
effect
Any settlement by a nonimmigrant agricultural worker, a
designated agricultural employer, or any person reached through the mediation
process required under subsection (g)(2)(C) shall preclude any right of action
arising out of the same facts between the parties in any Federal or State court
or administrative proceeding, unless specifically provided otherwise in the
settlement agreement.
(5)
Settlements
Any
settlement by the Secretary of Labor with a designated agricultural worker on
behalf of a nonimmigrant agricultural worker of a complaint filed with the
Secretary of Labor under this section or any finding by the Secretary of Labor
under this subsection shall preclude any right of action arising out of the
same facts between the parties under any Federal or State court or
administrative proceeding, unless specifically provided otherwise in the
settlement agreement.
(6)
Statutory
construction
Nothing in this subsection may be construed as
limiting the authority of the Secretary of Labor to conduct any compliance
investigation under any other labor law, including any law affecting migrant
and seasonal agricultural workers, or, in the absence of a complaint under this
section.
(7)
Discrimination
prohibited
It is a violation of this subsection for any person
who has filed a petition under subsection (e) or (f) to intimidate, threaten,
restrain, coerce, blacklist, discharge, or in any other manner discriminate
against an employee, including a former employee or an applicant for
employment, because the employee—
(A) has disclosed information
to the employer, or to any other person, that the employee reasonably believes
evidences a violation of subsection (e) or (f), or any rule or regulation
relating to subsection (e) or (f); or
(B) cooperates or seeks to
cooperate in an investigation or other proceeding concerning the employer’s
compliance with the requirements under subsection (e) or (f) or any rule or
regulation pertaining to subsection (e) or (f).
(8)
Role of
associations
(A)
Violation by a member
of an association
(i)
In
general
If an association acting as the agent of an employer
files an application on behalf of such employer, the employer is fully
responsible for such application, and for complying with the terms and
conditions of subsection (e). If such an employer is determined to have
violated any requirement described in this subsection, the penalty for such
violation shall apply only to that employer except as provided in clause
(ii).
(ii)
Collective
responsibility
If the Secretary of Labor determines that the
association or other members of the association participated in, had knowledge
of, or reason to know of a violation described in clause (i), the penalty shall
also be invoked against the association and complicit association
members.
(B)
Violations by an
association acting as an employer
(i)
In
general
If an association filing an application as a sole or
joint employer is determined to have violated any requirement described in this
section, the penalty for such violation shall apply only to the association
except as provided in clause (ii).
(ii)
Member
responsibility
If the Secretary of Labor determines that 1 or
more association members participated in, had knowledge of, or reason to know
of the violation described in clause (i), the penalty shall be invoked against
all complicit association members.
(i)
Special nonimmigrant
visa processing and wage determination procedures for certain agricultural
occupations
(1)
Finding
Certain
industries possess unique occupational characteristics that necessitate the
Secretary of Agriculture to adopt special procedures relating to housing, pay,
and visa program application requirements for those industries.
(2)
Special procedures
industry defined
In this subsection, the term Special
Procedures Industry means—
(A) sheepherding and goat
herding;
(B) itinerant commercial
beekeeping and pollination;
(C) open range production of
livestock;
(D) itinerant animal
shearing; and
(E) custom combining
industries.
(3)
Work
locations
The Secretary shall allow designated agricultural
employers in a Special Procedures Industry that do not operate in a single
fixed-site location to provide, as part of its registration or petition under
the Program, a list of anticipated work locations, which—
(A) may include an
anticipated itinerary; and
(B) may be subsequently
amended by the employer, after notice to the Secretary.
(4)
Wage
rates
The Secretary may establish monthly, weekly, or biweekly
wage rates for occupations in a Special Procedures Industry for a State or
other geographic area. For an employer in those Special Procedures Industries
that typically pay a monthly wage, the Secretary shall require that workers
will be paid not less frequently than monthly and at a rate no less than the
legally required monthly cash wage for such employer as of the date of the
enactment of the Border Security, Economic
Opportunity, and Immigration Modernization Act and in an amount
as re-determined annually by the Secretary of Agriculture through
rulemaking.
(5)
Housing
The
Secretary shall allow for the provision of housing or a housing allowance by
employers in Special Procedures Industries and allow housing suitable for
workers employed in remote locations.
(6)
Allergy
limitation
An employer engaged in the commercial beekeeping or
pollination services industry may require that an applicant be free from bee
pollen, venom, or other bee-related allergies.
(7)
Application
An
individual employer in a Special Procedures Industry may file a program
petition on its own behalf or in conjunction with an association of employers.
The employer’s petition may be part of several related petitions submitted
simultaneously that constitute a master petition.
(8)
Rulemaking
The
Secretary or, as appropriate, the Secretary of Homeland Security or the
Secretary of Labor, after consultation with employers and employee
representatives, shall publish for notice and comment proposed regulations
relating to housing, pay, and application procedures for Special Procedures
Industries.
(j)
Miscellaneous
provisions
(1)
Disqualification of
nonimmigrant agricultural workers from financial assistance
An
alien admitted as a nonimmigrant agricultural worker is not eligible for any
program of financial assistance under Federal law (whether through grant, loan,
guarantee, or otherwise) on the basis of financial need, as such programs are
identified by the Secretary in consultation with other agencies of the United
States.
(2)
Monitoring
requirement
(A)
In
general
The Secretary shall monitor the movement of nonimmigrant
agricultural workers through—
(i) the Employment
Verification System described in section 274A(b); and
(ii) the electronic
monitoring system established pursuant to subparagraph (B).
(B)
Electronic monitoring
system
Not later than 2 years after the effective date of this
section, the Secretary of Homeland Security, through the Director of U.S.
Citizenship and Immigration Services, shall establish an electronic monitoring
system, which shall—
(i) be modeled on the Student
and Exchange Visitor Information System (SEVIS) and the SEVIS II tracking
system administered by U.S. Immigration and Customs Enforcement;
(ii) monitor the presence and
employment of nonimmigrant agricultural workers; and
(iii) assist in ensuring the
compliance of designated agricultural employers and nonimmigrant agricultural
workers with the requirements of the
Program.
.
(b)
Rulemaking
The
Secretary of Agriculture shall issue regulations to carry out section 218A of
the Immigration and Nationality Act, as added by subsection (a), not later than
1 year after the date of the enactment of this Act.
(c)
Clerical
amendment
The table of contents is amended by inserting after the
item relating to section 218 the following:
Sec. 218A. Nonimmigrant agricultural worker
program.
.
(d)
Effective
date
The amendments made by this section shall take effect on
October 1, 2014.
2233.
Transition of H-2A
Worker Program
(a)
Sunset of
program
(1)
In
general
Except as provided in paragraph (2), an employer may not
petition to employ an alien pursuant to section 101(a)(15)(H)(ii)(a) of the
Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(H)(ii)(a)) after the date
that is 1 year after the date on which the regulations issued pursuant to
section 2241(b) become effective.
(2)
Exception
An
employer may employ an alien described in paragraph (1) for the shorter
of—
(A) 10 months; or
(B) the time specified in the
position.
(b)
Conforming
amendments
(1)
Repeal of H-2A
nonimmigrant category
Section 101(a)(15)(H)(ii) (8 U.S.C.
1101(a)(15)(H)(ii)) is amended by striking subclause (a).
(2)
Repeal of admission
requirements for H-2A worker
Section 218 (8 U.S.C. 1188) is
repealed.
(3)
Conforming
amendments
(A)
Amendment of petition
requirements
Section 214(c)(1) (8 U.S.C. 1184(c)(1)) is amended
by striking For purposes of this subsection and all that
follows.
(B)
Clerical
amendment
The table of contents is amended by striking the item
relating to section 218.
(4)
Effective
date
The amendments made by this subsection shall take effect on
the date that is 1 year after the effective date of the regulations issued
pursuant to section 2241(b).
2234.
Reports to Congress
on nonimmigrant agricultural workers
(a)
Annual report by
Secretary of Agriculture
Not later than September 30 of each
year, the Secretary of Agriculture shall submit a report to Congress that
identifies, for the previous year, the number, disaggregated by State and by
occupation, of—
(1) job opportunities
approved for employment of aliens admitted pursuant to clause (iii) or clause
(iv) of section 101(a)(15)(W) of the Immigration and Nationality Act, as added
by section 2231; and
(2) aliens actually admitted
pursuant to each such clause.
(b)
Annual report by
Secretary of Homeland Security
Not later than September 30 of
each year, the Secretary shall submit a report to Congress that identifies, for
the previous year, the number of aliens described in subsection (a)(2)
who—
(1) violated the terms of the
nonimmigrant agricultural worker program established under section 218A(b) of
the Immigration and Nationality Act, as added by section 2232; and
(2) have not departed from
the United States.
3
Other provisions
2241.
Rulemaking
(a)
Consultation
requirement
In the course of promulgating any regulation
necessary to implement this subtitle, or the amendments made by this subtitle,
the Secretary, the Secretary of Agriculture, the Secretary of Labor, and the
Secretary of State shall regularly consult with each other.
(b)
Deadline for issuance
of regulations
Except as provided in section 2232(b), all
regulations to implement this subtitle and the amendments made by this subtitle
shall be issued not later than 6 months after the date of the enactment of this
Act.
2242.
Reports to
Congress
Not later than 180
days after the date of the enactment of this Act, the Secretary and the
Secretary of Agriculture shall jointly submit a report to Congress that
describes the measures being taken and the progress made in implementing this
subtitle and the amendments made by this subtitle.
2243.
Benefits integrity
programs
(a)
In
general
Without regard to whether personal interviews are
conducted in the adjudication of benefits provided for by section 210A, 218A,
245B, 245C, 245D, 245E, or 245F of the Immigration and Nationality Act, or in
seeking a benefit under section 101(a)(15)(U) of the Immigration and
Nationality Act, section 1242 of the Refugee Crisis in Iraq Act of 2007 (8
U.S.C. 1157 note), section 602(b) of the Afghan Allies Protection Act of 2009
(8 U.S.C. 1101 note), or section 2211 of this Act, the Secretary shall uphold
and maintain the integrity of those benefits by carrying out for each of them,
within the Fraud Detection and National Security Directorate of U.S.
Citizenship and Immigration Services, programs as follows:
(1) A benefit fraud
assessment program to quantify fraud rates, detect ongoing fraud trends, and
develop appropriate countermeasures, including through a random sample of both
pending and completed cases.
(2) A compliance review
program, including site visits, to identify frauds and deter fraudulent and
illegal activities.
(b)
Reports
(1)
In
general
Not later than 90 days after the date of the enactment of
this Act, U.S. Citizenship and Immigration Services shall annually submit to
Congress a report on the programs carried out pursuant to subsection
(a).
(2)
Elements in first
report
The initial report submitted under paragraph (1) shall
include the methodologies to be used by the Fraud Detection and National
Security Directorate for each of the programs specified in paragraphs (1) and
(2) of subsection (a).
(3)
Elements in subsequent
reports
Each subsequent report under paragraph (1) shall include,
for the calendar year covered by such report, a descriptions of examples of
fraud detected, fraud rates for programs and types of applicants, and a
description of the disposition of the cases in which fraud was detected or
suspected.
(c)
Use of findings of
fraud
Any instance of fraud or abuse detected pursuant to a
program carried out pursuant to subsection (a) may be used to deny or revoke
benefits, and may also be referred to U.S. Immigration and Customs Enforcement
for investigation of criminal violations of section 266 of the Immigration and
Nationality Act (8 U.S.C. 1306).
(d)
Funding
There
are authorized to be appropriated, from the Comprehensive Immigration Reform
Trust Fund established under section 6(a)(1), such sums as may be necessary to
carry out this section.
2244.
Effective
date
This subtitle and the
amendments made by this subtitle, except for sections 2231, 2232, and 2233,
shall take effect on the date on which the regulations required under section
2241 are issued, regardless of whether such regulations are issued on an
interim basis or on any other basis.
C
Future
immigration
2301.
Merit-based points
track one
(a)
In general
(1)
Worldwide level of
merit-based immigrants
Section 201(e) (8 U.S.C. 1151(e)) is
amended to read as follows:
(e)
Worldwide level of
merit-based immigrants
(1)
In general
(A)
Numerical
limitation
Subject to paragraphs (2), (3), and (4), the worldwide
level of merit-based immigrants is equal to 120,000 for each fiscal
year.
(B)
Status
An
alien admitted on the basis of a merit-based immigrant visa under this section
shall have the status of an alien lawfully admitted for permanent
residence.
(2)
Annual
increase
(A)
In
general
Subject to subparagraph (B) and paragraph (3), if in any
fiscal year the worldwide level of visas available for merit-based immigrants
under this section—
(i) is less than 75 percent
of the number of applicants for such fiscal year, the worldwide level shall
increase by 5 percent for the next fiscal year; and
(ii) is equal to or more than
75 percent of such number, the worldwide level for the next fiscal year shall
be the same as the worldwide level for such fiscal year, minus any amount added
to the worldwide level for such fiscal year under paragraph (4).
(B)
Limitation on
increase
The worldwide level of visas available for merit-based
immigrants shall not exceed 250,000.
(3)
Employment
consideration
The worldwide level of visas available for
merit-based immigrants may not be increased for a fiscal year under paragraph
(2) if the annual average unemployment rate for the civilian labor force 18
years or over in the United States, as determined by the Bureau of Labor
Statistics, for such previous fiscal year is more than
81/2 percent.
(4)
Recapture of unused
visas
The worldwide level of merit-based immigrants described in
paragraph (1) for a fiscal year shall be increased by the difference (if any)
between the worldwide level established under paragraph (1) for the previous
fiscal year and the number of visas actually issued under this subsection
during that fiscal year. Such visas shall be allocated for the following year
pursuant to section
203(c)(3).
.
(2)
Merit-based
immigrants
Section 203 (8 U.S.C. 1153) is amended by inserting
after subsection (b) the following:
(c)
Merit-based
immigrants
(1)
Fiscal years 1 through
4
For the first 4 fiscal
years beginning after the date of enactment of the
Border Security, Economic Opportunity, and
Immigration Modernization Act, the worldwide level of merit-based
immigrant visas made available under section 201(e)(1) shall be available for
aliens described in section 203(b)(3) and in addition to any visas available
for such aliens under such section.
(2)
Subsequent fiscal
years
Beginning with the
fifth fiscal year beginning after the date of the enactment of the
Border Security, Economic Opportunity, and
Immigration Modernization Act, aliens subject to the worldwide
level specified in section 201(e) for merit-based immigrants shall be allocated
as follows:
(A) 50 percent shall be
available to applicants with the highest number of points allocated under tier
1 in paragraph (4).
(B) 50 percent shall be
available to applicants with the highest number of points allocated under tier
2 in paragraph (5).
(3)
Unused
visas
If the total number of
visas allocated to tier 1 or tier 2 for a fiscal year are not granted during
that fiscal year, such number may be added to the number of visas available
under section 201(e)(1) for the following fiscal year and allocated as
follows:
(A) If the unused visas were
allocated for tier 1 in a fiscal year, 2/3 of such visas
shall be available for aliens allocated visas under tier 1 in the following
fiscal year and 1/3 of such visas shall be available for
aliens allocated visas under either tier 1 or tier 2 in the following fiscal
year.
(B) If the unused visas were
allocated for tier 2 in a fiscal year, 2/3 of such visas
shall be available for aliens allocated visas under tier 2 in the following
fiscal year and 1/3 of such visas shall be available for
aliens allocated visas under either tier 1 or tier 2 in the following fiscal
year.
(4)
Tier 1
The Secretary shall allocate points to each
alien seeking to be a tier 1 merit-based immigrant as follows:
(A)
Education
(i)
In
general
An alien may receive points under only 1 of the following
categories:
(I) An alien who has received
a doctorate degree from an institution of higher education in the United States
or the foreign equivalent shall be allocated 15 points.
(II) An alien who has
received a master’s degree from an institution of higher education in the
United States or the foreign equivalent shall be allocated 10 points.
(ii) An alien who has
received a bachelor’s degree from an institution of higher education (as
defined in section 101(a) of the Higher Education Act of 1965 (20 U.S.C.
1001(a)) shall be allocated 5 points.
(B)
Employment
experience
An alien shall be allocated not more than 20 points as
follows:
(i) 3 points for each year
the alien has been lawfully employed in a zone 5 occupation in the United
States.
(ii) 2 points for each year
the alien has been lawfully employed in a zone 4 occupation in the United
States.
(C)
Employment related to
education
An alien who is in the United States and is employed
full-time or has an offer of full-time employment in a field related to the
alien's education—
(i) in a zone 5 occupation
shall be allocated 10 points; or
(ii) in a zone 4 occupation
shall be allocated 8 points.
(D)
Entrepreneurship
An
alien who is an entrepreneur in business that employs at least 2 employees in a
zone 4 occupation or a zone 5 occupation shall be allocated 10 points.
(E)
High demand
occupation
An alien who is employed full-time in the United
States or has an offer of full-time employment in a high demand tier 1
occupation shall be allocated 10 points.
(F)
Civic
involvement
An alien who has attested that he or she has engaged
in a significant amount of community service, as determined by the Secretary,
shall be allocated 2 points.
(G)
English
language
An alien who received a score of 80 or more on the Test
of English as a Foreign Language, or an equivalent score on a similar test, as
determined by the Secretary, shall be allocated 10 points.
(H)
Siblings and married
sons and daughters of citizens
An alien who is the sibling of a
citizen of the United States or who is over 31 years of age and is the married
son or married daughter of a citizen of the United States shall be allocated 10
points.
(I)
Age
An
alien who is—
(i) between 18 and 24 years
of age shall be allocated 8 points;
(ii) between 25 and 32 years
of age shall be allocated 6 points; or
(iii) between 33 and 37 years
of age shall be allocated 4 points.
(J)
Country of
origin
An alien who is a national of a country of which fewer
than 50,000 nationals were lawfully admitted to permanent residence in the
United States in the previous 5 years shall be allocated 5 points.
(5)
Tier 2
The Secretary shall allocate points to each
alien seeking to be a tier 2 merit-based immigrant as follows:
(A)
Employment
experience
An alien shall be allocated 2 points for each year the
alien has been lawfully employed in the United States, for a total of not more
than 20 points.
(B)
Special employment
criteria
An alien who is employed full-time in the United States,
or has an offer of full-time employment—
(i) in a high demand tier 2
occupation shall be allocated 10 points; or
(ii) in a zone 1, zone 2, or
zone 3 occupation shall be allocated 10 points.
(C)
Caregiver
An
alien who is or has been a primary caregiver shall be allocated 10
points.
(D)
Exceptional employment
record
An alien who has a record of exceptional employment, as
determined by the Secretary, shall be allocated 10 points. In determining a
record of exceptional employment, the Secretary shall consider factors
including promotions, longevity, changes in occupations from a lower job zone
to a higher job zone, participated in safety training, and increases in
pay.
(E)
Civic
involvement
An alien who has demonstrated significant civic
involvement shall be allocated 2 points.
(F)
English
language
(i)
English
proficiency
An alien who has demonstrated English proficiency, as
determined by a standardized test designated by the Secretary of Education,
shall be allocated 10 points.
(ii)
English
knowledge
An alien who has demonstrated English knowledge, as
determined by a standardized test designated by the Secretary of Education,
shall be allocated 5 points.
(G)
Siblings and married
sons and daughters of citizens
An alien who is the sibling of a
citizen of the United States or is over the age of 31 and is the married son or
married daughter of a citizen of the United States shall be allocated 10
points.
(H)
Age
An
alien who is—
(i) between 18 and 24 years
of age shall be allocated 8 points;
(ii) between 25 and 32 years
of age shall be allocated 6 points; or
(iii) between 33 and 37 years
of age shall be allocated 4 points.
(I)
Country of
origin
An alien who is a national of a country of which fewer
than 50,000 nationals were lawfully admitted to permanent residence in the
United States in the previous 5 years shall be allocated 5 points.
(6)
Fee
An alien who is allocated a visa under this
subsection shall pay a fee of $1,500 in addition to any fee assessed to cover
the costs to process an application under this subsection. Fees collected under
this paragraph shall be deposited by the Secretary into the Comprehensive
Immigration Reform Trust Fund established under section 6(a)(1) of the
Border Security, Economic Opportunity, and
Immigration Modernization Act.
(7)
Eligibility of aliens
in registered provisional immigrant status
An alien who was granted registered
provisional immigrant status under section 245B is not eligible to receive a
merit-based immigrant visa under section 201(e).
(8)
Ineligibility of aliens
with pending or approved petitions
An alien who has a petition pending or
approved in another immigrant category under this section or section 201 may
not apply for a merit-based immigrant visa.
(9)
Definitions
In this subsection:
(A)
High demand tier 1
occupation
The term high demand tier 1 occupation
means 1 of the 5 occupations for which the highest number of nonimmigrants
described in section 101(a)(15)(H)(i) were sought to be admitted by employers
during the previous fiscal year.
(B)
High demand tier 2
occupation
The term high demand tier 2 occupation
means 1 of the 5 occupations for which the highest number of positions were
sought to become registered positions by employers under section 220(e) during
the previous fiscal year.
(C)
Secretary
The term Secretary means the
Secretary of Homeland Security.
(D)
Zone 1
occupation
The term zone 1 occupation means an
occupation that requires little or no preparation and is classified as a zone 1
occupation on—
(i) the Occupational
Information Network Database (O*NET) on the date of the enactment of the
Border Security, Economic Opportunity, and
Immigration Modernization Act; or
(ii) such Database or a
similar successor database, as designated by the Secretary of Labor, after such
date of enactment.
(E)
Zone 2
occupation
The term zone 2 occupation means an
occupation that requires some preparation and is classified as a zone 2
occupation on—
(i) the Occupational
Information Network Database (O*NET) on the date of the enactment of the
Border Security, Economic Opportunity, and
Immigration Modernization Act; or
(ii) such Database or a
similar successor database, as designated by the Secretary of Labor, after such
date of enactment.
(F)
Zone 3
occupation
The term zone 3 occupation means an
occupation that requires medium preparation and is classified as a zone 3
occupation on—
(i) the Occupational
Information Network Database (O*NET) on the date of the enactment of the
Border Security, Economic Opportunity, and
Immigration Modernization Act; or
(ii) such Database or a
similar successor database, as designated by the Secretary of Labor, after such
date of enactment.
(G)
Zone 4
occupation
The term zone 4 occupation means an
occupation that requires considerable preparation and is classified as a zone 4
occupation on—
(i) the Occupational
Information Network Database (O*NET) on the date of the enactment of
theBorder Security, Economic Opportunity, and
Immigration Modernization Act; or
(ii) such Database or a
similar successor database, as designated by the Secretary of Labor, after such
date of enactment.
(H)
Zone 5
occupation
The term zone 5 occupation means an
occupation that requires extensive preparation and is classified as a zone 5
occupation on—
(i) the Occupational
Information Network Database (O*NET) on the date of the enactment of the
Border Security, Economic Opportunity, and
Immigration Modernization Act; or
(ii) such Database or a
similar successor database, as designated by the Secretary of Labor, after such
date of
enactment.
.
(3)
GAO study and
report
(A)
Study
The
Comptroller General of the United States shall conduct a study of the
merit-based immigration system established under section 203(c) of the
Immigration and Nationality Act, as amended by paragraph (2), to determine,
during the first 7 years of such system—
(i) how the points described
in paragraphs (4)(H), (4)(J), (5)(G), and (5)(I) of section 203(c) of such Act
were utilized;
(ii) how many of the points
allocated to people lawfully admitted for permanent residence were allocated
under such paragraphs;
(iii) how many people who
were allocated points under such paragraphs were not lawfully admitted to
permanent residence;
(iv) the countries of origin
of the people who applied for a merit-based visa under section 203(c) of such
Act;
(v) the number of such visas
issued under tier 1 and tier 2 to males and females, respectively;
(vi) the age of individuals
who were issued such visas; and
(vii) the educational
attainment and occupation of people who were issued such visas.
(B)
Report
Not
later than 7 years after the date of the enactment of this Act, the Comptroller
General shall submit a report to Congress that describes the results of the
study conducted pursuant to subparagraph (A).
(b)
Modification of
points
The Secretary may submit to Congress a proposal to modify
the number of points allocated under subsection (c) of section 203 of the
Immigration and Nationality Act (8 U.S.C. 1153), as amended by subsection
(a).
(c)
Effective
date
The amendments made by this section shall take effect on the
first day of the first fiscal year beginning after the date of the enactment of
this Act.
2302.
Merit-based track
two
(a)
In
general
In addition to any
immigrant visa made available under the Immigration and Nationality Act (8
U.S.C. 1101 et seq.), as amended by this Act, the Secretary of State shall
allocate merit-based immigrant visas as described in this section.
(b)
Status
An alien admitted on the basis of a
merit-based immigrant visa under this section shall have the status of an alien
lawfully admitted for permanent residence (as that term is defined in section
101(a)(20) of the Immigration and Nationality Act (8 U.S.C.
1101(a)(20)).
(c)
Eligibility
Beginning on October 1, 2014, the following
aliens shall be eligible for merit-based immigrant visas under this
section:
(1)
Employment-based
immigrants
An alien who is the beneficiary of a petition filed
before the date of the enactment of this Act to accord status under section
203(b) of the Immigration and Nationality Act, if the visa has not been issued
within 5 years after the date on which such petition was filed.
(2)
Family-sponsored
immigrants
Subject to subsection (d), an alien who is the
beneficiary of a petition filed to accord status under section 203(a) of the
Immigration and Nationality Act—
(A) prior to the date of the
enactment of this Act, if the visa was not issued within 5 years after the date
on which such petition was filed; or
(B) after such date of
enactment, to accord status under paragraph (3) or (4) of section 203(a) of the
Immigration and Nationality Act (8 U.S.C. 1153(a)), as in effect the minute
before the effective date specified in section 2307(a)(3) of this Act, and the
visa was not issued within 5 years after the date on which petition was
filed.
(3)
Long-term alien workers
and other merit-based immigrants
An alien who—
(A) is not admitted pursuant
to subparagraph (W) of section 101(a)(15) of the Immigration and Nationality
Act (8 U.S.C. 1101(a)(15)); and
(B) has been lawfully present
in the United States in a status that allows for employment authorization for a
continuous period, not counting brief, casual, and innocent absences, of not
less than 10 years.
(d)
Allocation of
employment-sponsored merit-based immigrant visas
In each of the
fiscal years 2015 through and including 2021, the Secretary of State shall
allocate to aliens described in subsection (c)(1) a number of merit-based
immigrant visas equal to 1/7 of the number of aliens
described in subsection (c)(1) whose visas had not been issued as of the date
of the enactment of this Act.
(e)
Allocation of
family-sponsored merit-based immigrant visas
The visas authorized
by subsection (c)(2) shall be allocated as follows:
(1)
Spouses and children of
permanent residents
Petitions to accord status under section
203(a)(2)(A) of the Immigration and Nationality Act (8 U.S.C. 1153(a)(2)(A)),
as in effect the minute before the effective date specified in section
2307(a)(3) of this Act, are automatically converted to petitions to accord
status to the same beneficiaries as immediate relatives under section
201(b)(2)(A) of the Immigration and Nationality Act (8 U.S.C.
1151(b)(2)(A)).
(2)
Other family
members
In each of the fiscal years 2015 through and including
2021, the Secretary of State shall allocate to the aliens described in
subsection (c)(2)(A), other than those aliens described in paragraph (1), a
number of transitional merit-based immigrant visas equal to
1/7 of the difference between—
(A) the number of aliens
described in subsection (c)(2)(A) whose visas had not been issued as of the
date of the enactment of this Act; and
(B) the number of aliens
described in paragraph (1).
(3)
Order of issuance for
previously filed applications
Subject to paragraphs (1) and (2),
the visas authorized by subsection (c)(2)(A) shall be issued without regard to
a per country limitation in the order described in section 203(a) of the
Immigration and Nationality Act (8 U.S.C. 1153(a)), as amended by section
2305(b), in the order in which the petitions to accord status under such
section 203(a) were filed prior to the date of the enactment of this
Act.
(4)
Subsequently filed
applications
In fiscal year 2022, the Secretary of State shall
allocate to the aliens described in subsection (c)(2)(B), the number of
merit-based immigrant visas equal to 1/2 of the number of
aliens described in subsection (c)(2)(B) whose visas had not been issued by
October 1, 2021. In fiscal year 2023, the Secretary of State shall allocate to
the aliens described in subsection (c)(2)(B), the number of merit-based
immigrant visas equal to the number of aliens described in subsection (c)(2)(B)
whose visas had not been issued by October 1, 2022.
(5)
Order of issuance for
subsequently filed applications
Subject to paragraph (4), the
visas authorized by subsection (c)(2)(B) shall be issued in the order in which
the petitions to accord status under section 203(a) of the Immigration and
Nationality Act were filed, as in effect the minute before the effective date
specified in section 2307(a)(3) of this Act.
(f)
Eligibility in years
after 2028
Beginning in fiscal year 2029, aliens eligible for
adjustment of status under subsection (c)(3) must be lawfully present in an
employment authorized status for 20 years prior to filing an application for
adjustment of status.
2303.
Repeal of the
diversity visa program
(a)
In
general
Title II (8 U.S.C.
1151 et seq.) is amended—
(1) in section 201(a) (8
U.S.C. 1151(a))—
(A) in paragraph (1), by
adding and at the end;
(B) in paragraph (2), by
striking ; and at the end and inserting a period; and
(C) by striking paragraph
(3);
(2) in section 203 (8 U.S.C.
1153)—
(A) by striking subsection
(c);
(B) in subsection (e)—
(i) by striking paragraph
(2); and
(ii) by redesignating
paragraph (3) as paragraph (2);
(C) in subsection (f), by
striking (a), (b), or (c) of this section and inserting
(a) or (b); and
(D) in subsection (g), by
striking (a), (b), and (c) and inserting (a) and
(b); and
(3) in section 204 (8 U.S.C.
1154)—
(A) in subsection (a), as
amended by section 2305(d)(6)(A)(i), by striking paragraph (8); and
(B) in subsection (e), by
striking (a), (b), or (c) and inserting (a) or
(b).
(b)
Effective date and
application
(1)
Effective
date
The amendments made by this section shall take effect on
October 1, 2014.
(2)
Application
An
alien who receives a notification from the Secretary that the alien was
selected to receive a diversity immigrant visa under section 203(c) of the
Immigration and Nationality Act (8 U.S.C. 1153(c)) for fiscal year 2013 or
fiscal year 2014 shall remain eligible to receive such visa under the rules of
such section, as in effect on September 30, 2014. No alien may be allocated
such a diversity immigrant visa for a fiscal year after fiscal year
2015.
2304.
Worldwide levels and
recapture of unused immigrant visas
(a)
Employment-based
immigrants
Section 201(d) (8 U.S.C. 1151(d)) is amended to read
as follows:
(d)
Worldwide level of
employment-based immigrants
(1)
In general
(A)
Worldwide
level
For a fiscal year after fiscal year 2015, the worldwide
level of employment-based immigrants under this subsection is equal to the sum
of—
(i) 140,000; and
(ii) the number computed
under paragraph (2).
(B)
Fiscal year
2015
For fiscal year 2015, the worldwide level of
employment-based immigrants under this subsection is equal to the sum
of—
(i) 140,000;
(ii) the number computed
under paragraph (2); and
(iii) the number computed
under paragraph (3).
(2)
Previous fiscal
year
The number computed under this paragraph for a fiscal year
is the difference, if any, between the maximum number of visas which may be
issued under section 203(a) (relating to family-sponsored immigrants) during
the previous fiscal year and the number of visas issued under that section
during that year.
(3)
Unused
visas
The number computed under this paragraph is the difference,
if any, between—
(A) the sum of the worldwide
levels established under paragraph (1), as in effect on the day before the date
of the enactment of the Border Security,
Economic Opportunity, and Immigration Modernization Act, for
fiscal years 1992 through and including 2013; and
(B) the number of visas
actually issued under section 203(b) during such fiscal
years.
.
(b)
Family-sponsored
immigrants
Section 201(c) (8 U.S.C. 1151(c)) is amended to read
as follows:
(c)
Worldwide level of
family-sponsored immigrants
(1)
In general
(A)
Worldwide
level
Subject to subparagraph (C), for each fiscal year after
fiscal year 2015, the worldwide level of family-sponsored immigrants under this
subsection for a fiscal year is equal to the sum of—
(i) 480,000 minus the number
computed under paragraph (2); and
(ii) the number computed
under paragraph (3).
(B)
Fiscal year
2015
Subject to subparagraph (C), for fiscal year 2015, the
worldwide level of family-sponsored immigrants under this subsection is equal
to the sum of—
(i) 480,000 minus the number
computed under paragraph (2);
(ii) the number computed
under paragraph (3); and
(iii) the number computed
under paragraph (4).
(C)
Limitation
The
number computed under subparagraph (A)(i) or (B)(i) may not be less than
226,000, except that beginning on the date that is 18 months after the date of
the enactment of the Border Security,
Economic Opportunity, and Immigration Modernization Act, the
number computed under subparagraph (A)(i) or (B)(i) may not be less than
161,000.
(2)
Immediate
relatives
The number computed under this paragraph for a fiscal
year is the number of aliens described in subparagraph (A) or (B) of subsection
(b)(2) who were issued immigrant visas, or who otherwise acquired the status of
an alien lawfully admitted to the United States for permanent residence, in the
previous fiscal year.
(3)
Previous fiscal
year
The number computed under this paragraph for a fiscal year
is the difference, if any, between the maximum number of visas which may be
issued under section 203(b) (relating to employment-based immigrants) during
the previous fiscal year and the number of visas issued under that section
during that year.
(4)
Unused
visas
The number computed under this paragraph is the difference,
if any, between—
(A) the sum of the worldwide
levels established under paragraph (1) for fiscal years 1992 through and
including 2013; and
(B) the number of visas
actually issued under section 203(a) during such fiscal
years.
.
(c)
Effective
date
The amendments made by this section shall take effect on the
first day of the first fiscal year beginning after the date of the enactment of
this Act.
2305.
Reclassification of
spouses and minor children of lawful permanent residents as immediate
relatives
(a)
Immediate
relatives
Section 201(b)(2) (8 U.S.C. 1151(b)(2)) is amended to
read as follows:
(2)
(A) Aliens who are
immediate relatives.
(B) In this paragraph, the
term immediate relative means—
(i) a child, spouse, or
parent of a citizen of the United States, except that in the case of such a
parent such citizen shall be at least 21 years of age;
(ii) a child or spouse of an
alien lawfully admitted for permanent residence;
(iii) a child or spouse of an
alien described in clause (i), who is accompanying or following to join the
alien;
(iv) a child or spouse of an
alien described in clause (ii), who is accompanying or following to join the
alien;
(v) an alien admitted under
section 211(a) on the basis of a prior issuance of a visa to the alien’s
accompanying parent who is an immediate relative; and
(vi) an alien born to an
alien lawfully admitted for permanent residence during a temporary visit
abroad.
(C) If an alien who was the
spouse or child of a citizen of the United States or of an alien lawfully
admitted for permanent residence and was not legally separated from the citizen
or lawful permanent resident at the time of the citizen’s or lawful permanent
resident’s death files a petition under section 204(a)(1)(B), the alien spouse
(and each child of the alien) shall remain, for purposes of this paragraph, an
immediate relative during the period beginning on the date of the citizen’s or
permanent resident’s death and ending on the date on which the alien spouse
remarries.
(D) An alien who has filed a
petition under clause (iii) or (iv) of section 204(a)(1)(A) shall remain, for
purposes of this paragraph, an immediate relative if the United States citizen
or lawful permanent resident spouse or parent loses United States citizenship
on account of the
abuse.
.
(b)
Allocation of immigrant
visas
Section 203(a) (8 U.S.C. 1153(a)) is amended—
(1) in paragraph (1), by
striking 23,400, and inserting 20 percent of the
worldwide level of family-sponsored immigrants under section
201(c);
(2) by striking paragraph (2)
and inserting the following:
(2)
Unmarried sons and
unmarried daughters of permanent resident aliens
Qualified
immigrants who are the unmarried sons or unmarried daughters (but are not the
children) of an alien lawfully admitted for permanent residence shall be
allocated visas in a number not to exceed 20 percent of the worldwide level of
family-sponsored immigrants under section 201(c), plus any visas not required
for the class specified in paragraph
(1).
;
(3) in paragraph (3)—
(A) by striking
23,400, and inserting 20 percent of the worldwide level
of family-sponsored immigrants under section 201(c); and
(B) by striking
classes specified in paragraphs (1) and (2). and inserting
class specified in paragraph (2).; and
(4) in paragraph (4)—
(A) by striking
65,000, and inserting 40 percent of the worldwide level
of family-sponsored immigrants under section 201(c); and
(B) by striking
classes specified in paragraphs (1) through (3). and inserting
class specified in paragraph (3)..
(c)
Termination of
registration
Section 203(g) (8 U.S.C. 1153(g)) is amended to read
as follows:
(g)
Lists
(1)
In
general
For purposes of carrying out the orderly administration
of this title, the Secretary of State may make reasonable estimates of the
anticipated numbers of immigrant visas to be issued during any quarter of any
fiscal year within each of the categories under subsections (a), (b), and (c)
and may rely upon such estimates in authorizing the issuance of visas.
(2)
Termination of
registration
(A)
Information
dissemination
Not later than 180 days after the date of the
enactment of the Border Security, Economic
Opportunity, and Immigration Modernization Act, the Secretary of
Homeland Security and the Secretary of State shall adopt a plan to broadly
disseminate information to the public regarding termination of registration
procedures described in subparagraphs (B) and (C), including procedures for
notifying the Department of Homeland Security and the Department of State of
any change of address on the part of a petitioner or a beneficiary of an
immigrant visa petition.
(B)
Termination for failure
to adjust
The Secretary of Homeland Security shall terminate the
registration of any alien who has evidenced an intention to acquire lawful
permanent residence under section 245 and who fails to apply to adjust status
within 1 year following notification to the alien of the availability of an
immigrant visa.
(C)
Termination for failure
to apply
The Secretary of State shall terminate the registration
of any alien not described in subparagraph (B) who fails to apply for an
immigrant visa within 1 year following notification to the alien of the
availability of such visa.
(3)
Reinstatement
The
registration of any alien that was terminated under paragraph (2) shall be
reinstated if, within 2 years following the date of notification of the
availability of such visa, the alien demonstrates that such failure to apply
was due to good
cause.
.
(d)
Technical and
conforming amendments
(1)
Definitions
Section
101(a)(15)(K)(ii) (8 U.S.C. 1101(a)(15)(K)(ii)) is amended by striking
section 201(b)(2)(A)(i) and inserting section 201(b)(2)
(other than clause (v) or (vi) of subparagraph (B)).
(2)
Per country
level
Section 202(a)(1)(A) (8 U.S.C. 1152(a)(1)(A)) is amended by
striking section 201(b)(2)(A)(i) and inserting section
201(b)(2) (other than clause (v) or (vi) of subparagraph (B)).
(3)
Rules for determining
whether certain aliens are immediate relatives
Section 201(f) (8
U.S.C. 1151(f)) is amended—
(A) in paragraph (1), by
striking paragraphs (2) and (3), and inserting paragraph
(2),;
(B) by striking paragraph
(2);
(C) by redesignating
paragraphs (3) and (4) as paragraphs (2) and (3), respectively; and
(D) in paragraph (3), as
redesignated by subparagraph (C), by striking through (3) and
inserting and (2).
(4)
Numerical limitation to
any single foreign state
Section 202(a)(4) (8 U.S.C. 1152(a)(4))
is amended—
(A) by striking subparagraphs
(A) and (B);
(B) by redesignating
subparagraphs (C) and (D) as subparagraphs (A) and (B), respectively;
and
(C) in subparagraph (A), as
redesignated by clause (ii), by striking section 203(a)(2)(B)
and inserting section 203(a)(2).
(5)
Allocation of immigrant
visas
Section 203(h) (8 U.S.C. 1153(h)) is amended—
(A) in paragraph (1)—
(i) in the matter preceding
subparagraph (A), by striking subsections (a)(2)(A) and (d) and
inserting subsection (d);
(ii) in subparagraph (A), by
striking becomes available for such alien (or, in the case of subsection
(d), the date on which an immigrant visa number became available for the
alien’s parent), and inserting became available for the alien’s
parent,; and
(iii) in subparagraph (B), by
striking applicable;
(B) by amending paragraph (2)
to read as follows:
(2)
Petitions
described
The petition described in this paragraph is a petition
filed under section 204 for classification of the alien’s parent under
subsection (a), (b), or (c).
;
and
(C) by amending paragraph (3)
to read as follows:
(3)
Retention of priority
date
(A)
Petitions filed for
children
For a petition originally filed to classify a child
under subsection (d), if the age of the alien is determined under paragraph (1)
to be 21 years of age or older on the date that a visa number becomes available
to the alien’s parent who was the principal beneficiary of the petition, then,
upon the parent’s admission to lawful permanent residence in the United States,
the petition shall automatically be converted to a petition filed by the parent
for classification of the alien under subsection (a)(2) and the petition shall
retain the priority date established by the original petition.
(B)
Family and
employment-based petitions
The priority date for any family- or
employment-based petition shall be the date of filing of the petition with the
Secretary of Homeland Security (or the Secretary of State, if applicable),
unless the filing of the petition was preceded by the filing of a labor
certification with the Secretary of Labor, in which case that date shall
constitute the priority date. The beneficiary of any petition shall retain his
or her earliest priority date based on any petition filed on his or her behalf
that was approvable when filed, regardless of the category of subsequent
petitions.
.
(6)
Procedure for granting
immigrant status
(A)
Petitioning
procedure
Section 204 (8 U.S.C. 1154) is amended—
(i) by striking subsection
(a) and inserting the following:
(a)
Petitioning
procedure
(1)
In
general
(A) Except as provided in subparagraph (H), any
citizen of the United States or alien lawfully admitted for permanent residence
claiming that an alien is entitled to classification by reason of a
relationship described in subparagraph (A) or (B) of section 203(a)(1) or to an
immediate relative status under section 201(b)(2)(A) may file a petition with
the Secretary of Homeland Security for such classification.
(B) An alien spouse or alien child described in
section 201(b)(2)(C) may file a petition with the Secretary under this
paragraph for classification of the alien (and the alien's children) under such
section.
(C)
(i) An alien who is described in clause (ii)
may file a petition with the Secretary under this subparagraph for
classification of the alien (and any child of the alien) if the alien
demonstrates to the Secretary that—
(I) the marriage or the intent to marry the
citizen of the United States or lawful permanent resident was entered into in
good faith by the alien; and
(II) during the marriage or relationship
intended by the alien to be legally a marriage, the alien or a child of the
alien has been battered or has been the subject of extreme cruelty perpetrated
by the alien's spouse or intended spouse.
(ii) For purposes of clause (i), an alien
described in this clause is an alien—
(I)
(aa) who is the spouse of a citizen of the
United States or lawful permanent resident;
(bb) who believed that he or she had married a
citizen of the United States or lawful permanent resident and with whom a
marriage ceremony was actually performed and who otherwise meets any applicable
requirements under this Act to establish the existence of and bona fides of a
marriage, but whose marriage is not legitimate solely because of the bigamy of
such citizen of the United States or lawful permanent resident; or
(cc) who was a bona fide spouse of a citizen of
the United States or a lawful permanent resident within the past 2 years
and—
(AA) whose
spouse died within the past 2 years;
(BB) whose
spouse renounced citizenship status or renounced or lost status as a lawful
permanent resident within the past 2 years related to an incident of domestic
violence; or
(CC) who
demonstrates a connection between the legal termination of the marriage within
the past 2 years and battering or extreme cruelty by a spouse who is a citizen
of the United States or a lawful permanent resident spouse;
(II) who is a person of good
moral character;
(III) who is eligible to be
classified as an immediate relative under section 201(b)(2)(A) or who would
have been so classified but for the bigamy of the citizen of the United States
that the alien intended to marry; and
(IV) who has resided with the
alien's spouse or intended spouse.
(D) An
alien who is the child of a citizen or lawful permanent resident of the United
States, or who was a child of a United States citizen or lawful permanent
resident parent who within the past 2 years lost or renounced citizenship
status related to an incident of domestic violence, and who is a person of good
moral character, who is eligible to be classified as an immediate relative
under section 201(b)(2)(A), and who resides, or has resided in the past, with
the citizen or lawful permanent resident parent may file a petition with the
Secretary of Homeland Security under this paragraph for classification of the
alien (and any child of the alien) under such section if the alien demonstrates
to the Secretary that the alien has been battered by or has been the subject of
extreme cruelty perpetrated by the alien's citizen or lawful permanent resident
parent. For purposes of this subparagraph, residence includes any period of
visitation.
(E) An
alien who—
(i) is
the spouse, intended spouse, or child living abroad of a citizen or lawful
permanent resident who—
(I) is an
employee of the United States Government;
(II) is a
member of the uniformed services (as defined in section 101(a) of title 10,
United States Code); or
(III) has
subjected the alien or the alien's child to battery or extreme cruelty in the
United States; and
(ii) is
eligible to file a petition under subparagraph (C) or (D),
shall file such petition with the
Secretary of Homeland Security under the procedures that apply to
self-petitioners under subparagraph (C) or (D), as applicable.
(F) For the purposes of any
petition filed under subparagraph (C) or (D), the denaturalization, loss or
renunciation of citizenship or lawful permanent resident status, death of the
abuser, divorce, or changes to the abuser's citizenship or lawful permanent
resident status after filing of the petition shall not adversely affect the
approval of the petition, and for approved petitions shall not preclude the
classification of the eligible self-petitioning spouse or child as an immediate
relative or affect the alien's ability to adjust status under subsections (a)
and (c) of section 245 or obtain status as a lawful permanent resident based on
the approved self-petition under such clauses.
(G) An alien may file a
petition with the Secretary of Homeland Security under this paragraph for
classification of the alien under section 201(b)(2)(A) if the alien—
(i) is the parent of a
citizen of the United States or was a parent of a citizen of the United States
who, within the past 2 years, lost or renounced citizenship status related to
an incident of domestic violence or died;
(ii) is a person of good
moral character;
(iii) is eligible to be
classified as an immediate relative under section 201(b)(2)(A);
(iv) resides, or has resided,
with the citizen daughter or son; and
(v) demonstrates that the
alien has been battered or subject to extreme cruelty by the citizen daughter
or son.
(H)
(i) Subparagraph (A) shall
not apply to a citizen of the United States who has been convicted of a
specified offense against a minor, unless the Secretary of Homeland Security,
in the Secretary's sole and unreviewable discretion, determines that the
citizen poses no risk to the alien with respect to whom a petition described in
subparagraph (A) is filed.
(ii) For purposes of clause
(i), the term specified offense against a minor has the meaning
given such term in section 111 of the Adam Walsh Child Protection and Safety
Act of 2006 (42 U.S.C. 16911).
(2)
Determination of good
moral character
Notwithstanding section 101(f), an act or
conviction that is waivable with respect to the petitioner for purposes of a
determination of the petitioner's admissibility under section 212(a) or
deportability under section 237(a) shall not bar the Secretary of Homeland
Security from finding the petitioner to be of good moral character under
subparagraph (C) or (D) of paragraph (1), if the Secretary finds that the act
or conviction was connected to the alien's having been battered or subjected to
extreme cruelty.
(3)
Preference
status
(A)
(i) Any child who attains
21 years of age who has filed a petition under paragraph (1)(D) that was filed
or approved before the date on which the child attained 21 years of age shall
be considered (if the child has not been admitted or approved for lawful
permanent residence by the date the child attained 21 years of age) a
petitioner for preference status under paragraph (1), (2), or (3) of section
203(a), whichever paragraph is applicable, with the same priority date assigned
to the self-petition filed under paragraph (1)(D). No new petition shall be
required to be filed.
(ii) Any individual described
in clause (i) is eligible for deferred action and work authorization.
(iii) Any derivative child
who attains 21 years of age who is included in a petition described in
subparagraph (B) that was filed or approved before the date on which the child
attained 21 years of age shall be considered (if the child has not been
admitted or approved for lawful permanent residence by the date the child
attained 21 years of age) a VAWA self-petitioner with the same priority date as
that assigned to the petitioner in any petition described in subparagraph (B).
No new petition shall be required to be filed.
(iv) Any individual described
in clause (iii) and any derivative child of a petitioner described in
subparagraph (B) is eligible for deferred action and work authorization.
(B) The petition referred to
in subparagraph (A)(iii) is a petition filed by an alien under subparagraph (C)
or (D) of paragraph (1) in which the child is included as a derivative
beneficiary.
(C) Nothing in the amendments
made by the Child Status Protection Act (Public Law 107–208; 116 Stat. 927)
shall be construed to limit or deny any right or benefit provided under this
paragraph.
(D) Any alien who benefits
from this paragraph may adjust status in accordance with subsections (a) and
(c) of section 245 as an alien having an approved petition for classification
under subparagraph (C) or (D) of paragraph (1).
(E) For purposes of this
paragraph, an individual who is not less than 21 years of age, who qualified to
file a petition under paragraph (1)(D) as of the minute before the date on
which the individual attained 21 years of age, and who did not file such a
petition before such day, shall be treated as having filed a petition under
such paragraph as of such day if a petition is filed for the status described
in such paragraph before the individual attains 25 years of age and the
individual shows that the abuse was at least 1 central reason for the filing
delay. Subparagraphs (A) through (D) shall apply to an individual described in
this subparagraph in the same manner as an individual filing a petition under
paragraph (1)(D).
(4)
Classification as alien
with extraordinary ability
Any alien desiring to be classified
under subparagraph (I), (J), (K), (L), or (M) of section 201(b)(1) or section
203(b)(1)(A), or any person on behalf of such an alien, may file a petition
with the Secretary of Homeland Security for such classification.
(5)
Classification as
employment-based immigrant
Any employer desiring and intending to
employ within the United States an alien entitled to classification under
paragraph (1)(B), (1)(C), (2), or (3) of section 203(b) may file a petition
with the Secretary of Homeland Security for such classification.
(6)
Classification as
special immigrant
(A) Any alien (other than a
special immigrant under section 101(a)(27)(D)) desiring to be classified under
section 203(b)(4), or any person on behalf of such an alien, may file a
petition with the Secretary of Homeland Security for such
classification.
(B) Aliens claiming status as
a special immigrant under section 101(a)(27)(D) may file a petition only with
the Secretary of State and only after notification by the Secretary that such
status has been recommended and approved pursuant to such section.
(7)
Classification as
immigrant investor
Any alien desiring to be classified under
paragraph (5) or (6) of section 203(b) may file a petition with the Secretary
of Homeland Security for such classification.
(8)
Diversity
visa
(A) Any
alien desiring to be provided an immigrant visa under section 203(c) may file a
petition at the place and time determined by the Secretary of State by
regulation. Only 1 such petition may be filed by an alien with respect to any
petitioning period established. If more than 1 petition is submitted all such
petitions submitted for such period by the alien shall be voided.
(B)
(i) The Secretary of State
shall designate a period for the filing of petitions with respect to visas
which may be issued under section 203(c) for the fiscal year beginning after
the end of the period.
(ii) Aliens who qualify,
through random selection, for a visa under section 203(c) shall remain eligible
to receive such visa only through the end of the specific fiscal year for which
they were selected.
(iii) The Secretary of State
shall prescribe such regulations as may be necessary to carry out this
subparagraph.
(C) A petition under this
paragraph shall be in such form as the Secretary of State may by regulation
prescribe and shall contain such information and be supported by such
documentary evidence as the Secretary of State may require.
(D) Each petition to compete
for consideration for a visa under section 203(c) shall be accompanied by a fee
equal to $30. All amounts collected under this subparagraph shall be deposited
into the Treasury as miscellaneous receipts.
(9)
Consideration of
credible evidence
In acting on petitions filed under subparagraph
(C) or (D) of paragraph (1), or in making determinations under paragraphs (2)
and (3), the Secretary of Homeland Security shall consider any credible
evidence relevant to the petition. The determination of what evidence is
credible and the weight to be given that evidence shall be within the sole
discretion of the Secretary.
(10)
Work
authorization
(A) Upon the approval of a
petition as a VAWA self-petitioner, the alien—
(i) is eligible for work
authorization; and
(ii) may be provided an
employment authorized endorsement or appropriate work permit
incidental to such approval.
(B) Notwithstanding any
provision of this Act restricting eligibility for employment in the United
States, the Secretary of Homeland Security shall grant employment authorization
to an alien who has filed an application for status as a VAWA self-petitioner
on the date that is the earlier of—
(i) the date on which the
alien’s application for such status is approved; or
(ii) a date determined by the
Secretary that is not later than 180 days after the date on which the alien
filed the application.
(11)
Limitation
Notwithstanding
paragraphs (1) through (10), an individual who was a VAWA petitioner or who had
the status of a nonimmigrant under subparagraph (T) or (U) of section
101(a)(15) may not file a petition for classification under this section or
section 214 to classify any person who committed the battery or extreme cruelty
or trafficking against the individual (or the individual's child), which
established the individual's (or individual's child's) eligibility as a VAWA
petitioner or for such nonimmigrant
status.
;
(ii) in subsection (c)(1), by
striking or preference status; and
(iii) in subsection (h), by
striking or a petition filed under subsection
(a)(1)(B)(ii).
(B)
Conforming
amendments
The Act (8 U.S.C. 1101 et seq.) is amended—
(i) in section 101(a)—
(I) in paragraph (15)(K), by
striking 204(a)(1)(A)(viii)(I) each place such term appears and
inserting 204(a)(1)(H)(i);
(II) in paragraph (50), by
striking 204(a)(1)(A)(iii)(II)(aa)(BB),
204(a)(1)(B)(ii)(II)(aa)(BB), and inserting
204(a)(1)(C)(ii)(I)(bb) or; and
(III) in paragraph
(51)—
(aa) in subparagraph (A), by
striking 204(a)(1)(A) and inserting
204(a)(1);
(bb) by striking subparagraph
(B); and
(cc) by redesignating
subparagraphs (C), (D), (E), (F), and (G) as subparagraphs (B), (C), (D), (E),
and (F), respectively;
(ii) in section
212(a)(4)(C)(i)—
(I) in subclause (I), by
striking clause (ii), (iii), or (iv) of section 204(a)(1)(A), or
and inserting subparagraph (B), (C), or (D) of section
204(a)(1);;
(II) by striking subclause
(II); and
(III) by redesignating
subclause (III) as subclause (II);
(iii) in section
216(c)(4)(D), by striking 204(a)(1)(A)(iii)(II)(aa)(BB) and
inserting 204(a)(1)(C)(ii)(I)(bb); and
(iv) in section
240(c)(7)(C)(iv)(I), by striking clause (iii) or (iv) of section
204(a)(1)(A), clause (ii) or (iii) of section 204(a)(1)(B), and
inserting subparagraph (C) or (D) of section 204(a)(1),.
(7)
Excludable
aliens
Section 212(d)(12)(B) (8 U.S.C. 1182(d)(12)(B)) is amended
by striking section 201(b)(2)(A) and inserting section
201(b)(2) (other than subparagraph (B)(vi)).
(8)
Admission of
nonimmigrants
Section 214(r)(3)(A) (8 U.S.C. 1184(r)(3)(A)) is
amended by striking section 201(b)(2)(A)(i). and inserting
section 201(b)(2) (other than clause (v) or (vi) of subparagraph
(B))..
(9)
Refugee crisis in Iraq
Act of 2007
Section 1243(a)(4) of the Refugee Crisis in Iraq Act
of 2007 (8 U.S.C. 1157 note) is amended by striking section
201(b)(2)(A)(i) and inserting section 201(b)(2) (other than
clause (v) or (vi) of subparagraph (B)).
(10)
Processing of visa
applications
Section 233 of the Department of State Authorization
Act, Fiscal Year 2003 (8 U.S.C. 1201 note) is amended by striking
section 201(b)(2)(A)(i) and inserting section 201(b)(2)
(other than clause (v) or (vi) of subparagraph (B)).
(11)
Adjustment of
status
Section 245(a) (8 U.S.C. 1255(a)) is amended to read as
follows:
(a)
(1) The status of an
alien who was inspected and admitted or paroled into the United States or the
status of any other alien having an approved petition for classification as a
VAWA self-petitioner may be adjusted by the Attorney General or the Secretary
of Homeland Security, in the Attorney General's or the Secretary's discretion
and under such regulations as the Attorney General or Secretary may prescribe,
to that of an alien lawfully admitted for permanent residence (regardless of
whether the alien has already been admitted for permanent residence) if—
(A) the alien makes an
application for such adjustment;
(B) the alien is eligible to
receive an immigrant visa and is admissible to the United States for permanent
residence; and
(C) subject to paragraph (2),
an immigrant visa is immediately available to the alien at the time the alien's
application is filed.
(2)
(A) An application that
is based on a petition approved or approvable under subparagraph (A) or (B) of
section 204(a)(1) may be filed without regard to the limitation set forth in
paragraph (1)(C).
(B) An application for
adjustment filed for an alien under this paragraph may not be approved until
such time as an immigrant visa becomes available for the
alien.
.
(e)
Effective
date
The amendments made by this section shall take effect on the
date of the enactment of this Act.
2306.
Numerical limitations
on individual foreign states
(a)
Numerical limitation to
any single foreign State
Section 202(a)(2) (8 U.S.C. 1152(a)(2))
is amended—
(1) in the paragraph heading,
by striking and
employment-based;
(2) by striking (3),
(4), and (5), and inserting (3) and (4),;
(3) by striking
subsections (a) and (b) of section 203 and inserting
section 203(a);
(4) by striking
7 and inserting 15; and
(5) by striking such
subsections and inserting such section.
(b)
Conforming
amendments
Section 202 (8 U.S.C. 1152) is amended—
(1) in subsection (a)—
(A) in paragraph (3), by
striking both subsections (a) and (b) of section 203 and
inserting section 203(a); and
(B) by striking paragraph
(5); and
(2) by amending subsection
(e) to read as follows:
(e)
Special rules for
countries at ceiling
If it is determined that the total number of
immigrant visas made available under section 203(a) to natives of any single
foreign state or dependent area will exceed the numerical limitation specified
in subsection (a)(2) in any fiscal year, in determining the allotment of
immigrant visa numbers to natives under section 203(a), visa numbers with
respect to natives of that state or area shall be allocated (to the extent
practicable and otherwise consistent with this section and section 203) in a
manner so that, except as provided in subsection (a)(4), the proportion of the
visa numbers made available under each of paragraphs (1) through (4) of section
203(a) is equal to the ratio of the total number of visas made available under
the respective paragraph to the total number of visas made available under
section
203(a).
.
(c)
Country-specific
offset
Section 2 of the Chinese Student Protection Act of 1992 (8
U.S.C. 1255 note) is amended—
(1) in subsection (a), by
striking subsection (e)) and inserting subsection
(d)); and
(2) by striking subsection
(d) and redesignating subsection (e) as subsection (d).
(d)
Effective
date
The amendments made by this section shall take effect 1 year
after the date of the enactment of this Act.
2307.
Allocation of
immigrant visas
(a)
Preference allocation
for family-sponsored immigrants
(1)
In
general
Section 203(a) (8 U.S.C. 1153(a)), as amended by section
2305(b), is further amended to read as follows:
(a)
Preference allocation
for family-sponsored immigrants
Aliens subject to the worldwide
level specified in section 201(c) for family-sponsored immigrants shall be
allotted visas as follows:
(1)
Sons and daughters of
citizens
Qualified immigrants who are—
(A) the unmarried sons or
unmarried daughters but not the children of citizens of the United States shall
be allocated visas in a number not to exceed 35 percent of the worldwide level
authorized in section 201(c), plus the sum of—
(i) the number of visas not
required for the class specified in paragraph (2) for the current fiscal year;
and
(ii) the number of visas not
required for the class specified in subparagraph (B); or
(B) the married sons or
married daughters of citizens of the United States who are 31 years of age or
younger at the time of filing a petition under section 204 shall be allocated
visas in a number not to exceed 25 percent of the worldwide level authorized in
section 201(c), plus the number of any visas not required for the class
specified in subparagraph (A) current fiscal year.
(2)
Sons and daughters of
permanent residents
Qualified immigrants who are the unmarried
sons or unmarried daughters of aliens admitted for permanent residence shall be
allocated visas in a number not to exceed 40 percent of the worldwide level
authorized in section 201(c), plus any visas not required for the class
specified in paragraph
(1)(A).
.
(2)
Conforming
amendments
(A)
Procedure for granting
immigrant status
Section 204(f)(1) (8 U.S.C. 1154(f)(1)) is
amended by striking section 201(b), 203(a)(1), or 203(a)(3), and
inserting section 201(b) or subparagraph (A) or (B) of section
203(a)(1).
(B)
Automatic
conversion
For the purposes of any petition pending or approved
based on a relationship described—
(i) in subparagraph (A) of
section 203(a)(1) of the Immigration and Nationality Act (8 U.S.C. 1153(a)(1)),
as amended by paragraph (1), and notwithstanding the age of the alien, such a
petition shall be deemed reclassified as a petition based on a relationship
described in subparagraph (B) of such section 203(a)(1) upon the marriage of
such alien; or
(ii) in subparagraph (B) of
such section 203(a)(1), such a petition shall be deemed reclassified as a
petition based on a relationship described in subparagraph (A) of such section
203(a)(1) upon the legal termination of marriage or death of such alien’s
spouse.
(3)
Effective
date
The amendments made by this subsection shall take effect on
the first day of the first fiscal year that begins at least 18 months following
the date of the enactment of this Act.
(b)
Preference allocation
for employment-Based immigrants
(1)
In
general
Section 201(b)(1) (8 U.S.C. 1151(b)(1)), as amended by
sections 2103(c) and 2212(d), is further amended by adding at the end the
following:
(H) Derivative beneficiaries
as described in section 203(d) of employment-based immigrants under section
203(b).
(I) Aliens with extraordinary
ability in the sciences, arts, education, business, or athletics which has been
demonstrated by sustained national or international acclaim, if, with respect
to any such alien—
(i) the achievements of such
alien have been recognized in the field through extensive documentation;
(ii) such alien seeks to
enter the United States to continue work in the area of extraordinary ability;
and
(iii) the entry of such alien
into the United States will substantially benefit prospectively the United
States.
(J) Aliens who are
outstanding professors and researchers if, with respect to any such
alien—
(i) the alien is recognized
internationally as outstanding in a specific academic area;
(ii) the alien has at least 3
years of experience in teaching or research in the academic area; and
(iii) the alien seeks to
enter the United States—
(I) to be employed in a
tenured position (or tenure-track position) within a not for profit university
or institution of higher education to teach in the academic area;
(II) for employment in a
comparable position with a not for profit university or institution of higher
education, or a governmental research organization, to conduct research in the
area; or
(III) for employment in a
comparable position to conduct research in the area with a department,
division, or institute of a private employer, if the department, division, or
institute employs at least 3 persons full-time in research activities and has
achieved documented accomplishments in an academic field.
(K) Aliens who are
multinational executives and managers if, with respect to any such
alien—
(i) in the 3 years preceding
the time of the alien’s application for classification and admission into the
United States under this subparagraph, the alien has been employed for at least
1 year by a firm or corporation or other legal entity or an affiliate or
subsidiary thereof; and
(ii) the alien seeks to enter
the United States in order to continue to render services to the same employer
or to a subsidiary or affiliate thereof in a capacity that is managerial or
executive.
(L) Aliens who have earned a
doctorate degree from an institution of higher education in the United States
or the foreign equivalent.
(M) Alien physicians who have
completed the foreign residency requirements under section 212(e) or obtained a
waiver of these requirements or an exemption requested by an interested State
agency or by an interested Federal agency under section 214(l), including those
alien physicians who completed such service before the date of the enactment of
the Border Security, Economic Opportunity,
and Immigration Modernization Act.
(N)
Advanced degrees in a
stem field
(i)
In
general
An immigrant who—
(I) has earned a master’s or
higher degree in a field of science, technology, engineering, or mathematics
included in the Department of Education's Classification of Instructional
Programs taxonomy within the summary groups of computer and information
sciences and support services, engineering, mathematics and statistics,
biological and biomedical sciences, and physical sciences, from a United States
institution of higher education;
(II) has an offer of
employment from a United States employer in a field related to such degree;
and
(III) earned the qualifying
graduate degree during the 5-year period immediately before the initial filing
date of the petition under which the nonimmigrant is a beneficiary.
(ii)
Definition
In
this subparagraph, the term United States institution of higher
education means an institution that—
(I) is described in
section 101(a) of the Higher Education Act of 1965 (20 U.S.C. 1001(a)) or is a
proprietary institution of higher education (as defined in section 102(b) of
such Act (20 U.S.C. 1002(b)));
(II) was classified
by the Carnegie Foundation for the Advancement of Teaching on January 1, 2012,
as a doctorate-granting university with a very high or high level of research
activity or classified by the National Science Foundation after the date of
enactment of this subparagraph, pursuant to an application by the institution,
as having equivalent research activity to those institutions that had been
classified by the Carnegie Foundation as being doctorate-granting universities
with a very high or high level of research activity; and
(III) is accredited
by an accrediting body that is itself accredited either by the Department of
Education or by the Council for Higher Education
Accreditation.
.
(2)
Exception from labor
certification requirement for STEM immigrants
Section
212(a)(5)(D) (8 U.S.C. 1182(a)(5)(D)) is amended to read as follows:
(D)
Application of
grounds
(i)
In
general
Except as provided in clause (ii), the grounds for
inadmissibility of aliens under subparagraphs (A) and (B) shall apply to
immigrants seeking admission or adjustment of status under paragraph (2) or (3)
of section 203(b).
(ii)
Special rule for STEM
immigrants
The grounds for inadmissibility of aliens under
subparagraph (A) shall not apply to an immigrant seeking admission or
adjustment of status under section
203(b)(2)(B).
.
(c)
Technical and
conforming amendments
(1)
Treatment of derivative
family members
Section 203(d) (8 U.S.C. 1153(d)) is amended to
read as follows:
(d)
Treatment of family
members
If accompanying or following to join a spouse or parent
issued a visa under subsection (a), (b), or (c), subparagraph (I), (J), (K),
(L), or (M) of section 201(b)(1), or section 201(b)(2), a spouse or child (as
defined in subparagraph (A), (B), (C), (D), or (E) of section 101(b)(1)) shall
be entitled to the same immigrant status and the same order of consideration
provided in the respective
provision.
.
(2)
Aliens who are priority
workers or members of the professions holding advanced
degrees
Section 203(b) (8 U.S.C. 1153(b)) is amended—
(A) in the matter preceding
paragraph (1), by striking Aliens and inserting Other
than aliens described in paragraph (1) or (2)(B), aliens;
(B) in paragraph (1), by
striking the matter preceding subparagraph (A) and inserting Aliens
described in any of the following subparagraphs may be admitted to the United
States without respect to the worldwide level specified in section
201(d); and
(C) by amending paragraph (2)
to read as follows:
(2)
Aliens who are members
of professions holding advanced degrees or prospective employees of national
security facilities
(A)
In
general
Visas shall be made available, in a number not to exceed
40 percent of the worldwide level authorized in section 201(d), plus any visas
not required for the classes specified in paragraph (5) to qualified immigrants
who are either of the following:
(i) Members of the
professions holding advanced degrees or their equivalent whose services in the
sciences, arts, professions, or business are sought by an employer in the
United States, including alien physicians holding foreign medical degrees that
have been deemed sufficient for acceptance by an accredited United States
medical residency or fellowship program.
(ii) Prospective employees,
in a research capacity, of Federal national security, science, and technology
laboratories, centers, and agencies, if such immigrants have been lawfully
present in the United States for two years prior to employment (unless the
Secretary of Homeland Security determines, including upon request of the
prospective laboratory, center, or agency, that exceptional circumstances exist
justifying waiver of the presence requirement).
(B)
Waiver of job
offer
(i)
National interest
waiver
Subject to clause (ii), the Secretary of Homeland Security
may, if the Secretary deems it to be in the national interest, waive the
requirements of subparagraph (A) that an alien’s services in the sciences,
arts, professions, or business be sought by an employer in the United
States.
(ii)
Physicians working in
shortage areas or veterans facilities
(I)
In
general
The Secretary shall grant a national interest waiver
pursuant to clause (i) on behalf of any alien physician with respect to whom a
petition for preference classification has been filed under subparagraph (A)
if—
(aa) the alien physician
agrees to work on a full- time basis practicing primary care, specialty
medicine, or a combination thereof, in an area or areas designated by the
Secretary of Health and Human Services as having a shortage of health care
professionals or at a health care facility under the jurisdiction of the
Secretary of Veterans Affairs; or
(bb) the alien physician is
pursuing such waiver based upon service at a facility or facilities that serve
patients who reside in a geographic area or areas designated by the Secretary
of Health and Human Services as having a shortage of health care professionals
(without regard to whether such facility or facilities are located within such
an area) and a Federal agency or a local, county, regional, or State department
of public health determines that the alien physician’s work at such facility
was or will be in the public interest.
(II)
Prohibition
(aa) No permanent resident
visa may be issued to an alien physician described in subclause (I) by the
Secretary of State under section 204(b), and the Secretary of Homeland Security
may not adjust the status of such an alien physician from that of a
nonimmigrant alien to that of a permanent resident alien under section 245,
until such time as the alien has worked full time as a physician for an
aggregate of 5 years (not including the time served in the status of an alien
described in section 101(a)(15)(J)), in an area or areas designated by the
Secretary of Health and Human Services as having a shortage of health care
professionals or at a health care facility under the jurisdiction of the
Secretary of Veterans Affairs, or at a facility or facilities meeting the
requirements of subclause (I)(bb).
(bb) The 5-year service
requirement of item (aa) shall be counted from the date the alien physician
begins work in the shortage area in any legal status and not the date an
immigrant visa petition is filed or approved. Such service shall be aggregated
without regard to when such service began and without regard to whether such
service began during or in conjunction with a course of graduate medical
education.
(cc) An alien physician shall
not be required to submit an employment contract with a term exceeding the
balance of the 5-year commitment yet to be served, nor an employment contract
dated within a minimum time period prior to filing of a visa petition pursuant
to this subsection.
(dd) An alien physician shall
not be required to file additional immigrant visa petitions upon a change of
work location from the location approved in the original national interest
immigrant petition.
(III)
Statutory
construction
Nothing in this subparagraph may be construed to
prevent the filing of a petition with the Secretary of Homeland Security for
classification under section 204(a), by an alien physician described in
subclause (I) prior to the date by which such alien physician has completed the
service described in subclause (II) or in section 214(l).
(C)
Guidance and
rules
The Secretary may prescribe such policy guidance and rules
as the Secretary considers appropriate for purposes of subparagraph (A) to
ensure national security and promote the interests and competitiveness of the
United States. Such rules shall include a definition of the term Federal
national security, science, and technology laboratories, centers, and
agencies for purposes of clause (ii) of subparagraph (A), which shall
include the following:
(i) The national security,
science, and technology laboratories, centers, and agencies of the Department
of Defense, the Department of Energy, the Department of Homeland Security, the
elements of the intelligence community (as that term is defined in section 4(3)
of the National Security Act of 1947), and any other department or agency of
the Federal Government that conducts or funds research and development in the
essential national interest.
(ii) Federally funded
research and development centers (FFRDCs) that are primarily supported by a
department or agency of the Federal Government specified in clause
(i).
.
(3)
Skilled workers,
professionals, and other workers
(A)
In
general
Section 203(b)(3)(A) (8 U.S.C. 1153(b)(3)(A)) is amended
by striking in a number not to exceed 28.6 percent of such worldwide
level, plus any visas not required for the classes specified in paragraphs (1)
and (2), and inserting in a number not to exceed 40 percent of
the worldwide level authorized in section 201(d), plus any visas not required
for the class specified in paragraph (2),.
(B)
Medical license
requirements
Section 214(i)(2)(A) (8 U.S.C. 1184(i)(2)(A)) is
amended by adding at the end including in the case of a medical doctor,
the licensure required to practice medicine in the United
States,.
(C)
Repeal of limitation on
other workers
Section 203(b)(3) (8 U.S.C. 1153(b)(3)) is
amended—
(i) by striking subparagraph
(B); and
(ii) redesignated
subparagraph (C) as subparagraph (B).
(4)
Certain special
immigrants
Section 203(b)(4) (8 U.S.C. 1153(b)(4)) is amended by
striking in a number not to exceed 7.1 percent of such worldwide level,
and inserting in a number not to exceed 10 percent of the
worldwide level authorized in section 201(d), plus any visas not required for
the class specified in paragraph (3),.
(5)
Employment
creation
Section 203(b)(5)(A) (8 U.S.C. 1153(b)(5)(A)) is amended
by striking in a number not to exceed 7.1 percent of such worldwide
level, and inserting in a number not to exceed 10 percent of the
worldwide level authorized in section 201(d), plus any visas not required for
the class specified in paragraph (4),.
(d)
Naturalization of
employees of certain national security facilities without regard to residency
requirements
Section 316 (8 U.S.C. 1427) is amended by adding at
the end the following:
(g)
(1) Any person who, while
an alien or a noncitizen national of the United States, has been employed in a
research capacity at a Federal national security, science, and technology
laboratory, center, or agency (as defined pursuant to section 203(b)(2)(C)) for
a period or periods aggregating one year or more may, in the discretion of the
Secretary, be naturalized without regard to the residence requirements of this
section if the person—
(A) has complied with all
requirements as determined by the Secretary of Homeland Security, the Secretary
of Defense, the Secretary of Energy, or the head of a petitioning department or
agency of the Federal Government, including contractual requirements to
maintain employment in a research capacity with a Federal national security,
science, and technology laboratory, center, or agency for a period not to
exceed five years; and
(B) has favorably completed
and adjudicated a background investigation at the appropriate level, from the
employing department or agency of the Federal Government within the last five
years.
(2) The number of aliens or
noncitizen nationals naturalized in any fiscal year under this subsection shall
not exceed a number as defined by the Secretary of Homeland Security, in
consultation with the head of the petitioning department or agency of the
Federal
Government.
.
2308.
Inclusion of
communities adversely affected by a recommendation of the Defense Base Closure
and Realignment Commission as targeted employment areas
(a)
In
general
Section 203(b)(5)(B)(ii) (8 U.S.C. 1153(b)(5)(B)(ii)) is
amended by inserting , any community adversely affected by a
recommendation by the Defense Base Closure and Realignment Commission,
after rural area.
(b)
Regulations
The
Secretary, in consultation with the Secretary of Defense, shall implement the
amendment made by subsection (a) through appropriate regulations.
2309.
V nonimmigrant
visas
(a)
Nonimmigrant
eligibility
Subparagraph (V) of section 101(a)(15) (8 U.S.C.
1101(a)(15)) is amended to read as follows:
(V)
(i) subject to section
214(q)(1) and section 212(a)(4), an alien who is the beneficiary of an approved
petition under section 203(a) as—
(I) the unmarried son or
unmarried daughter of a citizen of the United States;
(II) the unmarried son or
unmarried daughter of an alien lawfully admitted for permanent residence;
or
(III) the married son or
married daughter of a citizen of the United States and who is 31 years of age
or younger; or
(ii) subject to section
214(q)(2), an alien who is—
(I) the sibling of a citizen
of the United States; or
(II) the married son or
married daughter of a citizen of the United States and who is older than 31
years of
age;
.
(b)
Employment and period
of admission of nonimmigrants described in section
101(a)(15)(V)
Section 214(q) (8 U.S.C. 1184(q)) is amended to
read as follows:
(q)
Nonimmigrants described
in section 101(a)(15)(V)
(1)
Certain sons and
daughters
(A)
Employment
authorization
The Secretary shall—
(i) authorize a nonimmigrant
admitted pursuant to section 101(a)(15)(V)(i) to engage in employment in the
United States during the period of such nonimmigrant's authorized admission;
and
(ii) provide such a
nonimmigrant with an employment authorized endorsement or other
appropriate document signifying authorization of employment.
(B)
Termination of
admission
The period of authorized admission for such a
nonimmigrant shall terminate 30 days after the date on which—
(i) such nonimmigrant’s
application for an immigrant visa pursuant to the approval of a petition under
subsection (a) or (c) of section 203 is denied; or
(ii) such nonimmigrant’s
application for adjustment of status under section 245 pursuant to the approval
of such a petition is denied.
(2)
Siblings and sons and
daughters of citizens
(A)
Employment
authorization
The Secretary may not authorize a nonimmigrant
admitted pursuant to section 101(a)(15)(V)(ii) to engage in employment in the
United States.
(B)
Period of
admission
The period of authorized admission as such a
nonimmigrant may not exceed 60 days per fiscal year.
(C)
Treatment of period of
admission
An alien admitted under section 101(a)(15)(V) may not
receive an allocation of points pursuant to section 203(c) for residence in the
United States while admitted as such a
nonimmigrant.
.
(c)
Public
benefits
A noncitizen who is lawfully present in the United
States pursuant to section 101(a)(15)(V) of the Immigration and Nationality Act
(8 U.S.C. 1101(a)(15)(V)) is not eligible for any means-tested public benefits
(as such term is defined and implemented in section 403 of the Personal
Responsibility and Work Opportunity Reconciliation Act of 1996 (8 U.S.C.
1613)). A noncitizen admitted under this section—
(1) is not entitled to the
premium assistance tax credit authorized under section 36B of the Internal
Revenue Code of 1986 for his or her coverage;
(2) shall be subject to the
rules applicable to individuals not lawfully present that are set forth in
subsection (e) of such section;
(3) shall be subject to the
rules applicable to individuals not lawfully present that are set forth in
section 1402(e) of the Patient Protection and Affordable Care Act (42 U.S.C.
18071(e)); and
(4) shall be subject to the
rules applicable to individuals not lawfully present set forth in section
5000A(d)(3) of the Internal Revenue Code of 1986.
(d)
Effective
date
The amendments made by this section shall take effect on the
first day of the first fiscal year beginning after the date of the enactment of
this Act.
2310.
Fiancée and fiancé
child status protection
(a)
Definition
Section
101(a)(15)(K) (8 U.S.C. 1101(a)(15)(K), as amended by section
2305(d)(6)(B)(i)(I), is further amended—
(1) in clause (i), by
inserting or of an alien lawfully admitted for permanent
residence after 204(a)(1)(H)(i));
(2) in clause (ii), by
inserting or of an alien lawfully admitted for permanent
residence after 204(a)(1)(H)(i)); and
(3) in clause (iii), by
striking the semicolon and inserting , provided that a determination of
the age of such child is made using the age of the alien on the date on which
the fiancé, fiancée, or immigrant visa petition is filed with the Secretary of
Homeland Security to classify the alien's parent as the fiancée or fiancé of a
United States citizen or of an alien lawfully admitted for permanent residence
(in the case of an alien parent described in clause (i)) or as the spouse of a
citizen of the United States or of an alien lawfully admitted to permanent
residence under section 201(b)(2)(A) (in the case of an alien parent described
in clause (ii));.
(b)
Adjustment of status
authorized
Section 214(d) (8 U.S.C. 1184(d)) is amended—
(1) by redesignating
paragraphs (2) and (3) as paragraphs (3) and (4), respectively; and
(2) in paragraph (1), by
striking In the event and all that follows through the end;
and
(3) by inserting after
paragraph (1) the following:
(2)
(A) If an alien does
not marry the petitioner under paragraph (1) within 3 months after the alien
and the alien's children are admitted into the United States, the visa
previously issued under the provisions of section 1101(a)(15)(K)(i) shall
automatically expire and such alien and children shall be required to depart
from the United States. If such aliens fail to depart from the United States,
they shall be placed in proceedings in accordance with sections 240 and
241.
(B) Subject to subparagraphs
(C) and (D), if an alien marries the petitioner described in section
101(a)(15)(K)(i) within 90 days after the alien is admitted into the United
States, the Secretary or the Attorney General, subject to the provisions of
section 245(d), may adjust the status of the alien, and any children
accompanying or following to join the alien, to that of an alien lawfully
admitted for permanent residence on a conditional basis under section 216 if
the alien and any such children apply for such adjustment and are not
determined to be inadmissible to the United States. If the alien does not apply
for such adjustment within 6 months after the marriage, the visa issued under
the provisions of section 1101(a)(15)(K) shall automatically expire.
(C) Paragraphs (5) and (7)(A)
of section 212(a) shall not apply to an alien who is eligible to apply for
adjustment of the alien's status to an alien lawfully admitted for permanent
residence under this section.
(D) An alien eligible for a
waiver of inadmissibility as otherwise authorized under this Act or the
Border Security, Economic Opportunity, and
Immigration Modernization Act shall be permitted to apply for
adjustment of the alien's status to that of an alien lawfully admitted for
permanent residence under this
section.
.
(c)
Age
determination
Section 245(d) (8 U.S.C. 1255(d)) is
amended—
(1) by striking The
Attorney General and inserting (1) The Secretary of Homeland
Security;
(2) in paragraph (1), as
redesignated, by striking Attorney General and inserting
Secretary; and
(3) by adding at the end the
following:
(2) A determination of the
age of an alien admitted to the United States under section 101(a)(15)(K)(iii)
shall be made, for purposes of adjustment to the status of an alien lawfully
admitted for permanent residence on a conditional basis under section 216,
using the age of the alien on the date on which the fiancé, fiancée, or
immigrant visa petition was filed with the Secretary of Homeland Security to
classify the alien's parent as the fiancée or fiancé of a United States citizen
or of an alien lawfully admitted to permanent residence (in the case of an
alien parent admitted to the United States under section 101(a)(15)(K)(i)) or
as the spouse of a United States citizen or of an alien lawfully admitted to
permanent residence under section 201(b)(2)(A) (in the case of an alien parent
admitted to the United States under section
101(a)(15)(K)(ii)).
.
(d)
Applicability
The
amendments made by this section shall apply to all petitions or applications
described in such amendments that are pending as of the date of the enactment
of the Border Security, Economic Opportunity,
and Immigration Modernization Act.
(e)
Technical and
conforming amendments
(1)
Definitions
Section
101(a)(15)(K) (8 U.S.C. 1101(a)(15)(K)), as amended by subsection (a), is
further amended—
(A) in clause (ii), by
striking section 201(b)(2)(A)(i) and inserting section
201(b)(2); and
(B) in clause (iii), by
striking section 201(b)(2)(A)(i) and inserting section
201(b)(2).
(2)
Age
determination
Paragraph (2) of section 245(d) (8 U.S.C. 1255(d)),
as added by subsection (c), is amended by striking section
201(b)(2)(A)(i) and inserting 201(b)(2).
(3)
Effective
date
The amendments made by this subsection shall take effect on
the first day of the first fiscal year beginning no earlier than 1 year after
the date of the enactment of this Act.
2311.
Equal treatment for
all stepchildren
Section
101(b)(1)(B) (8 U.S.C. 1101(b)(1)(B)) is amended by striking eighteen
years and inserting 21 years.
2312.
Modification of
adoption age requirements
Section 101(b)(1) (8 U.S.C. 1101(b)(1))
is amended—
(1) in subparagraph (E)—
(A) by striking
(E)(i) and inserting (E);
(B) by striking under
the age of sixteen years and inserting younger than 18 years of
age, or a child adopted when 18 years of age or older if the adopting parent or
parents initiated the legal adoption process before the child reached 18 years
of age;
(C) by striking ;
or and inserting a semicolon; and
(D) by striking clause
(ii);
(2) in subparagraph (F)—
(A) by striking
(F)(i) and inserting (F);
(B) by striking
sixteen and inserting 18;
(C) by striking
Attorney General and inserting Secretary of Homeland
Security; and
(D) by striking clause (ii);
and
(3) in subparagraph (G), by
striking 16 and inserting 18.
2313.
Relief for orphans,
widows, and widowers
(a)
In general
(1)
Special rule for
orphans and spouses
In applying clauses (iii) and (iv) of section
201(b)(2)(B) of the Immigration and Nationality Act, as added by section
2305(a) of this Act, to an alien whose citizen or lawful permanent resident
relative died before the date of the enactment of this Act, the alien relative
may file the classification petition under section 204(a)(1)(A)(ii) of the
Immigration and Nationality Act not later than 2 years after the date of the
enactment of this Act.
(2)
Eligibility for
parole
If an alien was excluded, deported, removed, or departed
voluntarily before the date of the enactment of this Act based solely upon the
alien's lack of classification as an immediate relative (as defined in section
201(b)(2)(B)(iv) of the Immigration and Nationality Act, as amended by section
2305(a) of this Act) due to the death of such citizen or resident—
(A) such alien shall be
eligible for parole into the United States pursuant to the Secretary's
discretionary authority under section 212(d)(5) of such Act (8 U.S.C.
1182(d)(5)); and
(B) such alien's application
for adjustment of status shall be considered by the Secretary notwithstanding
section 212(a)(9) of such Act (8 U.S.C. 1182(a)(9)).
(3)
Eligibility for
parole
If an alien described in section 204(l) of the Immigration
and Nationality Act (8 U.S.C. 1154(l)) was excluded, deported, removed, or
departed voluntarily before the date of the enactment of this Act—
(A) such alien shall be
eligible for parole into the United States pursuant to the Secretary's
discretionary authority under section 212(d)(5) of such Act (8 U.S.C.
1182(d)(5)); and
(B) such alien's application
for adjustment of status shall be considered by the Secretary notwithstanding
section 212(a)(9) of such Act (8 U.S.C. 1182(a)(9)).
(b)
Processing of immigrant
visas and derivative petitions
(1)
In
general
Section 204(b) (8 U.S.C. 1154(b)) is amended—
(A) by striking After
an investigation and inserting (1) After an
investigation; and
(B) by adding at the end the
following:
(2)
(A) Any alien described
in subparagraph (B) whose qualifying relative died before the completion of
immigrant visa processing may have an immigrant visa application adjudicated as
if such death had not occurred. An immigrant visa issued before the death of
the qualifying relative shall remain valid after such death.
(B) An alien described in
this subparagraph is an alien who—
(i) is an immediate relative
(as described in section 201(b)(2)(B));
(ii) is a family-sponsored
immigrant (as described in subsection (a) or (d) of section 203);
(iii) is a derivative
beneficiary of an employment-based immigrant under section 203(b) (as described
in section 203(d)); or
(iv) is the spouse or child
of a refugee (as described in section 207(c)(2)) or an asylee (as described in
section
208(b)(3)).
.
(2)
Transition
period
(A)
In
general
Notwithstanding a denial or revocation of an application
for an immigrant visa for an alien due to the death of the qualifying relative
before the date of the enactment of this Act, such application may be renewed
by the alien through a motion to reopen, without fee.
(B)
Inapplicability of bars
to entry
Notwithstanding section 212(a)(9) of the Immigration and
Nationality Act (8 U.S.C. 1182(a)(9)), an alien's application for an immigrant
visa shall be considered if the alien was excluded, deported, removed, or
departed voluntarily before the date of the enactment of this Act.
(c)
Naturalization
Section
319(a) (8 U.S.C. 1430(a)) is amended by striking States, and
inserting States (or if the spouse is deceased, the spouse was a citizen
of the United States),.
(d)
Waivers of
inadmissibility
Section 212 (8 U.S.C. 1182) is amended by adding
at the end the following:
(v)
Continued waiver
eligibility for widows, widowers, and orphans
In the case of an
alien who would have been statutorily eligible for any waiver of
inadmissibility under this Act but for the death of a qualifying relative, the
eligibility of such alien shall be preserved as if the death had not occurred
and the death of the qualifying relative shall be the functional equivalent of
hardship for purposes of any waiver of inadmissibility which requires a showing
of
hardship.
.
(e)
Surviving relative
consideration for certain petitions and applications
Section
204(l)(1) (8 U.S.C. 1154(l)(1)) is amended—
(1) by striking who
resided in the United States at the time of the death of the qualifying
relative and who continues to reside in the United States; and
(2) by striking
related applications, and inserting related applications
(including affidavits of support),.
(f)
Family-sponsored
immigrants
Section 212(a)(4)(C)(i) (8 U.S.C. 1182(a)(4)(C)(i)),
as amended by section 2305(d)(6)(B)(iii), is further amended by adding at the
end the following:
(III) the status as a
surviving relative under 204(l);
or
.
2314.
Discretionary
authority with respect to removal, deportation, or inadmissibility of citizen
and resident immediate family members
(a)
Applications for relief
from removal
Section
240(c)(4) (8 U.S.C. 1229a(c)(4)) is amended by adding at the end the
following:
(D)
Judicial
discretion
In the case of an
alien subject to removal, deportation, or inadmissibility, the immigration
judge may exercise discretion to decline to order the alien removable,
deportable, or inadmissible from the United States and terminate proceedings if
the judge determines that such removal, deportation, or inadmissibility is
against the public interest or would result in hardship to the alien's United
States citizen or lawful permanent resident parent, spouse, or child, or the
judge determines the alien is prima facie eligible for naturalization except
that this subparagraph shall not apply to an alien whom the judge
determines—
(i) is inadmissible or deportable under—
(I) subparagraph (B), (C), (D)(ii), (E), (H),
(I), or (J) of section 212(a)(2);
(II) section 212(a)(3);
(III) subparagraph (A), (C), or (D) of section
212(a)(10); or
(IV) paragraph (2)(A)(ii), (2)(A)(v), (2)(F),
(4), or (6) of section 237(a); or
(ii) has—
(I) engaged in conduct described in paragraph
(8) or (9) of section 103 of the Trafficking Victims Protection Act of 2000 (22
U.S.C. 7102); or
(II) a felony conviction
described in section 101(a)(43) that would have been classified as an
aggravated felony at the time of
conviction.
.
(b)
Secretary's
discretion
Section 212 (8 U.S.C. 1182), as amended by section
2313(d), is further amended by adding at the end the following:
(w)
Secretary's
discretion
In the case of an alien who is inadmissible under this
section or deportable under section 237, the Secretary of Homeland Security may
exercise discretion to waive a ground of inadmissibility or deportability if
the Secretary determines that such removal or refusal of admission is against
the public interest or would result in hardship to the alien's United States
citizen or permanent resident parent, spouse, or child. This subsection shall
not apply to an alien whom the Secretary determines—
(1) is inadmissible or
deportable under—
(A) subparagraph (B), (C),
(D)(ii), (E), (H), (I), or (J) of subsection (a)(2);
(B) subsection (a)(3);
(C) subparagraph (A), (C), or
(D) of subsection (a)(10);
(D) paragraphs (2)(A)(ii), (2)(A)(v), (2)(F),
or (6) of section 237(a); or
(E) section
240(c)(4)(D)(ii)(II); or
(2) has—
(A) engaged in conduct
described in paragraph (8) or (9) of section 103 of the Trafficking Victims
Protection Act of 2000 (22 U.S.C. 7102); or
(B) a felony conviction
described in section 101(a)(43) that would have been classified as an
aggravated felony at the time of
conviction.
.
(c)
Reinstatement of
removal orders
Section 241(a)(5) (8 U.S.C. 1231(a)(5)) is amended
by striking the period at the end and inserting , unless the alien
reentered prior to attaining the age of 18 years, or reinstatement of the prior
order of removal would not be in the public interest or would result in
hardship to the alien's United States citizen or permanent resident parent,
spouse, or child..
2315.
Waivers of
inadmissibility
(a)
Aliens who entered as
children
Section
212(a)(9)(B)(iii) (8 U.S.C. 1182(a)(9)(B)(iii)) is amended by adding at the end
the following:
(VI)
Aliens who entered as
children
Clause (i) shall not apply to an alien who is the
beneficiary of an approved petition under 101(a)(15)(H) and who has earned a
baccalaureate or higher degree from a United States institution of higher
education (as defined in section 101(a) of the Higher Education Act of 1965 (20
U.S.C. 1001(a)), and had not yet reached the age of 16 years at the time of
initial entry to the United
States.
.
(b)
Aliens unlawfully
present
Section 212(a)(9)(B)(v) (8 U.S.C. 1181(a)(9)(B)(v) is
amended—
(1) by striking spouse
or son or daughter and inserting spouse, son, daughter, or
parent;
(2) by striking
extreme; and
(3) by inserting ,
child, after lawfully resident spouse.
(c)
Previous immigration
violations
Section 212(a)(9)(C)(i) (8 U.S.C. 1182(a)(9)(C)(i)) is
amended by adding , other than an alien described in clause (iii) or
(iv) of subparagraph (B), after Any alien.
(d)
False claims
(1)
Inadmissibility
(A)
In
general
Section 212(a)(6)(C) (8 U.S.C. 1182(a)(6)(C)) is amended
to read as follows:
(C)
Misrepresentation
(i)
In
general
Any alien who, by fraud or willfully misrepresenting a
material fact, seeks to procure (or within the last 3 years has sought to
procure or has procured) a visa, other documentation, or admission into the
United States or other benefit provided under this Act is inadmissible.
(ii)
Falsely claiming
citizenship
(I)
Inadmissibility
Subject
to subclause (II), any alien who knowingly misrepresents himself or herself to
be a citizen of the United States for any purpose or benefit under this chapter
(including section 274A) or any other Federal or State law is
inadmissible.
(II)
Special rule for
children
An alien shall not be inadmissible under this clause if
the misrepresentation described in subclause (I) was made by the alien when the
alien—
(aa) was under 18 years of
age; or
(bb) otherwise lacked the
mental competence to knowingly misrepresent a claim of United States
citizenship.
(iii)
Waiver
The
Attorney General or the Secretary of Homeland Security may, in the discretion
of the Attorney General or the Secretary, waive the application of clause (i)
or (ii)(I) for an alien, regardless whether the alien is within or outside the
United States, if the Attorney General or the Secretary finds that a
determination of inadmissibility to the United States for such alien
would—
(I) result in extreme
hardship to the alien or to the alien’s parent, spouse, son, or daughter who is
a citizen of the United States or an alien lawfully admitted for permanent
residence; or
(II) in the case of a VAWA
self-petitioner, result in significant hardship to the alien or a parent or
child of the alien who is a citizen of the United States, an alien lawfully
admitted for permanent residence, or a qualified alien (as defined in section
431 of the Personal Responsibility and Work Opportunity Reconciliation Act of
1996 (8 U.S.C. 1641(b))).
(iv)
Limitation on
review
No court shall have jurisdiction to review a decision or
action of the Attorney General or the Secretary regarding a waiver under clause
(iii).
.
(B)
Conforming
amendment
Section 212 (8 U.S.C. 1182) is amended by striking
subsection (i).
(2)
Deportability
Section
237(a)(3)(D) (8 U.S.C. 1227(a)(3)(D)) is amended to read as follows:
(D)
Falsely claiming
citizenship
Any alien described in section 212(a)(6)(C)(ii) is
deportable.
.
2316.
Continuous
presence
Section 240A(d)(1) (8
U.S.C. 1229b(d)(1)) is amended to read as follows:
(1)
Termination of
continuous period
For purposes of this section, any period of
continuous residence or continuous physical presence in the United States shall
be deemed to end, except in the case of an alien who applies for cancellation
of removal under subsection (b)(2), on the date that a notice to appear is
filed with the Executive Office for Immigration Review pursuant to section
240.
.
2317.
Global health care
cooperation
(a)
Temporary absence of
aliens providing health care in developing countries
(1)
In
general
Title III (8 U.S.C. 1401 et seq.) is amended by inserting
after section 317 the following:
317A.
Temporary absence of
aliens providing health care in developing countries
(a)
In
general
Notwithstanding any other provision of this Act, the
Secretary of Homeland Security shall allow an eligible alien and the spouse or
child of such alien to reside in a candidate country during the period that the
eligible alien is working as a physician or other health care worker in a
candidate country. During such period the eligible alien and such spouse or
child shall be considered—
(1) to be physically present
and residing in the United States for purposes of naturalization under section
316(a); and
(2) to meet the continuous
residency requirements under section 316(b).
(b)
Definitions
In
this section:
(1)
Candidate
country
The term candidate country means a country
that the Secretary of State determines to be—
(A) eligible for assistance
from the International Development Association, in which the per capita income
of the country is equal to or less than the historical ceiling of the
International Development Association for the applicable fiscal year, as
defined by the International Bank for Reconstruction and Development;
(B) classified as a lower
middle income country in the then most recent edition of the World Development
Report for Reconstruction and Development published by the International Bank
for Reconstruction and Development and having an income greater than the
historical ceiling for International Development Association eligibility for
the applicable fiscal year; or
(C) qualified to be a
candidate country due to special circumstances, including natural disasters or
public health emergencies.
(2)
Eligible
alien
The term eligible alien means an alien
who—
(A) has been lawfully
admitted to the United States for permanent residence; and
(B) is a physician or other
healthcare worker.
(c)
Consultation
The
Secretary of Homeland Security shall consult with the Secretary of State in
carrying out this section.
(d)
Publication
The
Secretary of State shall publish—
(1) not later than 180 days
after the date of the enactment of the Border
Security, Economic Opportunity, and Immigration Modernization
Act, a list of candidate countries;
(2) an updated version of the
list required by paragraph (1) not less often than once each year; and
(3) an amendment to the list
required by paragraph (1) at the time any country qualifies as a candidate
country due to special circumstances under subsection
(b)(1)(C).
.
(2)
Rulemaking
(A)
Requirement
Not
later than 180 days after the date of the enactment of this Act, the Secretary
shall promulgate regulations to carry out the amendments made by this
subsection.
(B)
Content
The
regulations promulgated pursuant to subparagraph (A) shall—
(i) permit an eligible alien
(as defined in section 317A of the Immigration and Nationality Act, as added by
subsection (a)) and the spouse or child of the eligible alien to reside in a
foreign country to work as a physician or other healthcare worker as described
in subsection (a) of such section 317A for not less than a 12-month period and
not more than a 24-month period, and shall permit the Secretary to extend such
period for an additional period not to exceed 12 months, if the Secretary
determines that such country has a continuing need for such a physician or
other healthcare worker;
(ii) provide for the issuance
of documents by the Secretary to such eligible alien, and such spouse or child,
if appropriate, to demonstrate that such eligible alien, and such spouse or
child, if appropriate, is authorized to reside in such country under such
section 317A; and
(iii) provide for an
expedited process through which the Secretary shall review applications for
such an eligible alien to reside in a foreign country pursuant to subsection
(a) of such section 317A if the Secretary of State determines a country is a
candidate country pursuant to subsection (b)(1)(C) of such section 317A.
(3)
Technical and
conforming amendments
(A)
Definition
Section
101(a)(13)(C)(ii) (8 U.S.C. 1101(a)(13)(C)(ii)) is amended by adding
except in the case of an eligible alien, or the spouse or child of such
alien, who is authorized to be absent from the United States under section
317A, at the end.
(B)
Documentary
requirements
Section 211(b) (8 U.S.C. 1181(b)) is amended by
inserting , including an eligible alien authorized to reside in a
foreign country under section 317A and the spouse or child of such eligible
alien, if appropriate, after 101(a)(27)(A),.
(C)
Ineligible
aliens
Section 212(a)(7)(A)(i)(I) (8 U.S.C. 1182(a)(7)(A)(i)(I))
is amended by inserting other than an eligible alien authorized to
reside in a foreign country under section 317A and the spouse or child of such
eligible alien, if appropriate, after Act,.
(4)
Clerical
amendment
The table of contents of such Act is amended by
inserting after the item relating to section 317 the following:
Sec. 317A. Temporary absence of
aliens providing health care in developing
countries.
.
(b)
Attestation by health
care workers
(1)
Attestation
requirement
Section 212(a)(5) (8 U.S.C. 1182(a)(5)) is amended by
adding at the end the following:
(E)
Health care workers
with other obligations
(i)
In
general
An alien 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 alien submits to the Secretary of Homeland Security or
the Secretary of State, as appropriate, an attestation that the alien is not
seeking to enter the United States for such purpose during any period in which
the alien has an outstanding obligation to the government of the alien's
country of origin or the alien's country of residence.
(ii)
Obligation
defined
In this subparagraph, the term obligation
means an obligation incurred as part of a valid, voluntary individual agreement
in which the alien received financial assistance to defray the costs of
education or training to qualify as a physician or other health care worker in
consideration for a commitment to work as a physician or other health care
worker in the alien's country of origin or the alien's country of
residence.
(iii)
Waiver
The
Secretary of Homeland Security may waive a finding of inadmissibility under
clause (i) if the Secretary determines that—
(I) the obligation was
incurred by coercion or other improper means;
(II) the alien and the
government of the country to which the alien has an outstanding obligation have
reached a valid, voluntary agreement, pursuant to which the alien's obligation
has been deemed satisfied, or the alien has shown to the satisfaction of the
Secretary that the alien has been unable to reach such an agreement because of
coercion or other improper means; or
(III) the obligation should
not be enforced due to other extraordinary circumstances, including undue
hardship that would be suffered by the alien in the absence of a
waiver.
.
(2)
Effective
date
The amendment made by paragraph (1) shall take effect on the
date that is 180 days after the date of the enactment of this Act.
(3)
Application
Not
later than the effective date described in paragraph (2), the Secretary shall
begin to carry out subparagraph (E) of section 212(a)(5) of the Immigration and
Nationality Act, as added by paragraph (1), including the requirement for the
attestation and the granting of a waiver described in clause (iii) of such
subparagraph (E), regardless of whether regulations to implement such
subparagraph have been promulgated.
2318.
Extension and
improvement of the Iraqi special immigrant visa program
The Refugee Crisis in Iraq Act of 2007 (8
U.S.C. 1157 note) is amended—
(1) in section 1242, by
amending subsection (c) to read as follows:
(c)
Improved application
process
Not later than 120 days after the date of the enactment
of the Border Security, Economic Opportunity,
and Immigration Modernization Act, the Secretary of State and the
Secretary of Homeland Security, in consultation with the Secretary of Defense,
shall improve the efficiency by which applications for special immigrant visas
under section 1244(a) are processed so that all steps incidental to the
issuance of such visas, including required screenings and background checks,
are completed not later than 9 months after the date on which an eligible alien
applies for such
visa.
;
(2) in section 1244—
(A) in subsection (b)—
(i) in paragraph (1)—
(I) by amending subparagraph
(B) to read as follows:
(B) was or is employed in
Iraq on or after March 20, 2003, for not less than 1 year, by, or on behalf
of—
(i) the United States
Government;
(ii) a media or
nongovernmental organization headquartered in the United States; or
(iii) an organization or
entity closely associated with the United States mission in Iraq that has
received United States Government funding through an official and documented
contract, award, grant, or cooperative
agreement;
;
(II) in subparagraph (C), by
striking the United States Government and inserting an
entity or organization described in subparagraph (B); and
(III) in subparagraph (D), by
striking by striking the United States Government. and inserting
such entity or organization.; and
(ii) in paragraph (4)—
(I) by striking A
recommendation and inserting the following:
(A)
In
general
Except as provided under subparagraph (B), a
recommendation
;
(II) by striking the
United States Government prior and inserting an entity or
organization described in paragraph (1)(B) prior; and
(III) by adding at the end
the following:
(B)
Review process for
denial by Chief of Mission
(i)
In
general
An applicant who has been denied Chief of Mission
approval required by subparagraph (A) shall—
(I) receive a written
decision; and
(II) be provided 120 days
from the date of the decision to request reopening of the decision to provide
additional information, clarify existing information, or explain any
unfavorable information.
(ii)
Senior
coordinator
The Secretary of State shall designate, in the
Embassy of the United States in Baghdad, Iraq, a senior coordinator responsible
for overseeing the efficiency and integrity of the processing of special
immigrant visas under this section, who shall be given—
(I) sufficiently high
security clearance to review Chief of Mission denials in cases that appear to
have relied upon insufficient or incorrect information; and
(II) responsibility for
ensuring that an applicant described in clause (i) receives the information
described in clause (i)(I).
;
and
(B) in subsection (c)(3), by
adding at the end the following:
(C)
Subsequent fiscal
years
Notwithstanding subparagraphs (A) and (B), and consistent
with subsection (b), any unused balance of the total number of principal aliens
who may be provided special immigrant status under this section in fiscal years
2008 through 2012 may be carried forward and provided through the end of fiscal
year 2018.
;
and
(3) in section 1248, by
adding at the end the following:
(f)
Report on
improvements
(1)
In
general
Not later than 120 days after the date of the enactment
of the Border Security, Economic Opportunity,
and Immigration Modernization Act, the Secretary of State and the
Secretary of Homeland Security, in consultation with the Secretary of Defense,
shall submit a report, with a classified annex, if necessary, to—
(A) the Committee on the
Judiciary of the Senate;
(B) the Committee on Foreign
Relations of the Senate;
(C) the Committee on the
Judiciary of the House of Representatives; and
(D) the Committee on Foreign
Affairs of the House of Representatives.
(2)
Contents
The
report submitted under paragraph (1) shall describe the implementation of
improvements to the processing of applications for special immigrant visas
under section 1244(a), including information relating to—
(A) enhancing existing
systems for conducting background and security checks of persons applying for
special immigrant status, which shall—
(i) support immigration
security; and
(ii) provide for the orderly
processing of such applications without delay;
(B) the financial, security,
and personnel considerations and resources necessary to carry out this
subtitle;
(C) the number of aliens who
have applied for special immigrant visas under section 1244 during each month
of the preceding fiscal year;
(D) the reasons for the
failure to expeditiously process any applications that have been pending for
longer than 9 months;
(E) the total number of
applications that are pending due to the failure—
(i) to receive approval from
the Chief of Mission;
(ii) for U.S. Citizenship and
Immigration Services to complete the adjudication of the Form I–360;
(iii) to conduct a visa
interview; or
(iv) to issue the visa to an
eligible alien;
(F) the average wait times
for an applicant at each of the stages described in subparagraph (E);
(G) the number of denials or
rejections at each of the stages described in subparagraph (E); and
(H) a breakdown of reasons
for denials at by the Chief of Mission based on the categories already made
available to denied special immigrant visa applicants in the denial letter sent
to them by the Chief of Mission.
(g)
Public quarterly
reports
Not later than 120 days after the date of the enactment
of the Border Security, Economic Opportunity,
and Immigration Modernization Act, and every 3 months thereafter,
the Secretary of State and the Secretary of Homeland Security, in consultation
with the Secretary of Defense, shall publish a report on the website of the
Department of State that describes the efficiency improvements made in the
process by which applications for special immigrant visas under section 1244(a)
are processed, including information described in subparagraphs (C) through (H)
of subsection
(f)(2).
.
2319.
Extension and
improvement of the Afghan special immigrant visa program
Section 602(b) of the Afghan Allies
Protection Act of 2009 (8 U.S.C. 1101 note) is amended—
(1) in paragraph (2)—
(A) in subparagraph
(A)—
(i) by amending clause (ii)
to read as follows:
(ii) was or is employed in
Afghanistan on or after October 7, 2001, for not less than 1 year, by, or on
behalf of—
(I) the United States
Government;
(II) a media or
nongovernmental organization headquartered in the United States; or
(III) an organization or
entity closely associated with the United States mission in Afghanistan that
has received United States Government funding through an official and
documented contract, award, grant, or cooperative
agreement;
;
(ii) in clause (iii), by
striking the United States Government and inserting an
entity or organization described in clause (ii); and
(iii) in clause (iv), by
striking by striking the United States Government. and inserting
such entity or organization.;
(B) by amending subparagraph
(B) to read as follows:
(B)
Family
members
An alien is described in this subparagraph if the alien
is—
(i) the spouse or minor child
of a principal alien described in subparagraph (A) who is accompanying or
following to join the principal alien in the United States; or
(ii)
(I) the spouse, child,
parent, or sibling of a principal alien described in subparagraph (A), whether
or not accompanying or following to join; and
(II) has experienced or is
experiencing an ongoing serious threat as a consequence of the qualifying
employment of a principal alien described in subparagraph
(A).
;
and
(C) in subparagraph
(D)—
(i) by striking A
recommendation and inserting the following:
(i)
In
general
Except as provided under clause (ii), a
recommendation
;
(ii) by striking the
United States Government prior and inserting an entity or
organization described in paragraph (2)(A)(ii) prior; and
(iii) by adding at the end
the following:
(ii)
Review process for
denial by Chief of Mission
(I)
In
general
An applicant who has been denied Chief of Mission
approval shall—
(aa) receive a written
decision; and
(bb) be provided 120 days
from the date of receipt of such opinion to request reconsideration of the
decision to provide additional information, clarify existing information, or
explain any unfavorable information.
(II)
Senior
coordinator
The Secretary of State shall designate, in the
Embassy of the United States in Kabul, Afghanistan, a senior coordinator
responsible for overseeing the efficiency and integrity of the processing of
special immigrant visas under this section, who shall be given—
(aa) sufficiently high
security clearance to review Chief of Mission denials in cases that appear to
have relied upon insufficient or incorrect information; and
(bb) responsibility for
ensuring that an applicant described in subclause (I) receives the information
described in subclause
(I)(aa).
;
(2) in paragraph (3)(C), by
amending clause (iii) to read as follows:
(iii)
Fiscal years 2014
through 2018
For each of the fiscal years 2014 through 2018, the
total number of principal aliens who may be provided special immigrant status
under this section may not exceed the sum of—
(I) 5,000;
(II) the difference between
the number of special immigrant visas allocated under this section for fiscal
years 2009 through 2013 and the number of such allocated visas that were
issued; and
(III) any unused balance of
the total number of principal aliens who may be provided special immigrant
status in fiscal years 2014 through 2018 that have been carried
forward.
;
(3) in paragraph (4)—
(A) in the heading, by
striking Prohibition on
fees.— and inserting Application
process.—;
(B) by striking The
Secretary and inserting the following:
(A)
In
general
Not later than 120 days after the date of enactment of
the Border Security, Economic Opportunity,
and Immigration Modernization Act, the Secretary of State and the
Secretary of Homeland Security, in consultation with the Secretary of Defense,
shall improve the efficiency by which applications for special immigrant visas
under paragraph (1) are processed so that all steps incidental to the issuance
of such visas, including required screenings and background checks, are
completed not later than 6 months after the date on which an eligible alien
applies for such visa.
(B)
Prohibition on
fees
The Secretary
;
and
(4) by adding at the end the
following:
(12)
Report on
improvements
Not later than 120 days after the date of the
enactment of the Border Security, Economic
Opportunity, and Immigration Modernization Act, the Secretary of
State and the Secretary of Homeland Security, in consultation with the
Secretary of Defense, shall submit to the appropriate committees of Congress a
report, with a classified annex, if necessary, that describes the
implementation of improvements to the processing of applications for special
immigrant visas under this subsection, including information relating
to—
(A) enhancing existing
systems for conducting background and security checks of persons applying for
special immigrant status, which shall—
(i) support immigration
security; and
(ii) provide for the orderly
processing of such applications without delay;
(B) the financial, security,
and personnel considerations and resources necessary to carry out this
section;
(C) the number of aliens who
have applied for special immigrant visas under this subsection during each
month of the preceding fiscal year;
(D) the reasons for the
failure to expeditiously process any applications that have been pending for
longer than 9 months;
(E) the total number of
applications that are pending due to the failure—
(i) to receive approval from
the Chief of Mission;
(ii) for U.S. Citizenship and
Immigration Services to complete the adjudication of the Form I–360;
(iii) to conduct a visa
interview; or
(iv) to issue the visa to an
eligible alien;
(F) the average wait times
for an applicant at each of the stages described in subparagraph (E);
(G) the number of denials or
rejections at each of the stages described in subparagraph (E); and
(H) a breakdown of reasons
for denials by the Chief of Mission based on the categories already made
available to denied special immigrant visa applicants in the denial letter sent
to them by the Chief of Mission.
(13)
Public quarterly
reports
Not later than 120 days after the date of the enactment
of the Border Security, Economic Opportunity,
and Immigration Modernization Act, and every 3 months thereafter,
the Secretary of State and the Secretary of Homeland Security, in consultation
with the Secretary of Defense, shall publish a report on the website of the
Department of State that describes the efficiency improvements made in the
process by which applications for special immigrant visas under this subsection
are processed, including information described in subparagraph (C) through (H)
of paragraph
(12).
.
2320.
Special Immigrant
Nonminister Religious Worker Program
Section 101(a)(27)(C)(ii) (8 U.S.C. 1101
(a)(27)(C)(ii)) is amended in subclauses (II) and (III) by striking
before September 30, 2015, both places such term appears.
2321.
Special immigrant
status for certain surviving spouses and children
(a)
In
general
Section 101(a)(27) (8
U.S.C. 1101(a)(27)) is amended in subparagraph (D)—
(1) by inserting
(i) before an immigrant who is an
employee;
(2) by inserting
or after grant such status;; and
(3) by inserting after clause
(i), as designated by paragraph (1), the following:
(ii) an immigrant who is the surviving spouse or
child of an employee of the United States Government abroad killed in the line
of duty, provided that the employee had performed faithful service for a total
of 15 years, or more, and that the principal officer of a Foreign Service
establishment (or, in the case of the American Institute of Taiwan, the
Director thereof) in his or her discretion, recommends the granting of special
immigrant status to the spouse or child and the Secretary of State approves
such recommendation and finds that it is in the national interest to grant such
status;
.
(b)
Effective
date
The amendments made by
subsection (a) take effect beginning on January 31, 2013, and shall have
retroactive effect.
2322.
Reunification of
certain families of Filipino veterans of World War II
(a)
Short
title
This section may be cited as the Filipino Veterans Family Reunification
Act.
(b)
Exemption from
immigrant visa limit
Section
201(b)(1) (8 U.S.C. 1151(b)(1)), as amended by sections 2103(c), 2212(d), and
2307(b), is further amended by adding at the end the following:
(O) Aliens who—
(i) are the sons or daughters
of a citizen of the United States; and
(ii) have a parent
(regardless of whether the parent is living or dead) who was naturalized
pursuant to—
(I) section 405 of the
Immigration Act of 1990 (Public Law 101–649; 8 U.S.C. 1440 note); or
(II) title III of the Act of
October 14, 1940 (54 Stat. 1137, chapter 876), as added by section 1001 of the
Second War Powers Act, 1942 (56 Stat. 182, chapter
199).
.
D
Conrad State 30 and
physician access
2401.
Conrad State 30
Program
Section 220(c) of the
Immigration and Nationality Technical Corrections Act of 1994 (Public Law
103–416; 8 U.S.C. 1182 note) is amended by striking and before September
30, 2015.
2402.
Retaining physicians
who have practiced in medically underserved communities
Section 201(b)(1) (8 U.S.C. 1151(b)(1)), as
amended by sections 2103(c), 2212(d)(2), 2307(b), and 2323(b) is further
amended by adding at the end the following:
(P)
(i) Alien physicians who have completed service
requirements of a waiver requested under section 203(b)(2)(B)(ii), including
alien physicians who completed such service before the date of the enactment of
the Border Security, Economic Opportunity,
and Immigration Modernization Act and any spouses or children of
such alien physicians.
(ii) Nothing in this subparagraph may be
construed—
(I) to prevent the filing of a petition with
the Secretary of Homeland Security for classification under section 204(a) or
the filing of an application for adjustment of status under section 245 by an
alien physician described in this subparagraph prior to the date by which such
alien physician has completed the service described in section 214(l) or worked
full-time as a physician for an aggregate of 5 years at the location identified
in the section 214(l) waiver or in an area or areas designated by the Secretary
of Health and Human Services as having a shortage of health care professionals;
or
(II) to permit the Secretary of Homeland
Security to grant such a petition or application until the alien has satisfied
all the requirements of the waiver received under section
214(l).
.
2403.
Employment
protections for physicians
(a)
In
general
Section 214(l)(1)(C)
(8 U.S.C. 1184(l)(1)(C)) is amended by striking clauses (i) and (ii) and
inserting the following:
(i) the alien demonstrates a
bona fide offer of full-time employment, at a health care organization, which
employment has been determined by the Secretary of Homeland Security to be in
the public interest; and
(ii) the alien agrees to
begin employment with the health facility or health care organization in a
geographic area or areas which are designated by the Secretary of Health and
Human Services as having a shortage of health care professionals by the later
of the date that is 90 days after receiving such waiver, 90 days after
completing graduate medical education or training under a program approved
pursuant to section 212(j)(1), or 90 days after receiving nonimmigrant status
or employment authorization, provided that the alien or the alien’s employer
petitions for such nonimmigrant status or employment authorization within 90
days of completing graduate medical education or training and agrees to
continue to work for a total of not less than 3 years in any status authorized
for such employment under this subsection, unless—
(I) the Secretary determines
that extenuating circumstances exist that justify a lesser period of employment
at such facility or organization, in which case the alien shall demonstrate
another bona fide offer of employment at a health facility or health care
organization, for the remainder of such 3-year period;
(II) the interested agency
that requested the waiver attests that extenuating circumstances exist that
justify a lesser period of employment at such facility or organization in which
case the alien shall demonstrate another bona fide offer of employment at a
health facility or health care organization so designated by the Secretary of
Health and Human Services, for the remainder of such 3-year period; or
(III) if the
alien elects not to pursue a determination of extenuating circumstances
pursuant to subclause (I) or (II), the alien terminates the alien’s employment
relationship with such facility or organization, in which case the alien shall
be employed for the remainder of such 3-year period, and 1 additional year for
each termination, at another health facility or health care organization in a
geographic area or areas which are designated by the Secretary of Health and
Human Services as having a shortage of health care professionals;
and
.
(b)
Physician employment in
underserved areas
Section 214(l)(1) (8 U.S.C. 1184(l)(1)), as
amended by subsection (a), is further amended by adding at the end the
following:
(E) If a physician pursuing
graduate medical education or training pursuant to section 101(a)(15)(J)
applies for a Conrad J–1 waiver with an interested State department of health
and the application is denied because the State has requested the maximum
number of waivers permitted for that fiscal year, the physician's nonimmigrant
status shall be automatically extended for 6 months if the physician agrees to
seek a waiver under this subsection (except for subparagraph (D)(ii)) to work
for an employer in a State that has not yet requested the maximum number of
waivers. The physician shall be authorized to work only for such employer from
the date on which a new waiver application is filed with the State until the
date on which the Secretary of Homeland Security denies such waiver or issues
work authorization for such employment pursuant to the approval of such
waiver.
.
(c)
Graduate medical
education or training
Section 214(h)(1), as amended by section
4401(b) of this Act, is further amended by inserting (J) (if entering
the United States for graduate medical education or training), after
(H)(i)(c),.
(d)
Contract
requirements
Section 214(l)
(8 U.S.C. 1184(l)) is amended by adding at the end the following:
(4) An alien granted a waiver
under paragraph (1)(C) shall enter into an employment agreement with the
contracting health facility or health care organization that—
(A) specifies the maximum
number of on-call hours per week (which may be a monthly average) that the
alien will be expected to be available and the compensation the alien will
receive for on-call time;
(B) specifies whether the
contracting facility or organization will pay for the alien’s malpractice
insurance premiums, including whether the employer will provide malpractice
insurance and, if so, the amount of such insurance that will be
provided;
(C) describes all of the work
locations that the alien will work and a statement that the contracting
facility or organization will not add additional work locations without the
approval of the Federal agency or State agency that requested the waiver;
and
(D) does not include a
non-compete provision.
(5) An alien granted a waiver under paragraph
(1)(C) whose employment relationship with a health facility or health care
organization terminates during the 3-year service period required by such
paragraph—
(A) shall have a period of 120 days beginning
on the date of such termination of employment to submit to the Secretary of
Homeland Security applications or petitions to commence employment with another
contracting health facility or health care organization in a geographic area or
areas which are designated by the Secretary of Health and Human Services as
having a shortage of health care professionals;
(B) shall be considered to be maintaining
lawful status in an authorized stay during the 120-day period referred to in
subsection (A); and
(C) shall not be considered to be fulfilling
the 3-year term of service during the 120-day period referred to in
subparagraph
(A).
.
2404.
Allotment of Conrad
30 waivers
(a)
In
general
Section 214(l) (8
U.S.C. 1184(l)), as amended by section 2403, is further amended by adding at
the end the following:
(6)
(A)
(i) All States shall be
allotted a total of 35 waivers under paragraph (1)(B) for a fiscal year if 90
percent of the waivers available to the States receiving at least 5 waivers
were used in the previous fiscal year.
(ii) When
an allocation has occurred under clause (i), all States shall be allotted an
additional 5 waivers under paragraph (1)(B) for each subsequent fiscal year if
90 percent of the waivers available to the States receiving at least 5 waivers
were used in the previous fiscal year. If the States are allotted 45 or more
waivers for a fiscal year, the States will only receive an additional increase
of 5 waivers the following fiscal year if 95 percent of the waivers available
to the States receiving at least 1 waiver were used in the previous fiscal
year.
(B) Any increase in
allotments under subparagraph (A) shall be maintained indefinitely, unless in a
fiscal year, the total number of such waivers granted is 5 percent lower than
in the last year in which there was an increase in the number of waivers
allotted pursuant to this paragraph, in which case—
(i) the number of waivers
allotted shall be decreased by 5 for all States beginning in the next fiscal
year; and
(ii) each additional 5
percent decrease in such waivers granted from the last year in which there was
an increase in the allotment, shall result in an additional decrease of 5
waivers allotted for all States, provided that the number of waivers allotted
for all States shall not drop below
30.
.
(b)
Academic medical
centers
Section 214(l)(1)(D) (8 U.S.C. 1184(l)(1)(D)) is
amended—
(1) in clause (ii), by
striking and at the end;
(2) in clause (iii), by
striking the period at the end and inserting ; and; and
(3) by adding at the end the
following:
(iv) in the case of a request
by an interested State agency—
(I) the head of such agency
determines that the alien is to practice medicine in, or be on the faculty of a
residency program at, an academic medical center (as that term is defined in
section 411.355(e)(2) of title 42, Code of Federal Regulations, or similar
successor regulation), without regard to whether such facility is located
within an area designated by the Secretary of Health and Human Services as
having a shortage of health care professionals; and
(II) the head of such agency
determines that—
(aa) the alien physician’s
work is in the public interest; and
(bb) the grant of such waiver
would not cause the number of the waivers granted on behalf of aliens for such
State for a fiscal year (within the limitation in subparagraph (B) and subject
to paragraph (6)) in accordance with the conditions of this clause to exceed
3.
.
2405.
Amendments to the
procedures, definitions, and other provisions related to physician
immigration
(a)
Allowable visa status
for physicians fulfilling waiver requirements in medically underserved
areas
Section 214(l)(2)(A) (8 U.S.C. 1184(l)(2)(A)) is amended by
striking an alien described in section 101(a)(15)(H)(i)(b). and
inserting any status authorized for employment under this
Act..
(b)
Short term work
authorization for physicians completing their residencies
A
physician completing graduate medical education or training as described in
section 212(j) of the Immigration and Nationality Act (8 U.S.C. 1182(j)) as a
nonimmigrant described in section 101(a)(15)(H)(i) of such Act (8 U.S.C.
1101(a)(15)(H)(i)) shall have such nonimmigrant status automatically extended
until October 1 of the fiscal year for which a petition for a continuation of
such nonimmigrant status has been submitted in a timely manner and where the
employment start date for the beneficiary of such petition is October 1 of that
fiscal year. Such physician shall be authorized to be employed incident to
status during the period between the filing of such petition and October 1 of
such fiscal year. However, the physician’s status and employment authorization
shall terminate 30 days from the date such petition is rejected, denied, or
revoked. A physician’s status and employment authorization will automatically
extend to October 1 of the next fiscal year if all visas as described in such
section 101(a)(15)(H)(i) authorized to be issued for the fiscal year have been
issued.
(c)
Applicability of
section 212(e) to spouses and children of J–1
exchange visitors
A spouse or child of an exchange visitor
described in section 101(a)(15)(J) of the Immigration and Nationality Act (8
U.S.C. 1101(a)(15)(J)) shall not be subject to the requirements of section
212(e) of the Immigration and Nationality Act (8 U.S.C. 1182(e)).
E
Integration
2501.
Definitions
In this subtitle:
(1)
Chief
The
term Chief means the Chief of the Office.
(2)
Foundation
The
term Foundation means the United States Citizenship Foundation
established pursuant to section 2531.
(3)
IEACA
grants
The term IEACA grants means Initial Entry,
Adjustment, and Citizenship Assistance grants authorized under section
2537.
(4)
Immigrant
integration
The term immigrant integration means the
process by which immigrants—
(A) join the mainstream of
civic life by engaging and sharing ownership in their local community, the
United States, and the principles of the Constitution;
(B) attain financial
self-sufficiency and upward economic mobility for themselves and their family
members; and
(C) acquire English language
skills and related cultural knowledge necessary to effectively participate in
their community.
(5)
Linguistic
integration
The term linguistic integration means
the acquisition, by limited English proficient individuals, of English language
skills and related cultural knowledge necessary to meaningfully and effectively
fulfill their roles as community members, family members, and workers.
(6)
Office
The
term Office means the Office of Citizenship and New Americans
established in U.S. Citizenship and Immigration Services under section
2511.
(7)
Receiving
communities
The term receiving communities means the
long-term residents of the communities in which immigrants settle.
(8)
Task
Force
The term Task Force means the Task Force on
New Americans established pursuant to section 2521.
(9)
USCF
council
The term USCF Council means the Council of
Directors of the Foundation.
1
Citizenship and New
Americans
A
Office of Citizenship and
New Americans
2511.
Office of Citizenship
and New Americans
(a)
Renaming Office of
Citizenship
(1)
In
general
Beginning on the date of the enactment of this Act, the
Office of Citizenship in U.S. Citizenship and Immigration Services shall be
referred to as the Office of Citizenship and New
Americans.
(2)
References
Any
reference in a law, regulation, document, paper, or other record of the United
States to the Office of Citizenship in U.S. Citizenship and Immigration
Services shall be deemed to be a reference to the Office of Citizenship and New
Americans.
(3)
Technical and
conforming amendments
Section 451 of the Homeland Security Act of
2002 (6 U.S.C. 271) is amended—
(A) in the section heading,
by striking Bureau
of and inserting U.S.;
(B) in subsection (a)(1), by
striking the ‘Bureau of and inserting
‘U.S.;
(C) by striking the
Bureau of each place such terms appears and inserting
U.S.; and
(D) in subsection (f)—
(i) by amending the
subsection heading to read as follows: Office of Citizenship and New
Americans; and
(ii) by striking paragraph
(1) and inserting the following:
(1)
Chief
The
Office of Citizenship and New Americans shall be within U.S. Citizenship and
Immigration Services and shall be headed by the Chief of the Office of
Citizenship and New
Americans.
.
(b)
Functions
Section
451(f) of such Act (6 U.S.C. 271(f)), as amended by subsection (a)(3)(D), is
further amended by striking paragraph (2) and inserting the following:
(2)
Functions
The
Chief of the Office of Citizenship and New Americans shall—
(A) promote institutions and
provide training on citizenship responsibilities for aliens interested in
becoming naturalized citizens of the United States, including the development
of educational materials for such aliens;
(B) provide general
leadership, consultation, and coordination of the immigrant integration
programs across the Federal Government and with State and local
entities;
(C) in coordination with the
Task Force on New Americans established under section 2521 of the
Border Security, Economic Opportunity, and
Immigration Modernization Act—
(i) advise the Director of
U.S. Citizenship and Immigration Services, the Secretary of Homeland Security,
and the Domestic Policy Council, on—
(I) the challenges and
opportunities relating to the linguistic, economic, and civic integration of
immigrants and their young children and progress in meeting integration goals
and indicators; and
(II) immigrant integration
considerations relating to Federal budgets;
(ii) establish national goals
for introducing new immigrants into the United States and measure the degree to
which such goals are met;
(iii) evaluate the scale,
quality, and effectiveness of Federal Government efforts in immigrant
integration and provide advice on appropriate actions; and
(iv) identify the integration
implications of new or proposed immigration policies and provide
recommendations for addressing such implications;
(D) serve as a liaison and
intermediary with State and local governments and other entities to assist in
establishing local goals, task forces, and councils to assist in—
(i) introducing immigrants
into the United States; and
(ii) promoting citizenship
education and awareness among aliens interested in becoming naturalized
citizens of the United States;
(E) coordinate with other
Federal agencies to provide information to State and local governments on the
demand for existing Federal and State English education programs and best
practices for immigrants who recently arrived in the United States;
(F) assist States in
coordinating the activities of the grant programs authorized under sections
2537 and 2538 of the Border Security,
Economic Opportunity, and Immigration Modernization Act;
(G) submit a biennial report
to the appropriate congressional committees that describes the activities of
the Office of Citizenship and New Americans; and
(H) carry out such other
functions and activities as Secretary may
assign.
.
(c)
Effective
date
The amendments made by subsections (a) and (b) shall take
effect on the date that is 1 year after the date of the enactment of this
Act.
B
Task Force on New
Americans
2521.
Establishment
(a)
In
general
The Secretary shall
establish a Task Force on New Americans.
(b)
Fully
functional
The Task Force
shall be fully functional not later than 18 months after the date of the
enactment of this Act.
2522.
Purpose
The purposes of the Task Force are—
(1) to establish a
coordinated Federal program and policy response to immigrant integration
issues; and
(2) to advise and assist the
Federal Government in identifying and fostering policies to carry out the
policies and goals established under this chapter.
2523.
Membership
(a)
In
general
The Task Force shall be comprised of—
(1) the Secretary, who shall
serve as Chair of the Task Force;
(2) the Secretary of the
Treasury;
(3) the Attorney
General;
(4) the Secretary of
Commerce;
(5) the Secretary of
Labor;
(6) the Secretary of Health
and Human Services;
(7) the Secretary of Housing
and Urban Development;
(8) the Secretary of
Transportation;
(9) the Secretary of
Education;
(10) the Director of the
Office of Management and Budget;
(11) the Administrator of the
Small Business Administration;
(12) the Director of the
Domestic Policy Council;
(13) the Director of the
National Economic Council; and
(14) the National Security
Advisor.
(b)
Delegation
A
member of the Task Force may delegate a senior official, at the Assistant
Secretary, Deputy Administrator, Deputy Director, or Assistant Attorney General
level, to perform the functions of a Task Force member described in section
2524.
2524.
Functions
(a)
Meetings;
functions
The Task Force shall—
(1) meet at the call of the
Chair; and
(2) perform such functions as
the Secretary may prescribe.
(b)
Coordinated
response
The Task Force shall work with executive branch
agencies—
(1) to provide a coordinated
Federal response to issues that impact the lives of new immigrants and
receiving communities, including—
(A) access to youth and adult
education programming;
(B) workforce
training;
(C) health care
policy;
(D) access to naturalization;
and
(E) community development
challenges; and
(2) to ensure that Federal
programs and policies adequately address such impacts.
(c)
Liaisons
Members
of the Task Force shall serve as liaisons to their respective agencies to
ensure the quality and timeliness of their agency’s participation in activities
of the Task Force, including—
(1) creating integration
goals and indicators;
(2) implementing the biannual
consultation process with the agency’s State and local counterparts; and
(3) reporting on agency data
collection, policy, and program efforts relating to achieving the goals and
indicators referred to in paragraph (1).
(d)
Recommendations
Not
later than 18 months after the end of the period specified in section 2521(b),
the Task Force shall—
(1) provide recommendations
to the Domestic Policy Council and the Secretary on the effects of pending
legislation and executive branch policy proposals;
(2) suggest changes to
Federal programs or policies to address issues of special importance to new
immigrants and receiving communities;
(3) review and recommend
changes to policies that have a distinct impact on new immigrants and receiving
communities; and
(4) assist in the development
of legislative and policy proposals of special importance to new immigrants and
receiving communities.
2
Public-private
partnership
2531.
Establishment of
United States Citizenship Foundation
The Secretary, acting through the Director
of U.S. Citizenship and Immigration Services, is authorized to establish a
nonprofit corporation or a not-for-profit, public benefit, or similar entity,
which shall be known as the United States Citizenship
Foundation.
2532.
Funding
(a)
Gifts to
foundation
In order to carry out the purposes set forth in
section 2533, the Foundation may—
(1) solicit, accept, and make
gifts of money and other property in accordance with section 501(c)(3) of the
Internal Revenue Code of 1986;
(2) engage in coordinated
work with the Department, including the Office and U.S. Citizenship and
Immigration Services; and
(3) accept, hold, administer,
invest, and spend any gift, devise, or bequest of real or personal property
made to the Foundation.
(b)
Gifts to office of
citizenship and new americans
The Office may accept gifts from
the Foundation to support the functions of the Office.
2533.
Purposes
The purposes of the Foundation are—
(1) to expand citizenship
preparation programs for lawful permanent residents;
(2) to provide direct
assistance for aliens seeking provisional immigrant status, legal permanent
resident status, or naturalization as a United States citizen; and
(3) to coordinate immigrant
integration with State and local entities.
2534.
Authorized
activities
The Foundation
shall carry out its purpose by—
(1) making United States
citizenship instruction and naturalization application services accessible to
low-income and other underserved lawful permanent resident populations;
(2) developing, identifying,
and sharing best practices in United States citizenship preparation;
(3) supporting innovative and
creative solutions to barriers faced by those seeking naturalization;
(4) increasing the use of,
and access to, technology in United States citizenship preparation
programs;
(5) engaging receiving
communities in the United States citizenship and civic integration
process;
(6) administering the New
Citizens Award Program to recognize, in each calendar year, not more than 10
United States citizens who—
(A) have made outstanding
contributions to the United States; and
(B) have been naturalized
during the 10-year period ending on the date of such recognition;
(7) fostering public
education and awareness;
(8) coordinating its
immigrant integration efforts with the Office;
(9) awarding grants to
eligible public or private nonprofit organizations under section 2537;
and
(10) awarding grants to State
and local governments under section 2538.
2535.
Council of
directors
(a)
Members
To
the extent consistent with section 501(c)(3) of the Internal Revenue Code of
1986, the Foundation shall have a Council of Directors, which shall be
comprised of—
(1) the Director of U.S.
Citizenship and Immigration Services;
(2) the Chief of the Office
of Citizenship and New Americans; and
(3) 10 directors, appointed
by the ex-officio directors designated in paragraphs (1) and (2), from national
community-based organizations that promote and assist permanent residents with
naturalization.
(b)
Appointment of
executive director
The USCF Council shall appoint an Executive
Director, who shall oversee the day-to-day operations of the Foundation.
2536.
Powers
The Executive Director is authorized to
carry out the purposes set forth in section 2533 on behalf of the Foundation
by—
(1) accepting, holding,
administering, investing, and spending any gift, devise, or bequest of real or
personal property made to the Foundation;
(2) entering into contracts
and other financial assistance agreements with individuals, public or private
organizations, professional societies, and government agencies to carry out the
functions of the Foundation;
(3) entering into such other
contracts, leases, cooperative agreements, and other transactions as the
Executive Director considers appropriate to carry out the activities of the
Foundation; and
(4) charging such fees for
professional services furnished by the Foundation as the Executive Director
determines reasonable and appropriate.
2537.
Initial Entry,
Adjustment, and Citizenship Assistance Grant Program
(a)
Authorization
The
Secretary, acting through the Director of U.S. Citizenship and Immigration
Services, may award Initial Entry, Adjustment, and Citizenship Assistance
grants to eligible public or private, nonprofit organizations.
(b)
Use of grant
funds
IEACA grants shall be used for the design and
implementation of programs that provide direct assistance, within the scope of
the authorized practice of immigration law—
(1) to aliens who are
preparing an initial application for registered provisional immigrant status
under section 245B of the Immigration and Nationality Act and to aliens who are
preparing an initial application for blue card status under section 2211,
including assisting applicants in—
(A) screening to assess
prospective applicants’ potential eligibility or lack of eligibility;
(B) completing
applications;
(C) gathering proof of
identification, employment, residence, and tax payment;
(D) gathering proof of
relationships of eligible family members;
(E) applying for any waivers
for which applicants and qualifying family members may be eligible; and
(F) any other assistance that
the Secretary or grantee considers useful to aliens who are interested in
applying for registered provisional immigrant status;
(2) to aliens seeking to
adjust their status under section 245, 245B, 245C, or 245F of the Immigration
and Nationality Act;
(3) to legal permanent
residents seeking to become naturalized United States citizens; and
(4) to applicants on—
(A) the rights and
responsibilities of United States citizenship;
(B) civics-based English as a
second language;
(C) civics, with a special
emphasis on common values and traditions of Americans, including an
understanding of the history of the United States and the principles of the
Constitution; and
(D) applying for United
States citizenship.
2538.
Pilot program to
promote immigrant integration at State and local levels
(a)
Grants
authorized
The Chief shall establish a pilot program through
which the Chief may award grants, on a competitive basis, to States and local
governments or other qualifying entities, in collaboration with State and local
governments—
(1) to establish New
Immigrant Councils to carry out programs to integrate new immigrants; or
(2) to carry out programs to
integrate new immigrants.
(b)
Application
A
State or local government desiring a grant under this section shall submit an
application to the Chief at such time, in such manner, and containing such
information as the Chief may reasonably require, including—
(1) a proposal to meet an
objective or combination of objectives set forth in subsection (d)(3);
(2) the number of new
immigrants in the applicant’s jurisdiction; and
(3) a description of the
challenges in introducing and integrating new immigrants into the State or
local community.
(c)
Priority
In
awarding grants under this section, the Chief shall give priority to States and
local governments or other qualifying entities that—
(1) use matching funds from
non-Federal sources, which may include in-kind contributions;
(2) demonstrate collaboration
with public and private entities to achieve the goals of the comprehensive plan
developed pursuant to subsection (d)(3);
(3) are 1 of the 10 States
with the highest rate of foreign-born residents; or
(4) have experienced a large
increase in the population of immigrants during the most recent 10-year period
relative to past migration patterns, based on data compiled by the Office of
Immigration Statistics or the United States Census Bureau.
(d)
Authorized
activities
A grant awarded under this subsection may be
used—
(1) to form a New Immigrant
Council, which shall—
(A) consist of between 15 and
19 individuals, inclusive, from the State, local government, or qualifying
organization;
(B) include, to the extent
practicable, representatives from—
(i) business;
(ii) faith-based
organizations;
(iii) civic
organizations;
(iv) philanthropic
organizations;
(v) nonprofit organizations,
including those with legal and advocacy experience working with immigrant
communities;
(vi) key education
stakeholders, such as State educational agencies, local educational agencies,
community colleges, and teachers;
(vii) State adult education
offices;
(viii) State or local public
libraries; and
(ix) State or local
governments; and
(C) meet not less frequently
than once each quarter;
(2) to provide subgrants to
local communities, city governments, municipalities, nonprofit organizations
(including veterans' and patriotic organizations), or other qualifying
entities;
(3) to develop, implement,
expand, or enhance a comprehensive plan to introduce and integrate new
immigrants into the State by—
(A) improving English
language skills;
(B) engaging caretakers with
limited English proficiency in their child’s education through interactive
parent and child literacy activities;
(C) improving and expanding
access to workforce training programs;
(D) teaching United States
history, civics education, citizenship rights, and responsibilities;
(E) promoting an
understanding of the form of government and history of the United States and
the principles of the Constitution;
(F) improving financial
literacy; and
(G) focusing on other key
areas of importance to integration in our society; and
(4) to engage receiving
communities in the citizenship and civic integration process by—
(A) increasing local service
capacity;
(B) building meaningful
connections between newer immigrants and long-time residents;
(C) communicating the
contributions of receiving communities and new immigrants; and
(D) engaging leaders from all
sectors of the community.
(e)
Reporting and
evaluation
(1)
Annual
report
Each grant recipient shall submit an annual report to the
Office that describes—
(A) the activities undertaken
by the grant recipient, including how such activities meet the goals of the
Office, the Foundation, and the comprehensive plan described in subsection
(d)(3);
(B) the geographic areas
being served;
(C) the number of immigrants
in such areas; and
(D) the primary languages
spoken in such areas.
(2)
Annual
evaluation
The Chief shall conduct an annual evaluation of the
grant program established under this section—
(A) to assess and improve the
effectiveness of such grant program;
(B) to assess the future
needs of immigrants and of State and local governments related to immigrants;
and
(C) to ensure that grantees
recipients and subgrantees are acting within the scope and purpose of this
subchapter.
2539.
Naturalization
ceremonies
(a)
In
general
The Chief, in consultation with the Director of the
National Park Service, the Archivist of the United States, and other
appropriate Federal officials, shall develop and implement a strategy to
enhance the public awareness of naturalization ceremonies.
(b)
Venues
In
developing the strategy under subsection (a), the Secretary shall consider the
use of outstanding and historic locations as venues for select naturalization
ceremonies.
(c)
Reporting
requirement
The Secretary shall annually submit a report to
Congress that contains—
(1) the content of the
strategy developed under subsection (a); and
(2) the progress made towards
the implementation of such strategy.
3
Funding
2541.
Authorization of
appropriations
(a)
Office of Citizenship
and New Americans
In addition to any amounts otherwise made
available to the Office, there are authorized to be appropriated to carry out
the functions described in section 451(f)(2) of the Homeland Security Act of
2002 (6 U.S.C. 271(f)(2)), as amended by section 2511(b)—
(1) $10,000,000 for the
5-year period ending on September 30, 2018; and
(2) such sums as may be
necessary for fiscal year 2019 and subsequent fiscal years.
(b)
Grant
programs
There are authorized
to be appropriated to implement the grant programs authorized under sections
2537 and 2538, and to implement the strategy under section 2539—
(1) $100,000,000 for the 5-year period ending
on September 30, 2018; and
(2) such sums as may be
necessary for fiscal year 2019 and subsequent fiscal years.
4
Reduce barriers to
naturalization
2551.
Waiver of English
requirement for senior new Americans
Section 312 (8 U.S.C. 1423) is amended by
striking subsection (b) and inserting the following:
(b) The requirements under
subsection (a) shall not apply to any person who—
(1) is unable to comply with
such requirements because of physical or mental disability, including
developmental or intellectual disability; or
(2) on the date on which the
person’s application for naturalization is filed under section 334—
(A) is older than 65 years of
age; and
(B) has been living in the
United States for periods totaling at least 5 years after being lawfully
admitted for permanent residence.
(c) The requirement under
subsection (a)(1) shall not apply to any person who, on the date on which the
person’s application for naturalization is filed under section 334—
(1) is older than 50 years of
age and has been living in the United States for periods totaling at least 20
years after being lawfully admitted for permanent residence;
(2) is older than 55 years of
age and has been living in the United States for periods totaling at least 15
years after being lawfully admitted for permanent residence; or
(3) is older than 60 years of
age and has been living in the United States for periods totaling at least 10
years after being lawfully admitted for permanent residence.
(d) The Secretary of Homeland
Security may waive, on a case-by-case basis, the requirement under subsection
(a)(2) on behalf of any person who, on the date on which the person’s
application for naturalization is filed under section 334—
(1) is older than 60 years of
age; and
(2) has been living in the
United States for periods totaling at least 10 years after being lawfully
admitted for permanent
residence.
.
2552.
Filing of
applications not requiring regular internet access
(a)
Electronic filing not
required
(1)
In
general
The Secretary may not require that an applicant or
petitioner for permanent residence or citizenship of the United States use an
electronic method to file any application, or access to a customer
account.
(2)
Sunset
date
This subsection shall cease to be effective on October 1,
2020.
(b)
Notification
requirement
Beginning on October 1, 2020, the Secretary may not
require that an applicant or petitioner for permanent residence or citizenship
of the United States use an electronic method to file any application or access
to a customer account unless the Secretary notifies the
Committee on the Judiciary of the
Senate and the Committee on
the Judiciary of the House of Representatives of such
requirement not later than 30 days before the effective date of such
requirement.
2553.
Permissible use of
assisted housing by battered immigrants
Section 214 of the Housing and Community
Development Act of 1980 (42 U.S.C. 1436a) is amended—
(1) in subsection (a)—
(A) in paragraph (6), by striking ;
or and inserting a semicolon;
(B) by redesignating paragraph (7) as paragraph
(8); and
(C) by inserting after paragraph (6) the
following new paragraph:
(7) a qualified alien described in section
431(c) of the Personal Responsibility and Work Opportunity Reconciliation Act
of 1996 (8 U.S.C. 1641(c)); or
;
and
(2) in subsection (c)—
(A) in paragraph (1)(A), by striking
paragraphs (1) through (6) and inserting paragraphs (1)
through (7); and
(B) in paragraph (2)(A), by inserting
(other than a qualified alien described in section 431(c) of the
Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (8
U.S.C. 1641(c))) after any alien.
III
Interior
enforcement
A
Employment Verification
System
3101.
Unlawful employment
of unauthorized aliens
(a)
In
general
Section 274A (8 U.S.C. 1324a) is amended to read as
follows:
274A.
Unlawful employment
of aliens
(a)
Making employment of
unauthorized aliens unlawful
(1)
In
general
It is unlawful for an employer—
(A) to hire, recruit, or
refer for a fee an alien for employment in the United States knowing that the
alien is an unauthorized alien with respect to such employment; or
(B) to hire, recruit, or
refer for a fee for employment in the United States an individual without
complying with the requirements under subsections (c) and (d).
(2)
Continuing
employment
(A)
Prohibition on
continued employment of unauthorized aliens
It is unlawful for an
employer, after hiring an alien for employment, to continue to employ the alien
in the United States knowing that the alien is (or has become) an unauthorized
alien with respect to such employment.
(B)
Prohibition on
consideration of previous unauthorized status
Nothing in this
section may be construed to prohibit the employment of an individual who is
authorized for employment in the United States if such individual was
previously an unauthorized alien.
(3)
Use of labor through
contract
For purposes of this section, any employer that uses a
contract, subcontract, or exchange to obtain the labor of an alien in the
United States while knowing that the alien is an unauthorized alien with
respect to performing such labor shall be considered to have hired the alien
for employment in the United States in violation of paragraph (1)(A).
(4)
Use of State employment
agency documentation
For purposes of paragraphs (1)(B), (5), and
(6), an employer shall be deemed to have complied with the requirements under
subsection (c) with respect to the hiring of an individual who was referred for
such employment by a State employment agency (as defined by the Secretary) if
the employer has and retains (for the period and in the manner described in
subsection (c)(3)) appropriate documentation of such referral by such agency,
certifying that such agency has complied with the procedures described in
subsection (c) with respect to the individual’s referral. An employer that
relies on a State agency’s certification of compliance with subsection (c)
under this paragraph may utilize and retain the State agency’s certification of
compliance with the procedures described in subsection (d), if any, in the
manner provided under this paragraph.
(5)
Good faith
defense
(A)
Defense
An
employer, person, or entity that hires, employs, recruits, or refers
individuals for employment in the United States, or is otherwise obligated to
comply with the requirements under this section and establishes good faith
compliance with the requirements under paragraphs (1) through (4) of subsection
(c) and subsection (d)—
(i) has established an
affirmative defense that the employer, person, or entity has not violated
paragraph (1)(A) with respect to hiring and employing; and
(ii) has established
compliance with its obligations under subparagraph (A) and (B) of paragraph (1)
and subsection (c) unless the Secretary demonstrates that the employer had
knowledge that an individuals hired, employed, recruited, or referred by the
employer, person, or entity is an unauthorized alien.
(B)
Exception for certain
employers
An employer who is not required to participate in the
System or who is participating in the System on a voluntary basis pursuant to
subsection (d)(2)(J) has established an affirmative defense under subparagraph
(A) and need not demonstrate compliance with the requirements under subsection
(d).
(6)
Good faith
compliance
(A)
In
general
Except as otherwise provided in this subsection, an
employer, person, or entity 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.
(B)
Exception if failure to
correct after notice
Subparagraph (A) shall not apply if—
(i) the failure is not de
minimis;
(ii) the Secretary of
Homeland Security has explained to the employer, person, or entity the basis
for the failure and why it is not de minimis;
(iii) the employer, person,
or entity has been provided a period of not less than 30 days (beginning after
the date of the explanation) to correct the failure; and
(iv) the employer, person, or
entity has not corrected the failure voluntarily within such period.
(C)
Exception for pattern
or practice violators
Subparagraph (A) shall not apply to an
employer, person, or entity that has engaged or is engaging in a pattern or
practice of violations of paragraph (1)(A) or (2).
(7)
Presumption
After
the date on which an employer is required to participate in the System under
subsection (d), the employer is presumed to have acted with knowledge for
purposes of paragraph (1)(A) if the employer hires, employs, recruits, or
refers an employee for a fee and fails to make an inquiry to verify the
employment authorization status of the employee through the System.
(8)
Continued application
of workforce and labor protection remedies despite unauthorized
employment
(A)
In
general
Subject only to
subparagraph (B), all rights and remedies provided under any Federal, State, or
local law relating to workplace rights, including but not limited to back pay,
are available to an employee despite—
(i) the employee's status as an unauthorized
alien during or after the period of employment; or
(ii) the employer's or employee's failure to
comply with the requirements of this section.
(B)
Reinstatement
Reinstatement
shall be available to individuals who—
(i) are authorized to work in
the United States at the time such relief is ordered or effectuated; or
(ii) lost
employment-authorized status due to the unlawful acts of the employer under
this section.
(b)
Definitions
In
this section:
(1)
Commissioner
The
term Commissioner means the Commissioner of Social
Security.
(2)
Department
Except
as otherwise provided, the term Department means the Department of
Homeland Security.
(3)
Employer
The
term employer means any person or entity, including an agency or
department of a Federal, State, or local government, 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 in the United States
that is not casual, sporadic, irregular, or intermittent (as defined by the
Secretary).
(4)
Employment authorized
status
The term employment authorized status means,
with respect to an individual, that the individual is authorized to be employed
in the United States under the immigration laws of the United States.
(5)
Secretary
Except
as otherwise specifically provided, the term Secretary means the
Secretary of Homeland Security.
(6)
System
The
term System means the Employment Verification System established
under subsection (d).
(7)
Unauthorized
alien
The term unauthorized alien means an alien
who, with respect to employment in the United States at a particular
time—
(A) is not lawfully admitted
for permanent residence; or
(B) is not authorized to be
employed under this Act or by the Secretary.
(8)
Workplace
rights
The term workplace rights means rights
guaranteed under Federal, State, or local labor or employment laws, including
laws concerning wages and hours, benefits and employment standards, labor
relations, workplace health and safety, work-related injuries,
nondiscrimination, and retaliation for exercising rights under such
laws.
(c)
Document verification
requirements
Any employer hiring an individual for employment in
the United States shall comply with the following requirements and the
requirements under subsection (d) to verify that the individual has employment
authorized status.
(1)
Attestation after
examination of documentation
(A)
In general
(i)
Examination by
employer
An employer shall attest, under penalty of perjury on a
form prescribed by the Secretary, that the employer has verified the identity
and employment authorization status of the individual—
(I) by examining—
(aa) a document specified in
subparagraph (C); or
(bb) a document specified in
subparagraph (D) and a document specified in subparagraph (E); and
(II) by utilizing an identity
authentication mechanism described in clause (iii) or (iv) of subparagraph
(F).
(ii)
Publication of
documents
The Secretary shall publish a picture of each document
specified in subparagraphs (C) and (E) on the U.S. Citizenship and Immigration
Services website.
(B)
Requirements
(i)
Form
The
form referred to in subparagraph (A)(i)—
(I) shall be prescribed by
the Secretary not later than 6 months after the date of the enactment of the
Border Security, Economic Opportunity, and
Immigration Modernization Act;
(II) shall be available
as—
(aa) a paper form;
(bb) a form that may be
completed by an employer via telephone or video conference;
(cc) an electronic form;
or
(dd) a form that is
integrated electronically with the requirements under subsection (d).
(ii)
Attestation
Each
such form shall require the employer to sign an attestation with a handwritten,
electronic, or digital pin code signature, according to standards prescribed by
the Secretary.
(iii)
Compliance
An
employer has complied with the requirements under this paragraph with respect
to examination of the documents included in subclauses (I) and (II) of
subparagraph (A)(i) if—
(I) the employer has, in good
faith, followed applicable regulations and any written procedures or
instructions provided by the Secretary; and
(II) a reasonable person
would conclude that the documentation is genuine and relates to the individual
presenting such documentation.
(C)
Documents establishing
identity and employment authorized status
A document is specified
in this subparagraph if the document is unexpired (unless the validity of the
document is extended by law) and is 1 of the following:
(i) A United States passport
or passport card issued to an individual pursuant to the Secretary of State's
authority under the Act entitled An Act to regulate the issue and
validity of passports, and for other purposes, approved July 3, 1926
(22 U.S.C. 211a).
(ii) A document issued to an
alien evidencing that the alien is lawfully admitted for permanent residence or
another document issued to an individual evidencing the individual's employment
authorized status, as designated by the Secretary, if the document—
(I) contains a photograph of
the individual, or such other personal identifying information relating to the
individual as the Secretary determines, by regulation, to be sufficient for the
purposes of this subparagraph;
(II) is evidence of
employment authorized status; and
(III) contains security
features to make the document resistant to tampering, counterfeiting, and
fraudulent use.
(iii) An enhanced driver’s
license or identification card issued to a national of the United States by a
State, an outlying possession of the United States, or a federally recognized
Indian tribe that—
(I) meets the requirements
under section 202 of the REAL ID Act of 2005 (division B of Public Law 109–13;
49 U.S.C. 30301 note); and
(II) the Secretary has
certified by notice published in the Federal Register and through appropriate
notice directly to employers registered in the System 3 months prior to
publication that such enhanced license or card is suitable for use under this
subparagraph based upon the accuracy and security of the issuance process,
security features on the document, and such other factors as the Secretary may
prescribe.
(iv) A passport issued by the
appropriate authority of a foreign country accompanied by a Form I–94 or Form
I–94A (or similar successor record), or other documentation as designated by
the Secretary that specifies the individual’s status in the United States and
the duration of such status if the proposed employment is not in conflict with
any restriction or limitation specified on such form or documentation.
(v) A passport issued by the
Federated States of Micronesia or the Republic of the Marshall Islands with
evidence of nonimmigrant admission to the United States under the Compact of
Free Association between the United States and the Federated States of
Micronesia or the Republic of the Marshall Islands.
(D)
Documents establishing
identity of individual
A document is specified in this
subparagraph if the document is unexpired (unless the validity of the document
is extended by law) and is 1 of the following:
(i) A driver’s license or
identity card that is not described in subparagraph (C)(iii) and is issued to
an individual by a State or an outlying possession of the United States, a
federally recognized Indian tribe, or an agency (including military) of the
Federal Government if the driver’s license or identity card includes, at a
minimum—
(I) the individual’s
photograph, name, date of birth, gender, and driver’s license or identification
card number; and
(II) security features to
make the license or card resistant to tampering, counterfeiting, and fraudulent
use.
(ii) A voter registration
card.
(iii) A document that
complies with the requirements under section 7209(b)(1) of the Intelligence
Reform and Terrorism Prevention Act of 2004 (Public Law 108–458; 8 U.S.C. 1185
note).
(iv) For individuals under 18
years of age who are unable to present a document listed in clause (i) or (ii),
documentation of personal identity of such other type as the Secretary
determines will provide a reliable means of identification, which may include
an attestation as to the individual’s identity by a parent or legal guardian
under penalty of perjury.
(E)
Documents evidencing
employment authorization
A document is specified in this
subparagraph if the document is unexpired (unless the validity of the document
is extended by law) and is 1 of the following:
(i) A social security account
number card issued by the Commissioner, other than a card which specifies on
its face that the card is not valid to evidence employment authorized status or
has other similar words of limitation.
(ii) Any other documentation
evidencing employment authorized status that the Secretary determines and
publishes in the Federal Register and through appropriate notice directly to
employers registered within the System to be acceptable for purposes of this
subparagraph if such documentation, including any electronic security measures
linked to such documentation, contains security features to make such
documentation resistant to tampering, counterfeiting, and fraudulent
use.
(F)
Identity authentication
mechanism
(i)
Definitions
In
this subparagraph:
(I)
Covered identity
document
The term covered identity document means a
valid—
(aa) United States passport,
passport card, or a document evidencing lawful permanent residence status or
employment authorized status issued to an alien;
(bb) enhanced driver's
license or identity card issued by a participating State or an outlying
possession of the United States; or
(cc) photograph and
appropriate identifying information provided by the Secretary of State pursuant
to the granting of a visa.
(II)
Participating
state
The term participating State means a State
that has an agreement with the Secretary to provide the Secretary, for purposes
of identity verification in the System, with photographs and appropriate
identifying information maintained by the State.
(ii)
Requirement for
identity authentication
In addition to verifying the documents
specified in subparagraph (C), (D), or (E) and utilizing the System under
subsection (d), each employer shall use an identity authentication mechanism
described in clause (iii) or provided in clause (iv) after it becomes available
to verify the identity of each individual the employer seeks to hire.
(iii)
Photo tool
(I)
Use
requirement
An employer hiring an individual who has a covered
identity document shall verify the identity of such individual using the photo
tool described in subclause (II).
(II)
Development
requirement
The Secretary shall develop and maintain a photo tool
that enables employers to match the photo on a covered identity document
provided to the employer to a photo maintained by a U.S. Citizenship and
Immigration Services database.
(iv)
Additional security
measures
(I)
Use
requirement
An employer seeking to hire an individual whose
identity may not be verified using the photo tool described in clause (iii)
shall verify the identity of such individual using the additional security
measures described in subclause (II).
(II)
Development
requirement
The Secretary shall develop, after publication in the
Federal Register and an opportunity for public comment, specific and effective
additional security measures to adequately verify the identity of an individual
whose identity may not be verified using the photo tool described in clause
(iii). Such additional security measures—
(aa) shall be kept up-to-date
with technological advances; and
(bb) shall provide a means of
identity authentication in a manner that provides a high level of certainty as
to the identity of such individual, using immigration and identifying
information that may include review of identity documents or background
screening verification techniques using publicly available information.
(G)
Authority to prohibit
use of certain documents
If the Secretary determines, after
publication in the Federal Register and an opportunity for public comment, that
any document or class of documents specified in subparagraph (B), (C), or (D)
does not reliably establish identity or that employment authorized status is
being used fraudulently to an unacceptable degree, the Secretary—
(i) may prohibit or restrict
the use of such document or class of documents for purposes of this subsection;
and
(ii) shall directly notify
all employers registered within the System of the prohibition through
appropriate means.
(H)
Authority to allow use
of certain documents
If the Secretary has determined that another
document or class of documents, such as a document issued by a federally
recognized Indian tribe, may be used to reliably establish identity or
employment authorized status, the Secretary—
(i) may allow the use of that
document or class of documents for purposes of this subsection after
publication in the Federal Register and an opportunity for public
comment;
(ii) shall publish a
description of any such document or class of documents on the U.S. Citizenship
and Immigration Services website; and
(iii) shall directly notify
all employers registered within the System of the addition through appropriate
means.
(2)
Individual attestation
of employment authorization
An individual, upon commencing
employment with an employer, shall—
(A) attest, under penalty of
perjury, on the form prescribed by the Secretary, that the individual
is—
(i) a citizen of the United
States;
(ii) an alien lawfully
admitted for permanent residence;
(iii) an alien who has
employment authorized status; or
(iv) otherwise authorized by
the Secretary to be hired for such employment;
(B) provide such attestation
by a handwritten, electronic, or digital pin code signature; and
(C) provide the individual’s
social security account number to the Secretary, unless the individual has not
yet been issued such a number, on such form as the Secretary may
require.
(3)
Retention of
verification record
(A)
In
general
After completing a form for an individual in accordance
with paragraphs (1) and (2), the employer shall retain a version of such
completed form and make such form available for inspection by the Secretary or
the Office of Special Counsel for Immigration-Related Unfair Employment
Practices of the Department of Justice during the period beginning on the
hiring date of the individual and ending on the later of—
(i) the date that is 3 years
after such hiring date; or
(ii) the date that is 1 year
after the date on which the individual’s employment with the employer is
terminated.
(B)
Requirement for
electronic retention
The Secretary—
(i) shall permit an employer
to retain the form described in subparagraph (A) in electronic form; and
(ii) shall permit an employer
to retain such form in paper, microfiche, microfilm, portable document format,
or other media.
(4)
Copying of
documentation and recordkeeping
The Secretary may promulgate
regulations regarding—
(A) copying documents and
related information pertaining to employment verification presented by an
individual under this subsection; and
(B) retaining such
information during a period not to exceed the required retention period set
forth in paragraph (3).
(5)
Penalties
An
employer that fails to comply with any requirement under this subsection may be
penalized under subsection (e)(4)(B).
(6)
Protection of civil
rights
(A)
In
general
Nothing in this section may be construed to diminish any
rights otherwise protected by Federal law.
(B)
Prohibition on
discrimination
An employer shall use the procedures for document
verification set forth in this paragraph for all employees without regard to
race, color, religion, sex, national origin, or, unless specifically permitted
in this section, to citizenship status.
(7)
Receipts
The
Secretary may authorize the use of receipts for replacement documents, and
temporary evidence of employment authorization by an individual to meet a
documentation requirement under this subsection on a temporary basis not to
exceed 1 year, after which time the individual shall provide documentation
sufficient to satisfy the documentation requirements under this
subsection.
(8)
No authorization of
national identification cards
Nothing in this section may be
construed to directly or indirectly authorize the issuance, use, or
establishment of a national identification card.
(d)
Employment Verification
System
(1)
In general
(A)
Establishment
The
Secretary, in consultation with the Commissioner, shall establish the
Employment Verification System.
(B)
Monitoring
The
Secretary shall create the necessary processes to monitor—
(i) the functioning of the
System, including the volume of the workflow, the speed of processing of
queries, the speed and accuracy of responses;
(ii) the misuse of the
System, including the prevention of fraud or identity theft;
(iii) whether the use of the
System results in wrongful adverse actions or discrimination based upon a
prohibited factor against citizens or nationals of the United States or
individuals who have employment authorized status; and
(iv) the security, integrity,
and privacy of the System.
(C)
Procedures
The
Secretary—
(i) shall create processes to
provide an individual with direct access to the individual's case history in
the System, including—
(I) the identities of all
persons or entities that have queried the individual through the System;
(II) the date of each such
query; and
(III) the System response for
each such query; and
(ii) in consultation with the
Commissioner, shall develop—
(I) protocols to notify an
individual, in a timely manner through the use of electronic correspondence or
mail, that a query for the individual has been processed through the System;
or
(II) a process for the
individual to submit additional queries to the System or notify the Secretary
of potential identity fraud.
(2)
Participation
requirements
(A)
Federal
government
Except as provided in subparagraph (B), all agencies
and departments in the executive, legislative, or judicial branches of the
Federal Government shall participate in the System beginning on the earlier
of—
(i) the date of the enactment
of the Border Security, Economic Opportunity,
and Immigration Modernization Act, to the extent required under
section 402(e)(1) of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (division C of Public Law 104–208; 8 U.S.C. 1324a)
and as already implemented by each agency or department; or
(ii) the date that is 90 days
after the date of the enactment of the Border
Security, Economic Opportunity, and Immigration Modernization
Act.
(B)
Federal
contractors
Federal contractors shall participate in the System
as provided in the final rule relating to employment eligibility verification
published in the Federal Register on November 14, 2008 (73 Fed. Reg. 67,651),
or any similar subsequent regulation, for which purpose references to E-Verify
in the final rule shall be construed to apply to the System.
(C)
Critical
infrastructure
(i)
In
general
Beginning on the date that is 1 year after the date on
which regulations are published implementing this subsection, the Secretary may
authorize or direct any employer, person, or entity responsible for granting
access to, protecting, securing, operating, administering, or regulating part
of the critical infrastructure (as defined in section 1016(e) of the Critical
Infrastructure Protection Act of 2001 (42 U.S.C. 5195c(e))) to participate in
the System to the extent the Secretary determines that such participation will
assist in the protection of the critical infrastructure.
(ii)
Notification to
employers
The Secretary shall notify an employer required to
participate in the System under this subparagraph not later than 90 days before
the date on which the employer is required to participate.
(D)
Employers with more
than 5,000 employees
Not later than 2 years after regulations are
published implementing this subsection, all employers with more than 5,000
employees shall participate in the System with respect to all newly hired
employees and employees with expiring temporary employment authorization
documents.
(E)
Employers with more
than 500 employees
Not later than 3 years after regulations are
published implementing this subsection, all employers with more than 500
employees shall participate in the System with respect to all newly hired
employees and employees with expiring temporary employment authorization
documents.
(F)
Agricultural
employment
Not later than 4 years after regulations are published
implementing this subsection, employers of employees performing agricultural
employment (as defined in section 218A of this Act and section 2202 of the
Border Security, Economic Opportunity, and
Immigration Modernization Act) shall participate in the System
with respect to all newly hired employees and employees with expiring temporary
employment authorization documents. An agricultural employee shall not be
counted for purposes of subparagraph (D) or (E).
(G)
All
employers
Except as provided in subparagraph (H), not later than
4 years after regulations are published implementing this subsection, all
employers shall participate in the System with respect to all newly hired
employees and employees with expiring temporary employment authorization
documents.
(H)
Tribal government
employers
(i)
Rulemaking
In
developing regulations to implement this subsection, the Secretary
shall—
(I) consider the effects of
this section on federally recognized Indian tribes and tribal members;
and
(II) consult with the
governments of federally recognized Indian tribes.
(ii)
Required
participation
Not later than 5 years after regulations are
published implementing this subsection, all employers owned by, or entities of,
the government of a federally recognized Indian tribe shall participate in the
System with respect to all newly hired employees and employees with expiring
temporary employment authorization documents.
(I)
Immigration law
violators
(i)
Orders finding
violations
An order finding any employer to have violated this
section or section 274C may, in the Secretary's discretion, require the
employer to participate in the System with respect to newly hired employees and
employees with expiring temporary employment authorization documents, if such
employer is not otherwise required to participate in the System under this
section. The Secretary shall monitor such employer’s compliance with System
procedures.
(ii)
Pattern or practice of
violations
The Secretary may require an employer that is required
to participate in the System with respect to newly hired employees to
participate in the System with respect to the employer's current employees if
the employer is determined by the Secretary or other appropriate authority to
have engaged in a pattern or practice of violations of the immigration laws of
the United States.
(J)
Voluntary
participation
The Secretary may permit any employer that is not
required to participate in the System under this section to do so on a
voluntary basis.
(3)
Consequence of failure
to participate
(A)
In
general
Except as provided in subparagraph (B), the failure,
other than a de minimis or inadvertent failure, of an employer that is required
to participate in the System to comply with the requirements of the System with
respect to an individual—
(i) shall be treated as a
violation of subsection (a)(1)(B) with respect to that individual; and
(ii) creates a rebuttable
presumption that the employer has violated paragraph (1)(A) or (2) of
subsection (a).
(B)
Exception
(i)
In
general
Subparagraph (A) shall not apply in a criminal
prosecution.
(ii)
Use as
evidence
Nothing in this paragraph may be construed to limit the
use in the prosecution of a Federal crime, in a manner otherwise consistent
with Federal criminal law and procedure, of evidence relating to the employer’s
failure to comply with requirements of the System.
(4)
Procedures for
participants in the system
(A)
In
general
An employer participating in the System shall register
such participation with the Secretary and, when hiring any individual for
employment in the United States, shall comply with the following:
(i)
Registration of
employers
The Secretary, through notice in the Federal Register,
shall prescribe procedures that employers shall be required to follow to
register with the System.
(ii)
Updating
information
The employer is responsible for providing notice of
any change to the information required under subclauses (I), (II), and (III) of
clause (v) before conducting any further inquiries within the System, or on
such other schedule as the Secretary may prescribe.
(iii)
Training
The
Secretary shall require employers to undergo such training as the Secretary
determines to be necessary to ensure proper use, protection of civil rights and
civil liberties, privacy, integrity, and security of the System. To the extent
practicable, such training shall be made available electronically on the U.S.
Citizenship and Immigration Services website.
(iv)
Notification to
employees
The employer shall inform individuals hired for
employment that the System—
(I) will be used by the
employer;
(II) may be used for
immigration enforcement purposes; and
(III) may not be used to
discriminate or to take adverse action against a national of the United States
or an alien who has employment authorized status.
(v)
Provision of additional
information
The employer shall obtain from the individual (and
the individual shall provide) and shall record in such manner as the Secretary
may specify—
(I) the individual’s social
security account number;
(II) if the individual does
not attest to United States citizenship or status as a national of the United
States under subsection (c)(2), such identification or authorization number
established by the Department as the Secretary shall specify; and
(III) such other information
as the Secretary may require to determine the identity and employment
authorization of an individual.
(vi)
Presentation of
documentation
The employer, and the individual whose identity and
employment authorized status are being confirmed, shall fulfill the
requirements under subsection (c).
(B)
Seeking
confirmation
(i)
In
general
An employer shall use the System to confirm the identity
and employment authorized status of any individual during—
(I) the period beginning on
the date on which the individual accepts an offer of employment and ending 3
business days after the date on which employment begins; or
(II) such other reasonable
period as the Secretary may prescribe.
(ii)
Limitation
An
employer may not make the starting date of an individual’s employment or
training or any other term and condition of employment dependent on the receipt
of a confirmation of identity and employment authorized status by the
System.
(iii)
Reverification
If
an individual has a limited period of employment authorized status, the
individual's employer shall reverify such status through the System not later
than 3 business days after the last day of such period.
(iv)
Other
employment
For employers directed by the Secretary to participate
in the System under paragraph (2)(C)(i) to protect critical infrastructure or
otherwise specified circumstances in this section to verify their entire
workforce, the System may be used for initial verification of an individual who
was hired before the employer became subject to the System, and the employer
shall initiate all required procedures on or before such date as the Secretary
shall specify.
(v)
Notification
(I)
In
general
The Secretary shall provide, and the employer shall
utilize, as part of the System, a method of notifying employers of a
confirmation or nonconfirmation of an individual’s identity and employment
authorized status, or a notice that further action is required to verify such
identity or employment eligibility (referred to in this subsection as a
further action notice).
(II)
Procedures
The
Secretary shall—
(aa) directly notify the
individual and the employer, by means of electronic correspondence, mail, text
message, telephone, or other direct communication, of a nonconfirmation or
further action notice;
(bb) provide information
about filing an administrative appeal under paragraph (6) and a filing for
review before an administrative law judge under paragraph (7); and
(cc) establish procedures to
directly notify the individual and the employer of a confirmation.
(III)
Implementation
The
Secretary may provide for a phased-in implementation of the notification
requirements under this clause, as appropriate. The notification system shall
cover all inquiries not later than 1 year from the date of the enactment of the
Border Security, Economic Opportunity, and
Immigration Modernization Act.
(C)
Confirmation or
nonconfirmation
(i)
Initial
response
(I)
In
general
Except as provided in subclause (II), the System shall
provide—
(aa) a confirmation of an
individual’s identity and employment authorized status or a further action
notice at the time of the inquiry; and
(bb) an appropriate code
indicating such confirmation or such further action notice.
(II)
Alternative
deadline
If the System is unable to provide immediate
confirmation or further action notice for technological reasons or due to
unforeseen circumstances, the System shall provide a confirmation or further
action notice not later than 3 business days after the initial inquiry.
(ii)
Confirmation upon
initial inquiry
If the employer receives an appropriate
confirmation of an individual’s identity and employment authorized status under
the System, the employer shall record the confirmation in such manner as the
Secretary may specify.
(iii)
Further action notice
and later confirmation or nonconfirmation
(I)
Notification and
acknowledgment that further action is required
Not later than 3
business days after an employer receives a further action notice of an
individual’s identity or employment eligibility under the System, or during
such other reasonable time as the Secretary may prescribe, the employer shall
notify the individual for whom the confirmation is sought of the further action
notice and any procedures specified by the Secretary for addressing such
notice. The further action notice shall be given to the individual in writing
and the employer shall acknowledge in the System under penalty of perjury that
it provided the employee with the further action notice. The individual shall
affirmatively acknowledge in writing, or in such other manner as the Secretary
may specify, the receipt of the further action notice from the employer. If the
individual refuses to acknowledge the receipt of the further action notice, or
acknowledges in writing that the individual will not contest the further action
notice under subclause (II), the employer shall notify the Secretary in such
manner as the Secretary may specify.
(II)
Contest
Not
later than 10 business days after receiving notification of a further action
notice under subclause (I), the individual shall contact the appropriate
Federal agency and, if the Secretary so requires, appear in person for purposes
of verifying the individual’s identity and employment eligibility. The
Secretary, in consultation with the Commissioner and other appropriate Federal
agencies, shall specify an available secondary verification procedure to
confirm the validity of information provided and to provide a confirmation or
nonconfirmation. Any procedures for reexamination shall not limit in any way an
employee’s right to appeal a nonconfirmation.
(III)
No
contest
If the individual refuses to acknowledge receipt of the
further action notice, acknowledges that the individual will not contest the
further action notice as provided in subclause (I), or does not contact the
appropriate Federal agency within the period specified in subclause (II),
following expiration of the period specified in subclause (II), a
nonconfirmation shall be issued. The employer shall record the nonconfirmation
in such manner as the Secretary may specify and terminate the individual’s
employment. An individual’s failure to contest a further action notice shall
not be considered an admission of guilt with respect to any violation of this
section or any provision of law.
(IV)
Confirmation or
nonconfirmation
Unless the period is extended in accordance with
this subclause, the System shall provide a confirmation or nonconfirmation not
later than 10 business days after the date on which the individual contests the
further action notice under subclause (II). If the Secretary determines that
good cause exists, after taking into account adverse impacts to the employer,
and including time to permit the individual to obtain and provide needed
evidence of identity or employment eligibility, the Secretary shall extend the
period for providing confirmation or nonconfirmation for stated periods beyond
10 business days. When confirmation or nonconfirmation is provided, the
confirmation system shall provide an appropriate code indicating such
confirmation or nonconfirmation.
(V)
Reexamination
Nothing
in this section shall prevent the Secretary from establishing procedures to
reexamine a case where a confirmation or nonconfirmation has been provided if
subsequently received information indicates that the confirmation or
nonconfirmation may not have been correct. Any procedures for reexamination
shall not limit in any way an employee’s right to appeal a
nonconfirmation.
(VI)
Employee
protections
An employer may not terminate employment or take any
other adverse action against an individual solely because of a failure of the
individual to have identity and employment eligibility confirmed under this
subsection until—
(aa) a nonconfirmation has
been issued;
(bb) if the further action
notice was contested, the period to timely file an administrative appeal has
expired without an appeal or the contestation to the further action notice is
withdrawn; or
(cc) if an appeal before an
administrative law judge under paragraph (7) has been filed, the
nonconfirmation has been upheld or the appeal has been withdrawn or
dismissed.
(iv)
Notice of
nonconfirmation
Not later than 3 business days after an employer
receives a nonconfirmation, or during such other reasonable time as the
Secretary may provide, the employer shall notify the individual who is the
subject of the nonconfirmation, and provide information about filing an
administrative appeal pursuant to paragraph (6) and a request for a hearing
before an administrative law judge pursuant to paragraph (7). The
nonconfirmation notice shall be given to the individual in writing and the
employer shall acknowledge in the System under penalty of perjury that it
provided the notice (or adequately attempted to provide notice, but was unable
to do so despite reasonable efforts). The individual shall affirmatively
acknowledge in writing, or in such other manner as the Secretary may prescribe,
the receipt of the nonconfirmation notice from the employer. If the individual
refuses or fails to acknowledge the receipt of the nonconfirmation notice, the
employer shall notify the Secretary in such manner as the Secretary may
prescribe.
(D)
Consequences of
nonconfirmation
(i)
Termination of
continued employment
Except as provided in clause (iii), an
employer that has received a nonconfirmation regarding an individual and has
made reasonable efforts to notify the individual in accordance with
subparagraph (C)(iv) shall terminate the employment of the individual upon the
expiration of the time period specified in paragraph (7).
(ii)
Continued employment
after nonconfirmation
If the employer continues to employ an
individual after receiving nonconfirmation and exhaustion of all appeals or
expiration of all rights to appeal if not appealed, in violation of clause (i),
a rebuttable presumption is created that the employer has violated paragraphs
(1)(A) and (2) of subsection (a). Such presumption shall not apply in any
prosecution under subsection (k)(1).
(iii)
Effect of
administrative appeal or review by administrative law judge
If an
individual files an administrative appeal of the nonconfirmation within the
time period specified in paragraph (6)(A), or files for review with an
administrative law judge specified in paragraph (7)(A), the employer shall not
terminate the individual’s employment under this subparagraph prior to the
resolution of the administrative appeal unless the Secretary or Commissioner
terminates the stay under paragraph (6)(B) or (7)(B).
(iv)
Weekly
report
The Director of U.S. Citizenship and Immigration Services
shall submit a weekly report to the Assistant Secretary for Immigration and
Customs Enforcement that includes, for each individual who receives final
nonconfirmation through the System—
(I) the name of such
individual;
(II) his or her social
security number or alien file number;
(III) the name and contact
information for his or her current employer; and
(IV) any other critical
information that the Assistant Secretary determines to be appropriate.
(E)
Obligation to respond
to queries and additional information
(i)
In
general
Employers shall comply with requests for information from
the Secretary and the Special Counsel for Immigration-Related Unfair Employment
Practices of the Department of Justice, including queries concerning current
and former employees, within the time frame during which records are required
to be maintained under this section regarding such former employees, if such
information relates to the functioning of the System, the accuracy of the
responses provided by the System, or any suspected misuse, discrimination,
fraud, or identity theft in the use of the System. Failure to comply with a
request under this clause constitutes a violation of subsection
(a)(1)(B).
(ii)
Action by
individuals
(I)
In
general
Individuals being verified through the System may be
required to take further action to address questions identified by the
Secretary or the Commissioner regarding the documents relied upon for purposes
of subsection (c).
(II)
Notification
Not
later than 3 business days after the receipt of such questions regarding an
individual, or during such other reasonable time as the Secretary may
prescribe, the employer shall—
(aa) notify the individual of
any such requirement for further actions; and
(bb) record the date and
manner of such notification.
(III)
Acknowledgment
The
individual shall acknowledge the notification received from the employer under
subclause (II) in writing, or in such other manner as the Secretary may
prescribe.
(iii)
Rulemaking
(I)
In
general
The Secretary, in consultation with the Commissioner and
the Attorney General, is authorized to issue regulations implementing,
clarifying, and supplementing the requirements under this subparagraph—
(aa) to facilitate the
functioning, accuracy, and fairness of the System;
(bb) to prevent misuse,
discrimination, fraud, or identity theft in the use of the System; or
(cc) to protect and maintain
the confidentiality of information that could be used to locate or otherwise
place at risk of harm victims of domestic violence, dating violence, sexual
assault, stalking, and human trafficking, and of the applicant or beneficiary
of any petition described in section 384(a)(2) of the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1367(a)(2)).
(II)
Notice
The
regulations issued under subclause (I) shall be—
(aa) published in the Federal
Register; and
(bb) provided directly to all
employers registered in the System.
(F)
Designated
agents
The Secretary shall establish a process—
(i) for certifying, on an
annual basis or at such times as the Secretary may prescribe, designated agents
and other System service providers seeking access to the System to perform
verification queries on behalf of employers, based upon training, usage,
privacy, and security standards prescribed by the Secretary;
(ii) for ensuring that
designated agents and other System service providers are subject to monitoring
to the same extent as direct access users; and
(iii) for establishing
standards for certification of electronic I–9 programs.
(G)
Requirement to provide
information
(i)
In
general
No later than 3 months after the date of the enactment of
the Border Security, Economic Opportunity,
and Immigration Modernization Act, the Secretary, in consultation
with the Secretary of Labor, the Secretary of Agriculture, the Commissioner,
the Attorney General, the Equal Employment Opportunity Commission, and the
Administrator of the Small Business Administration, shall commence a campaign
to disseminate information respecting the procedures, rights, and remedies
prescribed under this section.
(ii)
Campaign
requirements
The campaign authorized under clause (i)—
(I) shall be aimed at
increasing the knowledge of employers, employees, and the general public
concerning employer and employee rights, responsibilities, and remedies under
this section; and
(II) shall be coordinated
with the public education campaign conducted by U.S. Citizenship and
Immigration Services.
(iii)
Assessment
The
Secretary shall assess the success of the campaign in achieving the goals of
the campaign.
(iv)
Authority to
contract
In order to carry out and assess the campaign under this
subparagraph, the Secretary may, to the extent deemed appropriate and subject
to the availability of appropriations, contract with public and private
organizations for outreach and assessment activities under the campaign.
(v)
Authorization of
appropriations
There are authorized to be appropriated to carry
out this paragraph $40,000,000 for each of the fiscal years 2014 through
2016.
(H)
Authority to modify
information requirements
Based on a regular review of the System
and the document verification procedures to identify misuse or fraudulent use
and to assess the security of the documents and processes used to establish
identity or employment authorized status, the Secretary, in consultation with
the Commissioner, after publication of notice in the Federal Register and an
opportunity for public comment, may modify, if the Secretary determines that
the modification is necessary to ensure that the System accurately and reliably
determines the identity and employment authorized status of employees and
maintain existing protections against misuse, discrimination, fraud, and
identity theft—
(i) the information that
shall be presented to the employer by an individual;
(ii) the information that
shall be provided to the System by the employer; and
(iii) the procedures that
shall be followed by employers with respect to the process of verifying an
individual through the System.
(I)
Self-verification
Subject
to appropriate safeguards to prevent misuse of the system, the Secretary, in
consultation with the Commissioner, shall establish a secure self-verification
procedure to permit an individual who seeks to verify the individual’s own
employment eligibility to contact the appropriate agency and, in a timely
manner, correct or update the information contained in the System.
(5)
Protection from
liability for actions taken on the basis of information provided by the
System
An employer shall not be liable to a job applicant, an
employee, the Federal Government, or a State or local government, under
Federal, State, or local criminal or civil law for any employment-related
action taken with respect to a job applicant or employee in good faith reliance
on information provided by the System.
(6)
Administrative
appeal
(A)
In
general
An individual who is notified of a nonconfirmation may,
not later than 10 business days after the date that such notice is received,
file an administrative appeal of such nonconfirmation with the Commissioner if
the notice is based on records maintained by the Commissioner, or in any other
case, with the Secretary. An individual who did not timely contest a further
action notice timely received by that individual for which the individual
acknowledged receipt may not be granted a review under this paragraph.
(B)
Administrative stay of
nonconfirmation
The nonconfirmation shall be automatically stayed
upon the timely filing of an administrative appeal, unless the nonconfirmation
resulted after the individual acknowledged receipt of the further action notice
but failed to contact the appropriate agency within the time provided. The stay
shall remain in effect until the resolution of the appeal, unless the Secretary
or the Commissioner terminates the stay based on a determination that the
administrative appeal is frivolous or filed for purposes of delay.
(C)
Review for
error
The Secretary and the Commissioner shall develop procedures
for resolving administrative appeals regarding nonconfirmations based upon the
information that the individual has provided, including any additional evidence
or argument that was not previously considered. Any such additional evidence or
argument shall be filed within 10 business days of the date the appeal was
originally filed. Appeals shall be resolved within 20 business days after the
individual has submitted all evidence and arguments the individual wishes to
submit, or has stated in writing that there is no additional evidence that the
individual wishes to submit. The Secretary and the Commissioner may, on a case
by case basis for good cause, extend the filing and submission period in order
to ensure accurate resolution of an appeal before the Secretary or the
Commissioner.
(D)
Preponderance of
evidence
Administrative appeal under this paragraph shall be
limited to whether a nonconfirmation notice is supported by a preponderance of
the evidence.
(E)
Damages, fees, and
costs
No money damages, fees or costs may be awarded in the
administrative appeal process under this paragraph.
(7)
Review by
administrative law judge
(A)
In
general
Not later than 30 days after the date an individual
receives a final determination on an administrative appeal under paragraph (6),
the individual may obtain review of such determination by filing a complaint
with a Department of Justice administrative law judge in accordance with this
paragraph.
(B)
Stay of
nonconfirmation
The nonconfirmation related to such final
determination shall be automatically stayed upon the timely filing of a
complaint under this paragraph, and the stay shall remain in effect until the
resolution of the complaint, unless the administrative law judge determines
that the action is frivolous or filed for purposes of delay.
(C)
Service
The
respondent to complaint filed under this paragraph is either the Secretary or
the Commissioner, but not both, depending upon who issued the administrative
order under paragraph (6). In addition to serving the respondent, the plaintiff
shall serve the Attorney General.
(D)
Authority of
administrative law judge
(i)
Rules of
practice
The Secretary shall promulgate regulations regarding the
rules of practice in appeals brought pursuant to this subsection.
(ii)
Authority of
administrative law judge
The administrative law judge shall have
power to—
(I) terminate a stay of a
nonconfirmation under subparagraph (B) if the administrative law judge
determines that the action is frivolous or filed for purposes of delay;
(II) adduce evidence at a
hearing;
(III) compel by subpoena the
attendance of witnesses and the production of evidence at any designated place
or hearing;
(IV) resolve claims of
identity theft; and
(V) enter, upon the pleadings
and any evidence adduced at a hearing, a decision affirming or reversing the
result of the agency, with or without remanding the cause for a
rehearing.
(iii)
Subpoena
In
case of contumacy or refusal to obey a subpoena lawfully issued under this
section and upon application of the administrative law judge, an appropriate
district court of the United States may issue an order requiring compliance
with such subpoena and any failure to obey such order may be punished by such
court as a contempt of such court.
(iv)
Training
An
administrative law judge hearing cases shall have special training respecting
employment authorized status verification.
(E)
Order by administrative
law judge
(i)
In
general
The administrative law judge shall issue and cause to be
served to the parties in the proceeding an order which may be appealed as
provided in subparagraph (G).
(ii)
Contents of
order
Such an order shall uphold or reverse the final
determination on the request for reconsideration and order lost wages and other
appropriate remedies as provided in subparagraph (F).
(F)
Compensation for
error
(i)
In
general
In cases in which the administrative law judge reverses
the final determination of the Secretary or the Commissioner made under
paragraph (6), and the administrative law judge finds that—
(I) the nonconfirmation was
due to gross negligence or intentional misconduct of the employer, the
administrative law judge may order the employer to pay the individual lost
wages, and reasonable costs and attorneys’ fees incurred during administrative
and judicial review; or
(II) such final determination
was erroneous by reason of the negligence of the Secretary or the Commissioner,
the administrative law judge may order the Secretary or the Commissioner to pay
the individual lost wages, and reasonable costs and attorneys’ fees incurred
during the administrative appeal and the administrative law judge
review.
(ii)
Calculation of lost
wages
Lost wages shall be calculated based on the wage rate and
work schedule that prevailed prior to termination. The individual shall be
compensated for wages lost beginning on the first scheduled work day after
employment was terminated and ending 120 days after completion of the
administrative law judge’s review described in this paragraph or the day after
the individual is reinstated or obtains employment elsewhere, whichever occurs
first. If the individual obtains employment elsewhere at a lower wage rate, the
individual shall be compensated for the difference in wages for the period
ending 120 days after completion of the administrative law judge review
process. No lost wages shall be awarded for any period of time during which the
individual was not in employment authorized status.
(iii)
Payment of
compensation
Notwithstanding any other law, payment of
compensation for lost wages, costs, and attorneys’ fees under this paragraph,
or compromise settlements of the same, shall be made as provided by section
1304 of title 31, United States Code. Appropriations made available to the
Secretary or the Commissioner, accounts provided for under section 286, and
funds from the Federal Old-Age and Survivors Insurance Trust Fund or the
Federal Disability Insurance Trust Fund shall not be available to pay such
compensation.
(G)
Appeal
No
later than 45 days after the entry of such final order, any person adversely
affected by such final order may seek review of such order in the United States
Court of Appeals for the circuit in which the violation is alleged to have
occurred or in which the employer resides or transacts business.
(8)
Management of the
system
(A)
In
general
The Secretary is authorized to establish, manage, and
modify the System, which shall—
(i) respond to inquiries made
by participating employers at any time through the internet, or such other
means as the Secretary may designate, concerning an individual’s identity and
whether the individual is in employment authorized status;
(ii) maintain records of the
inquiries that were made, of confirmations provided (or not provided), and of
the codes provided to employers as evidence of their compliance with their
obligations under the System; and
(iii) provide information to,
and require action by, employers and individuals using the System.
(B)
Design and operation of
system
The System shall be designed and operated—
(i) to maximize its
reliability and ease of use by employers consistent with protecting the privacy
and security of the underlying information, and ensuring full notice of such
use to employees;
(ii) to maximize its ease of
use by employees, including direct notification of its use, of results, and
ability to challenge results;
(iii) to respond accurately
to all inquiries made by employers on whether individuals are authorized to be
employed and to register any times when the system is unable to receive
inquiries;
(iv) to maintain appropriate
administrative, technical, and physical safeguards to prevent unauthorized
disclosure of personal information, misuse by employers and employees, and
discrimination;
(v) to require regularly
scheduled refresher training of all users of the System to ensure compliance
with all procedures;
(vi) to allow for auditing of
the use of the System to detect misuse, discrimination, fraud, and identity
theft, to protect privacy and assess System accuracy, and to preserve the
integrity and security of the information in all of the System,
including—
(I) to develop and use tools
and processes to detect or prevent fraud and identity theft, such as multiple
uses of the same identifying information or documents to fraudulently gain
employment;
(II) to develop and use tools
and processes to detect and prevent misuse of the system by employers and
employees;
(III) to develop tools and
processes to detect anomalies in the use of the system that may indicate
potential fraud or misuse of the system;
(IV) to audit documents and
information submitted by employees to employers, including authority to conduct
interviews with employers and employees, and obtain information concerning
employment from the employer;
(vii) to confirm identity and
employment authorization through verification and comparison of records as
determined necessary by the Secretary;
(viii) to confirm
electronically the issuance of the employment authorization or identity
document and—
(I) if such photograph is
available, to display the digital photograph that the issuer placed on the
document so that the employer can compare the photograph displayed to the
photograph on the document presented by the employee; or
(II) if a photograph is not
available from the issuer, to confirm the authenticity of the document using
such alternative procedures as the Secretary may specify; and
(ix) to provide appropriate
notification directly to employers registered with the System of all changes
made by the Secretary or the Commissioner related to allowed and prohibited
documents, and use of the System.
(C)
Safeguards to the
System
(i)
Requirement to
develop
The Secretary, in consultation with the Commissioner and
other appropriate Federal and State agencies, shall develop policies and
procedures to ensure protection of the privacy and security of personally
identifiable information and identifiers contained in the records accessed or
maintained by the System. The Secretary, in consultation with the Commissioner
and other appropriate Federal and State agencies, shall develop and deploy
appropriate privacy and security training for the Federal and State employees
accessing the records under the System.
(ii)
Privacy
audits
The Secretary, acting through the Chief Privacy Officer of
the Department, shall conduct regular privacy audits of the policies and
procedures established under clause (i), including any collection, use,
dissemination, and maintenance of personally identifiable information and any
associated information technology systems, as well as scope of requests for
this information. The Chief Privacy Officer shall review the results of the
audits and recommend to the Secretary any changes necessary to improve the
privacy protections of the program.
(iii)
Accuracy
audits
(I)
In
general
Not later than November 30 of each year, the Inspector
General of the Department of Homeland Security shall submit a report to the
Secretary, with a copy to the President of the Senate and the Speaker of the
House of Representatives, that sets forth the error rate of the System for the
previous fiscal year and the assessments required to be submitted by the
Secretary under subparagraphs (A) and (B) of paragraph (10). The report shall
describe in detail the methodology employed for purposes of the report, and
shall make recommendations for how error rates may be reduced.
(II)
Error rate
defined
In this clause, the term error rate means
the percentage determined by dividing—
(aa) the number of employment
authorized individuals who received further action notices, contested such
notices, and were subsequently found to be employment authorized; by
(bb) the number of System
inquiries submitted for employment authorized individuals.
(III)
Reduction of
penalties for recordkeeping or verification practices following persistent
system inaccuracies
Notwithstanding subsection (e)(4)(C)(i), in
any calendar year following a report by the Inspector General under subclause
(I) that the System had an error rate higher than 0.3 percent for the previous
fiscal year, the civil penalty assessable by the Secretary or an administrative
law judge under that subsection for each first-time violation by an employer
who has not previously been penalized under this section may not exceed
$1,000.
(iv)
Records security
program
Any person, including a private third party vendor, who
retains document verification or System data pursuant to this section shall
implement an effective records security program that—
(I) ensures that only
authorized personnel have access to document verification or System data;
and
(II) ensures that whenever
such data is created, completed, updated, modified, altered, or corrected in
electronic format, a secure and permanent record is created that establishes
the date of access, the identity of the individual who accessed the electronic
record, and the particular action taken.
(v)
Records security
program
In addition to the security measures described in clause
(iv), a private third party vendor who retains document verification or System
data pursuant to this section shall implement an effective records security
program that—
(I) provides for backup and
recovery of any records maintained in electronic format to protect against
information loss, such as power interruptions; and
(II) ensures that employees
are trained to minimize the risk of unauthorized or accidental alteration or
erasure of such data in electronic format.
(vi)
Authorized personnel
defined
In this subparagraph, the term authorized
personnel means anyone registered as a System user, or anyone with
partial or full responsibility for completion of employment authorization
verification or retention of data in connection with employment authorization
verification on behalf of an employer.
(D)
Available facilities
and alternative accommodations
The Secretary shall make
appropriate arrangements and develop standards to allow employers or employees,
including remote hires, who are otherwise unable to access the System to use
electronic and telephonic formats (including video conferencing, scanning
technology, and other available technologies), Federal Government facilities,
public facilities, or other available locations in order to utilize the
System.
(E)
Responsibilities of the
Secretary
(i)
In
general
As part of the System, the Secretary shall maintain a
reliable, secure method, which, operating through the System and within the
time periods specified, compares the name, alien identification or
authorization number, or other information as determined relevant by the
Secretary, provided in an inquiry against such information maintained or
accessed by the Secretary in order to confirm (or not confirm) the validity of
the information provided, the correspondence of the name and number, whether
the alien has employment authorized status (or, to the extent that the
Secretary determines to be feasible and appropriate, whether the records
available to the Secretary verify the identity or status of a national of the
United States), and such other information as the Secretary may
prescribe.
(ii)
Photograph
display
As part of the System, the Secretary shall establish a
reliable, secure method, which, operating through the System, displays the
digital photograph described in subparagraph (B)(viii)(I).
(iii)
Timing of
notices
The Secretary shall have authority to prescribe when a
confirmation, nonconfirmation, or further action notice shall be issued.
(iv)
Use of
information
The Secretary shall perform regular audits under the
System, as described in subparagraph (B)(vi) and shall utilize the information
obtained from such audits, as well as any information obtained from the
Commissioner pursuant to part E of title XI of the Social Security Act (42
U.S.C. 1301 et seq.), for the purposes of this section and to administer and
enforce the immigration laws.
(v)
Identity fraud
protection
To prevent identity fraud, not later than 18 months
after the date of the enactment of the Border
Security, Economic Opportunity, and Immigration Modernization
Act, the Secretary shall—
(I) in consultation with the
Commissioner, establish a program to provide a reliable, secure method for an
individual to temporarily suspend or limit the use of the individual's social
security account number or other identifying information for verification by
the System; and
(II) for each individual
being verified through the System—
(aa) notify the individual
that the individual has the option to limit the use of the individual's social
security account number or other identifying information for verification by
the System; and
(bb) provide instructions to
the individuals for exercising the option referred to in item (aa).
(vi)
Allowing parents to
prevent theft of their child's identity
The Secretary, in
consultation with the Commissioner, shall establish a program that provides a
reliable, secure method by which parents or legal guardians may suspend or
limit the use of the social security account number or other identifying
information of a minor under their care for the purposes of the System. The
Secretary may implement the program on a limited pilot program basis before
making it fully available to all individuals.
(vii)
Protection from
multiple use
The Secretary and the Commissioner shall establish a
procedure for identifying and handling a situation in which a social security
account number has been identified to be subject to unusual multiple use in the
System or is otherwise suspected or determined to have been compromised by
identity fraud.
(viii)
Monitoring and
compliance unit
The Secretary shall establish or designate a
monitoring and compliance unit to detect and reduce identity fraud and other
misuse of the System.
(ix)
Civil rights and civil
liberties assessments
(I)
Requirement to
conduct
The Secretary shall conduct regular civil rights and
civil liberties assessments of the System, including participation by
employers, other private entities, and Federal, State, and local government
entities.
(II)
Requirement to
respond
Employers, other private entities, and Federal, State,
and local entities shall timely respond to any request in connection with such
an assessment.
(III)
Assessment and
recommendations
The Officer for Civil Rights and Civil Liberties
of the Department shall review the results of each such assessment and
recommend to the Secretary any changes necessary to improve the civil rights
and civil liberties protections of the System.
(F)
Grants to
States
(i)
In
general
The Secretary shall create and administer a grant program
to help provide funding for States that grant—
(I) the Secretary access to
driver’s license information as needed to confirm that a driver’s license
presented under subsection (c)(1)(D)(i) confirms the identity of the subject of
the System check, and that a driver’s license matches the State’s records;
and
(II) such assistance as the
Secretary may request in order to resolve further action notices or
nonconfirmations relating to such information.
(ii)
Construction with the
Driver's Privacy Protection Act of 1994
The provision of a
photograph to the Secretary as described in clause (i) may not be construed as
a violation of section 2721 of title 18, United States Code, and is a
permissible use under subsection (b)(1) of that section.
(iii)
Authorization of
appropriations
There is authorized to be appropriated to the
Secretary $250,000,000 to carry out this subparagraph.
(G)
Responsibilities of the
Secretary of State
As part of the System, the Secretary of State
shall provide to the Secretary access to passport and visa information as
needed to confirm that a passport, passport card, or visa presented under
subsection (c)(1)(C) confirms the identity of the subject of the System check,
and that a passport, passport card, or visa photograph matches the Secretary of
State’s records, and shall provide such assistance as the Secretary may request
in order to resolve further action notices or nonconfirmations relating to such
information.
(H)
Updating
information
The Commissioner, the Secretary, and the Secretary of
State shall update their information in a manner that promotes maximum accuracy
and shall provide a process for the prompt correction of erroneous
information.
(9)
Limitation on use of
the System
Notwithstanding any other provision of law, nothing in
this subsection may be construed to permit or allow any department, bureau, or
other agency of the United States Government or any other entity to utilize any
information, database, or other records assembled under this subsection for any
purpose other than for employment verification or to ensure secure, appropriate
and nondiscriminatory use of the System.
(10)
Annual report and
certification
Not later than 18 months after the promulgation of
regulations to implement this subsection, and annually thereafter, the
Secretary shall submit to Congress a report that includes the following:
(A) An assessment, as
submitted to the Secretary by the Inspector General of the Department of
Homeland Security pursuant to paragraph (8)(C)(iii)(I), of the accuracy rates
of further action notices and other System notices provided by employers to
individuals who are authorized to be employed in the United States.
(B) An assessment, as
submitted to the Secretary by the Inspector General of the Department of
Homeland Security pursuant to paragraph (8)(C)(iii)(I), of the accuracy rates
of further action notices and other System notices provided directly (by the
System) in a timely fashion to individuals who are not authorized to be
employed in the United States.
(C) An assessment of any
challenges faced by small employers in utilizing the System.
(D) An assessment of the rate
of employer noncompliance (in addition to failure to provide required notices
in a timely fashion) in each of the following categories:
(i) Taking adverse action
based on a further action notice.
(ii) Use of the System for
nonemployees or other individuals before they are offered employment.
(iii) Use of the System to
reverify employment authorized status of current employees except if authorized
to do so.
(iv) Use of the System
selectively, except in cases in which such use is authorized.
(v) Use of the System to deny
employment or post-employment benefits or otherwise interfere with labor
rights.
(vi) Requiring employees or
applicants to use any self-verification feature or to provide self-verification
results.
(vii) Discouraging
individuals who receive a further action notice from challenging the further
action notice or appealing a determination made by the System.
(E) An assessment of the rate
of employee noncompliance in each of the following categories:
(i) Obtaining employment when
unauthorized with an employer complying with the System in good faith.
(ii) Failure to provide
required documents in a timely manner.
(iii) Attempting to use
fraudulent documents or documents not related to the individual.
(iv) Misuse of the
administrative appeal and judicial review process.
(F) An assessment of the
amount of time taken for—
(i) the System to provide the
confirmation or further action notice;
(ii) individuals to contest
further action notices;
(iii) the System to provide a
confirmation or nonconfirmation of a contested further action notice;
(iv) individuals to file an
administrative appeal of a nonconfirmation; and
(v) resolving administrative
appeals regarding nonconfirmations.
(11)
Annual GAO study and
report
(A)
Requirement
The
Comptroller General shall, for each year, undertake a study to evaluate the
accuracy, efficiency, integrity, and impact of the System.
(B)
Report
Not
later than 18 months after the promulgation of regulations to implement this
subsection, and yearly thereafter, the Comptroller General shall submit to
Congress a report containing the findings of the study carried out under this
paragraph. Each such report shall include, at a minimum, the following:
(i) An assessment of System
performance with respect to the rate at which individuals who are eligible for
employment in the United States are correctly approved within the required
periods, including a separate assessment of such rate for naturalized United
States citizens, nationals of the United States, and aliens.
(ii) An assessment of the
privacy and confidentiality of the System and of the overall security of the
System with respect to cybertheft and theft or misuse of private data.
(iii) An assessment of
whether the System is being implemented in a manner that is not discriminatory
or used for retaliation against employees.
(iv) An assessment of the
most common causes for the erroneous issuance of nonconfirmations by the System
and recommendations to correct such causes.
(v) The recommendations of
the Comptroller General regarding System improvements.
(vi) An assessment of the
frequency and magnitude of changes made to the System and the impact on the
ability for employers to comply in good faith.
(vii) An assessment of the
direct and indirect costs incurred by employers in complying with the System,
including costs associated with retaining potential employees through the
administrative appeals process and receiving a nonconfirmation.
(viii) An assessment of any
backlogs or delays in the System providing the confirmation or further action
notice and impacts to hiring by employers.
(e)
Compliance
(1)
Complaints and
investigations
The Secretary shall establish procedures—
(A) for individuals and
entities to file complaints respecting potential violations of subsections (a)
or (f)(1);
(B) for the investigation of
those complaints which the Secretary deems appropriate to investigate;
and
(C) for providing
notification to the Special Counsel for Immigration-Related Unfair Employment
Practices of the Department of Justice of potential violations of section
274B.
(2)
Authority in
investigations
In conducting investigations and proceedings under
this subsection—
(A) immigration officers
shall have reasonable access to examine evidence of the employer being
investigated;
(B) immigration officers
designated by the Secretary, and administrative law judges and other persons
authorized to conduct proceedings under this section, may compel by subpoena
the attendance of relevant witnesses and the production of relevant evidence at
any designated place in an investigation or case under this subsection. In case
of refusal to fully comply with a subpoena lawfully issued under this
paragraph, the Secretary may request that the Attorney General apply in an
appropriate district court of the United States for an order requiring
compliance with the subpoena, and any failure to obey such order may be
punished by the court as contempt. Failure to cooperate with the subpoena shall
be subject to further penalties, including further fines and the voiding of any
mitigation of penalties or termination of proceedings under paragraph (4)(E);
and
(C) the Secretary, in
cooperation with the Commissioner and Attorney General, and in consultation
with other relevant agencies, shall establish a Joint Employment Fraud Task
Force consisting of, at a minimum—
(i) the System’s compliance
personnel;
(ii) immigration law
enforcement officers;
(iii) personnel of the Office
of Special Counsel for Immigration-Related Unfair Employment Practices of the
Department of Justice;
(iv) personnel of the Office
for Civil Rights and Civil Liberties of the Department; and
(v) personnel of Office of
Inspector General of the Social Security Administration.
(3)
Compliance
procedures
(A)
Pre-penalty
notice
If the Secretary has reasonable cause to believe that
there has been a civil violation of this section in the previous 3 years, the
Secretary shall issue to the employer concerned a written notice of the
Department’s intention to issue a claim for a monetary or other penalty. Such
pre-penalty notice shall—
(i) describe the
violation;
(ii) specify the laws and
regulations allegedly violated;
(iii) disclose the material
facts which establish the alleged violation;
(iv) describe the penalty
sought to be imposed; and
(v) inform such employer that
such employer shall have a reasonable opportunity to make representations as to
why a monetary or other penalty should not be imposed.
(B)
Employer’s
response
Whenever any employer receives written pre-penalty
notice of a fine or other penalty in accordance with subparagraph (A), the
employer may, within 60 days from receipt of such notice, file with the
Secretary its written response to the notice. The response may include any
relevant evidence or proffer of evidence that the employer wishes to present
with respect to whether the employer violated this section and whether, if so,
the penalty should be mitigated, and shall be filed and considered in
accordance with procedures to be established by the Secretary.
(C)
Right to a
hearing
Before issuance of an order imposing a penalty on any
employer, person, or entity, the employer, person, or entity shall be entitled
to a hearing before an administrative law judge, if requested within 60 days of
the notice of penalty. The hearing shall be held at the nearest location
practicable to the place where the employer, person, or entity resides or of
the place where the alleged violation occurred.
(D)
Issuance of
orders
If no hearing is so requested, the Secretary’s imposition
of the order shall constitute a final and unappealable order. If a hearing is
requested and the administrative law judge determines, upon clear and
convincing evidence received, that there was a violation, the administrative
law judge shall issue the final determination with a written penalty claim. The
penalty claim shall specify all charges in the information provided under
clauses (i) through (iii) of subparagraph (A) and any mitigation of the penalty
that the administrative law judge deems appropriate under paragraph
(4)(E).
(4)
Civil
penalties
(A)
Hiring or continuing to
employ unauthorized aliens
Any employer that violates any
provision of subsection (a)(1)(A) or (a)(2) shall—
(i) pay a civil penalty of
not less than $3,500 and not more than $7,500 for each unauthorized alien with
respect to which each violation of either subsection (a)(1)(A) or (a)(2)
occurred;
(ii) if the employer has
previously been fined as a result of a previous enforcement action or previous
violation under this paragraph, pay a civil penalty of not less than $5,000 and
not more than $15,000 for each unauthorized alien with respect to which a
violation of either subsection (a)(1)(A) or (a)(2) occurred; and
(iii) if the employer has
previously been fined more than once under this paragraph, pay a civil penalty
of not less than $10,000 and not more than $25,000 for each unauthorized alien
with respect to which a violation of either subsection (a)(1)(A) or (a)(2)
occurred.
(B)
Enhanced
penalties
After the Secretary certifies to Congress that the
System has been established, implemented, and made mandatory for use by all
employers in the United States, the Secretary may establish an enhanced civil
penalty for an employer who—
(i) fails to query the System
to verify the identify and work authorized status of an individual; and
(ii) violates a Federal,
State, or local law related to—
(I) the payment of
wages;
(II) hours worked by
employees; or
(III) workplace health and
safety.
(C)
Recordkeeping or
verification practices
Any employer that violates or fails to
comply with any requirement under subsection (a)(1)(B), other than a minor or
inadvertent failure, as determined by the Secretary, shall pay a civil penalty
of—
(i) not less than $500 and
not more than $2,000 for each violation;
(ii) if an employer has
previously been fined under this paragraph, not less than $1,000 and not more
than $4,000 for each violation; and
(iii) if an employer has
previously been fined more than once under this paragraph, not less than $2,000
and not more than $8,000 for each violation.
(D)
Other
penalties
The Secretary may impose additional penalties for
violations, including cease and desist orders, specially designed compliance
plans to prevent further violations, suspended fines to take effect in the
event of a further violation, and in appropriate cases, the remedy provided by
paragraph (f)(2).
(E)
Mitigation
The
Secretary or, if an employer requests a hearing, the administrative law judge,
is authorized, upon such terms and conditions as the Secretary or
administrative law judge deems reasonable and just and in accordance with such
procedures as the Secretary may establish or any procedures established
governing the administrative law judge’s assessment of penalties, to reduce or
mitigate penalties imposed upon employers, based upon factors including, the
employer’s hiring volume, compliance history, good-faith implementation of a
compliance program, the size and level of sophistication of the employer, and
voluntary disclosure of violations of this subsection to the Secretary. The
Secretary or administrative law judge shall not mitigate a penalty below the
minimum penalty provided by this section, except that the Secretary may, in the
case of an employer subject to penalty for recordkeeping or verification
violations only who has not previously been penalized under this section, in
the Secretary’s or administrative law judge’s discretion, mitigate the penalty
below the statutory minimum or remit it entirely. In any case where a civil
money penalty has been imposed on an employer under section 274B for an action
or omission that is also a violation of this section, the Secretary or
administrative law judge shall mitigate any civil money penalty under this
section by the amount of the penalty imposed under section 274B.
(F)
Effective
date
The civil money penalty amounts and the enhanced penalties
provided by subparagraphs (A), (B), and (C) of this paragraph and by subsection
(f)(2) shall apply to violations of this section committed on or after the date
that is 1 year after the date of the enactment of the
Border Security, Economic Opportunity, and
Immigration Modernization Act. For violations committed prior to
such date of enactment, the civil money penalty amounts provided by regulations
implementing this section as in effect the minute before such date of enactment
with respect to knowing hiring or continuing employment, verification, or
indemnity bond violations, as appropriate, shall apply.
(5)
Order of internal
review and certification of compliance
(A)
Employer
compliance
If the Secretary has reasonable cause to believe that
an employer has failed to comply with this section, the Secretary is
authorized, at any time, to require that the employer certify that it is in
compliance with this section, or has instituted a program to come into
compliance.
(B)
Employer
certification
(i)
Requirement
Except
as provided in subparagraph (C), not later than 60 days after receiving a
notice from the Secretary requiring a certification under subparagraph (A), an
official with responsibility for, and authority to bind the company on, all
hiring and immigration compliance notices shall certify under penalty of
perjury that the employer is in conformance with the requirements of paragraphs
(1) through (4) of subsection (c), pertaining to document verification
requirements, and with subsection (d), pertaining to the System (once the
System is implemented with respect to that employer according to the
requirements under subsection (d)(2)), and with any additional requirements
that the Secretary may promulgate by regulation pursuant to subsection (c) or
(d) or that the employer has instituted a program to come into compliance with
these requirements.
(ii)
Application
Clause
(i) shall not apply until the date that the Secretary certifies to Congress
that the System has been established, implemented, and made mandatory for use
by all employers in the United States.
(C)
Extension of
deadline
At the request of the employer, the Secretary may extend
the 60-day deadline for good cause.
(D)
Standards or
methods
The Secretary is authorized to publish in the Federal
Register standards or methods for such certification, require specific
recordkeeping practices with respect to such certifications, and audit the
records thereof at any time. This authority shall not be construed to diminish
or qualify any other penalty provided by this section.
(6)
Requirements for review
of a final determination
With respect to judicial review of a
final determination or penalty order issued under paragraph (3)(D), the
following requirements apply:
(A)
Deadline
The
petition for review must be filed no later than 30 days after the date of the
final determination or penalty order issued under paragraph (3)(D).
(B)
Venue and
forms
The petition for review shall be filed with the court of
appeals for the judicial circuit where the employer’s principal place of
business was located when the final determination or penalty order was made.
The record and briefs do not have to be printed. The court shall review the
proceeding on a typewritten or electronically filed record and briefs.
(C)
Service
The
respondent is the Secretary. In addition to serving the respondent, the
petitioner shall serve the Attorney General.
(D)
Petitioner’s
brief
The petitioner shall serve and file a brief in connection
with a petition for judicial review not later than 40 days after the date on
which the administrative record is available, and may serve and file a reply
brief not later than 14 days after service of the brief of the respondent, and
the court may not extend these deadlines, except for good cause shown. If a
petitioner fails to file a brief within the time provided in this paragraph,
the court shall dismiss the appeal unless a manifest injustice would
result.
(E)
Scope and standard for
review
The court of appeals shall conduct a de novo review of the
administrative record on which the final determination was based and any
additional evidence that the Court finds was previously unavailable at the time
of the administrative hearing.
(F)
Exhaustion of
administrative remedies
A court may review a final determination
under paragraph (3)(C) only if—
(i) the petitioner has
exhausted all administrative remedies available to the petitioner as of right,
including any administrative remedies established by regulation, and
(ii) another court has not
decided the validity of the order, unless the reviewing court finds that the
petition presents grounds that could not have been presented in the prior
judicial proceeding or that the remedy provided by the prior proceeding was
inadequate or ineffective to test the validity of the order.
(G)
Enforcement of
orders
If the final determination issued against the employer
under this subsection is not subjected to review as provided in this paragraph,
the Attorney General, upon request by the Secretary, may bring a civil action
to enforce compliance with the final determination in any appropriate district
court of the United States. The court, on a proper showing, shall issue a
temporary restraining order or a preliminary or permanent injunction requiring
that the employer comply with the final determination issued against that
employer under this subsection. In any such civil action, the validity and
appropriateness of the final determination shall not be subject to
review.
(7)
Creation of
lien
If any employer liable for a fee or penalty under this
section neglects or refuses to pay such liability after demand and fails to
file a petition for review (if applicable) as provided in paragraph (6), the
amount of the fee or penalty shall be a lien in favor of the United States on
all property and rights to property, whether real or personal, belonging to
such employer. If a petition for review is filed as provided in paragraph (6),
the lien shall arise upon the entry of a final judgment by the court. The lien
continues for 20 years or until the liability is satisfied, remitted, set
aside, or terminated.
(8)
Filing notice of
lien
(A)
Place for
filing
The notice of a lien referred to in paragraph (7) shall be
filed as described in 1 of the following:
(i)
Under State
laws
(I)
Real
property
In the case of real property, in 1 office within the
State (or the county, or other governmental subdivision), as designated by the
laws of such State, in which the property subject to the lien is
situated.
(II)
Personal
property
In the case of personal property, whether tangible or
intangible, in 1 office within the State (or the county, or other governmental
subdivision), as designated by the laws of such State, in which the property
subject to the lien is situated, except that State law merely conforming to or
reenacting Federal law establishing a national filing system does not
constitute a second office for filing as designated by the laws of such
State.
(ii)
With clerk of district
court
In the office of the clerk of the United States district
court for the judicial district in which the property subject to the lien is
situated, whenever the State has not by law designated 1 office which meets the
requirements of clause (i).
(iii)
With recorder of
deeds of the District of Columbia
In the office of the Recorder
of Deeds of the District of Columbia, if the property subject to the lien is
situated in the District of Columbia.
(B)
Situs of property
subject to lien
For purposes of subparagraph (A), property shall
be deemed to be situated as follows:
(i)
Real
property
In the case of real property, at its physical
location.
(ii)
Personal
property
In the case of personal property, whether tangible or
intangible, at the residence of the taxpayer at the time the notice of lien is
filed.
(C)
Determination of
residence
For purposes of subparagraph (B)(ii), the residence of
a corporation or partnership shall be deemed to be the place at which the
principal executive office of the business is located, and the residence of a
taxpayer whose residence is outside the United States shall be deemed to be in
the District of Columbia.
(D)
Effect of filing notice
of lien
(i)
In
general
Upon filing of a notice of lien in the manner described
in this paragraph, the lien shall be valid against any purchaser, holder of a
security interest, mechanic’s lien, or judgment lien creditor, except with
respect to properties or transactions specified in subsection (b), (c), or (d)
of section 6323 of the Internal Revenue Code of 1986 for which a notice of tax
lien properly filed on the same date would not be valid.
(ii)
Notice of
lien
The notice of lien shall be considered a notice of lien for
taxes payable to the United States for the purpose of any State or local law
providing for the filing of a notice of a tax lien. A notice of lien that is
registered, recorded, docketed, or indexed in accordance with the rules and
requirements relating to judgments of the courts of the State where the notice
of lien is registered, recorded, docketed, or indexed shall be considered for
all purposes as the filing prescribed by this section.
(iii)
Other
provisions
The provisions of section 3201(e) of title 28, United
States Code, shall apply to liens filed as prescribed by this paragraph.
(E)
Enforcement of a
lien
A lien obtained through this paragraph shall be considered a
debt as defined by section 3002 of title 28, United States Code and enforceable
pursuant to chapter 176 of such title.
(9)
Attorney General
adjudication
The Attorney General shall have jurisdiction to
adjudicate administrative proceedings under this subsection. Such proceedings
shall be conducted in accordance with requirements of section 554 of title 5,
United States Code.
(f)
Criminal and civil
penalties and injunctions
(1)
Prohibition of
indemnity bonds
It is unlawful for an employer, in the hiring of
any individual, to require the individual to post a bond or security, to pay or
agree to pay an amount, or otherwise to provide a financial guarantee or
indemnity, against any potential liability arising under this section relating
to such hiring of the individual.
(2)
Civil
penalty
Any employer who is determined, after notice and
opportunity for mitigation of the monetary penalty under subsection (e), to
have violated paragraph (1) shall be subject to a civil penalty of $10,000 for
each violation and to an administrative order requiring the return of any
amounts received in violation of such paragraph to the employee or, if the
employee cannot be located, to the general fund of the Treasury.
(g)
Government
contracts
(1)
Contractors and
recipients
Whenever an employer who is a Federal contractor
(meaning an employer who holds a Federal contract, grant, or cooperative
agreement, or reasonably may be expected to submit an offer for or be awarded a
government contract) is determined by the Secretary to have violated this
section on more than 3 occasions or is convicted of a crime under this section,
the employer shall be considered for debarment from the receipt of Federal
contracts, grants, or cooperative agreements in accordance with the procedures
and standards and for the periods prescribed by the Federal Acquisition
Regulation. However, any administrative determination of liability for civil
penalty by the Secretary or the Attorney General shall not be reviewable in any
debarment proceeding.
(2)
Inadvertent
violations
Inadvertent violations of recordkeeping or
verification requirements, in the absence of any other violations of this
section, shall not be a basis for determining that an employer is a repeat
violator for purposes of this subsection.
(3)
Other remedies
available
Nothing in this subsection shall be construed to modify
or limit any remedy available to any agency or official of the Federal
Government for violation of any contractual requirement to participate in the
System, as provided in the final rule relating to employment eligibility
verification published in the Federal Register on November 14, 2008 (73 Fed.
Reg. 67,651), or any similar subsequent regulation.
(h)
Preemption
The
provisions of this section preempt any State or local law, ordinance, policy,
or rule, including any criminal or civil fine or penalty structure, relating to
the hiring, continued employment, or status verification for employment
eligibility purposes, of unauthorized aliens. A State, locality, municipality,
or political subdivision may exercise its authority over business licensing and
similar laws as a penalty for failure to use the System.
(i)
Deposit of amounts
received
Except as otherwise specified, civil penalties collected
under this section shall be deposited by the Secretary into the Comprehensive
Immigration Reform Trust Fund established under section 6(a)(1) of the
Border Security, Economic Opportunity, and
Immigration Modernization Act.
(j)
Challenges to validity
of the System
(1)
In
general
Any right, benefit, or claim not otherwise waived or
limited pursuant to this section is available in an action instituted in the
United States District Court for the District of Columbia, but shall be limited
to determinations of—
(A) whether this section, or
any regulation issued to implement this section, violates the Constitution of
the United States; or
(B) whether such a regulation
issued by or under the authority of the Secretary to implement this section, is
contrary to applicable provisions of this section or was issued in violation of
chapter 5 of title 5, United States Code.
(2)
Deadlines for bringing
actions
Any action instituted under this subsection must be filed
no later than 180 days after the date the challenged section or regulation
described in subparagraph (A) or (B) of paragraph (1) becomes effective. No
court shall have jurisdiction to review any challenge described in subparagraph
(B) after the time period specified in this subsection expires.
(k)
Criminal penalties and
injunctions for pattern or practice violations
(1)
Pattern and
practice
Any employer who engages in a pattern or practice of
knowing violations of subsection (a)(1)(A) or (a)(2) shall be fined under title
18, United States Code, no more than $10,000 for each unauthorized alien with
respect to whom such violation occurs, imprisoned for not more than 2 years for
the entire pattern or practice, or both.
(2)
Term of
imprisonment
The maximum term of imprisonment of a person
convicted of any criminal offense under the United States Code shall be
increased by 5 years if the offense is committed as part of a pattern or
practice of violations of subsection (a)(1)(A) or (a)(2).
(3)
Enjoining of pattern or
practice violations
Whenever the Secretary or the Attorney
General has reasonable cause to believe that an employer is engaged in a
pattern or practice of employment in violation of subsection (a)(1)(A) or
(a)(2), the Attorney General may bring a civil action in the appropriate
district court of the United States requesting such relief, including a
permanent or temporary injunction, restraining order, or other order against
the employer, as the Secretary or Attorney General deems necessary.
(l)
Criminal penalties for
unlawful and abusive employment
(1)
In
general
Any person who, during any 12-month period, knowingly
employs or hires, employs, recruits, or refers for a fee for employment 10 or
more individuals within the United States who are under the control and
supervision of such person—
(A) knowing that the
individuals are unauthorized aliens; and
(B) under conditions that
violate section 5(a) of the Occupational Safety and Health Act of 1970 (29
U.S.C. 654(a) (relating to occupational safety and health), section 6 or 7 of
the Fair Labor Standards Act of 1938 (29 U.S.C. 206 and 207) (relating to
minimum wages and maximum hours of employment), section 3142 of title 40,
United States Code, (relating to required wages on construction contracts), or
sections 6703 or 6704 of title 41, United States Code, (relating to required
wages on service contracts),
shall
be fined under title 18, United States Code, or imprisoned for not more than 10
years, or both.
(2)
Attempt and
conspiracy
Any person who attempts or conspires to commit any
offense under this section shall be punished in the same manner as a person who
completes the
offense.
.
(b)
Report on use of the
System in the agricultural industry
Not later than 18 months
after the date of the enactment of this Act, the Secretary, in consultation
with the Secretary of Agriculture, shall submit a report to Congress that
assesses implementation of the Employment Verification System established under
section 274A(d) of the Immigration and Nationality Act, as amended by
subsection (a), in the agricultural industry, including the use of such System
technology in agriculture industry hiring processes, user, contractor, and
third-party employer agent employment practices, timing and logistics regarding
employment verification and reverification processes to meet agriculture
industry practices, and identification of potential challenges and
modifications to meet the unique needs of the agriculture industry. Such report
shall review—
(1) the modality of access,
training and outreach, customer support, processes for further action notices
and secondary verifications for short-term workers, monitoring, and compliance
procedures for such System;
(2) the interaction of such
System with the process to admit nonimmigrant workers pursuant to section 218
or 218A of the Immigration and Nationality Act (8 U.S.C. 1188 et seq.) and with
enforcement of the immigration laws; and
(3) the collaborative use of
processes of other Federal and State agencies that intersect with the
agriculture industry.
(c)
Report on impact of the
System on employers
Not later than 18 months after the date of
the enactment of this Act, the Secretary shall submit to Congress a report that
assesses—
(1) the implementation of the
Employment Verification System established under section 274A(d) of the
Immigration and Nationality Act, as amended by subsection (a), by
employers;
(2) any adverse impact on the
revenues, business processes, or profitability of employers required to use
such System; and
(3) the economic impact of
such System on small businesses.
(d)
Government
Accountability Office study of the effects of document requirements on
employment authorized persons and employers
(1)
Study
The
Comptroller General of the United States shall carry out a study of—
(A) the effects of the
documentary requirements of section 274A of the Immigration and Nationality
Act, as amended by subsection (a), on employers, naturalized United States
citizens, nationals of the United States, and individuals with employment
authorized status; and
(B) the challenges such
employers, citizens, nationals, or individuals may face in obtaining the
documentation required under that section.
(2)
Report
Not
later than 4 years after the date of the enactment of this Act, the Comptroller
General shall submit to Congress a report containing the findings of the study
carried out under paragraph (1). Such report shall include, at a minimum, the
following:
(A) An assessment of
available information regarding the number of working age nationals of the
United States and individuals who have employment authorized status who lack
documents required for employment by such section 274A.
(B) A description of the
additional steps required for individuals who have employment authorized status
and do not possess the documents required by such section 274A to obtain such
documents.
(C) A general assessment of
the average financial costs for individuals who have employment authorized
status who do not possess the documents required by such section 274A to obtain
such documents.
(D) A general assessment of
the average financial costs and challenges for employers who have been required
to participate in the Employment Verification System established by subsection
(d) of such section 274A.
(E) A description of the
barriers to individuals who have employment authorized status in obtaining the
documents required by such section 274A, including barriers imposed by the
executive branch of the Government.
(F) Any particular challenges
facing individuals who have employment authorized status who are members of a
federally recognized Indian tribe in complying with the provisions of such
section 274A.
(e)
Repeal of pilot
programs and E-Verify and transition procedures
(1)
Repeal
Sections
401, 402, 403, 404, and 405 of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (division C of Public Law 104–208; 8 U.S.C. 1324a
note) are repealed.
(2)
Transition
procedures
(A)
Continuation of
E-Verify Program
Notwithstanding the repeals made by paragraph
(1), the Secretary shall continue to operate the E-Verify Program as described
in section 403 of the Illegal Immigration Reform and Immigrant Responsibility
Act of 1996 (division C of Public Law 104–208; 8 U.S.C. 1324a note), as in
effect the minute before the date of the enactment of this Act, until the
transition to the System described in section 274A(d) of the Immigration and
Nationality Act, as amended by subsection (a), is determined by the Secretary
to be complete.
(B)
Transition to the
system
Any employer who was participating in the E-Verify Program
described in section 403 of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (division C of Public Law 104–208; 8 U.S.C. 1324a
note), as in effect the minute before the date of the enactment of this Act,
shall participate in the System described in section 274A(d) of the Immigration
and Nationality Act, as amended by subsection (a), to the same extent and in
the same manner that the employer participated in such E-Verify Program.
(3)
Construction
The
repeal made by paragraph (1) may not be construed to limit the authority of the
Secretary to allow or continue to allow the participation in such System of
employers who have participated in such E-Verify Program, as in effect on the
minute before the date of the enactment of this Act.
(f)
Conforming
amendment
Section 274(a) (8 U.S.C. 1324(a)) is amended—
(1) by striking paragraph
(3); and
(2) by redesignating
paragraph (4) as paragraph (3).
3102.
Increasing security
and integrity of social security cards
(a)
Fraud-resistant,
tamper-resistant, wear-resistant, and identity theft-resistant social security
cards
(1)
Issuance
(A)
Preliminary
work
Not later than 180 days after the date of the enactment of
this Act, the Commissioner of Social Security shall begin work to administer
and issue fraud-resistant, tamper-resistant, wear-resistant, and identity
theft-resistant social security cards.
(B)
Completion
Not
later than 5 years after the date of the enactment of this Act, the
Commissioner of Social Security shall issue only social security cards
determined to be fraud-resistant, tamper-resistant, wear-resistant, and
identity theft-resistant.
(2)
Amendment
(A)
In
general
Section 205(c)(2)(G) of the Social Security Act (42
U.S.C. 405(c)(2)(G)) is amended by striking the second sentence and inserting
the following: The social security card shall be fraud-resistant,
tamper-resistant, wear-resistant, and identity theft-resistant..
(B)
Effective
date
The amendment made by subparagraph (A) shall take effect on
the date that is 5 years after the date of the enactment of this Act.
(3)
Authorization of
appropriation
There are authorized to be appropriated, from the
Comprehensive Immigration Reform Trust Fund established under section 6(a)(1),
such sums as may be necessary to carry out this section and the amendments made
by this section.
(4)
Emergency designation
for congressional enforcement
In the Senate, amounts made
available under this subsection are designated as an emergency requirement
pursuant to section 403(a) of S. Con. Res. 13 (111th Congress), the concurrent
resolution on the budget for fiscal year 2010.
(5)
Emergency designation
for statutory paygo
Amounts made available under this subsection
are designated as an emergency requirement under section 4(g) of the Statutory
Pay-As-You-Go Act of 2010 (Public Law 111–139; 2 U.S.C. 933(g)).
(b)
Multiple
cards
Section 205(c)(2)(G) of the Social Security Act (42 U.S.C.
405(c)(2)(G)), as amended by subsection (a)(2), is amended—
(1) by inserting
(i) after (G); and
(2) by adding at the end the
following:
(ii) The Commissioner of
Social Security shall restrict the issuance of multiple replacement social
security cards to any individual to 3 per year and 10 for the life of the
individual, except that the Commissioner may allow for reasonable exceptions
from the limits under this clause on a case-by-case basis in compelling
circumstances.
.
(c)
Criminal
penalties
(1)
Social security
fraud
(A)
In
general
Chapter 47 of title 18, United States Code, is amended by
inserting at the end the following:
1041.
Social security
fraud
Any person who—
(1) knowingly possesses or
uses a social security account number or social security card knowing that the
number or card was obtained from the Commissioner of Social Security by means
of fraud or false statement;
(2) knowingly and falsely
represents a number to be the social security account number assigned by the
Commissioner of Social Security to him or her or to another person, when such
number is known not to be the social security account number assigned by the
Commissioner of Social Security to him or her or to such other person;
(3) knowingly, and without
lawful authority, buys, sells, or possesses with intent to buy or sell a social
security account number or a social security card that is or purports to be a
number or card issued by the Commissioner of Social Security;
(4) knowingly alters,
counterfeits, forges, or falsely makes a social security account number or a
social security card;
(5) knowingly uses,
distributes, or transfers a social security account number or a social security
card knowing the number or card to be intentionally altered, counterfeited,
forged, falsely made, or stolen; or
(6) without lawful authority,
knowingly produces or acquires for any person a social security account number,
a social security card, or a number or card that purports to be a social
security account number or social security card,
shall
be fined under this title, imprisoned not more than 5 years, or
both.
.
(B)
Table of sections
amendment
The table of sections for chapter 47 of title 18,
United States Code, is amended by adding after the item relating to section
1040 the following:
Sec. 1041. Social security
fraud.
.
(2)
Information
disclosure
(A)
In
general
Notwithstanding any other provision of law and subject to
subparagraph (B), the Commissioner of Social Security shall disclose for the
purpose of investigating a violation of section 1041 of title 18, United States
Code, or section 274A, 274B, or 274C of the Immigration and Nationality Act (8
U.S.C. 1324a, 1324b, and 1324c), after receiving a written request from an
officer in a supervisory position or higher official of any Federal law
enforcement agency, the following records of the Social Security
Administration:
(i) Records concerning the
identity, address, location, or financial institution accounts of the holder of
a social security account number or social security card.
(ii) Records concerning the
application for and issuance of a social security account number or social
security card.
(iii) Records concerning the
existence or nonexistence of a social security account number or social
security card.
(B)
Limitation
The
Commissioner of Social Security shall not disclose any tax return or tax return
information pursuant to subparagraph (A) except as authorized by section 6103
of the Internal Revenue Code of 1986.
3103.
Increasing security
and integrity of immigration documents
Not later than 1 year after the date of the
enactment of this Act, the Secretary shall submit a report to Congress on the
feasibility, advantages, and disadvantages of including, in addition to a
photograph, other biometric information on each employment authorization
document issued by the Department.
3104.
Responsibilities of
the Social Security Administration
Title XI of the Social Security Act (42
U.S.C. 1301 et seq.) is amended by adding at the end the following new
part:
E
Employment
Verification
1186.
Responsibilities of the Commissioner of
Social Security
(a)
Confirmation of
employment verification data
As part of the employment verification
system established by the Secretary of Homeland Security under the provisions
of section 274A of the Immigration and Nationality Act (8 U.S.C. 1324a) (in
this section referred to as the System), the Commissioner of
Social Security shall, subject to the provisions of section 274A(d) of the
Immigration and Nationality Act (8 U.S.C. 1324a(d)), establish a reliable,
secure method that, operating through the System and within the time periods
specified in section 274A(d) of such Act—
(1) compares the name, date
of birth, social security account number, and available citizenship information
provided in an inquiry against such information maintained by the Commissioner
in order to confirm (or not confirm) the validity of the information provided
regarding an individual whose identity and employment eligibility must be
confirmed;
(2) determines the
correspondence of the name, date of birth, and number;
(3) determines whether the
name and number belong to an individual who is deceased according to the
records maintained by the Commissioner;
(4) determines whether an
individual is a national of the United States, as defined in section 101(a)(22)
of the Immigration and Nationality Act (8 U.S.C. 1101(a)(22)); and
(5) determines whether the
individual has presented a social security account number that is not valid for
employment.
(b)
Prohibition
The
System shall not disclose or release social security information to employers
through the confirmation system (other than such confirmation or
nonconfirmation, information provided by the employer to the System, or the
reason for the issuance of a further action
notice).
.
3105.
Improved prohibition
on discrimination based on national origin or citizenship status
(a)
In
general
Section 274B(a) (8 U.S.C. 1324b(a)) is amended to read as
follows:
(a)
Prohibition on
discrimination based on national origin or citizenship status
(1)
Prohibition on
discrimination generally
It is an unfair immigration-related
employment practice for a person, other entity, or employment agency, to
discriminate against any individual (other than an unauthorized alien defined
in section 274A(b)) because of such individual’s national origin or citizenship
status, with respect to the following:
(A) The hiring of the
individual for employment.
(B) The verification of the
individual’s eligibility to work in the United States.
(C) The discharging of the
individual from employment.
(2)
Exceptions
Paragraph
(1) shall not apply to the following:
(A) A person, other entity,
or employer that employs 3 or fewer employees, except for an employment
agency.
(B) A person’s or entity’s
discrimination because of an individual’s national origin if the discrimination
with respect to that employer, person, or entity and that individual is covered
under section 703 of the Civil Rights Act of 1964 (42 U.S.C. 2000e–2), unless
the discrimination is related to an individual’s verification of employment
authorization.
(C) Discrimination because of
citizenship status which—
(i) is otherwise required in
order to comply with a provision of Federal, State, or local law related to law
enforcement;
(ii) is required by Federal
Government contract; or
(iii) the Secretary or
Attorney General determines to be essential for an employer to do business with
an agency or department of the Federal Government or a State, local, or tribal
government.
(3)
Additional exception
providing right to prefer equally qualified
citizens
Notwithstanding any other provision of this section, it
is not an unfair immigration-related employment practice for an employer (as
defined in section 274A(b)) to prefer to hire, recruit, or refer for a fee an
individual who is a citizen or national of the United States over another
individual who is an alien if the 2 individuals are equally qualified.
(4)
Unfair
immigration-related employment practices relating to the
System
It is also an unfair immigration-related employment
practice for a person, other entity, or employment agency—
(A) to discharge or
constructively discharge an individual solely due to a further action notice
issued by the Employment Verification System created by section 274A until the
administrative appeal described in section 274A(d)(6) is completed;
(B) to use the System with
regard to any person for any purpose except as authorized by section
274A(d);
(C) to use the System to
reverify the employment authorization of a current employee, including an
employee continuing in employment, other than reverification upon expiration of
employment authorization, or as otherwise authorized under section 274A(d) or
by regulation;
(D) to use the System
selectively for employees, except where authorized by law;
(E) to fail to provide to an
individual any notice required in section 274A(d) within the relevant time
period;
(F) to use the System to deny
workers’ employment or post-employment benefits;
(G) to misuse the System to
discriminate based on national origin or citizenship status;
(H) to require an employee or
prospective employee to use any self-verification feature of the System or
provide, as a condition of application or employment, any self-verification
results;
(I) to use an immigration
status verification system, service, or method other than those described in
section 274A for purposes of verifying employment eligibility; or
(J) to grant access to
document verification or System data, to any individual or entity other than
personnel authorized to have such access, or to fail to take reasonable
safeguards to protect against unauthorized loss, use, alteration, or
destruction of System data.
(5)
Prohibition of
intimidation or retaliation
It is also an unfair
immigration-related employment practice for a person, other entity, or
employment agency to intimidate, threaten, coerce, or retaliate against any
individual—
(A) for the purpose of
interfering with any right or privilege secured under this section; or
(B) because the individual
intends to file or has filed a charge or a complaint, testified, assisted, or
participated in any manner in an investigation, proceeding, or hearing under
this section.
(6)
Treatment of certain
documentary practices as employment practices
A person’s, other
entity’s, or employment agency’s request, for purposes of verifying employment
eligibility, for more or different documents than are required under section
274A, or for specific documents, or refusing to honor documents tendered that
reasonably appear to be genuine shall be treated as an unfair
immigration-related employment practice.
(7)
Prohibition of withholding employment
records
It is an unfair
immigration-related employment practice for an employer that is required under
Federal, State, or local law to maintain records documenting employment,
including dates or hours of work and wages received, to fail to provide such
records to any employee upon request.
(8)
Professional,
commercial, and business licenses
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 his or her immigration
status.
(9)
Employment agency
defined
In this section, the term employment agency
means any employer, person, or entity regularly undertaking with or without
compensation to procure employees for an employer or to procure for employees
opportunities to work for an employer and includes an agent of such employer,
person, or
entity.
.
(b)
Referral by
EEOC
Section 274B(b) (8 U.S.C. 1324b(b)) is amended by adding at
the end the following:
(3)
Referral by
EEOC
The Equal Employment Opportunity Commission shall refer all
matters alleging immigration-related unfair employment practices filed with the
Commission, including those alleging violations of paragraphs (1), (4), (5),
and (6) of subsection (a) to the Special Counsel for Immigration-Related Unfair
Employment Practices of the Department of
Justice.
.
(c)
Authorization of
appropriations
Section 274B(l)(3) (8 U.S.C. 1324b(l)(3)) is
amended by striking the period at the end and inserting and an
additional $40,000,000 for each of fiscal years 2014 through
2016..
(d)
Fines
(1)
In
general
Section 274B(g)(2)(B) (8 U.S.C. 1324b(g)(2)(B)) is
amended by striking clause (iv) and inserting the following:
(iv) to pay any applicable
civil penalties prescribed below, the amounts of which may be adjusted
periodically to account for inflation as provided by law—
(I) except as provided in
subclauses (II) through (IV), to pay a civil penalty of not less than $2,000
and not more than $5,000 for each individual subjected to an unfair
immigration-related employment practice;
(II) except as provided in
subclauses (III) and (IV), in the case of an employer, person, or entity
previously subject to a single order under this paragraph, to pay a civil
penalty of not less than $4,000 and not more than $10,000 for each individual
subjected to an unfair immigration-related employment practice;
(III) except as provided in
subclause (IV), in the case of an employer, person, or entity previously
subject to more than 1 order under this paragraph, to pay a civil penalty of
not less than $8,000 and not more than $25,000 for each individual subjected to
an unfair immigration-related employment practice; and
(IV) in the case of an unfair
immigration-related employment practice described in paragraphs (4) through (7)
of subsection (a), to pay a civil penalty of not less than $500 and not more
than $2,000 for each individual subjected to an unfair immigration-related
employment
practice.
.
(2)
Effective
date
The amendment made by paragraph (1) shall take effect on the
date that is 1 year after the date of the enactment of this Act and apply to
violations occurring on or after such date of enactment.
3106.
Rulemaking
(a)
Interim final
regulations
(1)
In
general
Not later than 1 year after the date of the enactment of
this Act—
(A) the Secretary, shall
issue regulations implementing sections 3101 and 3104 and the amendments made
by such sections (except for section 274A(d)(7) of the Immigration and
Nationality Act); and
(B) the Attorney General
shall issue regulations implementing section 274A(d)(7) of the Immigration and
Nationality Act, as added by section 3101, section 3105, and the amendments
made by such sections.
(2)
Effective
date
Regulations issued pursuant to paragraph (1) shall be
effective immediately on an interim basis, but are subject to change and
revision after public notice and opportunity for a period for public
comment.
(b)
Final
regulations
Within a reasonable time after publication of the
interim regulations under subsection (a), the Secretary, in consultation with
the Commissioner of Social Security and the Attorney General, shall publish
final regulations implementing this subtitle.
3107.
Office of the Small
Business and Employee Advocate
(a)
Establishment of Small
Business and Employee Advocate
The Secretary shall establish and
maintain within U.S. Citizenship and Immigration Services the Office of the
Small Business and Employee Advocate (in this section referred to as the
Office). The purpose of the Office shall be to assist small
businesses and individuals in complying with the requirements of section 274A
of the Immigration and Nationality Act (8 U.S.C. 1324a), as amended by this
Act, including the resolution of conflicts arising in the course of attempted
compliance with such requirements.
(b)
Functions
The
functions of the Office shall include, but not be limited to, the
following:
(1) Informing small
businesses and individuals about the verification practices required by section
274A of the Immigration and Nationality Act, including, but not limited to, the
document verification requirements and the employment verification system
requirements under subsections (c) and (d) of that section.
(2) Assisting small
businesses and individuals in addressing allegedly erroneous further action
notices and nonconfirmations issued under subsection (d) of section 274A of the
Immigration and Nationality Act.
(3) Informing small
businesses and individuals of the financial liabilities and criminal penalties
that apply to violations and failures to comply with the requirements of
section 274A of the Immigration and Nationality Act, including, but not limited
to, by issuing best practices for compliance with that section.
(4) To the extent
practicable, proposing changes to the Secretary in the administrative practices
of the employment verification system required under subsection (d) of section
274A of the Immigration and Nationality Act to mitigate the problems identified
under paragraph (2).
(5) Making recommendations
through the Secretary to Congress for legislative action to mitigate such
problems.
(c)
Authority To issue
assistance order
(1)
In
general
Upon application filed by a small business or individual
with the Office (in such form, manner, and at such time as the Secretary shall
by regulations prescribe), the Office may issue an assistance order if—
(A) the Office determines the
small business or individual is suffering or about to suffer a significant
hardship as a result of the manner in which the employment verification laws
under subsections (c) and (d) of section 274A of the Immigration and
Nationality Act are being administered by the Secretary; or
(B) the small business or
individual meets such other requirements as are set forth in regulations
prescribed by the Secretary.
(2)
Determination of
hardship
For purposes of paragraph (1), a significant hardship
shall include—
(A) an immediate threat of
adverse action;
(B) a delay of more than 60
days in resolving employment verification system problems;
(C) the incurring by the
small business or individual of significant costs if relief is not granted;
or
(D) irreparable injury to, or
a long-term adverse impact on, the small business or individual if relief is
not granted.
(3)
Standards when
administrative guidance not followed
In cases where a U.S.
Citizenship and Immigration Services employee is not following applicable
published administrative guidance, the Office shall construe the factors taken
into account in determining whether to issue an assistance order under this
subsection in the manner most favorable to the small business or
individual.
(4)
Terms of assistance
order
The terms of an assistance order under this subsection may
require the Secretary within a specified time period—
(A) to determine whether any
employee is or is not authorized to work in the United States; or
(B) to abate any penalty
under section 274A of the Immigration and Nationality Act that the Office
determines is arbitrary, capricious, or disproportionate to the underlying
offense.
(5)
Authority to modify or
rescind
Any assistance order issued by the Office under this
subsection may be modified or rescinded—
(A) only by the Office, the
Director or Deputy Director of U.S. Citizenship and Immigration Services, or
the Secretary or the Secretary's designee; and
(B) if rescinded by the
Director or Deputy Director of U.S. Citizenship and Immigration Services, only
if a written explanation of the reasons of such official for the modification
or rescission is provided to the Office.
(6)
Suspension of running
of period of limitation
The running of any period of limitation
with respect to an action described in paragraph (4)(A) shall be suspended
for—
(A) the period beginning on
the date of the small business or individual’s application under paragraph (1)
and ending on the date of the Office’s decision with respect to such
application; and
(B) any period specified by
the Office in an assistance order issued under this subsection pursuant to such
application.
(7)
Independent action of
office
Nothing in this subsection shall prevent the Office from
taking any action in the absence of an application under paragraph (1).
(d)
Accessibility to the
public
(1)
In person, online, and
telephone assistance
The Office shall provide information and
assistance specified in subsection (b) in person at locations designated by the
Secretary, online through an Internet website of the Department available to
the public, and by telephone.
(2)
Availability to all
employers
In making information and assistance available, the
Office shall prioritize the needs of small businesses and individuals. However,
the information and assistance available through the Office shall be available
to any employer.
(e)
Avoiding duplication
through coordination
In the discharge of the functions of the
Office, the Secretary shall consult with the Secretary of Labor, the Secretary
of Agriculture, the Commissioner, the Attorney General, the Equal Employment
Opportunity Commission, and the Administrator of the Small Business
Administration in order to avoid duplication of efforts across the Federal
Government.
(f)
Definitions
In
this section:
(1) The term
employer has the meaning given that term in section 274A(b) of the
Immigration and Nationality Act.
(2) The term small
business means an employer with 49 or fewer employees.
(g)
Funding
There
shall be appropriated, from the Comprehensive Immigration Reform Trust Fund
established by section 6(a)(1) of this Act, such sums as may be necessary to
carry out the functions of the Office.
B
Protecting United States
workers
3201.
Protections for
victims of serious violations of labor and employment law or crime
(a)
In
general
Section 101(a)(15)(U) (8 U.S.C. 1101(a)(15)(U)) is
amended—
(1) in clause (i)—
(A) by amending subclause (I)
to read as follows:
(I) the alien—
(aa) has suffered substantial
physical or mental abuse or substantial harm as a result of having been a
victim of criminal activity described in clause (iii) or of a covered violation
described in clause (iv); or
(bb) is a victim of criminal
activity described in clause (iii) or of a covered violation described in
clause (iv) and would suffer extreme hardship upon
removal;
;
(B) in subclause (II), by
inserting , or a covered violation resulting in a claim described in
clause (iv) that is not the subject of a frivolous lawsuit by the alien
before the semicolon at the end; and
(C) by amending subclauses
(III) and (IV) to read as follows:
(III) the alien (or in the
case of an alien child who is younger than 16 years of age, the parent, legal
guardian, or next friend of the alien) has been helpful, is being helpful, or
is likely to be helpful to—
(aa) a Federal, State, or
local law enforcement official, a Federal, State, or local prosecutor, a
Federal, State, or local judge, the Department of Homeland Security, the Equal
Employment Opportunity Commission, the Department of Labor, or other Federal,
State, or local authorities investigating or prosecuting criminal activity
described in clause (iii); or
(bb) any Federal, State, or
local governmental agency or judge investigating, prosecuting, or seeking civil
remedies for any cause of action, whether criminal, civil, or administrative,
arising from a covered violation described in clause (iv) and presents a
certification from such Federal, State, or local governmental agency or judge
attesting that the alien has been helpful, is being helpful, or is likely to be
helpful to such agency in the investigation, prosecution, or adjudication
arising from a covered violation described in clause (iv); and
(IV) the criminal activity
described in clause (iii) or the covered violation described in clause
(iv)—
(aa) violated the laws of the
United States; or
(bb) occurred in the United
States (including Indian country and military installations) or the territories
and possessions of the United
States;
;
(2) in clause (ii)(II), by
striking and at the end;
(3) by moving clause (iii) 2
ems to the left;
(4) in clause (iii), by
inserting child abuse; elder abuse; after
stalking;;
(5) by adding at the end the
following:
(iv) a covered violation
referred to in this clause is—
(I) a serious violation
involving 1 or more of the following or any similar activity in violation of
any Federal, State, or local law: serious workplace abuse, exploitation,
retaliation, or violation of whistleblower protections;
(II) a violation giving rise
to a civil cause of action under section 1595 of title 18, United States Code;
or
(III) a violation resulting
in the deprivation of due process or constitutional
rights.
.
(b)
Savings
provision
Nothing in section 101(a)(15)(U)(iv)(I) of the
Immigration and Nationality Act, as added by subsection (a), may be construed
as altering the definition of retaliation or discrimination under any other
provision of law.
(c)
Temporary stay of
removal
Section 274A (8 U.S.C. 1324a), as amended by section
3101, is further amended—
(1) in subsection (e) by
adding at the end the following:
(10)
Conduct in enforcement
actions
If the Secretary undertakes an enforcement action at a
facility about which a bona fide workplace claim has been filed or is
contemporaneously filed, or as a result of information provided to the
Secretary in retaliation against employees for exercising their rights related
to a bona fide workplace claim, the Secretary shall ensure that—
(A) any aliens arrested or
detained who are necessary for the investigation or prosecution of a bona fide
workplace claim or criminal activity (as described in subparagraph (T) or (U)
of section 101(a)(15)) are not removed from the United States until after the
Secretary—
(i) notifies the appropriate
law enforcement agency with jurisdiction over such violations or criminal
activity; and
(ii) provides such agency
with the opportunity to interview such aliens;
(B) no aliens entitled to a
stay of removal or abeyance of removal proceedings under this section are
removed; and
(C) the Secretary shall stay
the removal of an alien who—
(i) has filed a claim
regarding a covered violation described in clause (iv) of section 101(a)(15)(U)
and is the victim of the same violations under an existing
investigation;
(ii) is a material witness in
any pending or anticipated proceeding involving a bona fide workplace claim or
civil rights claim; or
(iii) has filed for relief
under such section if the alien is working with law enforcement as described in
clause (i)(III) of such section.
;
and
(2) by adding at the end the
following:
(m)
Victims of criminal
activity or labor and employment violations
The Secretary of
Homeland Security may permit an alien to remain temporarily in the United
States and authorize the alien to engage in employment in the United States if
the Secretary determines that the alien—
(1) has filed for relief
under section 101(a)(15)(U); or
(2)
(A) has filed, or is a
material witness to, a bona fide claim or proceedings resulting from a covered
violation (as defined in section 101(a)(15)(U)(iv)); and
(B) has been helpful, is
being helpful, or is likely to be helpful, in the investigation, prosecution
of, or pursuit of civil remedies related to the claim arising from a covered
violation, to—
(i) a Federal, State, or
local law enforcement official;
(ii) a Federal, State, or
local prosecutor;
(iii) a Federal, State, or
local judge;
(iv) the Department of
Homeland Security;
(v) the Equal Employment
Opportunity Commission; or
(vi) the Department of
Labor.
.
(d)
Conforming
amendments
Section 214(p) (8 U.S.C. 1184(p)) is amended—
(1) in paragraph (1), by
striking in section 101(a)(15)(U)(iii). both places it appears
and inserting in clause (iii) of section 101(a)(15)(U) or investigating,
prosecuting, or seeking civil remedies for claims resulting from a covered
violation described in clause (iv) of such section.; and
(2) in the first sentence of
paragraph (6)—
(A) by striking in
section 101(a)(15)(U)(iii) and inserting in clause (iii) of
section 101(a)(15)(U) or claims resulting from a covered violation described in
clause (iv) of such section; and
(B) by inserting or
claim arising from a covered violation after prosecution of such
criminal activity.
(e)
Modification of
limitation on authority To adjust status for victims of
crimes
Section 245(m)(1) (8 U.S.C. 1255(m)(1)) is amended, in the
matter before subparagraph (A), by inserting or an investigation or
prosecution regarding a workplace or civil rights claim after
prosecution.
(f)
Expansion of limitation
on sources of information that may be used To make adverse
determinations
(1)
In
general
Section 384(a)(1) of the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (8 U.S.C. 1367(a)(1)) is amended—
(A) in each of subparagraphs
(A) through (D), by striking the comma at the end and inserting a
semicolon;
(B) subparagraph (E), by
striking the criminal activity, and inserting abuse and
the criminal activity or bona fide workplace claim (as defined in subsection
(e)); ;
(C) in subparagraph (F), by
striking , the trafficker or perpetrator, and inserting
), the trafficker or perpetrator; or; and
(D) by inserting after
subparagraph (F) the following:
(G) the alien's employer;
or
.
(2)
Workplace claim
defined
Section 384 of such Act (8 U.S.C. 1367) is amended by
adding at the end the following:
(e)
Workplace
claims
(1)
Workplace claims
defined
(A)
In
general
In subsection (a)(1), the term workplace
claim means any claim, petition, charge, complaint, or grievance filed
with, or submitted to, a Federal, State, or local agency or court, relating to
the violation of applicable Federal, State, or local labor or employment
laws.
(B)
Construction
Subparagraph
(A) may not be construed to alter what constitutes retaliation or
discrimination under any other provision of law.
(2)
Penalty for false
claims
Any person who knowingly presents a false or fraudulent
claim to a law enforcement official in relation to a covered violation
described in section 101(a)(15)(U)(iv) of the Immigration and Nationality Act
for the purpose of obtaining a benefit under this section shall be subject to a
civil penalty of not more than $1,000.
(3)
Limitation on stay of
adverse determinations
In the case of an alien applying for
status under section 101(a)(15)(U) of the Immigration and Nationality Act and
seeking relief under that section, the prohibition on adverse determinations
under subsection (a) shall expire on the date that the alien's application for
status under such section is denied and all opportunities for appeal of the
denial have been
exhausted.
.
(g)
Removal
proceedings
Section 239(e) (8 U.S.C. 1229(e)) is amended—
(1) in paragraph (1)—
(A) by striking In
cases where and inserting If; and
(B) by striking
paragraph (2), and inserting paragraph (2) or as a result
of information provided to the Secretary of Homeland Security in retaliation
against individuals for exercising or attempting to exercise their employment
rights or other legal rights,; and
(2) in paragraph (2), by
adding at the end the following:
(C) At a facility about which
a bona fide workplace claim has been filed or is contemporaneously
filed.
.
3202.
Employment
Verification System Education Funding
(a)
Disposition of civil
penalties
Penalties collected
under subsections (e)(4) and (f)(3) of section 274A of the Immigration and
Nationality Act, amended by section 3101, shall be deposited, as offsetting
receipts, into the Comprehensive Immigration Reform Trust Fund established
under section 6(a)(1).
(b)
Expenditures
Amounts
deposited into the Trust Fund under subsection (a) shall be made available to
the Secretary and the Attorney General to provide education to employers and
employees regarding the requirements, obligations, and rights under the
Employment Verification System.
(c)
Determination of
budgetary effects
(1)
Emergency designation
for congressional enforcement
In the Senate, amounts made
available under this section are designated as an emergency requirement
pursuant to section 403(a) of S. Con. Res. 13 (111th Congress), the concurrent
resolution on the budget for fiscal year 2010.
(2)
Emergency designation
for statutory paygo
Amounts made available under this section are
designated as an emergency requirement under section 4(g) of the Statutory
Pay-As-You-Go Act of 2010 (Public Law 111–139; 2 U.S.C. 933(g)).
3203.
Directive to the
United States Sentencing Commission
(a)
In
general
Pursuant to its authority under section 994 of title 28,
United States Code, and in accordance with subsection (b), the United States
Sentencing Commission shall promulgate sentencing guidelines or amend existing
sentencing guidelines to modify, if appropriate, the penalties imposed on
persons convicted of offenses under—
(1) section 274A of the
Immigration and Nationality Act (8 U.S.C. 1324a), as amended by section
3101;
(2) section 16 of the Fair
Labor Standards Act of 1938 (29 U.S.C. 216); and
(3) any other Federal law
covering similar conduct.
(b)
Requirements
In
carrying out subsection (a), the Sentencing Commission shall provide sentencing
enhancements for any person convicted of an offense described in subsection (a)
if such offense involves—
(1) the intentional
confiscation of identification documents;
(2) corruption, bribery,
extortion, or robbery;
(3) sexual abuse;
(4) serious bodily
injury;
(5) an intent to defraud;
or
(6) a pattern of conduct
involving multiple violations of law that—
(A) creates, through knowing
and intentional conduct, a risk to the health or safety of any victim;
or
(B) denies payments due to
victims for work completed.
C
Other provisions
3301.
Funding
(a)
Establishment of the
Interior Enforcement Account
There is hereby established in the
Treasury of the United States an account which shall be known as the Interior
Enforcement Account.
(b)
Appropriations
There
are authorized to be appropriated to the Interior Enforcement Account
$1,000,000,000 to carry out this title and the amendments made by this title,
including the following appropriations:
(1) In each of the 5 years
beginning on the date of the enactment of this Act, the appropriations
necessary to increase to a level not less than 5,000, by the end of such 5-year
period, the total number of personnel of the Department assigned exclusively or
principally to an office or offices in U.S. Citizenship and Immigration
Services and U.S. Immigration and Customs Enforcement (and consistent with the
missions of such agencies), dedicated to administering the System, and
monitoring and enforcing compliance with sections 274A, 274B, and 274C of the
Immigration and Nationality Act (8 U.S.C. 1324a, 1324b, and 1324c), including
compliance with the requirements of the Electronic Verification System
established under section 274A(d) of the Immigration and Nationality Act (8
U.S.C. 1324a(d)), as amended by section 3101. Such personnel shall perform
compliance and monitoring functions, including the following:
(A) Verify compliance of
employers participating in such System with the requirements for participation
that are prescribed by the Secretary.
(B) Monitor such System for
multiple uses of social security account numbers and immigration identification
numbers that could indicate identity theft or fraud.
(C) Monitor such System to
identify discriminatory or unfair practices.
(D) Monitor such System to
identify employers who are not using such System properly, including employers
who fail to make available appropriate records with respect to their queries
and any notices of confirmation, nonconfirmation, or further action.
(E) Identify instances in
which an employee alleges that an employer violated the employee's privacy or
civil rights, or misused such System, and create procedures for an employee to
report such an allegation.
(F) Analyze and audit the use
of such System and the data obtained through such System to identify fraud
trends, including fraud trends across industries, geographical areas, or
employer size.
(G) Analyze and audit the use
of such System and the data obtained through such System to develop compliance
tools as necessary to respond to changing patterns of fraud.
(H) Provide employers with
additional training and other information on the proper use of such System,
including training related to privacy and employee rights.
(I) Perform threshold
evaluation of cases for referral to the Special Counsel for Immigration-Related
Unfair Employment Practices of the Department of Justice or the Equal
Employment Opportunity Commission, and other officials or agencies with
responsibility for enforcing anti-discrimination, civil rights, privacy, or
worker protection laws, as may be appropriate.
(J) Any other compliance and
monitoring activities that the Secretary determines are necessary to ensure the
functioning of such System.
(K) Investigate identity
theft and fraud detected through such System and undertake the necessary
enforcement or referral actions.
(L) Investigate use of or
access to fraudulent documents and undertake the necessary enforcement
actions.
(M) Perform any other
investigations that the Secretary determines are necessary to ensure the lawful
functioning of such System, and undertake any enforcement actions necessary as
a result of such investigations.
(2) The appropriations
necessary to acquire, install, and maintain technological equipment necessary
to support the functioning of such System and the connectivity between U.S.
Citizenship and Immigration Services and U.S. Immigration and Customs
Enforcement, the Department of Justice, and other agencies or officials with
respect to the sharing of information to support such System and related
immigration enforcement actions.
(3) The appropriations
necessary to establish a robust redress process for employees who wish to
appeal contested nonconfirmations to ensure the accuracy and fairness of such
System.
(4) The appropriations
necessary to provide a means by which individuals may access their own
employment authorization data to ensure the accuracy of such data, independent
of an individual's employer.
(5) The appropriations
necessary to carry out the identity authentication mechanisms described in
section 274A(c)(1)(F) of the Immigration and Nationality Act, as amended by
section 3101(a).
(6) The appropriations
necessary for the Office for Civil Rights and Civil Liberties and the Office of
Privacy of the Department to perform the responsibilities of such Offices
related to such System.
(7) The appropriations
necessary to make grants to States to support the States in assisting the
Federal Government in carrying out the provisions of this title and the
amendments made by this title.
(c)
Establishment of
reimbursable agreement between the Department of Homeland Security and the
Social Security Administration
Effective for fiscal years
beginning on or after the date of enactment of this Act, the Secretary and the
Commissioner of Social Security shall enter into and maintain an agreement
that—
(1) provides funds to the
Commissioner for the full costs of the responsibilities of the Commissioner
under this section, including—
(A) acquiring, installing,
and maintaining technological equipment and systems necessary for the
fulfillment of the responsibilities of the Commissioner under this section;
and
(B) responding to individuals
who contest a further action notice provided by the employment verification
system established under section 274A of the Immigration and Nationality Act,
as amended by section 3101;
(2) provides such funds
quarterly in advance of the applicable quarter based on estimating methodology
agreed to by the Commissioner and the Secretary; and
(3) requires an annual
accounting and reconciliation of the actual costs incurred and the funds
provided under the agreement which shall be reviewed by the Office of the
Inspector General of the Social Security Administration and the
Department.
(d)
Authorization of
appropriations to the Attorney General
There are authorized to be
appropriated to the Attorney General such sums as may be necessary to carry out
the provisions of this title and the amendments made by this title, including
enforcing compliance with section 274B of the Immigration and Nationality Act,
as amended by section 3105.
(e)
Authorization of
appropriations to the Secretary of State
There are authorized to
be appropriated to the Secretary of State such sums as may be necessary to
carry out the provisions of this title and the amendments made by this
title.
3302.
Effective
date
Except as otherwise
specifically provided, this title and the amendments made by this title shall
take effect on the date of the enactment of this Act.
3303.
Mandatory exit
system
(a)
Establishment
(1)
In
general
Not later than December 31, 2015, the Secretary shall
establish a mandatory exit data system that shall include a requirement for the
collection of data from machine-readable visas, passports, and other travel and
entry documents for all categories of aliens who are exiting from air and sea
ports of entry.
(2)
Biometric exit data
system
Not later than 2 years after the date of the enactment of
this Act, the Secretary shall establish a mandatory biometric exit data system
at the 10 United States airports that support the highest volume of
international air travel, as determined by Department of Transportation
international flight departure data.
(3)
Report
Not
later than 3 years after the date of the enactment of this Act, the Secretary
shall submit a report to Congress that analyzes the effectiveness of biometric
exit data collection at the 10 airports referred to in paragraph (2).
(4)
Mandatory biometric
exit data system
Absent intervening action by Congress, the
Secretary, not later than 6 years after the date of the enactment of this Act,
shall establish a mandatory biometric exit data system at all the Core 30
international airports in the United States, as so designated by the Federal
Aviation Administration.
(5)
Expansion of biometric
exit data system to major sea and land ports
Not later than 6
years after the date of the enactment of this Act, the Secretary shall submit a
plan to Congress for the expansion of the biometric exit system to major sea
and land entry and exit points within the United States based upon—
(A) the performance of the
program established pursuant to paragraph (2);
(B) the findings of the study
conducted pursuant to paragraph (3); and
(C) the projected costs to
develop and deploy an effective biometric exit data system.
(6)
Data
collection
There are authorized to be appropriated, from the
Comprehensive Immigration Reform Trust Fund established under section 6(a)(1),
such sums as may be necessary to carry out this section
(b)
Integration and
interoperability
(1)
Integration of data
system
The Secretary shall fully integrate all data from
databases and data systems that process or contain information on aliens, which
are maintained by—
(A) the Department,
at—
(i) the U.S. Immigration and
Customs Enforcement;
(ii) the U.S. Customs and
Border Protection; and
(iii) the U.S. Citizenship
and Immigration Services;
(B) the Department of
Justice, at the Executive Office for Immigration Review; and
(C) the Department of State,
at the Bureau of Consular Affairs.
(2)
Interoperable
component
The fully integrated data system under paragraph (1)
shall be an interoperable component of the exit data system.
(3)
Interoperable data
system
The Secretary shall fully implement an interoperable
electronic data system to provide current and immediate access to information
in the databases of Federal law enforcement agencies and the intelligence
community that is relevant to determine—
(A) whether to issue a visa;
or
(B) the admissibility or
deportability of an alien.
(4)
Training
The
Secretary shall establish ongoing training modules on immigration law to
improve adjudications at United States ports of entry, consulates, and
embassies.
(c)
Information
sharing
The Secretary shall report to the appropriate Federal law
enforcement agency, intelligence agency, national security agency, or component
of the Department of Homeland Security any alien who was lawfully admitted into
the United States and whose individual data in the integrated exit data system
shows that he or she has not departed the country when he or she was legally
required to do so, and shall ensure that—
(1) if the alien has departed
the United States when he or she was legally required to do so, the information
contained in the integrated exit data system is updated to reflect the alien’s
departure; or
(2) if the alien has not
departed the United States when he or she was legally required to do so,
reasonably available enforcement resources are employed to locate the alien and
to commence removal proceedings against the alien.
3304.
Identity-theft
resistant manifest information for passengers, crew, and non-crew onboard
departing aircraft and vessels
(a)
Definitions
Except
as otherwise specifically provided, in this section:
(1)
Identity-theft
resistant collection location
The term identity-theft
resistant collection location means a location within an airport or
seaport—
(A) within the path of the
departing alien, such that the alien would not need to significantly deviate
from that path to comply with exit requirements at which air or vessel carrier
employees, as applicable, either presently or routinely are available if an
alien needs processing assistance; and
(B) which is equipped with
technology that can securely collect and transmit identity-theft resistant
departure information to the Department.
(2)
US-VISIT
The
term US-VISIT means the United States-Visitor and Immigrant Status
Indicator Technology system.
(b)
Identity theft
resistant manifest information
(1)
Passport or visa
collection requirement
Except as provided in subsection (c), an
appropriate official of each commercial aircraft or vessel departing from the
United States to any port or place outside the United States shall ensure
transmission to U.S. Customs and Border Protection of identity-theft resistant
departure manifest information covering alien passengers, crew, and non-crew.
Such identity-theft resistant departure manifest information—
(A) shall be transmitted to
U.S. Customs and Border Protection at the place and time specified in paragraph
(3) by means approved by the Secretary; and
(B) shall set forth the
information specified in paragraph (4) or other information as required by the
Secretary.
(2)
Manner of
collection
Carriers boarding alien passengers, crew, and noncrew
subject to the requirement to provide information upon departure for US-VISIT
processing shall collect identity-theft resistant departure manifest
information from each alien at an identity-theft resistant collection location
at the airport or seaport before boarding that alien on transportation for
departure from the United States, at a time as close to the originally
scheduled departure of that passenger's aircraft or sea vessel as
practicable.
(3)
Time and manner of
submission
(A)
In
general
The appropriate official specified in paragraph (1) shall
ensure transmission of the identity-theft resistant departure manifest
information required and collected under paragraphs (1) and (2) to the Data
Center or Headquarters of U.S. Customs and Border Protection, or such other
data center as may be designated.
(B)
Transmission
The
biometric departure information may be transmitted to the Department over any
means of communication authorized by the Secretary for the transmission of
other electronic manifest information containing personally identifiable
information and under transmission standards currently applicable to other
electronic manifest information.
(C)
Submission along with
other information
Files containing the identity-theft resistant
departure manifest information—
(i) may be sent with other
electronic manifest data prior to departure or may be sent separately from any
topically related electronic manifest data; and
(ii) may be sent in batch
mode.
(4)
Information
required
The identity-theft resistant departure information
required under paragraphs (1) through (3) for each covered passenger or crew
member shall contain alien data from machine-readable visas, passports, and
other travel and entry documents issued to the alien.
(c)
Exception
The
identity-theft resistant departure information specified in this section is not
required for any alien active duty military personnel traveling as passengers
on board a departing Department of Defense commercial chartered
aircraft.
(d)
Carrier maintenance and
use of identity-Theft resistant departure manifest
information
Carrier use of identity-theft resistant departure
manifest information for purposes other than as described in standards set by
the Secretary is prohibited. Carriers shall immediately notify the Chief
Privacy Officer of the Department in writing in the event of unauthorized use
or access, or breach, of identity-theft resistant departure manifest
information.
(e)
Collection at specified
location
If the Secretary determines that an air or vessel
carrier has not adequately complied with the provisions of this section, the
Secretary may, in the Secretary's discretion, require the air or vessel carrier
to collect identity-theft resistant departure manifest information at a
specific location prior to the issuance of a boarding pass or other document on
the international departure, or the boarding of crew, in any port through which
the carrier boards aliens for international departure under the supervision of
the Secretary for such period as the Secretary considers appropriate to ensure
the adequate collection and transmission of biometric departure manifest
information.
(f)
Funding
There shall be appropriated to the Interior
Enforcement Account $500,000,000 to reimburse carriers for their reasonable
actual expenses in carrying out their duties as described in this
section.
(g)
Determination of
budgetary effects
(1)
Emergency designation
for congressional enforcement
In the Senate, amounts made
available under this section are designated as an emergency requirement
pursuant to section 403(a) of S. Con. Res. 13 (111th Congress), the concurrent
resolution on the budget for fiscal year 2010.
(2)
Emergency designation
for statutory paygo
Amounts made available under this section are
designated as an emergency requirement under section 4(g) of the Statutory
Pay-As-You-Go Act of 2010 (Public Law 111–139; 2 U.S.C. 933(g)).
3305.
Profiling
(a)
Prohibition
In
making routine or spontaneous law enforcement decisions, such as ordinary
traffic stops, Federal law enforcement officers may not use race or ethnicity
to any degree, except that officers may rely on race and ethnicity if a
specific suspect description exists.
(b)
Exceptions
(1)
Specific
investigation
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. This
standard applies even where the use of race or ethnicity might otherwise be
lawful.
(2)
National
security
In investigating or preventing threats to national
security or other catastrophic events (including the performance of duties
related to air transportation security), or in enforcing laws protecting the
integrity of the Nation’s borders, Federal law enforcement officers may not
consider race or ethnicity except to the extent permitted by the Constitution
and laws of the United States.
(3)
Defined
term
In this section, the term Federal law enforcement
officer means any officer, agent, or employee of the United States
authorized by law or by a Government agency to engage in or supervise the
prevention, detection, investigation, or prosecution of any violation of
Federal law.
(c)
Study and
regulations
(1)
Data
collection
Not later than 180 days after the date of the
enactment of this Act, the Secretary shall begin collecting data regarding the
individualized immigration enforcement activities of covered Department
officers.
(2)
Study
Not
later than 180 days after data collection under paragraph (1) commences, the
Secretary shall complete a study analyzing the data.
(3)
Regulations
Not
later than 90 days after the date the study required by paragraph (2) is
completed, the Secretary, in consultation with the Attorney General, shall
issue regulations regarding the use of race, ethnicity, and any other suspect
classifications the Secretary deems appropriate by covered Department
officers.
(4)
Reports
Not
later than 30 days after completion of the study required by paragraph (2), the
Secretary shall submit the study to—
(A) the Committee on Homeland
Security and Governmental Affairs of the Senate;
(B) the Committee on Homeland
Security of the House of Representatives;
(C) the Committee on
Appropriations of the Senate;
(D) the Committee on
Appropriations of the House of Representatives;
(E) the Committee on the
Judiciary of the Senate; and
(F) the Committee on the
Judiciary of the House of Representatives.
(5)
Defined
term
In this subsection, the term covered Department
officer means any officer, agent, or employee of United States Customs
and Border Protection, United States Immigration and Customs Enforcement, or
the Transportation Security Administration.
3306.
Enhanced penalties
for certain drug offenses on Federal lands
(a)
Cultivating or
manufacturing controlled substances on Federal property
Section
401(b)(5) of the Controlled Substances Act (21 U.S.C. 841(b)(5)) is amended by
striking as provided in this subsection and inserting for
not more than 10 years, in addition to any other term of imprisonment imposed
under this subsection,.
(b)
Use of hazardous
substances
Pursuant to its authority under section 994 of title
28, United States Code, the United States Sentencing Commission shall amend the
Federal Sentencing Guidelines and policy statements to ensure that the
guidelines provide an additional penalty increase of 2 offense levels above the
sentence otherwise applicable for a violation of section 401(a) of the
Controlled Substances Act (21 U.S.C. 841(a)) if the offense—
(1) includes the use of a
poison, chemical, or other hazardous substance to cultivate or manufacture
controlled substances on Federal property;
(2) creates a hazard to
humans, wildlife, or domestic animals;
(3) degrades or harms the
environment or natural resources; or
(4) pollutes an aquifer,
spring, stream, river, or body of water.
(c)
Stream diversion or
clear cutting on Federal property
(1)
Prohibition on stream
diversion or clear cutting on Federal property
Section 401(b) of
the Controlled Substances Act is amended by adding at the end the
following:
(8)
Destruction of bodies
of water
Any person who violates subsection (a) in a manner that
diverts, redirects, obstructs, or drains an aquifer, spring, stream, river, or
body of water or clear cuts timber while cultivating or manufacturing a
controlled substance on Federal property shall be fined in accordance with
title 18, United States
Code.
.
(2)
Federal Sentencing
Guidelines enhancement
Pursuant to its authority under section
994 of title 28, United States Code, the United States Sentencing Commission
shall amend the Federal Sentencing Guidelines and policy statements to ensure
that the guidelines provide an additional penalty increase of 2 offense levels
for above the sentence otherwise applicable for a violation of section 401(a)
of the Controlled Substances Act (21 U.S.C. 841(a)) if the offense involves the
diversion, redirection, obstruction, or draining of an aquifer, spring, stream,
river, or body of water or the clear cut of timber while cultivating or
manufacturing a controlled substance on Federal property.
(d)
Booby traps on Federal
land
Section 401(d)(1) of the Controlled Substances Act (21
U.S.C. 841(d)(1)) is amended by inserting cultivated, after
is being.
(e)
Use or possession of
firearms in connection with drug offenses on Federal
lands
Pursuant to its authority under section 994 of title 28,
United States Code, the United States Sentencing Commission shall amend the
Federal Sentencing Guidelines and policy statements to ensure that the
guidelines provide an additional penalty increase of 2 offense levels above the
sentence otherwise applicable for a violation of section 401(a) of the
Controlled Substances Act (21 U.S.C. 841(a)) if the offense involves the
possession of a firearm while cultivating or manufacturing controlled
substances on Federal lands.
D
Asylum and refugee
provisions
3401.
Time limits and
efficient adjudication of genuine asylum claims
Section 208(a)(2) (8 U.S.C. 1158(a)(2)) is
amended—
(1) in subparagraph (A), by
inserting or the Secretary of Homeland Security after
Attorney General both places such term appears;
(2) by striking subparagraphs
(B) and (D);
(3) by redesignating
subparagraph (C) as subparagraph (B);
(4) in subparagraph (B), as
redesignated, by striking subparagraph (D) and inserting
subparagraphs (C) and (D); and
(5) by inserting after
subparagraph (B), as redesignated, the following:
(C)
Changed
circumstances
Notwithstanding subparagraph (B), an application
for asylum of an alien may be considered if the alien demonstrates, to the
satisfaction of the Attorney General or the Secretary of Homeland Security, the
existence of changed circumstances that materially affect the applicant’s
eligibility for asylum.
(D)
Motion to reopen
certain meritorious claims
Notwithstanding subparagraph (B) or
section 240(c)(7), an alien may file a motion to reopen an asylum claim during
the 2-year period beginning on the date of the enactment of the
Border Security, Economic Opportunity, and
Immigration Modernization Act if the alien—
(i) was denied asylum based
solely upon a failure to meet the 1-year application filing deadline in effect
on the date on which the application was filed;
(ii) was granted withholding
of removal pursuant to section 241(b)(3) and has not obtained lawful permanent
residence in the United States pursuant to any other provision of law;
(iii) is not subject to the
safe third country exception under subparagraph (A) or a bar to asylum under
subsection (b)(2) and should not be denied asylum as a matter of discretion;
and
(iv) is physically present in
the United States when the motion is
filed.
.
3402.
Refugee family
protections
(a)
Children of refugee or
asylee spouses and children
A child of an alien who qualifies for
admission as a spouse or child under section 207(c)(2)(A) or 208(b)(3) of the
Immigration and Nationality Act (8 U.S.C. 1157(c)(2)(A) and 1158(b)(3)) shall
be entitled to the same status as such alien if the child—
(1) is accompanying or
following to join such alien; and
(2) is otherwise eligible
under section 207(c)(2)(A) or 208(b)(3) of the Immigration and Nationality
Act.
3403.
Clarification on
designation of certain refugees
(a)
Termination of certain
preferential treatment in immigration of Amerasians
Section 584 of the Foreign Operations,
Export Financing, and Related Programs Appropriations Act, 1988 (8 U.S.C. 1101
note) is amended by adding at the end the following:
(f) No visa may be issued
under this section if the petition or application for such visa is submitted on
or after the date of the enactment of the Border Security, Economic Opportunity, and Immigration
Modernization
Act.
.
(b)
Refugee
designation
Section 207(c)(1) (8 U.S.C. 1157(c)(1)) is
amended—
(1) by inserting
(A) before Subject to the numerical limitations;
and
(2) by adding at the end the
following:
(B)
(i) The President, upon
a recommendation of the Secretary of State made in consultation with the
Secretary of Homeland Security, and after appropriate consultation, may
designate specifically defined groups of aliens—
(I) whose resettlement in the
United States is justified by humanitarian concerns or is otherwise in the
national interest; and
(II) who—
(aa) share common
characteristics that identify them as targets of persecution on account of
race, religion, nationality, membership in a particular social group, or
political opinion; or
(bb) having been identified
as targets as described in item (aa), share a common need for resettlement due
to a specific vulnerability.
(ii) An alien who establishes
membership in a group designated under clause (i) to the satisfaction of the
Secretary of Homeland Security shall be considered a refugee for purposes of
admission as a refugee under this section unless the Secretary determines that
such alien ordered, incited, assisted, or otherwise participated in the
persecution of any person on account of race, religion, nationality, membership
in a particular social group, or political opinion.
(iii) A designation under
clause (i) is for purposes of adjudicatory efficiency and may be revoked by the
President at any time after notification to Congress.
(iv) Categories of aliens
established under section 599D of the Foreign Operations, Export Financing, and
Related Programs Appropriations Act, 1990 (Public Law 101–167; 8 U.S.C. 1157
note)—
(I) shall be designated under
clause (i) until the end of the first fiscal year commencing after the date of
the enactment of the Border Security,
Economic Opportunity, and Immigration Modernization Act;
and
(II) shall be eligible for
designation thereafter at the discretion of the President, considering, among
other factors, whether a country under consideration has been designated by the
Secretary of State as a Country of Particular Concern for
engaging in or tolerating systematic, ongoing, and egregious violations of
religious freedom.
(v) A designation under
clause (i) shall not influence decisions to grant, to any alien, asylum under
section 208, protection under section 241(b)(3), or protection under the
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, done at New York December 10, 1984.
(vi) A decision to deny
admission under this section to an alien who establishes to the satisfaction of
the Secretary that the alien is a member of a group designated under clause (i)
shall—
(I) be in writing; and
(II) state, to the maximum
extent feasible, the reason for the denial.
(vii) Refugees admitted
pursuant to a designation under clause (i) shall be subject to the number of
admissions and be admissible under this
section.
.
3404.
Asylum determination
efficiency
Section
235(b)(1)(B)(ii) (8 U.S.C. 1225(b)(1)(B)(ii)) is amended by striking
asylum. and inserting asylum by an asylum officer. The
asylum officer, after conducting a nonadversarial asylum interview and seeking
supervisory review, may grant asylum to the alien under section 208 or refer
the case to a designee of the Attorney General, for a de novo asylum
determination, for relief under the Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment, done at New York December 10,
1984, or for protection under section 241(b)(3)..
3405.
Stateless persons in
the United States
(a)
In
general
Chapter 1 of title II (8 U.S.C. 1151 et seq.) is amended
by adding at the end the following:
210A.
Protection of certain
stateless persons in the United States
(a)
Stateless
persons
(1)
In
general
In this section, the term stateless person
means an individual who is not considered a national under the operation of the
laws of any country.
(2)
Designation of specific
stateless groups
The Secretary of Homeland Security, in
consultation with the Secretary of State, may, in the discretion of the
Secretary, designate specific groups of individuals who are considered
stateless persons, for purposes of this section.
(b)
Status of stateless
persons
(1)
Relief for certain
individuals determined to be stateless persons
The Secretary of
Homeland Security or the Attorney General may, in his or her discretion,
provide conditional lawful status to an alien who is otherwise inadmissible or
deportable from the United States if the alien—
(A) is a stateless person
present in the United States;
(B) applies for such
relief;
(C) has not lost his or her
nationality as a result of his or her voluntary action or knowing inaction
after arrival in the United States;
(D) except as provided in
paragraphs (2) and (3), is not inadmissible under section 212(a); and
(E) is not described in
section 241(b)(3)(B)(i).
(2)
Inapplicability of
certain provisions
The provisions under paragraphs (4), (5), (7),
and (9)(B) of section 212(a) shall not apply to any alien seeking relief under
paragraph (1).
(3)
Waiver
The
Secretary or the Attorney General may waive any other provisions of such
section, other than subparagraphs (B), (C), (D)(ii), (E), (G), (H), or (I) of
paragraph (2), paragraph (3), paragraph (6)(C)(i) (with respect to
misrepresentations relating to the application for relief under paragraph (1)),
or subparagraphs (A), (C), (D), or (E) of paragraph (10) of section 212(a),
with respect to such an alien for humanitarian purposes, to assure family
unity, or if it is otherwise in the public interest.
(4)
Submission of passport
or travel document
Any alien who seeks relief under this section
shall submit to the Secretary of Homeland Security or the Attorney
General—
(A) any available passport or
travel document issued at any time to the alien (whether or not the passport or
document has expired or been cancelled, rescinded, or revoked); or
(B) an affidavit, sworn under
penalty of perjury—
(i) stating that the alien
has never been issued a passport or travel document; or
(ii) identifying with
particularity any such passport or travel document and explaining why the alien
cannot submit it.
(5)
Work
authorization
The Secretary of Homeland Security may authorize an
alien who has applied for and is found prima facie eligible for or been granted
relief under paragraph (1) to engage in employment in the United States.
(6)
Travel
documents
The Secretary may issue appropriate travel documents to
an alien who has been granted relief under paragraph (1) that would allow him
or her to travel abroad and be admitted to the United States upon return, if
otherwise admissible.
(7)
Treatment of spouse and
children
The spouse or child of an alien who has been granted
conditional lawful status under paragraph (1) shall, if not otherwise eligible
for admission under paragraph (1), be granted conditional lawful status under
this section if accompanying, or following to join, such alien if—
(A) the spouse or child is
admissible (except as otherwise provided in paragraphs (2) and (3)) and is not
described in section 241(b)(3)(B)(i); and
(B) the qualifying
relationship to the principal beneficiary existed on the date on which such
alien was granted conditional lawful status.
(c)
Adjustment of
status
(1)
Inspection and
examination
At the end of the 1-year period beginning on the date
on which an alien has been granted conditional lawful status under subsection
(b), the alien may apply for lawful permanent residence in the United States
if—
(A) the alien has been
physically present in the United States for at least 1 year;
(B) the alien’s conditional
lawful status has not been terminated by the Secretary of Homeland Security or
the Attorney General, pursuant to such regulations as the Secretary or the
Attorney General may prescribe; and
(C) the alien has not
otherwise acquired permanent resident status.
(2)
Requirements for
adjustment of status
The Secretary of Homeland Security or the
Attorney General, under such regulations as the Secretary or the Attorney
General may prescribe, may adjust the status of an alien granted conditional
lawful status under subsection (b) to that of an alien lawfully admitted for
permanent residence if such alien—
(A) is a stateless
person;
(B) properly applies for such
adjustment of status;
(C) has been physically
present in the United States for at least 1 year after being granted
conditional lawful status under subsection (b);
(D) is not firmly resettled
in any foreign country; and
(E) is admissible (except as
otherwise provided under paragraph (2) or (3) of subsection (b)) as an
immigrant under this chapter at the time of examination of such alien for
adjustment of status.
(3)
Record
Upon
approval of an application under this subsection, the Secretary of Homeland
Security shall establish a record of the alien’s admission for lawful permanent
residence as of the date that is 1 year before the date of such
approval.
(4)
Numerical
limitation
The number of aliens who may receive an adjustment of
status under this section for a fiscal year shall be subject to the numerical
limitation of section 203(b)(4).
(d)
Proving the
claim
In determining an alien’s eligibility for lawful
conditional status or adjustment of status under this subsection, the Secretary
of Homeland Security or the Attorney General shall consider any credible
evidence relevant to the application. The determination of what evidence is
credible and the weight to be given that evidence shall be within the sole
discretion of the Secretary or the Attorney General.
(e)
Review
(1)
Administrative
review
No appeal shall lie from the denial of an application by
the Secretary, but such denial will be without prejudice to the alien’s right
to renew the application in proceedings under section 240.
(2)
Motions to
reopen
Notwithstanding any limitation imposed by law on motions
to reopen removal, deportation, or exclusion proceedings, any individual who is
eligible for relief under this section may file a motion to reopen proceedings
in order to apply for relief under this section. Any such motion shall be filed
within 2 years of the date of the enactment of the
Border Security, Economic Opportunity, and
Immigration Modernization Act.
(f)
Limitation
(1)
Applicability
The
provisions of this section shall only apply to aliens present in the United
States.
(2)
Savings
provision
Nothing in this section may be construed to authorize
or require—
(A) the admission of any
alien to the United States;
(B) the parole of any alien
into the United States; or
(C) the grant of any motion
to reopen or reconsider filed by an alien after departure or removal from the
United
States.
.
(b)
Judicial
review
Section 242(a)(2)(B)(ii) (8 U.S.C. 1252(a)(2)(B)(ii)) is
amended by striking 208(a). and inserting 208(a) or
210A..
(c)
Conforming
amendment
Section 203(b)(4) (8 U.S.C. 1153(b)(4)) is amended by
inserting to aliens granted an adjustment of status under section
210A(c) or after level,.
(d)
Clerical
amendment
The table of contents for the Immigration and
Nationality Act is amended by inserting after the item relating to section 210
the following:
Sec. 210A. Protection of
stateless persons in the United
States.
.
3406.
U visa
accessibility
Section
214(p)(2)(A) (8 U.S.C. 1184(p)(2)(A)) is amended by striking
10,000. and inserting 18,000, of which not more than
3,000 visas may be issued for aliens who are victims of a covered violation
described in section 101(a)(15)(U)..
3407.
Work authorization
while applications for U and T visas are pending
(a)
U visas
Section 214(p) (8 U.S.C. 1184(p)), as
amended by section 3406 of this Act, is further amended—
(1) in paragraph (6), by
striking the last sentence; and
(2) by adding at the end the
following:
(7)
Work
authorization
Notwithstanding any provision of this Act granting
eligibility for employment in the United States, the Secretary of Homeland
Security shall grant employment authorization to an alien who has filed an
application for nonimmigrant status under section 101(a)(15)(U) on the date
that is the earlier of—
(A) the date on which the
alien’s application for such status is approved; or
(B) a date determined by the
Secretary that is not later than 180 days after the date on which the alien
filed the
application.
.
(b)
T
visas
Section 214(o) (8 U.S.C. 1184(o)) is amended by adding at
the end the following:
(8) Notwithstanding any
provision of this Act granting eligibility for employment in the United States,
the Secretary of Homeland Security shall grant employment authorization to an
alien who has filed an application for nonimmigrant status under section
101(a)(15)(T) on the date that is the earlier of—
(A) the date on which the
alien’s application for such status is approved; or
(B) a date determined by the
Secretary that is not later than 180 days after the date on which the alien
filed the
application.
.
3408.
Representation at
overseas refugee interviews
Section 207(c) (8 U.S.C. 1157(c)) is amended
by adding at the end the following:
(5) The adjudicator of an
application for refugee status under this section shall consider all relevant
evidence and maintain a record of the evidence considered.
(6) An applicant for refugee
status may be represented, including at a refugee interview, at no expense to
the Government, by an attorney or accredited representative who—
(A) was chosen by the
applicant; and
(B) is authorized by the
Secretary of Homeland Security to be recognized as the representative of such
applicant in an adjudication under this section.
(7)
(A) A decision to deny
an application for refugee status under this section—
(i) shall be in writing;
and
(ii) shall provide, to the
maximum extent feasible, information on the reason for the denial,
including—
(I) the facts underlying the
determination; and
(II) whether there is a
waiver of inadmissibility available to the applicant.
(B) The basis of any negative
credibility finding shall be part of the written decision.
(8)
(A) An applicant who is
denied refugee status under this section may file a request with the Secretary
for a review of his or her application not later than 120 days after such
denial.
(B) A request filed under
subparagraph (A) shall be adjudicated by refugee officers who have received
training on considering requests for review of refugee applications that have
been denied.
(C) The Secretary shall
publish the standard applied to a request for review.
(D) A request for review may
result in the decision being granted, denied, or reopened for a further
interview.
(E) A decision on a request
for review under this paragraph—
(i) shall be in writing;
and
(ii) shall provide, to the
maximum extent feasible, information on the reason for the
denial.
.
3409.
Law enforcement and
national security checks
(a)
Refugees
Section
207(c)(1) (8 U.S.C. 1157(c)(1)) is amended by adding at the end the following:
No alien shall be admitted as a refugee until the identity of the
applicant, including biographic and biometric data, has been checked against
all appropriate records or databases maintained by the Secretary of Homeland
Security, the Attorney General, the Secretary of State, and other Federal
records or databases that the Secretary of Homeland Security considers
necessary, to determine any national security, law enforcement, or other
grounds on which the alien may be inadmissible to the United States or
ineligible to apply for or be granted refugee status..
(b)
Asylees
Section
208(d)(5)(A)(i) (8 U.S.C. 1158(d)(5)(A)(i)) is amended to read as
follows:
(i) asylum shall not be
granted until the identity of the applicant, using biographic and biometric
data, has been checked against all appropriate records or databases maintained
by the Secretary of Homeland Security, the Attorney General, the Secretary of
State, and other Federal records or databases that the Secretary of Homeland
Security considers necessary, to determine any national security, law
enforcement, or other grounds on which the alien may be inadmissible to the
United States or ineligible to apply for or be granted
asylum;
.
3410.
Tibetan refugee
assistance
(a)
Short
title
This section may be
cited as the Tibetan Refugee
Assistance Act of 2013.
(b)
Transition for
displaced Tibetans
Notwithstanding the numerical limitations
specified in sections 201 and 202 of the Immigration and Nationality Act (8
U.S.C. 1151 and 1152), 5,000 immigrant visas shall be made available to
qualified displaced Tibetans described in subsection (c) during the 3-year
period beginning on October 1, 2013.
(c)
Qualified displaced
Tibetan described
(1)
In
general
An individual is a
qualified displaced Tibetan if such individual—
(A) is a native of Tibet;
and
(B) has been continuously
residing in India or Nepal since before the date of the enactment of this
Act.
(2)
Native of Tibet
described
For purposes of paragraph (1)(A), an individual shall
be considered a native of Tibet if such individual—
(A) was born in Tibet;
or
(B) is the son, daughter,
grandson, or granddaughter of an individual who was born in Tibet.
(d)
Derivative status for
spouses and children
A spouse or child (as defined in
subparagraphs (A), (B), (C), (D), or (E) of section 101(b)(1) of the
Immigration and Nationality Act (8 U.S.C. 1101(b)(1))) shall, if not otherwise
entitled to an immigrant status and the immediate issuance of a visa under this
section, be entitled to the same status, and the same order of consideration,
provided under this section, if accompanying, or following to join, the spouse
or parent of such spouse or child.
(e)
Distribution of visa
numbers
The Secretary of State shall ensure that immigrant visas
provided under subsection (b) are made available to qualified displaced
Tibetans described in subsection (c) or (d) in an equitable manner, giving
preference to those qualified displaced Tibetans who—
(1) are not resettled in
India or Nepal; or
(2) are most likely to be
resettled successfully in the United States.
3411.
Termination of asylum
or refugee status
(a)
Termination of
status
Except as provided in subsections (b) and (c), any alien
who is granted asylum or refugee status under this Act or the Immigration and
Nationality Act (8 U.S.C. 1101 et seq.), who, without good cause as determined
by the Secretary or the Attorney General, subsequently returns to the country
of such alien’s nationality or, in the case of an alien having no nationality,
returns to any country in which such alien last habitually resided, and who
applied for such status because of persecution or a well-founded fear of
persecution in that country on account of race, religion, nationality,
membership in a particular social group, or political opinion, shall have his
or her refugee or asylum status terminated.
(b)
Waiver
The
Secretary has discretion to waive subsection (a) if it is established to the
satisfaction of the Secretary or the Attorney General that the alien had good
cause for the return. The waiver may be sought prior to departure from the
United States or upon return.
(c)
Exception for certain
aliens from Cuba
Subsection (a) shall not apply to an alien who
is eligible for adjustment to that of an alien lawfully admitted for permanent
residence pursuant to the Cuban Adjustment Act of 1966 (Public Law
89–732).
3412.
Asylum
clock
Section 208(d)(2) (8
U.S.C. 1158(d)(2)) is amended by striking is not entitled to employment
authorization and all that follows through prior to 180 days
after and inserting shall be provided employment authorization
180 days after.
E
Shortage of immigration
court resources for removal proceedings
3501.
Shortage of
immigration court personnel for removal proceedings
(a)
Immigration court
judges
The Attorney General shall increase the total number of
immigration judges to adjudicate current pending cases and efficiently process
future cases by at least—
(1) 75 in fiscal year
2014;
(2) 75 in fiscal year 2015;
and
(3) 75 in fiscal year
2016.
(b)
Necessary support staff
for immigration court judges
The Attorney General shall address
the shortage of support staff for immigration judges by ensuring that each
immigration judge has the assistance of the necessary support staff, including
the equivalent of 1 staff attorney or law clerk and 1 legal assistant.
(c)
Annual increases in
board of immigration appeals personnel
The Attorney General shall
increase the number of Board of Immigration Appeals staff attorneys (including
the necessary additional support staff) to efficiently process cases by at
least—
(1) 30 in fiscal year
2014;
(2) 30 in fiscal year 2015;
and
(3) 30 in fiscal year
2016.
(d)
Funding
There
shall be appropriated, from the Comprehensive Immigration Reform Trust Fund
established under section 6(a)(1), such sums as may be necessary to carry out
this section.
3502.
Improving immigration
court efficiency and reducing costs by increasing access to legal
information
(a)
Clarification regarding
the authority of the Attorney General To appoint counsel to aliens in
immigration proceedings
Section 292 (8 U.S.C. 1362) is
amended—
(1) by inserting
(a) before In any;
(2) by striking (at no
expense to the Government);
(3) by striking he
shall and inserting the person shall; and
(4) by adding at the end the
following:
(b) The Government is not
required to provide counsel to aliens under subsection (a). However, the
Attorney General may, in the Attorney General’s sole and unreviewable
discretion, appoint or provide counsel to aliens in immigration proceedings
conducted under section 240 of this
Act.
.
(b)
Appointment of counsel
in certain cases; right To review certain documents in removal
proceedings
Section 240(b) (8 U.S.C. 1229a(b)) is amended—
(1) in paragraph (4)—
(A) by redesignating
subparagraphs (B) and (C) as subparagraphs (C) and (D), respectively;
(B) in subparagraph (A), by
striking , at no expense to the Government,;
(C) by inserting after
subparagraph (A) the following new subparagraph:
(B) the alien shall, at the
beginning of the proceedings or at a reasonable time thereafter, automatically
receive a complete copy of all relevant documents in the possession of the
Department of Homeland Security, including all documents (other than documents
protected from disclosure by privilege, including national security information
referenced in subparagraph (C), law enforcement sensitive information, and
information prohibited from disclosure pursuant to any other provision of law)
contained in the file maintained by the Government that includes information
with respect to all transactions involving the alien during the immigration
process (commonly referred to as an A-file), and all documents
pertaining to the alien that the Department of Homeland Security has obtained
or received from other government agencies, unless the alien waives the right
to receive such documents by executing a knowing and voluntary waiver in a
language that he or she understands
fluently,
;
and
(D) by adding at the end the
following:
The
Government is not required to provide counsel to aliens under this paragraph.
However, the Attorney General may, in the Attorney General’s sole and
unreviewable discretion, appoint or provide counsel at government expense to
aliens in immigration proceedings.
;
and
(2) by adding at the end the
following new paragraph:
(8)
Failure to provide
alien required documents
In the absence of a waiver under
subparagraph (B) of paragraph (4), a removal proceeding may not proceed until
the alien has received the documents as required under such
subparagraph.
.
(c)
Appointment of counsel
for unaccompanied alien children and aliens with a serious mental
disability
Section 292 (8 U.S.C. 1362), as amended by subsection
(a), is further amended by adding at the end the following:
(c) Notwithstanding
subsection (b), the Attorney General shall appoint counsel, at the expense of
the Government if necessary, to represent an alien in a removal proceeding who
has been determined by the Secretary to be an unaccompanied alien child, is
incompetent to represent himself or herself due to a serious mental disability
that would be included in section 3(1) of the Americans with Disabilities Act
of 1990 (42 U.S.C. 12102(1)), or is considered particularly vulnerable when
compared to other aliens in removal proceedings, such that the appointment of
counsel is necessary to help ensure fair resolution and efficient adjudication
of the
proceedings.
.
(d)
Funding
There
shall be appropriated, from the Comprehensive Immigration Reform Trust Fund
established under section 6(a)(1), such sums as may be necessary to carry out
this section and the amendments made by this section.
3503.
Office of Legal
Access Programs
(a)
Establishment of Office
of Legal Access Programs
The Attorney General shall maintain,
within the Executive Office for Immigration Review, an Office of Legal Access
Programs to develop and administer a system of legal orientation programs to
make immigration proceedings more efficient and cost effective by educating
aliens regarding administrative procedures and legal rights under United States
immigration law and to establish other programs to assist in providing aliens
access to legal information.
(b)
Legal orientation
programs
The legal orientation programs—
(1) shall provide programs to
assist detained aliens in making informed and timely decisions regarding their
removal and eligibility for relief from removal in order to increase efficiency
and reduce costs in immigration proceedings and Federal custody processes and
to improve access to counsel and other legal services;
(2) may provide services to
detained aliens in immigration proceedings under sections 235, 238, 240, and
241(a)(5) of the Immigration and Nationality Act (8 U.S.C. 1225, 1228, 1229a,
and 1231(a)(5)) and to other aliens in immigration and asylum proceedings under
sections 235, 238, and 240 of the Immigration and Nationality Act (8 U.S.C.
1225, 1228, and 1229a); and
(3) shall identify
unaccompanied alien children, aliens with a serious mental disability, and
other particularly vulnerable aliens for consideration by the Attorney General
pursuant to section 292(c) of the Immigration and Nationality Act, as added by
section 3502(c).
(c)
Procedures
The
Secretary, in consultation with the Attorney General, shall establish
procedures that ensure that legal orientation programs are available for all
detained aliens within 5 days of arrival into custody and to inform such aliens
of the basic procedures of immigration hearings, their rights relating to those
hearings under the immigration laws, information that may deter such aliens
from filing frivolous legal claims, and any other information deemed
appropriate by the Attorney General, such as a contact list of potential legal
resources and providers.
(d)
Rule of
construction
Nothing in this subsection shall 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.
(e)
Funding
There
shall be appropriated, from the Comprehensive Immigration Reform Trust Fund
established under section 6(a)(1), such sums as may be necessary to carry out
this section.
3504.
Codifying Board of
Immigration Appeals
(a)
Definition of board
member
Section 101(a) (8 U.S.C. 1101(a)) is amended by adding at
the end the following:
(53) The term Board
Member means an attorney whom the Attorney General appoints to serve on
the Board of Immigration Appeals within the Executive Office of Immigration
Review, and is qualified to review decisions of immigration judges and other
matters within the jurisdiction of the Board of Immigration
Appeals.
.
(b)
Board of Immigration
Appeals
Section 240(a)(1) (8 U.S.C. 1229a(a)(1)) is amended by
adding at the end the following: The Board of Immigration Appeals and
its Board Members shall review decisions of immigration judges under this
section..
(c)
Appeals
Section
240(b)(4) (8 U.S.C. 1229a(b)(4)), as amended by section 3502(b), is further
amended—
(1) in subparagraph (B), by
striking , and and inserting a semicolon;
(2) in subparagraph (C), by
striking the period and inserting ; and; and
(3) by inserting after
subparagraph (C) the following:
(D) the alien or the
Department of Homeland Security may appeal the immigration judge’s decision to
a 3-judge panel of the Board of Immigration
Appeals.
.
(d)
Decision and burden of
proof
Section 240(c)(1)(A) (8 U.S.C. 1229a(c)(1)(A)) is amended
to read as follows:
(A)
In
general
At the conclusion of the proceeding, the immigration
judge shall decide whether an alien is removable from the United States. The
determination of the immigration judge shall be based only on the evidence
produced at the hearing. On appeal, the Board of Immigration Appeals shall
issue a written opinion. The opinion shall address all dispositive arguments
raised by the parties. The panel may incorporate by reference the opinion of
the immigration judge whose decision is being reviewed, provided that the panel
also addresses any arguments made by the nonprevailing party regarding
purported errors of law, fact, or
discretion.
.
3505.
Improved training for
immigration judges and Board Members
(a)
In
general
Section 240 (8 U.S.C.
1229a) is amended by adding at the end the following:
(f)
Improved
training
(1)
Improved training for
immigration judges and board members
(A)
In
general
In consultation with the Attorney General and the
Director of the Federal Judicial Center, the Director of the Executive Office
for Immigration Review shall review and modify, as appropriate, training
programs for immigration judges and Board Members.
(B)
Elements of
review
Each such review shall study—
(i) the expansion of the
training program for new immigration judges and Board Members;
(ii) continuing education
regarding current developments in the field of immigration law; and
(iii) methods to ensure that
immigration judges are trained on properly crafting and dictating
decisions.
(2)
Improved training and
guidance for staff
The Director of the Executive Office for
Immigration Review shall—
(A) modify guidance and
training regarding screening standards and standards of review; and
(B) ensure that Board Members
provide staff attorneys with appropriate guidance in drafting decisions in
individual cases, consistent with the policies and directives of the Director
of the Executive Office for Immigration Review and the Chairman of the Board of
Immigration
Appeals.
.
(b)
Funding
There
shall be appropriated, from the Comprehensive Immigration Reform Trust Fund
established under section 6(a)(1), such sums as may be necessary to carry out
this section and the amendment made by this section.
3506.
Improved resources
and technology for immigration courts and Board of Immigration Appeals
(a)
Improved on-bench
reference materials and decision templates
The Director of the
Executive Office for Immigration Review shall ensure that immigration judges
are provided with updated reference materials and standard decision templates
that conform to the law of the circuits in which they sit.
(b)
Practice
manual
The Director of the Executive Office for Immigration
Review shall produce a practice manual describing best practices for the
immigration courts and shall make such manual available electronically to
counsel and litigants who appear before the immigration courts.
(c)
Recording system and
other technologies
(1)
Plan
required
The Director of the Executive Office for Immigration
Review shall provide the Attorney General with a plan and a schedule to replace
the immigration courts’ tape recording system with a digital recording system
that is compatible with the information management systems of the Executive
Office for Immigration Review.
(2)
Audio recording
system
Consistent with the plan described in paragraph (1), the
Director shall pilot a digital audio recording system not later than 1 year
after the enactment of this Act, and shall begin nationwide implementation of
that system as soon as practicable.
(d)
Improved transcription
services
Not later than 1 year after the enactment of this Act,
the Director of the Executive Office for Immigration Review shall report to the
Attorney General on the current transcription services utilized by the Office
and recommend improvements to this system regarding quality and timeliness of
transcription.
(e)
Improved interpreter
selection
Not later than 1 year after the enactment of this Act,
the Director of the Executive Office for Immigration Review shall report to the
Attorney General on the current interpreter selection process utilized by the
Office and recommend improvements to this process regarding screening, hiring,
certification, and evaluation of staff and contract interpreters.
(f)
Funding
There
shall be appropriated, from the Comprehensive Immigration Reform Trust Fund
established under section 6(a)(1), such sums as may be necessary to carry out
this section.
3507.
Transfer of
responsibility for trafficking protections
(a)
Transfer of
responsibility
(1)
In
general
All unexpended balances appropriated or otherwise
available to the Department of Health and Human Services and its Office of
Refugee Resettlement in connection with the functions provided for in
paragraphs (5) and (6) of section 235(c) of the William Wilberforce Trafficking
Victims Protection Reauthorization Act of 2008 (8 U.S.C. 1232(c)), shall,
subject to section 202 of the Budget and Accounting Procedures Act of 1950, be
transferred to the Department of Justice. Funds transferred pursuant to this
paragraph shall remain available until expended and shall be used only for the
purposes for which the funds were originally authorized and
appropriated.
(2)
Contract
authority
The Attorney General may award grants to, and enter
into contracts to carry out the functions set forth in paragraphs (5) and (6)
of Section 235(c) of the William Wilberforce Trafficking Victims Protection
Reauthorization Act of 2008.
(b)
Conforming
amendments
Section 235(c) of the William Wilberforce Trafficking
Victims Protection Reauthorization Act of 2008 (8 U.S.C. 1232(c)) is
amended—
(1) in paragraph (5)—
(A) by striking
Secretary of Health and Human Services each place it appears and
inserting Attorney General; and
(B) by striking the last
sentence; and
(2) in paragraph (6)—
(A) by striking
Secretary of Health and Human Services each place it appears and
inserting Attorney General;
(B) in subparagraphs (B)(ii),
(D), and (F), by striking Secretary each place it appears and
inserting Attorney General; and
(C) in subparagraph (F), by
striking and Human Services.
F
Prevention of trafficking
in persons and abuses involving workers recruited abroad
3601.
Definitions
(a)
In
general
Except as otherwise provided by this subtitle, the terms
used in this subtitle shall have the same meanings, respectively, as are given
those terms in section 3 of the Fair Labor Standards Act of 1938 (29 U.S.C.
203).
(b)
Other
definitions
(1)
Foreign labor
contractor
The term foreign labor contractor means
any person who performs foreign labor contracting activity, including any
person who performs foreign labor contracting activity wholly outside of the
United States, except that the term does not include any entity of the United
States Government.
(2)
Foreign labor
contracting activity
The term foreign labor contracting
activity means recruiting, soliciting, or related activities with
respect to an individual who resides outside of the United States in
furtherance of employment in the United States, including when such activity
occurs wholly outside of the United States.
(3)
Person
The
term person means any natural person or any corporation, company,
firm, partnership, joint stock company or association or other organization or
entity (whether organized under law or not), including municipal
corporations.
(4)
Worker
the
term worker means an individual or exchange visitor who is the
subject of foreign labor contracting activity.
3602.
Disclosure
(a)
Requirement for
disclosure
Any person who
engages in foreign labor contracting activity shall ascertain and disclose in
writing in English and in the primary language of the worker at the time of the
worker’s recruitment, the following information:
(1) The identity and address
of the employer and the identity and address of the person conducting the
recruiting on behalf of the employer, including any subcontractor or agent
involved in such recruiting.
(2) All assurances and terms
and conditions of employment, from the prospective employer for whom the worker
is being recruited, including the work hours, level of compensation to be paid,
the place and period of employment, a description of the type and nature of
employment activities, any withholdings or deductions from compensation and any
penalties for terminating employment.
(3) A signed copy of the work
contract between the worker and the employer.
(4) The type of visa under
which the foreign worker is to be employed, the length of time for which the
visa will be valid, the terms and conditions under which the visa may be
renewed, and a clear statement of any expenses associated with securing or
renewing the visa.
(5) An itemized list of any
costs or expenses to be charged to the worker and any deductions to be taken
from wages, including any costs for housing or accommodation, transportation to
and from the worksite, meals, health insurance, workers’ compensation, costs of
benefits provided, medical examinations, healthcare, tools, or safety equipment
costs.
(6) The existence of any
labor organizing effort, strike, lockout, or other labor dispute at the place
of employment.
(7) Whether and the extent to
which workers will be compensated through workers' compensation, private
insurance, or otherwise for injuries or death, including work-related injuries
and death, during the period of employment and, if so, the name of the State
workers' compensation insurance carrier or the name of the policyholder of the
private insurance, the name and the telephone number of each person who must be
notified of an injury or death, and the time period within which such notice
must be given.
(8) A statement, in a form
specified by the Secretary—
(A) stating that—
(i) no foreign labor
contractor, agent, or employee of a foreign labor contractor, may lawfully
assess any fee (including visa fees, processing fees, transportation fees,
legal expenses, placement fees, and other costs) to a worker for any foreign
labor contracting activity; and
(ii) the employer may bear
such costs or fees for the foreign labor contractor, but that these fees cannot
be passed along to the worker;
(B) explaining that—
(i) no additional significant
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
(ii) any significant changes
made to the original contract that do not comply with clause (i) shall be a
violation of this subtitle and be subject to the provisions of section 3610 of
this Act; and
(C) describing the
protections afforded the worker by this section and by section 202 of the
William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008
(8 U.S.C. 1375b) and any applicable visa program, including—
(i) relevant information
about the procedure for filing a complaint provided for in section 3610;
and
(ii) the telephone number for
the national human trafficking resource center hotline number.
(9) Any education or training
to be provided or required, including—
(A) the nature, timing, and
cost of such training;
(B) the person who will pay
such costs;
(C) whether the training is a
condition of employment, continued employment, or future employment; and
(D) whether the worker will
be paid or remunerated during the training period, including the rate of
pay.
(b)
Relationship to labor
and employment laws
Nothing in the disclosure required by
subsection (a) shall constitute a legal conclusion as to the worker’s status or
rights under the labor and employment laws.
(c)
Prohibition on false
and misleading information
No foreign labor contractor or
employer who engages in any foreign labor contracting activity shall knowingly
provide materially false or misleading information to any worker concerning any
matter required to be disclosed under subsection (a). The disclosure required
by this section is a document concerning the proper administration of a matter
within the jurisdiction of a department or agency of the United States for the
purposes of section 1519 of title 18, United States Code.
3603.
Prohibition on
discrimination
(a)
In
general
It shall be unlawful for an employer or a foreign labor
contractor to fail or refuse to hire, discharge, intimidate, threaten,
restrain, coerce, or blacklist any individual or otherwise discriminate against
an individual with respect to compensation, terms, conditions, or privileges of
employment, because of such individual's race, color, creed, sex, national
origin, religion, age, or disability.
(b)
Determinations of
discrimination
For the purposes of determining the existence of
unlawful discrimination under subsection (a)—
(1) in the case of a claim of
discrimination based on race, color, creed, sex, national origin, or religion,
the same legal standards shall apply as are applicable under title VII of the
Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.);
(2) in the case of a claim of
discrimination based on unlawful discrimination based on age, the same legal
standards shall apply as are applicable under the Age Discrimination in
Employment Act of 1967 (29 U.S.C. 621 et seq.); and
(3) in the case of a claim of
discrimination based on disability, the same legal standards shall apply as are
applicable under title I of the Americans With Disabilities Act of 1990 (42
U.S.C. 12111 et seq.).
3604.
Recruitment
fees
No employer, foreign
labor contractor, or agent or employee of a foreign labor contractor, shall
assess any fee (including visa fees, processing fees, transportation fees,
legal expenses, placement fees, and other costs) to a worker for any foreign
labor contracting activity.
3605.
Registration
(a)
Requirement to
register
(1)
In
general
Subject to paragraph (2), prior to engaging in any
foreign labor contracting activity, any person who is a foreign labor
contractor or who, for any money or other valuable consideration paid or
promised to be paid, performs a foreign labor contracting activity on behalf of
a foreign labor contractor, shall obtain a certificate of registration from the
Secretary of Labor pursuant to regulations promulgated by the Secretary under
subsection (c).
(2)
Exception for certain
employers
An employer, or employee of an employer, who engages in
foreign labor contracting activity solely to find employees for that employer’s
own use, and without the participation of any other foreign labor contractor,
shall not be required to register under this section.
(b)
Notification
(1)
Annual employer
notification
Each employer shall notify the Secretary, not less
frequently than once every year, of the identity of any foreign labor
contractor involved in any foreign labor contracting activity for, or on behalf
of, the employer, including at a minimum, the name and address of the foreign
labor contractor, a description of the services for which the foreign labor
contractor is being used, whether the foreign labor contractor is to receive
any economic compensation for the services, and, if so, the identity of the
person or entity who is paying for the services.
(2)
Annual foreign labor
contractor notification
Each foreign labor contractor shall
notify the Secretary, not less frequently than once every year, of the identity
of any subcontractee, agent, or foreign labor contractor employee involved in
any foreign labor contracting activity for, or on behalf of, the foreign labor
contractor.
(3)
Noncompliance
notification
An employer shall notify the Secretary of the
identity of a foreign labor contractor whose activities do not comply with this
subtitle.
(4)
Agreement
Not
later than 7 days after receiving a request from the Secretary, an employer
shall provide the Secretary with the identity of any foreign labor contractor
with which the employer has a contract or other agreement.
(c)
Regulations
Not
later than 180 days after the date of the enactment of this Act, the Secretary
shall promulgate regulations to establish an efficient electronic process for
the timely investigation and approval of an application for a certificate of
registration of foreign labor contractors, including—
(1) a declaration, subscribed
and sworn to by the applicant, stating the applicant's permanent place of
residence, the foreign labor contracting activities for which the certificate
is requested, and such other relevant information as the Secretary may
require;
(2) a set of fingerprints of
the applicant;
(3) an expeditious means to
update registrations and renew certificates;
(4) providing for the consent
of any foreign labor recruiter to the designation by a court of the Secretary
as an agent available to accept service of summons in any action against the
applicant, if the applicant has left the jurisdiction in which the action is
commenced, otherwise has become unavailable to accept service, or is subject to
personal jurisdiction in no State;
(5) providing for the consent
of any foreign labor recruiter to jurisdiction in the Department or any Federal
or State court in the United States for any action brought by any aggrieved
individual or worker;
(6) providing for cooperation
in any investigation by the Secretary or other appropriate authorities;
(7) providing for consent to
the forfeiture of the bond for failure to cooperate with these
provisions;
(8) providing for consent to
be liable for violations of this subtitle by any agents or subcontractees of
any level in relation to the foreign labor contracting activity of the agent or
subcontractee to the same extent as if the foreign labor contractor had
committed the violation; and
(9) providing for
consultation with other appropriate Federal agencies to determine whether any
reason exists to deny registration to a foreign labor contractor.
(d)
Term of
registration
Unless suspended or revoked, a certificate under
this section shall be valid for 2 years.
(e)
Application
fee
(1)
Requirement for
fee
In addition to any other fees authorized by law, the
Secretary shall impose a fee, to be deposited in the general fund of the
Treasury, on a foreign labor contractor that submits an application for a
certificate of registration under this section.
(2)
Amount of
fee
The amount of the fee required by paragraph (1) shall be set
at a level that the Secretary determines sufficient to cover the full costs of
carrying out foreign labor contract registration activities under this
subtitle, including worker education and any additional costs associated with
the administration of the fees collected.
(f)
Refusal To issue;
revocation
In accordance with regulations promulgated by the
Secretary, the Secretary shall refuse to issue or renew, or shall revoke and
debar from eligibility to obtain a certificate of registration for a period of
not greater than 5 years, after notice and an opportunity for a hearing, a
certificate of registration under this section if—
(1) the applicant for, or
holder of, the certification has knowingly made a material misrepresentation in
the application for such certificate;
(2) the applicant for, or
holder of, the certification is not the real party in interest in the
application or certificate of registration and the real party in
interest—
(A) is a person who has been
refused issuance or renewal of a certificate;
(B) has had a certificate
revoked; or
(C) does not qualify for a
certificate under this section;
(3) the applicant for, or
holder of, the certification has been convicted within the preceding 5 years
of—
(A) any felony under State or
Federal law or crime involving robbery, bribery, extortion, embezzlement, grand
larceny, burglary, arson, violation of narcotics laws, murder, rape, assault
with intent to kill, assault which inflicts grievous bodily injury,
prostitution, peonage, or smuggling or harboring individuals who have entered
the United States illegally; or
(B) any crime relating to
gambling, or to the sale, distribution or possession of alcoholic beverages, in
connection with or incident to any labor contracting activities; or
(4) the applicant for, or
holder of, the certification has materially failed to comply with this
section.
(g)
Re-registration of violators
The Secretary shall establish a procedure
by which a foreign labor contractor that has had its registration revoked under
subsection (f) may seek to re-register under this subsection by demonstrating
to the Secretary’s satisfaction that the foreign labor contractor has not
violated this subtitle in the previous 5 years and that the foreign labor
contractor has taken sufficient steps to prevent future violations of this
subtitle.
3606.
Bonding requirement
(a)
In general
The Secretary shall require a foreign labor
contractor to post a bond in an amount sufficient to ensure the ability of the
foreign labor contractor to discharge its responsibilities and to ensure
protection of workers, including wages.
(b)
Regulations
The Secretary, by regulation, shall
establish the conditions under which the bond amount is determined, paid, and
forfeited.
(c)
Relationship to other
remedies
The bond
requirements and forfeiture of the bond under this section shall be in addition
to other remedies under 3610 or any other law.
3607.
Maintenance of
lists
(a)
In
general
The Secretary shall maintain—
(1) a list of all foreign
labor contractors registered under this subsection, including—
(A) the countries from which
the contractors recruit;
(B) the employers for whom
the contractors recruit;
(C) the visa categories and
occupations for which the contractors recruit; and
(D) the States where
recruited workers are employed; and
(2) a list of all foreign
labor contractors whose certificate of registration the Secretary has
revoked.
(b)
Updates;
availability
The Secretary shall—
(1) update the lists required
by subsection (a) on an ongoing basis, not less frequently than every 6 months;
and
(2) make such lists publicly
available, including through continuous publication on Internet websites and in
written form at and on the websites of United States embassies in the official
language of that country.
(c)
Inter-agency
availability
The Secretary shall share the information described
in subsection (a) with the Secretary of State.
3608.
Amendment to the
Immigration and Nationality Act
Section 214 (8 U.S.C. 1184) is amended by
adding at the end the following:
(s) A visa shall not be
issued under the subparagraph (A)(iii), (B)(i) (but only for domestic servants
described in clause (i) or (ii) of section 274a.12(c)(17) of title 8, Code of
Federal Regulations (as in effect on December 4, 2007)), (G)(v), (H), (J), (L),
(Q), (R), or (W) of section 101(a)(15) until the consular officer—
(1) has provided to and
reviewed with the applicant, in the applicant’s language (or a language the
applicant understands), a copy of the information and resources pamphlet
required by section 202 of the William Wilberforce Trafficking Victims
Protection Reauthorization Act of 2008 (8 U.S.C. 1375b); and
(2) has reviewed and made a
part of the visa file the foreign labor recruiter disclosures required by
section 3602 of the Border Security, Economic
Opportunity, and Immigration Modernization Act, including whether
the foreign labor recruiter is registered pursuant to that
section.
.
3609.
Responsibilities of
Secretary of State
(a)
In
general
The Secretary of State shall ensure that each United
States diplomatic mission has a person who shall be responsible for receiving
information from any worker who has been subject to violations of this
subtitle.
(b)
Provision of
information
The responsible person referred to in subsection (a)
shall ensure that the information received is provided to the Department of
Justice, the Department of Labor, or any other relevant Federal agency.
(c)
Mechanisms
The
Attorney General and the Secretary shall ensure that there is a mechanism for
any actions that need to be taken in response to information received under
subsection (a).
(d)
Assistance from foreign
government
The person designated for receiving information
pursuant to subsection (a) is strongly encouraged to coordinate with
governments and civil society organizations in the countries of origin to
ensure the worker receives additional support.
(e)
Maintenance and
availability of information
The Secretary of State shall ensure
that consulates maintain information regarding the identities of foreign labor
contractors and the employers to whom the foreign labor contractors supply
workers. The Secretary of State shall make such information publicly available
in written form and online, including on the websites of United States
embassies in the official language of that country.
(f)
Annual public
disclose
The Secretary of State shall make publicly available
online, on an annual basis, data disclosing the gender, country of origin and
state, if available, date of birth, wage, level of training, and occupation
category, disaggregated by job and by visa category and subcategory.
3610.
Enforcement
provisions
(a)
Complaints and
investigations
The
Secretary—
(1) shall establish a process for the receipt,
investigation, and disposition of complaints filed by any person, including
complaints respecting a foreign labor contractor’s compliance with this
subtitle; and
(2) either pursuant to the process required by
paragraph (1) or otherwise, may investigate employers or foreign labor
contractors, including actions occurring in a foreign country, as necessary to
determine compliance with this subtitle.
(b)
Enforcement
(1)
In
general
A worker who believes that he or she has suffered a
violation of this subtitle may seek relief from an employer by—
(A) filing a complaint with
the Secretary within 3 years after the date on which the violation occurred or
date on which the employee became aware of the violation; or
(B) if the Secretary has not
issued a final decision within 120 days of the filing of the complaint and
there is no showing that such delay is due to the bad faith of the claimant,
bringing an action at law or equity for de novo review in the appropriate
district court of the United States, which shall have jurisdiction over such an
action without regard to the amount in controversy.
(2)
Procedure
(A)
In
general
Unless otherwise provided herein, a complaint under
paragraph (1)(A) shall be governed under the rules and procedures set forth in
paragraphs (1) and (2)(A) of section 42121(b) of title 49, United States
Code.
(B)
Exception
Notification
of a complaint under paragraph (1)(A) shall be made to each person or entity
named in the complaint as a defendant and to the employer.
(C)
Statute of
limitations
An action filed in a district court of the United
States under paragraph (1)(B) shall be commenced not later than 180 days after
the last day of the 120-day period referred to in that paragraph.
(D)
Jury
trial
A party to an action brought under paragraph (1)(B) shall
be entitled to trial by jury.
(c)
Administrative
enforcement
(1)
In
general
If the Secretary finds, after notice and an opportunity
for a hearing, any foreign labor contractor or employer failed to comply with
any of the requirements of this subtitle, the Secretary may impose the
following against such contractor or employer—
(A) a fine in an amount not
more than $10,000 per violation; and
(B) upon the occasion of a
third violation or a failure to comply with representations, a fine of not more
than $25,000 per violation.
(d)
Authority To ensure
compliance
The Secretary is authorized to take other such
actions, including issuing subpoenas and seeking appropriate injunctive relief
and recovery of damages, as may be necessary to assure compliance with the
terms and conditions of this subtitle.
(e)
Bonding
Pursuant
to the bonding requirement in section 3606, bond liquidation and forfeitures
shall be in addition to other remedies under this section or any other
law.
(f)
Civil action
(1)
In
general
The Secretary or any person aggrieved by a violation of
this subtitle may bring a civil action against any foreign labor contractor
that does not meet the requirements under subsection (g)(2) in any court of
competent jurisdiction—
(A) to seek remedial action,
including injunctive relief;
(B) to recover damages on
behalf of any worker harmed by a violation of this subsection; and
(C) to ensure compliance with
requirements of this section.
(2)
Actions by the
secretary of homeland security
(A)
Sums
recovered
Any sums recovered by the Secretary on behalf of a
worker under paragraph (1) or through liquidation of the bond held pursuant to
section 3606 shall be held in a special deposit account and shall be paid, on
order of the Secretary, directly to each worker affected. Any such sums not
paid to a worker because of inability to do so within a period of 5 years shall
be credited as an offsetting collection to the appropriations account of the
Secretary for expenses for the administration of this section and shall remain
available to the Secretary until expended or may be used for enforcement of the
laws within the jurisdiction of the wage and hour division or may be
transferred to the Secretary of Health and Human Services for the purpose of
providing support to programs that provide assistance to victims of trafficking
in persons or other exploited persons. The Secretary shall work with any
attorney or organization representing workers to locate workers owed sums under
this section.
(B)
Representation
Except
as provided in section 518(a) of title 28, United States Code, the Attorney
General may appear for and represent the Secretary in any civil litigation
brought under this paragraph. All such litigation shall be subject to the
direction and control of the Attorney General.
(3)
Actions by
individuals
(A)
Award
If
the court finds in a civil action filed by an individual under this section
that the defendant has violated any provision of this subtitle (or any
regulation issued pursuant to this subtitle), the court may award—
(i) damages, up to and
including an amount equal to the amount of actual damages, and statutory
damages of up to $1,000 per plaintiff per violation, or other equitable relief,
except that with respect to statutory damages—
(I) multiple infractions of a
single provision of this subtitle (or of a regulation under this subtitle)
shall constitute only 1 violation for purposes of section 3602(a) to determine
the amount of statutory damages due a plaintiff; and
(II) if such complaint is
certified as a class action the court may award—
(aa) damages up to an amount
equal to the amount of actual damages; and
(bb) statutory damages of not
more than the lesser of up to $1,000 per class member per violation, or up to
$500,000; and other equitable relief;
(ii) reasonable attorneys’
fees and costs; and
(iii) such other and further
relief, including declaratory and injunctive relief, as necessary to effectuate
the purposes of this subtitle.
(B)
Criteria
In
determining the amount of statutory damages to be awarded under subparagraph
(A), the court is authorized to consider whether an attempt was made to resolve
the issues in dispute before the resort to litigation.
(C)
Bond
To
satisfy the damages, fees, and costs found owing under this clause, the
Secretary shall release as much of the bond held pursuant to section 3606 as
necessary.
(D)
Appeal
Any
civil action brought under this section shall be subject to appeal as provided
in chapter 83 of title 28, United States Code (28 U.S.C. 1291 et seq.).
(E)
Access to legal
services corporation
Notwithstanding any other provision of law,
the Legal Services Corporation and recipients of its funding may provide legal
assistance on behalf of any alien with respect to any provision of this
subtitle.
(g)
Agency
liability
(1)
In
general
Beginning 180 days after the Secretary has promulgated
regulations pursuant to section 3605(c), an employer who retains the services
of a foreign labor contractor shall only use those foreign labor contractors
who are registered under section 3605.
(2)
Safe
harbor
An employer shall not have any liability under this
section if the employer hires workers referred by a foreign labor contractor
that has a valid registration with the Department pursuant to section
3604.
(3)
Liability for
agents
Foreign labor contractors shall be subject to the
provisions of this section for violations committed by the foreign labor
contractor's agents or subcontractees of any level in relation to their foreign
labor contracting activity to the same extent as if the foreign labor
contractor had committed the violation.
(h)
Retaliation
(1)
In
general
No person shall intimidate, threaten, restrain, coerce,
discharge, or in any other manner discriminate or retaliate against any worker
or their family members (including a former employee or an applicant for
employment) because such worker disclosed information to any person that the
worker reasonably believes evidences a violation of this section (or any rule
or regulation pertaining to this section), including seeking legal assistance
of counsel or cooperating with an investigation or other proceeding concerning
compliance with this section (or any rule or regulation pertaining to this
section).
(2)
Enforcement
An
individual who is subject to any conduct described in paragraph (1) may, in a
civil action, recover appropriate relief, including reasonable attorneys’ fees
and costs, with respect to that violation. Any civil action under this
subparagraph shall be stayed during the pendency of any criminal action arising
out of the violation.
(i)
Waiver of
rights
Agreements by employees purporting to waive or to modify
their rights under this subtitle shall be void as contrary to public
policy.
(j)
Presence during
pendency of actions
(1)
In
general
If other immigration relief is not available, the
Attorney General and the Secretary shall grant advance parole to permit a
nonimmigrant to remain legally in the United States for time sufficient to
fully and effectively participate in all legal proceedings related to any
action taken pursuant to this section.
(2)
Regulations
Not
later than 180 days after the date of the enactment of this Act, the Secretary
shall promulgate regulations to carry out paragraph (1).
3611.
Detecting and
preventing child trafficking
The Secretary shall mandate the live
training of all U.S. Customs and Border Protection personnel who are likely to
come into contact with unaccompanied alien children. Such training shall
incorporate the services of child welfare professionals with expertise in
culturally competent, trauma-centered, and developmentally appropriate
interviewing skills to assist U.S. Customs and Border Protection in the
screening of children attempting to enter the United States.
3612.
Protecting child
trafficking victims
(a)
Short
title
This section may be
cited as the Child Trafficking Victims
Protection Act.
(b)
Defined
term
In this section, the
term unaccompanied alien children has the meaning given such term
in section 462 of the Homeland Security Act of 2002 (6 U.S.C. 279).
(c)
Care and
transportation
Notwithstanding any other provision of law,
the Secretary shall ensure that all unaccompanied alien children who will
undergo any immigration proceedings before the Department or the Executive
Office for Immigration Review are duly transported and placed in the care and
legal and physical custody of the Office of Refugee Resettlement not later than
72 hours after their apprehension absent exceptional circumstances, including a
natural disaster or comparable emergency beyond the control of the Secretary or
the Office of Refugee Resettlement. The Secretary, to the extent practicable,
shall ensure that female officers are continuously present during the transfer
and transport of female detainees who are in the custody of the
Department.
(d)
Qualified
resources
(1)
In
general
The Secretary shall
provide adequately trained and qualified staff and resources, including the
accommodation of child welfare officials, in accordance with subsection (e), at
U.S. Customs and Border Protection ports of entry and stations.
(2)
Child welfare
professionals
The Secretary of Health and Human Services, in
consultation with the Secretary, shall hire, on a full- or part-time basis,
child welfare professionals who will provide assistance, either in person or by
other appropriate methods of communication, in not fewer than 7 of the U.S.
Customs and Border Protection offices or stations with the largest number of
unaccompanied alien child apprehensions in the previous fiscal year.
(e)
Child welfare
professionals
(1)
In
general
The Secretary, in
consultation with the Secretary of Health and Human Services, shall ensure that
qualified child welfare professionals with expertise in culturally competent,
trauma-centered, and developmentally appropriate interviewing skills are
available at each major port of entry described in subsection (d).
(2)
Duties
Child welfare professionals described in
paragraph (1) shall—
(A) develop guidelines for
treatment of unaccompanied alien children in the custody of the
Department;
(B) conduct screening of all
unaccompanied alien children in accordance with section 235(a)(4) of the
William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008
(8 U.S.C. 1232(a)(4));
(C) notify the Department and
the Office of Refugee Resettlement of children that potentially meet the
notification and transfer requirements set forth in subsections (a) and (b) of
section 235 of such Act (8 U.S.C. 1232);
(D) interview adult relatives
accompanying unaccompanied alien children;
(E) provide an initial family
relationship and trafficking assessment and recommendations regarding
unaccompanied alien children's initial placements to the Office of Refugee
Resettlement, which shall be conducted in accordance with the time frame set
forth in subsections (a)(4) and (b)(3) of section 235 of such Act (8 U.S.C.
1232); and
(F) ensure that each
unaccompanied alien child in the custody of U.S. Customs and Border
Protection—
(i) receives emergency
medical care when necessary;
(ii) receives emergency
medical and mental health care that complies with the standards adopted
pursuant to section 8(c) of the Prison Rape Elimination Act of 2003 (42 U.S.C.
15607(c)) whenever necessary, including in cases in which a child is at risk to
harm himself, herself, or others;
(iii) is provided with
climate appropriate clothing, shoes, basic personal hygiene and sanitary
products, a pillow, linens, and sufficient blankets to rest at a comfortable
temperature;
(iv) receives adequate
nutrition;
(v) enjoys a safe and
sanitary living environment;
(vi) has access to daily
recreational programs and activities if held for a period longer than 24
hours;
(vii) has access to legal
services and consular officials; and
(viii) is permitted to make
supervised phone calls to family members.
(3)
Final
determinations
The Office of Refugee Resettlement in accordance
with applicable policies and procedures for sponsors, shall submit final
determinations on family relationships to the Secretary, who shall consider
such adult relatives for community-based support alternatives to
detention.
(4)
Report
Not
later than 18 months after the date of the enactment of this Act, and annually
thereafter, the Secretary shall submit a report to Congress that—
(A) describes the screening
procedures used by the child welfare professionals to screen unaccompanied
alien children;
(B) assesses the
effectiveness of such screenings; and
(C) includes data on all
unaccompanied alien children who were screened by child welfare
professionals;
(f)
Immediate
notification
The Secretary shall notify the Office of Refugee
Resettlement of an unaccompanied alien child in the custody of the Department
as soon as practicable, but generally not later than 48 hours after the
Department encounters the child, to effectively and efficiently coordinate the
child’s transfer to and placement with the Office of Refugee
Resettlement.
(g)
Notice of rights and
right to access to counsel
(1)
In
general
The Secretary shall
ensure that all unaccompanied alien children, upon apprehension, are
provided—
(A) an interview and screening with a child
welfare professional described in subsection (e)(1); and
(B) an orientation and oral and written notice
of their rights under the Immigration and Nationality Act, including—
(i) their right to relief from removal;
(ii) their right to confer with counsel (as
guaranteed under section 292 of such Act (8 U.S.C. 1362)), family, or friends
while in the temporary custody of the Department; and
(iii) relevant complaint mechanisms to report any
abuse or misconduct they may have experienced.
(2)
Languages
The Secretary shall ensure that—
(A) the video orientation and written notice of
rights described in paragraph (1) is available in English and in the 5 most
common native languages spoken by the unaccompanied children held in custody at
that location during the preceding fiscal year; and
(B) the oral notice of rights is available in
English and in the most common native language spoken by the unaccompanied
children held in custody at that location during the preceding fiscal
year.
(h)
Confidentiality
The Secretary of Health and Human Services
shall maintain the privacy and confidentiality of all information gathered in
the course of providing care, custody, placement, and follow-up services to
unaccompanied alien children, consistent with the best interest of the
unaccompanied alien child, by not disclosing such information to other
government agencies or nonparental third parties unless such disclosure
is—
(1) recorded in writing and placed in the
child’s file;
(2) in the child's best interest; and
(3)
(A) authorized by the child or by an approved
sponsor in accordance with section 235 of the William Wilberforce Trafficking
Victims Protection Reauthorization Act of 2008 (8 U.S.C. 1232) and the Health
Insurance Portability and Accountability Act (Public Law 104–191); or
(B) provided to a duly recognized law
enforcement entity to prevent imminent and serious harm to another
individual.
(i)
Other policies and
procedures
The Secretary shall adopt fundamental child protection
policies and procedures—
(1) for reliable age
determinations of children, developed in consultation with medical and child
welfare experts, which exclude the use of fallible forensic testing of
children’s bone and teeth;
(2) to utilize all legal
authorities to defer the child’s removal if the child faces a risk of
life-threatening harm upon return including due to the child’s mental health or
medical condition; and
(3) to ensure, in accordance with the Juvenile
Justice and Delinquency Prevention Act of 1974 (42 U.S.C. 5601 et seq.), that
unaccompanied alien children, while in detention, are—
(A) physically separated from any adult who is
not an immediate family member; and
(B) separated from—
(i) immigration detainees and inmates with
criminal convictions;
(ii) pretrial inmates facing criminal
prosecution; and
(iii) inmates exhibiting violent behavior.
(j)
Repatriation and
reintegration program
(1)
In
general
The Administrator of the United States Agency for
International Development, in conjunction with the Secretary, the Secretary of
Health and Human Services, the Attorney General, international organizations,
and nongovernmental organizations in the United States with expertise in
repatriation and reintegration, shall create a multi-year program to develop
and implement best practices and sustainable programs in the United States and
within the country of return to ensure the safe and sustainable repatriation
and reintegration of unaccompanied alien children into their country of
nationality or of last habitual residence, including placement with their
families, legal guardians, or other sponsoring agencies.
(2)
Report on repatriation
and reintegration of unaccompanied alien children
Not later than
18 months after the date of the enactment of this Act, and annually thereafter,
the Administrator of the Agency for International Development shall submit a
substantive report to the Committee on the Judiciary of the Senate and the
Committee on the Judiciary of the House of Representatives on efforts to
improve repatriation and reintegration programs for unaccompanied alien
children.
(k)
Transfer of
funds
(1)
Authorization
The
Secretary, in accordance with a written agreement between the Secretary and the
Secretary of Health and Human Services, shall transfer such amounts as may be
necessary to carry out the duties described in subsection (f)(2) from amounts
appropriated for U.S. Customs and Border Protection to the Department of Health
and Human Services.
(2)
Report
Not
later than 15 days before any proposed transfer under paragraph (1), the
Secretary of Health and Human Services, in consultation with the Secretary,
shall submit a detailed expenditure plan that describes the actions proposed to
be taken with amounts transferred under such paragraph to—
(A) the
Committee on Appropriations of the
Senate; and
(B) the
Committee on Appropriations of the House of
Representatives.
3613.
Rule of
construction
Nothing in this
subtitle shall be construed to preempt or alter any other rights or remedies,
including any causes of action, available under any other Federal or State
law.
3614.
Regulations
The Secretary shall, in consultation with
the Secretary of Labor, prescribe regulations to implement this subtitle and to
develop policies and procedures to enforce the provisions of this
subtitle.
G
Interior
enforcement
3701.
Criminal street
gangs
(a)
Inadmissibility
Section
212(a)(2) (8 U.S.C. 1182(a)(2)) is amended by inserting after subparagraph (I)
the following:
(J)
Aliens in criminal
street gangs
(i)
In
general
Any alien is inadmissible—
(I) who has been convicted of
an offense for which an element was active participation in a criminal street
gang (as defined in section 521(a) of title 18, United States Code) and the
alien—
(aa) had knowledge that the
gang’s members engaged in or have engaged in a continuing series of offenses
described in section 521(c) of title 18, United States Code; and
(bb) acted with the intention
to promote or further the felonious activities of the criminal street gang or
maintain or increase his or her position in the gang; or
(II) subject to clause (ii),
who is 18 years of age or older, who is physically present outside the United
States, whom the Secretary determines by clear and convincing evidence, based
upon law enforcement information deemed credible by the Secretary, has, since
the age of 18, knowingly and willingly participated in a criminal street gang
with knowledge that such participation promoted or furthered the illegal
activity of the gang.
(ii)
Waiver
The
Secretary may waive clause (i)(II) if the alien has renounced all association
with the criminal street gang, is otherwise admissible, and is not a threat to
the security of the United
States.
.
(b)
Grounds for
deportation
Section 237(a)(2) (8 U.S.C. 1227(a)(2)) is amended by
adding at the end the following:
(G)
Aliens associated with
criminal street gangs
Any alien is removable who has been
convicted of an offense for which an element was active participation in a
criminal street gang (as defined in section 521(a) of title 18, United States
Code), and the alien—
(i) had knowledge that the
gang's members engaged in or have engaged in a continuing series of offenses
described in section 521(c) of title 18, United States Code; and
(ii) acted with the intention
to promote or further the felonious activities the criminal street gang or
increase his or her position in such
gang.
.
(c)
Ground of ineligibility
for registered provisional immigrant status
(1)
In
general
An alien who is 18 years of age or older is ineligible
for registered provisional immigrant status if the Secretary determines that
the alien—
(A) has been convicted of an
offense for which an element was active participation in a criminal street gang
(as defined in section 521(a) of title 18, United States Code, and the
alien—
(i) had knowledge that the
gang's members engaged in or have engaged in a continuing series of offenses
described in section 521(c) of title 18, United States Code; and
(ii) acted with the intention
to promote or further the felonious activities of the criminal street gang or
maintain or increase his or her position in such gang; or
(B) subject to paragraph (2),
any alien who is 18 years of age or older whom the Secretary determines by
clear and convincing evidence, based upon law enforcement information deemed
credible by the Secretary, has, since the age of 18, knowingly and willingly
participated in a such gang with knowledge that such participation promoted or
furthered the illegal activity of such gang.
(2)
Waiver
The
Secretary may waive the application of paragraph (1)(B) if the alien has
renounced all association with the criminal street gang, is otherwise
admissible, and is not a threat to the security of the United States.
3702.
Banning habitual
drunk drivers from the United States
(a)
Grounds for
inadmissibility
Section
212(a)(2) (8 U.S.C. 1182(a)(2)), as amended by section 3701(a), is further
amended—
(1) by redesignating subparagraph (F) as
subparagraph (L); and
(2) by inserting after subparagraph (E) the
following:
(F)
Habitual drunk
drivers
An alien convicted of 3 or more offenses for driving
under the influence or driving while intoxicated on separate dates is
inadmissible.
.
(b)
Grounds for
deportation
Section 237(a)(2) (8 U.S.C. 1227(a)(2)), as amended
by section 3701(b), is further amended by adding at the end the
following:
(H)
Habitual drunk drivers
An alien convicted of 3 or more offenses
for driving under the influence or driving while intoxicated, at least 1 of
which occurred after the date of the enactment of the
Border Security, Economic Opportunity, and
Immigration Modernization Act, is
deportable.
.
(c)
In general
(1)
Aggravated
felony
Section 101(a)(43)(F) (8 U.S.C. 1101(a)(43)(F)) is amended
by striking for which the term of imprisonment and inserting
, including a third drunk driving conviction, for which the term of
imprisonment is.
(2)
Effective date and
application
(A)
Effective
date
The amendment made by paragraph (1) shall take effect on the
date of the enactment of this Act.
(B)
Application
(i)
In
general
Except as provided in subparagraph (ii), the amendment
made by paragraph (1) shall apply to a conviction for drunk driving that
occurred before, on, or after such date of enactment.
(ii)
Two or more prior
convictions
An alien who received 2 or more convictions for drunk
driving before the date of the enactment of this Act may not be subject to
removal for the commission of an aggravated felony pursuant to section
237(a)(2)(A)(iii) of the Immigration and Nationality Act (8 U.S.C.
1227(a)(2)(A)(iii)) on the basis of such convictions until the date on which
the alien is convicted of a drunk driving offense after such date of
enactment.
3703.
Sexual abuse of a
minor
Section 101(a)(43)(A) (8
U.S.C. 1101(a)(43)(A)) is amended by striking murder, rape, or sexual
abuse of a minor; and inserting murder, rape, or sexual abuse of
a minor, whether or not the minority of the victim is established by evidence
contained in the record of conviction or by credible evidence extrinsic to the
record of conviction;.
3704.
Illegal
entry
(a)
In
general
Section 275 (8 U.S.C. 1325) is amended to read as
follows:
275.
Illegal entry
(a)
In general
(1)
Criminal
offenses
An alien shall be subject to the penalties set forth in
paragraph (2) if the alien—
(A) enters or crosses the
border into the United States at any time or place other than as designated by
the Secretary of Homeland Security;
(B) eludes examination or
inspection by an immigration officer, or a customs or agriculture inspection at
a port of entry; or
(C) enters or crosses the
border to the United States by means of a knowingly false or misleading
representation or the concealment of a material fact.
(2)
Criminal
penalties
Any alien who violates any provision under paragraph
(1)—
(A) shall, for the first
violation, be fined under title 18, United States Code, imprisoned not more
than 12 months, or both;
(B) shall, for a second or
subsequent violation, or following an order of voluntary departure, be fined
under such title, imprisoned not more than 3 years, or both;
(C) if the violation occurred
after the alien had been convicted of 3 or more misdemeanors with the
convictions occurring on different dates or of a felony for which the alien
served a term of imprisonment of 15 days or more, shall be fined under such
title, imprisoned not more than 10 years, or both; and
(D) if the violation occurred
after the alien had been convicted of a felony for which the alien was
sentenced to a term of imprisonment of not less than 30 months, shall be fined
under such title, imprisoned not more than 15 years, or both.
(3)
Prior
convictions
The prior convictions described in subparagraphs (C)
and (D) of paragraph (2) are elements of the offenses described in that
paragraph and the penalties in such subparagraphs shall apply only in cases in
which the conviction or convictions that form the basis for the additional
penalty are—
(A) alleged in the indictment
or information; and
(B) proven beyond a
reasonable doubt at trial or admitted by the defendant under oath as part of a
plea agreement.
(b)
Improper time or place;
civil penalties
Any alien older than 18 years of age who is
apprehended while knowingly entering, attempting to enter, or crossing or
attempting to cross the border to the United States at a time or place other
than as designated by immigration officers shall be subject to a civil penalty,
in addition to any criminal or other civil penalties that may be imposed under
any other provision of law, in an amount equal to—
(1) not less than $250 or
more than $5,000 for each such entry, crossing, attempted entry, or attempted
crossing; or
(2) twice the amount
specified in paragraph (1) if the alien had previously been subject to a civil
penalty under this subsection.
(c)
Fraudulent
marriage
An individual who
knowingly enters into a marriage for the purpose of evading any provision of
the immigration laws shall be imprisoned for not more than 5 years, fined not
more than $250,000, or both.
(d)
Commercial
enterprises
Any individual
who knowingly establishes a commercial enterprise for the purpose of evading
any provision of the immigration laws shall be imprisoned for not more than 5
years, fined in accordance with title 18, United States Code, or
both.
.
(b)
Clerical
amendment
The table of contents is amended by striking the item
relating to section 275 and inserting the following:
Sec. 275. Illegal
entry.
.
(c)
Effective
date
The amendments made by this section shall take effect 1 year
after the date of the enactment of this Act.
3705.
Reentry of removed
alien
Section 276 (8 U.S.C.
1326) is amended to read as follows:
276.
Reentry of removed
alien
(a)
Reentry after
removal
Any alien who has
been denied admission, excluded, deported, or removed, or who has departed the
United States while an order of exclusion, deportation, or removal is
outstanding, and subsequently enters, attempts to enter, crosses the border to,
attempts to cross the border to, or is at any time found in the United States,
shall be fined under title 18, United States Code, and imprisoned not more than
2 years.
(b)
Reentry of criminal
offenders
Notwithstanding the
penalty provided in subsection (a), if an alien described in that
subsection—
(1) was convicted for 3 or more misdemeanors,
with the convictions occurring on different dates, before such removal or
departure, the alien shall be fined under title 18, United States Code, and
imprisoned not more than 10 years, or both;
(2) was convicted for a felony before such
removal or departure for which the alien was sentenced to a term of
imprisonment of not less than 30 months, the alien shall be fined under such
title, and imprisoned not more than 15 years, or both;
(3) was convicted for a felony before such
removal or departure for which the alien was sentenced to a term of
imprisonment of not less than 60 months, the alien shall be fined under such
title, and imprisoned not more than 20 years, or both;
(4) was convicted for 3 felonies, with the
convictions occurring on different dates before such removal or departure, the
alien shall be fined under such title, and imprisoned not more than 20 years,
or both; or
(5) was convicted, before such removal or
departure, for murder, rape, kidnapping, or a felony offense described in
chapter 77 (relating to peonage and slavery) or 113B (relating to terrorism) of
such title, the alien shall be fined under such title, and imprisoned not more
than 20 years, or both.
(c)
Reentry after repeated
removal
Any alien who has been denied admission, excluded,
deported, or removed 3 or more times and thereafter enters, attempts to enter,
crosses the border to, attempts to cross the border to, or is at any time found
in the United States, shall be fined under title 18, United States Code, and
imprisoned not more than 10 years, or both.
(d)
Proof of prior
convictions
The prior
convictions described in subsection (b) are elements of the offenses described
in that subsection, and the penalties in such subsection shall apply only in
cases in which the conviction or convictions that form the basis for the
additional penalty are—
(1) alleged in the indictment or information;
and
(2) proven beyond a reasonable doubt at trial
or admitted by the defendant under oath as part of a plea agreement.
(e)
Affirmative
defenses
It shall be an
affirmative defense to a violation of this section that—
(1) prior to the alleged violation, the alien
had sought and received the express consent of the Secretary of Homeland
Security to reapply for admission into the United States; or
(2) at the time of the prior exclusion,
deportation, removal, or denial of admission alleged in the violation, the
alien had not yet reached 18 years of age and had not been convicted of a crime
or adjudicated a delinquent minor by a court of the United States, or a court
of a state or territory, for conduct that would constitute a felony if
committed by an adult.
(f)
Limitation on
collateral attack on underlying deportation order
In a criminal proceeding under this
section, an alien may not challenge the validity of the deportation order
described in subsection (a) or subsection (c) unless the alien demonstrates
that—
(1) the alien exhausted any administrative
remedies that may have been available to seek relief against the order;
(2) the deportation proceedings at which the
order was issued improperly deprived the alien of the opportunity for judicial
review; and
(3) the entry of the order was fundamentally
unfair.
(g)
Reentry of alien
removed prior to completion of term of imprisonment
Any alien removed pursuant to section
241(a)(4) who enters, attempts to enter, crosses the border to, attempts to
cross the border to, or is at any time found in, the United States shall be
incarcerated for the remainder of the sentence of imprisonment which was
pending at the time of deportation without any reduction for parole or
supervised release unless the alien affirmatively demonstrates that the
Secretary of Homeland Security has expressly consented to the alien's reentry
or the alien is prima facie eligible for protection from removal. Such alien
shall be subject to such other penalties relating to the reentry of removed
aliens as may be available under this section or any other provision of
law.
(h)
Limitation
It is not aiding and abetting a violation
of this section for an individual to provide an alien with emergency
humanitarian assistance, including emergency medical care and food, or to
transport the alien to a location where such assistance can be rendered without
compensation or the expectation of compensation.
(i)
Definitions
In this section:
(1)
Felony
The term felony means any
criminal offense punishable by a term of imprisonment of more than 1 year under
the laws of the United States, any State, or a foreign government.
(2)
Misdemeanor
The term misdemeanor means any
criminal offense punishable by a term of imprisonment of not more than 1 year
under the applicable laws of the United States, any State, or a foreign
government.
(3)
Removal
The term removal includes any
denial of admission, exclusion, deportation, or removal, or any agreement by
which an alien stipulates or agrees to exclusion, deportation, or
removal.
(4)
State
The term State means a State
of the United States, the District of Columbia, and any commonwealth,
territory, or possession of the United
States.
.
3706.
Penalties
relating to vessels and aircraft
Section 243(c) (8 U.S.C. 1253(c)) is
amended—
(1) by striking
Attorney General each place such term appears and inserting
Secretary of Homeland Security;
(2) by striking
Commissioner each place such term appears and inserting
Secretary of Homeland Security; and
(3) in paragraph (1)—
(A) in subparagraph (A), by
striking $2,000 and inserting $5,000;
(B) in subparagraph (B), by
striking $5,000 and inserting $10,000;
(C) by amending subparagraph
(C) to read as follows:
(C)
Compromise
The
Secretary of Homeland Security, in the Secretary’s unreviewable discretion and
upon the receipt of a written request, may mitigate the monetary penalties
required under this subsection for each alien stowaway to an amount equal to
not less than $2,000, upon such terms that the Secretary determines to be
appropriate.
;
and
(D) by inserting at the end
the following:
(D)
Exception
A
person, acting without compensation or the expectation of compensation, is not
subject to penalties under this paragraph if the person is—
(i) providing, or attempting
to provide, an alien with humanitarian assistance, including emergency medical
care or food or water; or
(ii) transporting the alien
to a location where such humanitarian assistance can be rendered without
compensation or the expectation of
compensation.
.
3707.
Reform of passport,
visa, and immigration fraud offenses
(a)
Trafficking in
passports
Section 1541 of title 18, United States Code, is
amended to read as follows:
1541.
Trafficking in
passports
(a)
Multiple
passports
Subject to subsection (b), any person who, during any
period of 3 years or less, knowingly—
(1) and without lawful
authority produces, issues, or transfers 3 or more passports;
(2) forges, counterfeits,
alters, or falsely makes 3 or more passports;
(3) secures, possesses, uses,
receives, buys, sells, or distributes 3 or more passports, knowing the
passports to be forged, counterfeited, altered, falsely made, stolen, procured
by fraud, or produced or issued without lawful authority; or
(4) completes, mails,
prepares, presents, signs, or submits 3 or more applications for a United
States passport, knowing the applications to contain any materially false
statement or representation,
shall be fined under this title,
imprisoned not more than 20 years, or both.
(b)
Use in a terrorism
offense
Any person who commits an offense described in subsection
(a) to facilitate an act of international terrorism (as defined in section
2331) shall be fined under this title, imprisoned not more than 25 years, or
both.
(c)
Passport
materials
Any person who knowingly and without lawful authority
produces, buys, sells, possesses, or uses any official material (or counterfeit
of any official material) used to make 10 or more passports, including any
distinctive paper, seal, hologram, image, text, symbol, stamp, engraving, or
plate, shall be fined under this title, imprisoned not more than 20 years, or
both.
.
(b)
False statement in an
application for a passports
Section 1542 of title 18, United
States Code, is amended to read as follows:
1542.
False statement in an
application for a passport
(a)
In
general
Any person who
knowingly makes any material false statement or representation in an
application for a United States passport, or mails, prepares, presents, or
signs an application for a United States passport knowing the application to
contain any material false statement or representation, shall be fined under
this title, imprisoned not more than 25 years (if the offense was committed to
facilitate an act of international terrorism (as defined in section 2331 of
this title)), 20 years (if the offense was committed to facilitate a drug
trafficking crime (as defined in section 929(a) of this title)), 15 years (in
the case of any other offense), or both.
(b)
Venue
(1)
In
general
An offense under subsection (a) may be prosecuted in any
district—
(A) in which the false
statement or representation was made or the application for a United States
passport was prepared or signed; or
(B) in which or to which the
application was mailed or presented.
(2)
Offenses outside the
United States
An offense under subsection (a) involving an
application prepared and adjudicated outside the United States may be
prosecuted in the district in which the resultant passport was or would have
been produced.
(c)
Savings
clause
Nothing in this section may be construed to limit the
venue otherwise available under sections 3237 and 3238 of this
title.
.
(c)
Misuse of a
passport
Section 1544 of title 18, United States Code, is amended
to read as follows:
1544.
Misuse of a
passport
Any person who
knowingly—
(1) misuses or attempts to
misuse for their own purposes any passport issued or designed for the use of
another;
(2) uses or attempts to use
any passport in violation of the laws, regulations, or rules governing the
issuance and use of the passport;
(3) secures, possesses, uses,
receives, buys, sells, or distributes or attempts to secure, possess, use,
receive, buy, sell, or distribute any passport knowing the passport to be
forged, counterfeited, altered, falsely made, procured by fraud, or produced or
issued without lawful authority; or
(4) substantially violates
the terms and conditions of any safe conduct duly obtained and issued under the
authority of the United States,
shall
be fined under this title, imprisoned not more than 25 years (if the offense
was committed to facilitate an act of international terrorism (as defined in
section 2331 of this title)), 20 years (if the offense was committed to
facilitate a drug trafficking crime (as defined in section 929(a) of this
title)), 15 years (in the case of any other offense), or
both.
.
(d)
Schemes To provide
fraudulent immigration services
Section 1545 of title 18, United
States Code, is amended to read as follows:
1545.
Schemes to provide
fraudulent immigration services
(a)
In
general
Any person who knowingly executes a scheme or artifice,
in connection with any matter that is authorized by or arises under any Federal
immigration law or any matter the offender claims or represents is authorized
by or arises under any Federal immigration law, to—
(1) defraud any person;
or
(2) obtain or receive money
or anything else of value from any person by means of false or fraudulent
pretenses, representations, or promises,
shall be fined under this title,
imprisoned not more than 10 years, or both.
(b)
Misrepresentation
Any
person who knowingly and falsely represents that such person is an attorney or
an accredited representative (as that term is defined in section 1292.1 of
title 8, Code of Federal Regulations (or any successor regulation)) in any
matter arising under any Federal immigration law shall be fined under this
title, imprisoned not more than 15 years, or
both.
.
(e)
Immigration and visa
fraud
Section 1546 of title 18, United States Code, is
amended—
(1) by amending the section
heading to read as follows:
1546.
Immigration and visa
fraud
;
(2) by redesignating
subsection (b) as subsection (d); and
(3) by inserting after
subsection (a) the following new subsections:
(b)
Trafficking
Any
person who, during any period of 3 years or less, knowingly—
(1) and without lawful
authority produces, issues, or transfers 3 or more immigration
documents;
(2) forges, counterfeits,
alters, or falsely makes 3 or more immigration documents;
(3) secures, possesses, uses,
buys, sells, or distributes 3 or more immigration documents, knowing the
immigration documents to be forged, counterfeited, altered, stolen, falsely
made, procured by fraud, or produced or issued without lawful authority;
or
(4) completes, mails,
prepares, presents, signs, or submits 3 or more immigration documents knowing
the documents to contain any materially false statement or
representation,
shall be fined under this title,
imprisoned not more than 20 years, or both.
(c)
Immigration document
materials
Any person who knowingly and without lawful authority
produces, buys, sells, possesses, or uses any official material (or counterfeit
of any official material) used to make 10 or more immigration documents,
including any distinctive paper, seal, hologram, image, text, symbol, stamp,
engraving, or plate, shall be fined under this title, imprisoned not more than
20 years, or
both.
.
(f)
Alternative
imprisonment maximum for certain offenses
Section 1547 of title
18, United States Code, is amended—
(1) in the matter preceding
paragraph (1), by striking (other than an offense under section
1545);
(2) in paragraph (1), by
striking 15 and inserting 20; and
(3) in paragraph (2), by
striking 20 and inserting 25.
(g)
Authorized law
enforcement activities
Chapter 75 of title 18, United States
Code, is amended by adding after section 1547 the following:
1548.
Authorized law
enforcement activities
Nothing
in this chapter may be construed to prohibit—
(1) any lawfully authorized
investigative, protective, or intelligence activity of a law enforcement agency
of the United States, a State, or a political subdivision of a State, or an
intelligence agency of the United States; or
(2) any activity authorized
under title V of the Organized Crime Control Act of 1970 (Public Law 91–452; 84
Stat.
933).
.
(h)
Table of sections
amendment
The table of sections for chapter 75 of title 18,
United States Code, is amended to read as follows:
Sec.
1541. Trafficking in
passports.
1542. False statement in an
application for a passport.
1543. Forgery or false use of a
passport.
1544. Misuse of a
passport.
1545. Schemes to provide
fraudulent immigration services.
1546. Immigration and visa
fraud.
1547. Alternative imprisonment
maximum for certain offenses.
1548. Authorized law
enforcement
activities.
.
3708.
Combating schemes to
defraud aliens
(a)
Regulations, forms, and
procedures
The Secretary and the Attorney General, for matters
within their respective jurisdictions arising under the immigration laws, shall
promulgate appropriate regulations, forms, and procedures defining the
circumstances in which—
(1) persons submitting
applications, petitions, motions, or other written materials relating to
immigration benefits or relief from removal under the immigration laws will be
required to identify who (other than immediate family members) assisted them in
preparing or translating the immigration submissions; and
(2) any person or persons who
received compensation (other than a nominal fee for copying, mailing, or
similar services) in connection with the preparation, completion, or submission
of such materials will be required to sign the form as a preparer and provide
identifying information.
(b)
Civil injunctions
against immigration service provider
The Attorney General may
commence a civil action in the name of the United States to enjoin any
immigration service provider from further engaging in any fraudulent conduct
that substantially interferes with the proper administration of the immigration
laws or who willfully misrepresents such provider's legal authority to provide
representation before the Department of Justice or the Department.
(c)
Definitions
In
this section:
(1)
Immigration
laws
The term immigration laws has the meaning given
that term in section 101(a)(17) of the Immigration and Nationality Act (8
U.S.C. 1101(a)(17)).
(2)
Immigration service
provider
The term immigration service provider means
any individual or entity (other than an attorney or individual otherwise
authorized to provide representation in immigration proceedings as provided in
Federal regulation) who, for a fee or other compensation, provides any
assistance or representation to aliens in relation to any filing or proceeding
relating to the alien which arises, or which the provider claims to arise,
under the immigration laws, executive order, or presidential
proclamation.
3709.
Inadmissibility and
removal for passport and immigration fraud offenses
(a)
Inadmissibility
Section
212(a)(2)(A)(i) (8 U.S.C. 1182(a)(2)(A)(i)) is amended—
(1) in subclause (I), by
striking , or at the end and inserting a semicolon;
(2) in subclause (II), by
striking the comma at the end and inserting ; or; and
(3) by inserting after
subclause (II) the following:
(III) a violation of section
1541, 1545, and subsection (b) of section 1546 of title 18, United States
Code,
.
(b)
Removal
Section
237(a)(3)(B)(iii) (8 U.S.C. 1227(a)(3)(B)(iii)) is amended to read as
follows:
(iii) of a violation of
section 1541, 1545, and subsection (b) of section 1546 of title 18, United
States
Code,
.
(c)
Effective
date
The amendments made by subsections (a) and (b) shall apply
to proceedings pending on or after the date of the enactment of this Act, with
respect to conduct occurring on or after that date.
3710.
Directives related to
passport and document fraud
(a)
Directive to the United
States Sentencing Commission
(1)
In
general
Pursuant to the authority under section 994 of title 28,
United States Code, the United States Sentencing Commission shall promulgate or
amend the sentencing guidelines, policy statements, and official commentaries,
if appropriate, related to passport fraud offenses, including the offenses
described in chapter 75 of title 18, United States Code, as amended by section
3707, to reflect the serious nature of such offenses.
(2)
Report
Not
later than 1 year after the date of the enactment of this Act, the United
States Sentencing Commission shall submit a report on the implementation of
this subsection to—
(A) the Committee on the
Judiciary of the Senate; and
(B) the Committee on the
Judiciary of the House of Representatives.
(b)
Protection for
legitimate refugees and asylum seekers
(1)
In general
(A)
Requirement for
guidelines
The Attorney General, in consultation with the
Secretary, shall develop binding prosecution guidelines for Federal prosecutors
to ensure that each prosecution of an alien seeking entry into the United
States by fraud is consistent with the United States treaty obligations under
Article 31(1) of the Convention Relating to the Status of Refugees, done at
Geneva July 28, 1951 (as made applicable by the Protocol Relating to the Status
of Refugees, done at New York January 31, 1967 (19 UST 6223)).
(B)
No private right of
action
The guidelines developed pursuant to subparagraph (A), and
any internal office procedures related to such guidelines—
(i) are intended solely for
the guidance of attorneys of the United States; and
(ii) are not intended to, do
not, and may not be relied upon to, create any right or benefit, substantive or
procedural, enforceable at law by any party in any administrative, civil, or
criminal matter.
(2)
Protection of
vulnerable persons
A person described in paragraph (3) may not be
prosecuted under chapter 75 of title 18, United States Code, or under section
275 or 276 of the Immigration and Nationality Act (8 U.S.C. 1325 and 1326), in
connection with the person’s entry or attempted entry into the United States
until after the date on which the person’s application for such protection,
classification, or status has been adjudicated and denied in accordance with
the Immigration and Nationality Act (8 U.S.C. 1101 et seq.).
(3)
Persons seeking
protection, classification, or status
A person described in this
paragraph is a person who—
(A) is seeking protection,
classification, or status; and
(B)
(i) has filed an
application for asylum under section 208 of the Immigration and Nationality Act
(8 U.S.C. 1158), withholding of removal under section 241(b)(3) of such Act (8
U.S.C. 1231(b)(3)), or relief under the Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment, done at New York, December
10, 1994, pursuant to title 8, Code of Federal Regulations;
(ii) indicates immediately
after apprehension, that he or she intends to apply for such asylum,
withholding of removal, or relief and promptly files the appropriate
application;
(iii) has been referred for a
credible fear interview, a reasonable fear interview, or an asylum-only hearing
under section 235 of the Immigration and Nationality Act (8 U.S.C. 1225) or
part 208 of title 8, Code of Federal Regulations; or
(iv) has filed an application
for classification or status under—
(I) subparagraph (T) or (U)
of paragraph (15), paragraph (27)(J), or paragraph (51) of section 101(a) of
the Immigration and Nationality Act (8 U.S.C. 1101(a)); or
(II) section
216(c)(4)(C) or 240A(b)(2) of such Act (8 U.S.C. 1186a(c)(4)(C) and
1229b(b)(2)).
3711.
Inadmissible
aliens
(a)
Deterring aliens
ordered removed from remaining in the United States
unlawfully
Section 212(a)(9)(A) (8 U.S.C. 1182(a)(9)(A)) is
amended—
(1) in clause (i), by
striking seeks admission within 5 years of the date of such removal (or
within 20 years and inserting seeks admission not later than 5
years after the date of the alien’s removal (or not later than 20 years after
the alien’s removal; and
(2) in clause (ii), by
striking seeks admission within 10 years of the date of such alien’s
departure or removal (or within 20 years of and inserting seeks
admission not later than 10 years after the date of the alien’s departure or
removal (or not later than 20 years after.
(b)
Biometric
screening
Section 212 (8 U.S.C. 1182) is amended—
(1) in subsection (a)(7), by
adding at the end the following:
(C)
Withholding
information
Except as provided in subsection (d)(2), any alien
who willfully, through his or her own fault, refuses to comply with a lawful
request for biometric information is
inadmissible.
;
and
(2) in subsection (d), by
inserting after paragraph (1) the following:
(2) The Secretary may waive
the application of subsection (a)(7)(C) for an individual alien or a class of
aliens.
.
(c)
Precluding
admissibility of aliens convicted of serious criminal offenses and domestic
violence, stalking, child abuse, and violation of protection orders
(1)
Inadmissibility on
criminal and related grounds; waivers
Section 212 (8 U.S.C.
1182), as amended by this Act, is further amended—
(A) in subsection (a)(2), as
amended by sections 3401 and 3402, is further amended by inserting after
subparagraph (J) the following:
(K)
Crimes of domestic
violence, stalking, or violation of protective orders; crimes against
children
(i)
Domestic violence,
stalking, and child abuse
(I)
In
general
Any alien who has been convicted of a crime of domestic
violence, a crime of stalking, or a crime of child abuse, child neglect, or
child abandonment, provided the alien served at least 1 year imprisonment for
the crime, or provided the alien was convicted of offenses constituting more
than 1 such crime, not arising out of a single scheme of criminal misconduct,
is inadmissible.
(II)
Crime of domestic
violence defined
In this clause, the term crime of domestic
violence means any crime of violence (as defined in section 16 of title
18, United States Code) against a person committed by a current or former
spouse of the person, by an individual with whom the person shares a child in
common, by an individual who is cohabiting with or has cohabited with the
person as a spouse, by an individual similarly situated to a spouse of the
person under the domestic or family violence laws of the jurisdiction where the
offense occurs, or by any other individual against a person who is protected
from that individual's acts under the domestic or family violence laws of the
United States or any State, Indian tribal government, or unit of local or
foreign government.
(ii)
Violators of
protection orders
(I)
In
general
Any alien who at any time is enjoined under a protection
order issued by a court and whom the court determines has engaged in conduct
that constitutes criminal contempt of the portion of a protection order that
involves protection against credible threats of violence, repeated harassment,
or bodily injury to the person or persons for whom the protection order was
issued, is inadmissible.
(II)
Protection order
defined
In this clause, the term protection order
means any injunction issued for the purpose of preventing violent or
threatening acts of domestic violence, including temporary or final orders
issued by civil or criminal courts (other than support or child custody orders
or provisions) whether obtained by filing an independent action or as an
independent order in another proceeding.
(iii)
Applicability
This
subparagraph shall not apply to an alien who has been battered or subjected to
extreme cruelty and who is not and was not the primary perpetrator of violence
in the relationship, upon a determination by the Attorney General or the
Secretary of Homeland Security that—
(I) the alien was acting in
self-defense;
(II) the alien was found to
have violated a protection order intended to protect the alien; or
(III) the alien committed,
was arrested for, was convicted of, or pled guilty to committing a crime that
did not result in serious bodily
injury.
;
and
(B) in subsection (h)—
(i) by striking The
Attorney General may, in his discretion, waive the application of subparagraphs
(A)(i)(I), (B), (D), and (E) of subsection (a)(2) and inserting
The Attorney General or the Secretary of Homeland Security may waive the
application of subparagraphs (A)(i)(I), (B), (D), and (E) of subsection
(a)(2); and
(ii) by inserting or
the Secretary of Homeland Security after the Attorney
General each place that term appears.
(2)
Effective
date
The amendments made by this subsection shall apply to any
acts that occurred on or after the date of the enactment of this Act.
3712.
Organized and abusive
human smuggling activities
(a)
Enhanced
penalties
(1)
In
general
Title II (8 U.S.C. 1151 et seq.) is amended by adding at
the end the following:
295.
Organized human
smuggling
(a)
Prohibited
activities
Whoever, while acting for profit or other financial
gain, knowingly directs or participates in an effort or scheme to assist or
cause 5 or more persons (other than a parent, spouse, or child of the
offender)—
(1) to enter, attempt to
enter, or prepare to enter the United States—
(A) by fraud, falsehood, or
other corrupt means;
(B) at any place other than a
port or place of entry designated by the Secretary; or
(C) in a manner not
prescribed by the immigration laws and regulations of the United States;
or
(2) to travel by air, land,
or sea toward the United States (whether directly or indirectly)—
(A) knowing that the persons
seek to enter or attempt to enter the United States without lawful authority;
and
(B) with the intent to aid or
further such entry or attempted entry; or
(3) to be transported or
moved outside of the United States—
(A) knowing that such persons
are aliens in unlawful transit from 1 country to another or on the high seas;
and
(B) under circumstances in
which the persons are in fact seeking to enter the United States without
official permission or legal authority;
shall
be punished as provided in subsection (c) or (d).
(b)
Conspiracy and
attempt
Any person who attempts or conspires to violate
subsection (a) of this section shall be punished in the same manner as a person
who completes a violation of such subsection.
(c)
Base
penalty
Except as provided in subsection (d), any person who
violates subsection (a) or (b) shall be fined under title 18, imprisoned for
not more than 20 years, or both.
(d)
Enhanced
penalties
Any person who violates subsection (a) or (b)
shall—
(1) in the case of a
violation during and in relation to which a serious bodily injury (as defined
in section 1365 of title 18) occurs to any person, be fined under title 18,
imprisoned for not more than 30 years, or both;
(2) in the case of a
violation during and in relation to which the life of any person is placed in
jeopardy, be fined under title 18, imprisoned for not more than 30 years, or
both;
(3) in the case of a
violation involving 10 or more persons, be fined under title 18, imprisoned for
not more than 30 years, or both;
(4) in the case of a
violation involving the bribery or corruption of a U.S. or foreign government
official, be fined under title 18, imprisoned for not more than 30 years, or
both;
(5) in the case of a
violation involving robbery or extortion (as those terms are defined in
paragraph (1) or (2), respectively, of section 1951(b)) be fined under title
18, imprisoned for not more than 30 years, or both;
(6) in the case of a
violation during and in relation to which any person is subjected to an
involuntary sexual act (as defined in section 2246(2) of title 18), be fined
under title 18, imprisoned for not more than 30 years, or both; or
(7) in the case of a
violation resulting in the death of any person, be fined under title 18,
imprisoned for any term of years or for life, or both.
(e)
Lawful authority
defined
(1)
In
general
In this section, the term lawful
authority—
(A) means permission,
authorization, or license that is expressly provided for in the immigration
laws of the United States or accompanying regulations; and
(B) does not include any such
authority secured by fraud or otherwise obtained in violation of law, nor does
it include authority sought, but not approved.
(2)
Application to travel
or entry
No alien shall be deemed to have lawful authority to
travel to or enter the United States if such travel or entry was, is, or would
be in violation of law.
(f)
Effort or
scheme
For purposes of this section, effort or scheme to
assist or cause 5 or more persons does not require that the 5 or more
persons enter, attempt to enter, prepare to enter, or travel at the same time
so long as the acts are completed within 1 year.
296.
Unlawfully hindering
immigration, border, and customs controls
(a)
Illicit
spotting
Whoever knowingly transmits to another person the
location, movement, or activities of any Federal, State, or tribal law
enforcement agency with the intent to further a Federal crime relating to
United States immigration, customs, controlled substances, agriculture,
monetary instruments, or other border controls shall be fined under title 18,
imprisoned not more than 10 years, or both.
(b)
Destruction of united
states border controls
Whoever knowingly and without lawful
authorization destroys, alters, or damages any fence, barrier, sensor, camera,
or other physical or electronic device deployed by the Federal Government to
control the border or a port of entry or otherwise seeks to construct,
excavate, or make any structure intended to defeat, circumvent or evade any
such fence, barrier, sensor camera, or other physical or electronic device
deployed by the Federal government to control the border or a port of entry
shall be fined under title 18, imprisoned not more than 10 years, or both, and
if, at the time of the offense, the person uses or carries a firearm or who, in
furtherance of any such crime, possesses a firearm, that person shall be fined
under title 18, imprisoned not more than 20 years, or both.
(c)
Conspiracy and
attempt
Any person who attempts or conspires to violate
subsection (a) or (b) of this section shall be punished in the same manner as a
person who completes a violation of such
subsection.
.
(2)
Table of contents
amendment
The table of contents is amended by adding after the
item relating to section 294 the following:
Sec. 295. Organized human
smuggling.
Sec. 296. Unlawfully hindering immigration,
border, and customs
controls.
.
(b)
Prohibiting carrying or
use of a firearm during and in relation to an alien smuggling
crime
Section 924(c) of title 18, United States Code, is
amended—
(1) in paragraph (1)—
(A) in subparagraph (A), by
inserting , alien smuggling crime, after crime of
violence each place that term appears; and
(B) in subparagraph (D)(ii),
by inserting , alien smuggling crime, after crime of
violence; and
(2) by adding at the end the
following:
(6) For purposes of this
subsection, the term alien smuggling crime means any felony
punishable under section 274(a), 277, or 278 of the Immigration and Nationality
Act (8 U.S.C. 1324(a), 1327, and
1328).
.
(c)
Statute of
limitations
Section 3298 of title 18, United States Code, is
amended by inserting , 295, 296, or 297 after
274(a).
3713.
Preventing criminals
from renouncing citizenship during wartime
Section 349(a) (8 U.S.C. 1481(a)) is
amended—
(1) by striking paragraph (6)
; and
(2) redesignating paragraph
(7) as paragraph (6).
3714.
Diplomatic security
service
Paragraph (1) of
section 37(a) of the State Department Basic Authorities Act of 1956 (22 U.S.C.
2709(a)) is amended to read as follows:
(1) conduct investigations concerning—
(A) illegal passport or visa issuance or
use;
(B) identity theft or document fraud affecting
or relating to the programs, functions, and authorities of the Secretary of
State;
(C) violations of chapter 77 of title 18,
United States Code; and
(D) Federal offenses committed within the
special maritime and territorial jurisdiction of the United States (as defined
in section 7(9) of title 18, United States
Code);
.
3715.
Secure alternatives
programs
(a)
In
general
The Secretary shall establish secure alternatives
programs that incorporate case management services in each field office of the
Department to ensure appearances at immigration proceedings and public
safety.
(b)
Contract
authority
The Secretary shall contract with nongovernmental
community-based organizations to conduct screening of detainees, provide
appearance assistance services, and operate community-based supervision
programs. Secure alternatives shall offer a continuum of supervision mechanisms
and options, including community support, depending on an assessment of each
individual’s circumstances. The Secretary may contract with nongovernmental
organizations to implement secure alternatives that maintain custody over the
alien.
(c)
Individualized
determinations
In determining whether to use secure alternatives,
the Secretary shall make an individualized determination, and for each
individual placed on secure alternatives, shall review the level of supervision
on a monthly basis. Secure alternatives shall not be used when release on bond
or recognizance is determined to be a sufficient measure to ensure appearances
at immigration proceedings and public safety.
(d)
Custody
The
Secretary may use secure alternatives programs to maintain custody over any
alien detained under the Immigration and Nationality Act, except for aliens
detained under section 236A of such Act (8 U.S.C. 1226a). If an individual is
not eligible for release from custody or detention, the Secretary shall
consider the alien for placement in secure alternatives that maintain custody
over the alien, including the use of electronic ankle devices.
3716.
Oversight of
detention facilities
(a)
Definitions
In
this section:
(1)
Applicable
standards
The term applicable standards means the
most recent version of detention standards and detention-related policies
issued by the Secretary or the Director of U.S. Immigration and Customs
Enforcement.
(2)
Detention
facility
The term detention facility means a
Federal, State, or local government facility, or a privately owned and operated
facility, that is used, in whole or in part, to hold individuals under the
authority of the Director of U.S. Immigration and Customs Enforcement,
including facilities that hold such individuals under a contract or agreement
with the Director.
(b)
Detention
requirements
The Secretary shall ensure that all persons detained
pursuant to the Immigration and Nationality Act (8 U.S.C. 1101 et seq.) are
treated humanely and benefit from the protections set forth in this
section.
(c)
Oversight
requirements
(1)
Annual
inspection
All detention facilities shall be inspected by the
Secretary on a regular basis, but not less than annually, for compliance with
applicable detention standards issued by the Secretary and other applicable
regulations.
(2)
Routine
oversight
In addition to annual inspections, the Secretary shall
conduct routine oversight of detention facilities, including unannounced
inspections.
(3)
Availability of
records
All detention facility contracts, memoranda of agreement,
and evaluations and reviews shall be considered records for purposes of section
552(f)(2) of title 5, United States Code.
(4)
Consultation
The
Secretary shall seek input from nongovernmental organizations regarding their
independent opinion of specific facilities.
(d)
Compliance
mechanisms
(1)
Agreements
(A)
New
agreements
Compliance with applicable standards of the Secretary
and all applicable regulations, and meaningful financial penalties for failure
to comply, shall be a material term in any new contract, memorandum of
agreement, or any renegotiation, modification, or renewal of an existing
contract or agreement, including fee negotiations, executed with detention
facilities.
(B)
Existing
agreements
Not later than 180 days after the date of the
enactment of this Act, the Secretary shall secure a modification incorporating
these terms for any existing contracts or agreements that will not be
renegotiated, renewed, or otherwise modified.
(C)
Cancellation of
agreements
Unless the Secretary provides a reasonable extension
to a specific detention facility that is negotiating in good faith, contracts
or agreements with detention facilities that are not modified within 1 year of
the date of the enactment of this Act will be cancelled.
(D)
Provision of
information
In making modifications under this paragraph, the
Secretary shall require that detention facilities provide to the Secretary all
contracts, memoranda of agreement, evaluations, and reviews regarding the
facility on a regular basis. The Secretary shall make these materials publicly
available.
(2)
Financial
penalties
(A)
Requirement to
impose
Subject to subparagraph (C), the Secretary shall impose
meaningful financial penalties upon facilities that fail to comply with
applicable detention standards issued by the Secretary and other applicable
regulations.
(B)
Timing of
imposition
Financial penalties imposed under subparagraph (A)
shall be imposed immediately after a facility fails to achieve an adequate or
the equivalent median score in any performance evaluation.
(C)
Waiver
The
requirements of subparagraph (A) may be waived if the facility corrects the
noted deficiencies and receives an adequate score in not more than 90
days.
(D)
Multiple
offenders
In cases of persistent and substantial noncompliance,
including scoring less than adequate or the equivalent median score in 2
consecutive inspections, the Secretary shall terminate contracts or agreements
with such facilities within 60 days, or in the case of facilities operated by
the Secretary, such facilities shall be closed within 90 days.
(e)
Reporting
requirements
(1)
Objectives
Not
later than June 30 of each year, the Secretary shall prepare and submit to the
Committee on the Judiciary of the Senate and the Committee on the Judiciary of
the House of Representatives a report on inspection and oversight activities of
detention facilities.
(2)
Contents
Each
report submitted under paragraph (1) shall include—
(A) a description of each
detention facility found to be in noncompliance with applicable detention
standards issued by the Department and other applicable regulations;
(B) a description of the
actions taken by the Department to remedy any findings of noncompliance or
other identified problems, including financial penalties, contract or agreement
termination, or facility closure; and
(C) information regarding
whether the actions described in subparagraph (B) resulted in compliance with
applicable detention standards and regulations.
3717.
Procedures for bond
hearings and filing of notices to appear
(a)
Aliens in
custody
Section 236 (8 U.S.C.
1226) is amended by adding at the end the following:
(f)
Procedures for custody
hearings
For any alien taken into custody under any provision of
this Act, with the exception of minors being transferred to or in the custody
of the Office of Refugee Resettlement, the following shall apply:
(1) The Secretary of Homeland
Security shall, without unnecessary delay and not later than 72 hours after the
alien is taken into custody, file the Notice to Appear or other relevant
charging document with the immigration court having jurisdiction over the
location where the alien was apprehended, and serve such notice on the
alien.
(2) The Secretary shall
immediately determine whether the alien shall remain in custody or be released
and, without unnecessary delay and not later than 72 hours after the alien was
taken into custody, serve upon the alien the custody decision specifying the
reasons for continued custody and the amount of bond if any.
(3) The Attorney General
shall ensure the alien has the opportunity to appear before an immigration
judge for a custody determination hearing promptly after service of the
Secretary’s custody decision. The immigration judge may, on the Secretary’s
motion and upon a showing of good cause, postpone a custody redetermination
hearing for no more than 72 hours after service of the custody decision, except
that in no case shall the hearing occur more than 6 days (including weekends
and holidays) after the alien was taken into custody.
(4) The immigration judge
shall advise the alien of the right to postpone the custody determination
hearing and shall, on the oral or written request of the individual, postpone
the custody determination hearing for a period of not more than 14 days.
(5) Except for aliens that
the immigration judge has determined are deportable under section 236(c) or
certified under section 236A, the immigration judge shall review the custody
determination de novo and may continue to detain the alien only if the
Secretary demonstrates that no conditions, including the use of alternatives to
detention that maintain custody over the alien, will reasonably assure the
appearance of the alien as required and the safety of any other person and the
community. For aliens whom the immigration judge has determined are deportable
under section 236(c), the immigration judge may review the custody
determination if the Secretary agrees the alien is not a danger to the
community, and alternatives to detention exist that ensure the appearance of
the alien, as required, and the safety of any other person and the
community.
(6) In the case of any alien
remaining in custody after a custody determination, the Attorney General shall
provide de novo custody determination hearings before an immigration judge
every 90 days so long as the alien remains in custody. An alien may also obtain
a de novo custody redetermination hearing at any time upon a showing of good
cause.
(7) The Secretary shall
inform the alien of his or her rights under this paragraph at the time the
alien is first taken into
custody.
.
(b)
Limitations on solitary
confinement
(1)
In
general
Section 236(d) (8 U.S.C. 1226(d)) is amended by adding at
the end the following:
(3)
Nature of
detention
(A)
Definitions
In
this paragraph:
(i)
Administrative
segregation
The term administrative segregation
means a nonpunitive form of solitary confinement for administrative
reasons.
(ii)
Disciplinary
segregation
The term disciplinary segregation means
a punitive form of solitary confinement for disciplinary reasons.
(iii)
Serious mental
illness
The term serious mental illness means a
substantial disorder of thought or mood that significantly impairs judgment,
behavior, capacity to recognize reality, or ability to cope with the ordinary
demands of life.
(iv)
Solitary
confinement
The term solitary confinement means cell
confinement of 22 hours or more per day.
(B)
Limitations on solitary
confinement
(i)
In
general
The use of solitary confinement of an alien in custody
pursuant to this section, section 235, or section 241 shall be limited to
situations in which such confinement—
(I) is necessary—
(aa) to control a threat to
detainees, staff, or the security of the facility;
(bb) to discipline the alien
for a serious disciplinary infraction if alternative sanctions would not
adequately regulate the alien’s behavior; or
(cc) for good order during
the last 24 hours before an alien is released, removed, or transferred from the
facility;
(II) 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; and
(III) complies with the
requirements set forth in this subparagraph.
(ii)
Children
Children
who are younger than 18 years of age may not be placed in solitary
confinement.
(iii)
Serious mental
illness
(I)
In
general
An alien with a serious mental illness may not be placed
in involuntary solitary confinement due to mental illness unless—
(aa) such confinement is
necessary for the alien's own protection; or
(bb) if the alien requires
emergency stabilization or poses a significant threat to staff or others in
general population.
(II)
Maximum
period
An alien diagnosed with serious mental illness may not be
placed in solitary confinement for more than 15 days unless the Secretary of
Homeland Security determines that—
(aa) any less restrictive
alternative is more likely than not to cause greater harm to the alien than the
solitary confinement period imposed; or
(bb) the likely harm to the
alien is not substantial and the period of solitary confinement is the least
restrictive alternative necessary to protect the alien, other detainees, or
others.
(iv)
Own
protection
(I)
In
general
Involuntary solitary confinement for an alien’s own
protection may be used only for the least amount of time practicable and if no
readily available and less restrictive alternative will maintain the alien’s
safety.
(II)
Maximum
period
An alien may not be placed in involuntary solitary
confinement for the alien's own protection for longer than 15 days unless the
Secretary of Homeland Security determines that any less restrictive alternative
is more likely than not to cause greater harm to the alien than the solitary
confinement period imposed.
(III)
Prohibited
factors
The Secretary of Homeland Security may not rely solely on
an alien’s age, physical disability, sexual orientation, gender identity, race,
or religion. The Secretary shall make an individualized assessment in each
case.
(v)
Medical
care
An alien placed in solitary confinement—
(I) shall be visited by a
medical professional at least 3 times each week;
(II) shall receive at least
weekly mental health monitoring by a licensed mental health clinician;
and
(III) shall be removed from
solitary confinement if—
(aa) a mental health
clinician determines that such detention is having a significant negative
impact on the alien’s mental health; and
(bb) an appropriate
alternative is available.
(vi)
Notification; access
to counsel
If an alien is placed in solitary confinement, the
alien—
(I) shall be informed
verbally, and in writing, of the reason for such confinement and the intended
duration of such confinement, if specified at the time of initial placement;
and
(II) shall be offered access
to counsel on the same basis as detainees in the general population.
(vii)
Longer solitary
confinement periods
If an alien has been subject to involuntary
solitary confinement for more than 14 consecutive days, the Secretary of
Homeland Security shall conduct a timely review to determine whether continued
placement is justified by an extreme disciplinary infraction or is the least
restrictive means of protecting the alien or others. Any alien held in solitary
confinement for more than 7 days shall be given a reasonable opportunity to
challenge such placement with the detention facility administrator, which will
promptly respond to such challenge in writing.
(viii)
Oversight
The
Secretary of Homeland Security shall ensure that—
(I) he or she is regularly
informed about the use of solitary confinement in all facilities at which
aliens are detained; and
(II) the Department fully
complies with the provisions under this paragraph.
(C)
Disciplinary
segregation
Disciplinary segregation is authorized only pursuant
to the order of a facility disciplinary panel following a hearing in which the
detainee is determined to have violated a facility rule.
(D)
Administrative
segregation
Administrative segregation is authorized only as
necessary to ensure the safety of the detainee or others, the protection of
property, or the security or good order of the facility. Detainees in
administrative segregation shall be offered programming opportunities and
privileges consistent with those available in the general population, except
where precluded by safety or security
concerns.
.
(2)
Annual
report
The Secretary shall—
(A) collect and compile
information regarding the prevalence, reasons for, and duration of solitary
confinement in all facilities described in paragraph (3);
(B) submit an annual report
containing the information described in subparagraph (A) to Congress not later
than 30 days after the end of the reporting period; and
(C) make the data contained
in the report submitted under subparagraph (B) publicly available.
(3)
Rulemaking
The
Secretary shall adopt regulations or policies to carry out section 236(d)(3) of
the Immigration and Nationality Act, as amended by paragraph (1), at all
facilities at which aliens are detained pursuant to section 235, 236, or 241 of
such Act.
(c)
Stipulated
removal
Section 240(d) (8
U.S.C. 1229a) is amended to read as follows:
(d)
Stipulated
removal
The Attorney General shall provide by regulation for the
entry by an immigration judge of an order of removal stipulated to by the alien
(or the alien's representative) and the Service. An immigration judge may enter
a stipulated removal order only upon a finding at an in-person hearing that the
stipulation is voluntary, knowing, and intelligent. A stipulated order shall
constitute a conclusive determination of the alien's removability from the
United
States.
.
3718.
Sanctions for
countries that delay or prevent repatriation of their nationals
Section 243(d) (8 U.S.C. 1253(d)) is amended
to read as follows:
(d)
Discontinuing granting
visas to nationals of countries that deny or delay accepting
aliens
Notwithstanding section 221(c), if the Secretary of
Homeland Security determines, in consultation with the Secretary of State, that
the government of a foreign country denies or unreasonably delays accepting
aliens who are citizens, subjects, nationals, or residents of that country
after the Secretary asks whether the government will accept an alien under this
section, or after a determination that the alien is inadmissible under
paragraph (6) or (7) of section 212(a), the Secretary of State shall order
consular officers in that foreign country to discontinue granting visas, or
classes of visas, until the Secretary of Homeland Security notifies the
Secretary of State that the country has accepted the
aliens.
.
3719.
Gross violations of
human rights
(a)
Inadmissibility of
certain aliens
Section
212(a)(3)(E) (8 U.S.C. 1182(a)(3)(E)) is amended by striking clause (iii) and
inserting the following:
(iii)
Commission of acts of torture,
extrajudicial killings, war crimes, or widespread or systematic attacks on
civilians
Any alien who
planned, ordered, assisted, aided and abetted, committed, or otherwise
participated, including through command responsibility, in the commission
of—
(I) any act of torture (as
defined in section 2340 of title 18, United States Code);
(II) any extrajudicial
killing (as defined in section 3(a) of the Torture Victim Protection Act of
1991 (28 U.S.C. 1350 note)) under color of law of any foreign nation;
(III) a war crime (as defined
in section 2441 of title 18, United States Code); or
(IV) any of the following
acts as a part of a widespread or systematic attack directed against a civilian
population, with knowledge of the attack: murder, extermination, enslavement,
forcible transfer of population, arbitrary detention, rape, sexual slavery,
enforced prostitution, forced pregnancy, enforced sterilization, or any other
form of sexual violence of comparable gravity; persecution on political racial,
national, ethnic, cultural, religious, or gender grounds; enforced
disappearance of persons; or other inhumane acts of a similar character
intentionally causing great suffering or serious bodily or mental
injury,
is
inadmissible.
(iv)
Limitation
Clause
(iii) shall not apply to an alien if the Secretary of Homeland Security or the
Attorney General determine that the actions giving rise to the alien’s
inadmissibility under such clause were committed under duress. In determining
whether the alien was subject to duress, the Secretary may consider, among
relevant factors, the age of the alien at the time such actions were
committed.
.
(b)
Denying safe haven to
foreign human rights violators
Section 2(a)(2) of the Torture
Victim Protection Act of 1991 (28 U.S.C. 1350 note) is amended—
(1) by inserting after
killing the following: , a war crime (as defined in
subsections (c) and (d) of section 2441 of title 18, United States Code), a
widespread or systematic attack on civilians (as defined in section
212(a)(3)(E)(iii)(IV) of the Immigration and Nationality Act), or genocide (as
defined in section 1091(a) of such title 18); and
(2) by striking to the
individual’s legal representative and inserting to that
individual or to that individual’s legal representative.
(c)
Nonapplicability of
confidentiality requirement with respect to visa records
The
President may make public, without regard to the requirements under section
222(f) of the Immigration and Nationality Act (8 U.S.C. 1202(f)), with respect
to confidentiality of records pertaining to the issuance or refusal of visas or
permits to enter the United States, the names of aliens deemed inadmissible on
the basis of section 212(a)(3)(E)(iii) of such Act, as amended by subsection
(a).
3720.
Reporting and record
keeping requirements relating to the detention of aliens
(a)
In
general
In order for Congress
and the public to assess the full costs of apprehending, detaining, processing,
supervising, and removing aliens, and how the money Congress appropriates for
detention is allocated by Federal agencies, the Assistant Secretary for
Immigration and Customs and Enforcement (referred to in this section as the
Assistant Secretary), the Director of the Executive Office of
Immigration Review, and the Commissioner responsible for U.S. Customs and
Border Protection (referred to in this section as the
Commissioner) shall—
(1) maintain the information required under
subsections (b), (c), and (d); and
(2) submit reports on that information to
Congress and make that information available to the public in accordance with
subsection (e).
(b)
Maintenance of
information by U.S. Immigration and Customs Enforcement
The
Assistant Secretary shall record and maintain, in the database of U.S.
Immigration and Customs Enforcement relating to detained aliens, the following
information with respect to each alien detained pursuant to the Immigration and
Nationality Act (8 U.S.C. 1101 et seq.):
(1) The provision of law that
provides specific authority for the alien’s detention and the beginning and end
dates of the alien’s detention pursuant to that authority. If the alien’s
detention is authorized by different provisions of law during different periods
of time, the Assistant Secretary shall record and maintain the provision of law
that provides authority for the alien’s detention during each such
period.
(2) The place where the alien
was apprehended or where U.S. Immigration and Customs Enforcement assumed
custody of the alien.
(3) Each location where U.S.
Immigration and Customs Enforcement detains the alien until the alien is
released from custody or removed from the United States, including any period
of redetention.
(4) The gender and age of
each detained alien in the custody of U.S. Immigration and Customs
Enforcement.
(5) The number of days the
alien is detained, including the number of days spent in any given detention
facility and the total amount of time spent in detention.
(6) The immigration charges
that are the basis for the alien’s removal proceedings.
(7) The status of the alien’s
removal proceedings and each date on which those proceedings progress from 1
stage of proceeding to another.
(8) The length of time the
alien was detained following a final administrative order of removal and the
reasons for the continued detention.
(9) The initial custody
determination or review made by U.S. Immigration and Customs Enforcement,
including whether the alien received notice of a custody determination or
review and when the custody determination or review took place.
(10) The risk assessment
results for the alien, including if the alien is subject to mandatory custody
or detention.
(11) The reason for the
alien’s release from detention and the conditions of release imposed on the
alien, if applicable.
(c)
Maintenance of
information by Executive Office of Immigration Review
The
Director of the Executive Office of Immigration Review shall record and
maintain, in the database of the Executive Office of Immigration Review
relating to detained aliens in removal proceedings, the following information
with respect to each such alien:
(1) The immigration charges
that are the basis for the alien’s removal proceedings, including any revision
of the immigration charges and the date of each such revision.
(2) The gender and age of the
alien.
(3) The status of the alien’s
removal proceedings and each date on which those proceedings progress from one
stage of proceeding to another.
(4) The statutory basis for
any bond hearing conducted and the outcomes of the bond hearing.
(5) Whether each court
hearing is conducted in person, by audio link, or by video conferencing.
(6) The date of each attorney
entry of appearance before an immigration judge using Form EOIR–28 and the
scope of the appearance to which the form related.
(d)
Maintenance of
information by U.S. Customs and Border Protection
The
Commissioner shall record and maintain in the database of U.S. Customs and
Border Protection relating to detained aliens the following information with
respect to each alien detained pursuant to the Immigration and Nationality Act
(8 U.S.C. 1101 et seq.):
(1) The provision of law that
provides specific authority for the alien’s detention and the beginning and end
dates of the alien’s detention.
(2) The place where the alien
was apprehended.
(3) The gender and age of the
alien.
(4) Each location where U.S.
Customs and Border Protection detains the alien until the alien is released
from custody or removed from the United States, including any period of
redetention.
(5) The number of days that
the alien is detained in the custody of U.S. Customs and Border
Protection.
(6) The immigration charges
that are the basis for the alien’s removal proceedings while the alien is in
the custody of U.S. Customs and Border Protection.
(7) The initial custody
determination by U.S. Customs and Border Protection, including whether the
alien received notice of a custody determination or review, when the custody
determination or review took place, and whether U.S. Customs and Border
Protection offered the option of stipulated removal to a detained alien.
(8) The reason for the
alien’s release from detention and the conditions of release to detention
imposed on the alien, if applicable.
(e)
Reporting
requirements
(1)
Periodic
reports
The Assistant Secretary, the Director of the Executive
Office of Immigration Review, and the Commissioner shall periodically, but not
less frequently than annually, submit to Congress a report containing a summary
of the information required to be maintained by this section. Each such report
shall include summaries of national-level data as well as summaries of the
information required by this section by State and county.
(2)
Other
reports
The Assistant Secretary shall report to Congress not less
frequently than annually on—
(A) the number of aliens
detained for more than 3 months, 6 months, 1 year, and 2 years; and
(B) the average period of
detention before receipt of a final administrative order of removal and after
receipt of such an order.
(3)
Availability to
public
The reports required under this subsection and the
information for each alien on which the reports are based shall be made
available to the public without the need to submit a request under section 552
of title 5, United States Code (commonly referred to as the Freedom of
Information Act).
(4)
Privacy
protections
No alien's identity may be disclosed when information
described in paragraph (3) is made publicly available.
(f)
Definitions
In
this section:
(1)
Case
outcome
The term case outcome includes a grant of
relief from deportation under section 240A of the Immigration and Nationality
Act (8 U.S.C. 1229b), voluntary departure pursuant to section 240B of that Act
(8 U.S.C. 1229c), removal pursuant to section 238 of that Act (8 U.S.C. 1228),
judicial termination of proceedings, termination of proceedings by U.S.
Immigration and Customs Enforcement, cancellation of the notice to appear, or
permission to withdraw application for admission without any removal order
being issued.
(2)
Place where the alien
was apprehended
The term place where the alien was
apprehended refers to the city, county, and State where an alien is
apprehended.
(3)
Reason for the alien’s
release from detention
The term reason for the alien’s
release from detention refers to release on bond, on an alien's own
recognizance, on humanitarian grounds, after grant of relief, or due to
termination of proceedings or removal.
(4)
Removal
proceedings
The term removal proceedings refers to a
removal case of any kind, including expedited removal, administrative removal,
stipulated removal, reinstatement, and voluntary removal and removals in which
an applicant is permitted to withdraw his or her application for
admission.
(5)
Stage
The
term stage, with respect to a proceeding, refers to whether the
alien is in proceedings before an immigration judge, the Board of Immigration
Appeals, a United States court of appeals, or on remand from a United States
court of appeals.
3721.
Powers of immigration
officers and employees at sensitive locations
Section 287 (8 U.S.C. 1357) is amended by
adding at the end the following:
(i)
(1) In order to ensure
individuals’ access to sensitive locations, this subsection applies to
enforcement actions by officers and agents of U.S. Immigration and Customs
Enforcement and officers and agents of U.S. Customs and Border
Protection.
(2)
(A) An enforcement action
may not take place at, or be focused on, a sensitive location, except as
follows:
(i) Under exigent
circumstances.
(ii) If prior approval is
obtained.
(B) If an enforcement action
is taking place pursuant to subparagraph (A) and the condition permitting the
enforcement action ceases, the enforcement action shall cease.
(3)
(A) When proceeding with an
enforcement action at or near a sensitive location, officers and agents
referred to in paragraph (1) shall conduct themselves as discreetly as
possible, consistent with officer and public safety, and make every effort to
limit the time at or focused on the sensitive location.
(B) If, in the course of an
enforcement action that is not initiated at or focused on a sensitive location,
officers or agents are led to or near a sensitive location, and no exigent
circumstance exists, such officers or agents shall conduct themselves in a
discreet manner, maintain surveillance, and immediately consult their
supervisor before taking any further enforcement action, in order to determine
whether such action should be discontinued.
(C) This section not apply to
the transportation of an individual apprehended at or near a land or sea border
to a hospital or healthcare provider for the purpose of providing such
individual medical care.
(4)
(A) Each official specified
in subparagraph (B) shall ensure that the employees under the supervision of
such official receive annual training on compliance with the requirements of
this subsection in enforcement actions at or focused on sensitive locations and
enforcement actions that lead officers or agents to or near a sensitive
location.
(B) The officials specified
in ths subparagraph are the following:
(i) The Chief Counsel of U.S.
Immigration and Customs Enforcement.
(ii) The Field Office
Directors of U.S. Immigration and Customs Enforcement.
(iii) Each Special Agent in
Charge of U.S. Immigration and Customs Enforcement.
(iv) Each Chief Patrol Agent
of U.S. Customs and Border Protection.
(v) The Director of Field
Operations of U.S. Customs and Border Protection.
(vi) The Director of Air and
Marine Operations of U.S. Customs and Border Protection.
(vii) The Internal Affairs
Special Agent in Charge of U.S. Customs and Border Protection.
(5)
(A) The Director of U.S.
Immigration and Customs Enforcement and the Commissioner of U.S. Customs and
Border Protection shall each submit to the appropriate committees of Congress
each year a report on the enforcement actions undertaken by U.S. Immigration
and Customs Enforcement and U.S. Customs and Border Protection, respectively,
during the preceding year that were covered by this subsection.
(B) Each report on an agency
for a year under this paragraph shall set forth the following:
(i) The number of enforcement
actions at or focused on a sensitive location.
(ii) The number of
enforcement actions where officers or agents were subsequently led to or near a
sensitive location.
(iii) The date, site, and
State, city, and county in which each enforcement action covered by clause (i)
or (ii) occurred.
(iv) The component of the
agency responsible for each such enforcement action.
(v) A description of the
intended target of each such enforcement action.
(vi) The number of
individuals, if any, arrested or taken into custody through each such
enforcement action.
(vii) The number of
collateral arrests, if any, from each such enforcement action and the reasons
for each such arrest.
(viii) A certification of
whether the location administrator was contacted prior to, during, or after
each such enforcement action.
(C) Each report under this
paragraph shall be made available to the public without the need to submit a
request under section 552 of title 5, United States Code (commonly referred to
as the Freedom of Information Act).
(6) In this
subsection:
(A) The term
appropriate committees of Congress means—
(i) the
Committee on Homeland Security and
Governmental Affairs of the Senate;
(ii) the
Committee on the Judiciary of the
Senate;
(iii) the
Committee on Homeland Security of the House of
Representatives; and
(iv) the
Committee on the Judiciary of the House of
Representatives.
(B) The term
enforcement action means an arrest, interview, search, or
surveillance for the purposes of immigration enforcement, and includes an
enforcement action at, or focused on, a sensitive location that is part of a
joint case led by another law enforcement agency.
(C) The term exigent
circumstances means a situation involving the following:
(i) The imminent risk of
death, violence, or physical harm to any person, including a situation
implicating terrorism or the national security of the United States in some
other manner.
(ii) The immediate arrest or
pursuit of a dangerous felon, terrorist suspect, or other individual presenting
an imminent danger or public safety risk.
(iii) The imminent risk of
destruction of evidence that is material to an ongoing criminal case.
(D) The term prior
approval means the following:
(i) In the case of officers
and agents of U.S. Immigration and Customs Enforcement, prior written approval
for a specific, targeted operation from one of the following officials:
(I) The Assistant Director of
Operations, Homeland Security Investigations.
(II) The Executive Associate
Director of Homeland Security Investigations.
(III) The Assistant Director
for Field Operations, Enforcement, and Removal Operations.
(IV) The Executive Associate
Director for Field Operations, Enforcement, and Removal Operations.
(ii) In the case of officers
and agents of U.S. Customs and Border Protection, prior written approval for a
specific, targeted operation from one of the following officials:
(I) A Chief Patrol
Agent.
(II) The Director of Field
Operations.
(III) The Director of Air and
Marine Operations
(IV) The Internal Affairs
Special Agent in Charge.
(E) The term sensitive
location includes the following:
(i) Hospitals and health
clinics.
(ii) Public and private
schools (including pre-schools, primary schools, secondary schools,
postsecondary schools (including colleges and universities), and other
institutions of learning such as vocational or trade schools).
(iii) Organizations assisting
children, pregnant women, victims of crime or abuse, or individuals with mental
or physical disabilities.
(iv) Churches, synagogues,
mosques, and other places of worship, such as buildings rented for the purpose
of religious services.
(v) Such other locations as
the Secretary of Homeland Security shall specify for purposes of this
subsection.
.
H
Protection of Children
Affected by Immigration Enforcement
3801.
Short
title
This subtitle may be
cited as the Humane Enforcement and
Legal Protections for Separated Children Act or the
HELP Separated Children
Act.
3802.
Definitions
In this subtitle:
(1)
Apprehension
The
term apprehension means the detention or arrest by officials of
the Department or cooperating entities.
(2)
Child
The
term child means an individual who has not attained 18 years of
age.
(3)
Child welfare
agency
The term child welfare agency means a State
or local agency responsible for child welfare services under subtitles B and E
of title IV of the Social Security Act (42 U.S.C. 601 et seq.).
(4)
Cooperating
entity
The term cooperating entity means a State or
local entity acting under agreement with the Secretary.
(5)
Detention
facility
The term detention facility means a
Federal, State, or local government facility, or a privately owned and operated
facility, that is used, in whole or in part, to hold individuals under the
authority of the Director of U.S. Immigration and Customs Enforcement,
including facilities that hold such individuals under a contract or agreement
with the Director.
(6)
Immigration enforcement
action
The term immigration enforcement action means
the apprehension of 1 or more individuals whom the Department has reason to
believe are removable from the United States by the Secretary or a cooperating
entity.
(7)
Parent
The
term parent means a biological or adoptive parent of a child,
whose parental rights have not been relinquished or terminated under State law
or the law of a foreign country, or a legal guardian under State law or the law
of a foreign country.
3803.
Apprehension
procedures for immigration enforcement-related activities
(a)
Apprehension
procedures
In any immigration enforcement action, the Secretary
and cooperating entities shall—
(1) as soon as possible, but
generally not later than 2 hours after an immigration enforcement action,
inquire whether an individual is a parent or primary caregiver of a child in
the United States and provide any such individuals with—
(A) the opportunity to make a
minimum of 2 telephone calls to arrange for the care of such child in the
individual’s absence; and
(B) contact information
for—
(i) child welfare agencies
and family courts in the same jurisdiction as the child; and
(ii) consulates, attorneys,
and legal service providers capable of providing free legal advice or
representation regarding child welfare, child custody determinations, and
immigration matters;
(2) notify the child welfare
agency with jurisdiction over the child if the child’s parent or primary
caregiver is unable to make care arrangements for the child or if the child is
in imminent risk of serious harm;
(3) ensure that personnel of
the Department and cooperating entities do not, absent medical necessity or
extraordinary circumstances, compel or request children to interpret or
translate for interviews of their parents or of other individuals who are
encountered as part of an immigration enforcement action; and
(4) ensure that any parent or
primary caregiver of a child in the United States—
(A) absent medical necessity
or extraordinary circumstances, is not transferred from his or her area of
apprehension until the individual—
(i) has made arrangements for
the care of such child; or
(ii) if such arrangements are
unavailable or the individual is unable to make such arrangements, is informed
of the care arrangements made for the child and of a means to maintain
communication with the child;
(B) absent medical necessity
or extraordinary circumstances, and to the extent practicable, is placed in a
detention facility either—
(i) proximate to the location
of apprehension; or
(ii) proximate to the
individual’s habitual place of residence; and
(C) receives due
consideration of the best interests of such child in any decision or action
relating to his or her detention, release, or transfer between detention
facilities.
(b)
Requests to State and
local entities
If the Secretary requests a State or local entity
to hold in custody an individual whom the Department has reason to believe is
removable pending transfer of that individual to the custody of the Secretary
or to a detention facility, the Secretary shall also request that the State or
local entity provide the individual the protections specified in paragraphs (1)
and (2) of subsection (a), if that individual is found to be the parent or
primary caregiver of a child in the United States.
(c)
Protections against
trafficking preserved
The provisions of this section shall not be
construed to impede, delay, or in any way limit the obligations of the
Secretary, the Attorney General, or the Secretary of Health and Human Services
under section 235 of the William Wilberforce Trafficking Victims Protection
Reauthorization Act of 2008 (8 U.S.C. 1232) or section 462 of the Homeland
Security Act of 2002 (6 U.S.C. 279).
3804.
Access to children,
State and local courts, child welfare agencies, and consular
officials
At all detention
facilities, the Secretary shall—
(1) prominently post in a
manner accessible to detainees and visitors and include in detainee handbooks
information on the protections of this subtitle as well as information on
potential eligibility for parole or release;
(2) absent extraordinary
circumstances, ensure that individuals who are detained by the Department and
are parents of children in the United States are—
(A) permitted regular phone
calls and contact visits with their children;
(B) provided with contact
information for child welfare agencies and family courts in the relevant
jurisdictions;
(C) able to participate fully
and, to the extent possible, in person in all family court proceedings and any
other proceedings that may impact their right to custody of their
children;
(D) granted free and
confidential telephone calls to relevant child welfare agencies and family
courts as often as is necessary to ensure that the best interest of their
children, including a preference for family unity whenever appropriate, can be
considered in child welfare agency or family court proceedings;
(E) able to fully comply with
all family court or child welfare agency orders impacting custody of their
children;
(F) provided access to United
States passport applications or other relevant travel document applications for
the purpose of obtaining travel documents for their children;
(G) afforded timely access to
a notary public for the purpose of applying for a passport for their children
or executing guardianship or other agreements to ensure the safety of their
children; and
(H) granted adequate time
before removal to obtain passports, apostilled birth certificates, travel
documents, and other necessary records on behalf of their children if such
children will accompany them on their return to their country of origin or join
them in their country of origin; and
(3) where doing so would not
impact public safety or national security, facilitate the ability of detained
alien parents and primary caregivers to share information regarding travel
arrangements with their consulate, children, child welfare agencies, or other
caregivers in advance of the detained alien individual’s departure from the
United States.
3805.
Mandatory
training
The Secretary, in
consultation with the Secretary of Health and Human Services, the Secretary of
State, the Attorney General, and independent child welfare and family law
experts, shall develop and provide training on the protections required under
sections 3803 and 3804 to all personnel of the Department, cooperating
entities, and detention facilities operated by or under agreement with the
Department who regularly engage in immigration enforcement actions and in the
course of such actions come into contact with individuals who are parents or
primary caregivers of children in the United States.
3806.
Rulemaking
Not later than 180 days after the date of
the enactment of this Act, the Secretary shall promulgate regulations to
implement sections 3803 and 3804 of this Act.
3807.
Severability
If any provision of this subtitle or
amendment made by this subtitle, or the application of a provision or amendment
to any person or circumstance, is held to be unconstitutional, the remainder of
this subtitle and amendments made by this subtitle, and the application of the
provisions and amendment to any person or circumstance, shall not be affected
by the holding.
IV
Reforms to nonimmigrant
visa programs
A
Employment-based
nonimmigrant visas
4101.
Market-based H–1B
Visa limits
(a)
In
general
Section 214(g) (8
U.S.C. 1184(g)) is amended—
(1) in paragraph (1)—
(A) in the matter preceding
subparagraph (A), by striking (beginning with fiscal year 1992);
and
(B) by amending subparagraph
(A) to read as follows:
(A) under section
101(a)(15)(H)(i)(b) may not exceed the sum of—
(i) the base allocation
calculated under paragraph (9)(A); and
(ii) the allocation
adjustment calculated under paragraph (9)(B);
and
;
(2) by redesignating
paragraph (10) as subparagraph (D) of paragraph (9);
(3) by redesignating
paragraph (9) as paragraph (10); and
(4) by inserting after
paragraph (8) the following:
(9)
(A) Except as provided in
subparagraph (C), the base allocation of nonimmigrant visas under section
101(a)(15)(H)(i)(b) for each fiscal year shall be equal to—
(i) the sum of—
(I) the base allocation for
the most recently completed fiscal year; and
(II) the allocation
adjustment under subparagraph (B) for the most recently completed fiscal
year;
(ii) if the number calculated
under clause (i) is less than 115,000, 115,000; or
(iii) if the number
calculated under clause (i) is more than 180,000, 180,000.
(B)
(i) If the number of
cap-subject nonimmigrant visa petitions accepted for filing under section
101(a)(15)(H)(i)(b) during the first 45 days petitions may be filed for a
fiscal year is equal to the base allocation for such fiscal year, an additional
20,000 such visas shall be made available beginning on the 46th day on which
petitions may be filed for such fiscal year.
(ii) If the base allocation
of cap-subject nonimmigrant visa petitions accepted for filing under section
101(a)(15)(H)(i)(b) for a fiscal year is reached during the 15-day period
ending on the 60th day on which petitions may be filed for such fiscal year, an
additional 15,000 such visas shall be made available beginning on the 61st day
on which petitions may be filed for such fiscal year.
(iii) If the base allocation
of cap-subject nonimmigrant visa petitions accepted for filing under section
101(a)(15)(H)(i)(b) for a fiscal year is reached during the 30-day period
ending on the 90th day on which petitions may be filed for such fiscal year, an
additional 10,000 such visas shall be made available beginning on the 91st day
on which petitions may be filed for such fiscal year.
(iv) If the base allocation
of cap-subject nonimmigrant visa petitions accepted for filing under section
101(a)(15)(H)(i)(b) for a fiscal year is reached during the 185-day period
ending on the 275th day on which petitions may be filed for such fiscal year,
an additional 5,000 such visas shall be made available beginning on the date on
which such allocation is reached.
(v) If the number of
cap-subject nonimmigrant visa petitions accepted for filing under section
101(a)(15)(H)(i)(b) for a fiscal year is at least 5,000 fewer than the base
allocation, but is not more than 9,999 fewer than the base allocation, the
allocation adjustment for the following fiscal year shall be -5,000.
(vi) If the number of
cap-subject nonimmigrant visa petitions accepted for filing under section
101(a)(15)(H)(i)(b) for a fiscal year is at least 10,000 fewer than the base
allocation, but not more than 14,999 fewer than the base allocation, the
allocation adjustment for the following fiscal year shall be -10,000.
(vii) If the number of
cap-subject nonimmigrant visa petitions accepted for filing under section
101(a)(15)(H)(i)(b) for a fiscal year is at least 15,000 fewer than the base
allocation, but not more than 19,999 fewer than the base allocation, the
allocation adjustment for the following fiscal year shall be -15,000.
(viii) If
the number of cap-subject nonimmigrant visa petitions accepted for filing under
section 101(a)(15)(H)(i)(b) for a fiscal year is at least 20,000 fewer than the
base allocation, the allocation adjustment for the following fiscal year shall
be -20,000.
(C) No
allocation adjustment may take place under any of clauses (i) through (iv) of
subparagraph (B) to make additional visas available for any fiscal year in
which the national occupational unemployment rate for Management,
Professional, and Related Occupations, as published by the Bureau of
Labor Statistics each month, averages 4.5 percent or greater over the 12-month
period preceding the date of the Secretary’s determination of whether the cap
should be increased or
decreased.
.
(b)
Increase in allocation
for STEM nonimmigrants
Section 214(g)(5)(C) (8 U.S.C.
1184(g)(5)(C)) is amended to read as follows:
(C) has earned a master's or
higher degree, in a field of science, technology, engineering, or math included
in the Department of Education’s Classification of Instructional Programs
taxonomy within the summary groups of computer and information sciences and
support services, engineering, mathematics and statistics, biological and
biomedical sciences, and physical sciences, from a United States institution of
higher education (as defined in section 101(a) of the Higher Education Act of
1965 (20 U.S.C. 1001(a)) until the number of aliens who are exempted from such
numerical limitation during such year exceed
25,000.
.
(c)
Publication
(1)
Data summarizing
petitions
The Secretary shall timely upload to a public website
data that summarizes the adjudication of nonimmigrant petitions under section
101(a)(15)(H)(i)(b) of the Immigration and Nationality Act (8 U.S.C.
1101(a)(15)(H)(i)(b)) during each fiscal year.
(2)
Annual numerical
limitation
As soon as practicable and no later than March 2 of
each fiscal year, the Secretary shall publish in the Federal Register the
numerical limitation determined under section 214(g)(1)(A) for such fiscal
year.
(d)
Effective date and
application
The amendments made by subsection (a) shall take
effect on the first day of the first fiscal year beginning after the date of
the enactment of this Act and apply to applications for nonimmigrant visas
under section 101(a)(15)(H)(i)(b) of the Immigration and Nationality Act (8
U.S.C. 1101(a)(15)(H)(i)(b)) for such fiscal year.
4102.
Employment
authorization for dependents of employment-based nonimmigrants
Section 214(c) (8 U.S.C. 1184(c)) is
amended—
(1) by striking Attorney General
each place such term appears and inserting Secretary of Homeland
Security; and
(2) in paragraph (2), by amending subparagraph
(E) to read as follows:
(E)
(i) In the case of an alien spouse admitted
under section 101(a)(15)(L), who is accompanying or following to join a
principal alien admitted under such section, the Secretary of Homeland Security
shall—
(I) authorize the alien spouse to engage in
employment in the United States; and
(II) provide the spouse with an
employment authorized endorsement or other appropriate work
permit.
(ii) In the case of an alien spouse admitted
under section 101(a)(15)(H)(i)(b), who is accompanying or following to join a
principal alien admitted under such section, the Secretary of Homeland Security
shall—
(I) authorize the alien spouse to engage in
employment in the United States; and
(II) provide such a spouse with an
employment authorized endorsement or other appropriate work
permit, if appropriate.
(iii)
(I) Upon the request of the Secretary of State,
the Secretary of Homeland Security may suspend employment authorizations under
clause (ii) to nationals of a foreign country that does not permit reciprocal
employment to nationals of the United States who are accompanying or following
to join the employment-based nonimmigrant husband or wife of such spouse to be
employed in such foreign country based on that status.
(II) In subclause (I), the term
employment-based nonimmigrant means an individual who is admitted
to a foreign country to perform employment similar to the employment described
in section
101(a)(15)(H)(i)(b).
.
4103.
Eliminating
impediments to worker mobility
(a)
Deference to prior
approvals
Section 214(c) (8 U.S.C. 1184(c)), as amended by
section 4102, is further amended by adding at the end the following:
(15) Subject to paragraph
(2)(D) and subsection (g) and section 104(c) and subsections (a) and (b) of
section 106 of the American Competitiveness in the Twenty-first Century Act of
2000 (Public Law 106–313; 8 U.S.C. 1184 note), the Secretary of Homeland
Security shall give deference to a prior approval of a petition in reviewing a
petition to extend the status of a nonimmigrant admitted under subparagraph
(H)(i)(b) or (L) of section 101(a)(15) if the petition involves the same alien
and petitioner unless the Secretary determines that—
(A) there was a material
error with regard to the previous petition approval;
(B) a substantial change in
circumstances has taken place;
(C) new
material information has been discovered that adversely impacts the eligibility
of the employer or the nonimmigrant; or
(D) in the
Secretary's discretion, such extension should not be
approved.
.
(b)
Effect of employment
termination
Section 214(n) (8
U.S.C. 1184(n)) is amended by adding at the end the following:
(3) A nonimmigrant admitted
under section 101(a)(15)(H)(i)(b) whose employment relationship terminates
before the expiration of the nonimmigrant's period of authorized admission
shall be deemed to have retained such legal status throughout the entire 60-day
period beginning on the date such employment is terminated. A nonimmigrant who
files a petition to extend, change, or adjust their status at any point during
such period shall be deemed to have lawful status under section
101(a)(15)(H)(i)(b) while that petition is
pending.
.
(c)
Visa
revalidation
Section 222(c) (8 U.S.C. 1202(c)) is amended—
(1) by inserting
(1) before Every alien; and
(2) by adding at the end the
following:
(2) The Secretary of State
may, at the Secretary's discretion, renew in the United States the visa of an
alien admitted under subparagraph (A), (E), (G), (H), (I), (L), (N), (O), (P),
(R), or (W) of section 101(a)(15) if the alien has remained eligible for such
status and qualifies for a waiver of interview as provided for in subsection
(h)(1)(D).
.
(d)
Interview waivers for
low risk visa applicants
Section 222(h)(1) (8 U.S.C. 1202(h)(1)) is
amended—
(1) in subparagraph (B)(iv), by striking
or at the end;
(2) in subparagraph (C)(ii),
by striking and at the end and inserting or;
and
(3) by adding at the end the
following:
(D) by the Secretary of
State, in consultation with the Secretary of Homeland Security, for such aliens
or classes of aliens—
(i) that the Secretary
determines generally represent a low security risk;
(ii) for which an in-person
interview would not add material benefit to the adjudication process;
(iii) unless the Secretary of
State, after a review of all standard database and biometric checks, the visa
application, and other supporting documents, determines that an interview is
unlikely to reveal derogatory information; and
(iv) except that in every
case, the Secretary of State retains the right to require an applicant to
appear for an interview;
and
.
4104.
STEM education and
training
(a)
Fee
Section
212(a)(5)(A) (8 U.S.C. 1182(a)(5)(A)) is amended by adding at the end the
following:
(v)
Fee
An
employer shall submit, along with an application for a certification under this
subparagraph, a fee of $1,000, which shall be deposited in the STEM Education
and Training Account established under section
286(w).
.
(b)
H–1B nonimmigrant
petitioner account
Section 286(s) (8 U.S.C. 1356(s)) is amended
by striking paragraphs (3) and (4) and inserting the following:
(3)
Low-income stem
scholarship program
(A)
In
general
Thirty percent of the amounts deposited into the H–1B
Nonimmigrant Petitioner Account shall remain available to the Director of the
National Science Foundation until expended for scholarships described in
section 414(d) of the American Competitiveness and Workforce Improvement Act of
1998 (42 U.S.C. 1869c) for low-income students enrolled in a program of study
leading to a degree in science, technology, engineering, or mathematics.
(B)
Stem education for
underrepresented
The Director shall work in consultation with, or
direct scholarship funds through, national nonprofit organizations that
primarily focus on science, technology, engineering, or mathematics education
for underrepresented groups, such as women and minorities.
(C)
Loan
forgiveness
The Director may expend funds from the Account for
purposes of loan forgiveness or repayment of student loans which led to a
low-income student obtaining a degree in science, technology, engineering,
mathematics, or other high demand fields.
(4)
National science
foundation grant program for k–12 science, technology, engineering, and
mathematics education
(A)
In
general
Ten percent of the amounts deposited into the H–1B
Nonimmigrant Petitioner Account shall remain available to the Director of the
National Science Foundation until expended to carry out a direct or matching
grant program to support improvement in K–12 education, including through
private-public partnerships. Grants awarded pursuant to this paragraph shall
include formula based grants that target lower income populations with a focus
on reaching women and minorities.
(B)
Types of programs
covered
The Director shall award grants to programs that—
(i) support the development
and implementation of standards-based instructional materials models and
related student assessments that enable K–12 students to acquire an
understanding of science, technology, engineering, and mathematics, and to
develop critical thinking skills;
(ii) provide systemic
improvement in training K–12 teachers and education for students in science,
technology, engineering, and mathematics, including by supporting efforts to
promote gender-equality among students receiving such instruction;
(iii) support the
professional development of K–12 science, technology, engineering, and
mathematics teachers in the use of technology in the classroom;
(iv) stimulate systemwide
K–12 reform of science, technology, engineering, and mathematics in urban,
rural, and economically disadvantaged regions of the United States;
(v) provide externships and
other opportunities for students to increase their appreciation and
understanding of science, technology, engineering, and mathematics (including
summer institutes sponsored by an institution of higher education for students
in grades 7 through 12 that provide instruction in such fields);
(vi) involve partnerships of
industry, educational institutions, and national or regional community based
organizations with demonstrated experience addressing the educational needs of
disadvantaged communities;
(vii) provide college
preparatory support to expose and prepare students for careers in science,
technology, engineering, and mathematics; or
(viii) provide for carrying
out systemic reform activities under section 3(a)(1) of the National Science
Foundation Act of 1950 (42 U.S.C.
1862(a)(1)).
.
(c)
Use of
fee
Section 286 (8 U.S.C. 1356) is amended by adding at the end
the following:
(w)
STEM Education and
Training Account
(1)
In
general
There is established in the general fund of the Treasury
a separate account, which shall be known as the STEM Education and
Training Account. Notwithstanding any other section of this title,
there shall be deposited as offsetting receipts into the Account all of the
fees collected under section 212(a)(5)(A)(v).
(2)
Purposes
(A)
In
general
The purposes of the STEM Education and Training Account
are to enhance the economic competitiveness of the United States by—
(i) strengthening STEM
education, including in computer science, at all levels;
(ii) ensuring that schools
have access to well-trained and effective STEM teachers;
(iii) supporting efforts to
strengthen the elementary and secondary curriculum, including efforts to make
courses in computer science more broadly available; and
(iv) helping colleges and
universities produce more graduates in fields needed by American
employers.
(B)
Defined
term
In this paragraph, the term STEM education
means instruction in a field of science, technology, engineering or math
included in the Department of Education's Classification of Instructional
Programs taxonomy within the summary groups of computer and information
sciences and support services, engineering, mathematics and statistics,
biological and biomedical sciences, and physical sciences.
(3)
Allocations to states
and territories
(A)
In
general
Subject to subparagraph (B), the Secretary of Education
shall proportionately allocate 70 percent of the amounts deposited into the
STEM Education and Training Account each fiscal year to the 50 States, the
District of Columbia, the Commonwealth of Puerto Rico, Guam, the United States
Virgin Islands, American Samoa, and the Northern Mariana Islands in an amount
that bears the same relationship as the proportion the State, district, or
territory received under subpart 2 of part A of title I of the Elementary and
Secondary Education Act of 1965 (20 U.S.C. 6331 et seq.) for the preceding
fiscal year bears to the amount all States and territories received under that
subpart for the preceding fiscal year.
(B)
Minimum
allocations
No State or territory shall receive less than an
amount equal to 0.5 percent of the total amount made available to all States
from the STEM Education and Training Account. If a State or territory does not
request an allocation from the Account for a fiscal year, the Secretary shall
reallocate the State's allocation to the remaining States and territories in
accordance with this paragraph.
(C)
Use of
funds
Amounts allocated pursuant to this paragraph may be used
for the activities described in section 4104(c) of the
Border Security, Economic Opportunity, and
Immigration Modernization Act.
(4)
Stem capacity building
at minority-serving institutions
(A)
In
general
The Secretary of Education shall allocate 20 percent of
the amounts deposited into the STEM Education and Training Account to establish
or expand programs to award grants to institutions described in subparagraph
(C)—
(i) to enhance the quality of
undergraduate science, technology, engineering, and mathematics education at
such institutions; and
(ii) to increase the
retention and graduation rates of students pursuing degrees in such fields at
such institutions.
(B)
Types of programs
covered
Grants awarded under this paragraph shall be awarded
to—
(i) minority-serving
institutions of higher education for—
(I) activities to improve
courses and curriculum in science, technology, engineering, and
mathematics;
(II) efforts to promote
gender equality among students enrolled in such courses;
(III) faculty
development;
(IV) stipends for
undergraduate students participating in research; and
(V) other activities
consistent with subparagraph (A), as determined by the Secretary of Education;
and
(ii) to other institutions of
higher education to partner with the institutions described in clause (i)
for—
(I) faculty and student
development and exchange;
(II) research infrastructure
development;
(III) joint research
projects; and
(IV) identification and
development of minority and low-income candidates for graduate studies in
science, technology, engineering, and mathematics degree programs.
(C)
Institutions
included
In this paragraph, the term institutions
shall include—
(i) colleges eligible to
receive funds under the Act of August 30, 1890 (7 U.S.C. 321–326a and 328),
including Tuskegee University;
(ii) 1994 Institutions, as
defined in section 532 of the Equity in Educational Land-Grant Status Act of
1994 (7 U.S.C. 301 note);
(iii) part B institutions (as
defined in section 322 of the Higher Education Act of 1965 (20 U.S.C. 1061));
and
(iv) Hispanic-serving
institutions, as defined in section 502(a)(5) of the Higher Education Act of
1965 (20 U.S.C. 1101a(a)(5)).
(D)
Granting of bonding
authority
A recipient of a grant awarded under this paragraph is
authorized to utilize such funds for the issuance of bonds to fund research
infrastructure development.
(E)
Loan
forgiveness
The Director may expend funds from the allocation
under this paragraph for purposes of loan forgiveness or repayment of student
loans which led to a low-income student obtaining a degree in science,
technology, engineering, mathematics, or other high demand fields.
(5)
Workforce
investment
The Secretary of Education shall allocate 5 percent of
the amounts deposited into the STEM Education and Training Account to the
Secretary of Labor until expended for statewide workforce investment activities
that may also benefit veterans and their spouses, including youth activities
and statewide employment and training and activities for adults and dislocated
workers described in section 128(a) of the Workforce Investment Act of 1998 (29
U.S.C. 2853(a)), and the development of licensing and credentialing
programs.
(6)
American dream accounts
The Secretary of Education shall allocate 3
percent of the amounts deposited into the STEM Education and Training Account
to award grants, on a competitive basis, to eligible entities to enable such
eligible entities to establish and administer American Dream Accounts under
section 4104(e) of the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996.
(7)
Administration
expenses
The Secretary of Education may expend up to 2 percent of
the amounts deposited into the STEM Education and Training Account for
administrative expenses, including conducting an annual evaluation of the
implementation and impact of the activities funded by the STEM Education and
Training Account as required under section 4104(c)(3) of the
Border Security, Economic Opportunity, and
Immigration Modernization
Act.
.
(d)
STEM education
grants
(1)
Application
process
(A)
In
general
Each Governor and Chief State School Officer desiring an
allocation from the STEM Education and Training Account under section 286(w)(3)
of the Immigration and Nationality Act, as added by subsection (b), shall
jointly submit a plan, including a proposed budget, signed by the Governor and
Chief State School Officer, to the Secretary of Education at such time, in such
form, and including such information as the Secretary of Education may
prescribe pursuant to subparagraph (B). The plan shall describe how the State
plans to improve STEM education to meet the needs of students and employers in
the State.
(B)
Rulemaking
The
Secretary of Education shall issue a rule, through a rulemaking procedure that
complies with section 553 of title 5, United States Code, prescribing the
information that should be included in the State plans submitted under
subparagraph (A).
(2)
Allowable
activities
A State, district,
or territory that receives funding from the STEM Education and Training Account
may use such funding to develop and implement science, technology, engineering,
and mathematics (STEM) activities to serve students, including students of
underrepresented groups such as minorities, economically disadvantaged, and
females by—
(A) strengthening the State’s
STEM academic achievement standards;
(B) implementing strategies
for the recruitment, training, placement, and retention of teachers in STEM
fields, including computer science;
(C) carrying out initiatives
designed to assist students in succeeding and graduating from postsecondary
STEM programs;
(D) improving the
availability and access to STEM-related worker training programs, including
community college courses and programs;
(E) forming partnerships with
higher education, economic development, workforce, industry, and local
educational agencies; or
(F) engaging in other
activities, as determined by the State, in consultation with businesses and
State agencies, to improve STEM education.
(3)
National
evaluation
(A)
In
general
Using amounts allocated under section 286(w)(7) of the
Immigration and Nationality Act, as added by subsection (b), the Secretary of
Education shall conduct, directly or through a grant or contract, an annual
evaluation of the implementation and impact of the activities funded by the
STEM Education and Training Account.
(B)
Annual
Report
The Secretary shall submit a report describing the results
of each evaluation conducted under subparagraph (A) to—
(i) the President;
(ii) the
Committee on the Judiciary of the
Senate;
(iii) the
Committee on the Judiciary of the House of
Representatives;
(iv) the
Committee on Health, Education, Labor,
and Pensions of the Senate; and
(v) the
Committee on Education and the Workforce of the
House of Representatives.
(C)
Dissemination
The
Secretary shall make the findings of the evaluation widely available to
educators, the business community, and the public.
(4)
Rule of
construction
Nothing in this
subsection may be construed to permit the Secretary of Education or any other
Federal official to approve the content or academic achievement standards of a
State.
(e)
American Dream
Accounts
(1)
Definitions
In this subsection:
(A)
American dream
account
The term American Dream Account means a
personal online account for low-income students that monitors higher education
readiness and includes a college savings account.
(B)
Appropriate committees
of Congress
The term appropriate committees of
Congress means—
(i) the
Committee on Health, Education, Labor,
and Pensions of the Senate;
(ii) the
Committee on Appropriations of the
Senate;
(iii) the
Committee on Finance of the
Senate;
(iv) the
Committee on Education and the Workforce of the
House of Representatives;
(v) the
Committee on Appropriations of the House of
Representatives;
(vi) the
Committee on Ways and Means of the House of
Representatives; and
(vii) any other committee of
the Senate or House of Representatives that the Secretary determines
appropriate.
(C)
College savings
account
The term college savings account means a
savings account that—
(i) provides some
tax-preferred accumulation;
(ii) is widely available
(such as Qualified Tuition Programs under section 529 of the Internal Revenue
Code of 1986 or Coverdell Education Savings Accounts under section 530 of the
Internal Revenue Code of 1986); and
(iii) contains funds that may
be used only for the costs associated with attending an institution of higher
education, including—
(I) tuition and fees;
(II) room and board;
(III) textbooks;
(IV) supplies and equipment;
and
(V) internet access.
(D)
Dual enrollment
program
The term dual enrollment program means an
academic program through which a secondary school student is able
simultaneously to earn credit toward a secondary school diploma and a
postsecondary degree or credential.
(E)
Eligible
Entity
The term eligible entity means—
(i) a State educational
agency;
(ii) a local educational
agency;
(iii) a charter school or
charter management organization;
(iv) an institution of higher
education;
(v) a nonprofit
organization;
(vi) an entity with
demonstrated experience in educational savings or in assisting low-income
students to prepare for, and attend, an institution of higher education;
or
(vii) a consortium of 2 or
more of the entities described in clause (i) through (vi).
(F)
ESEA
definitions
The terms local educational agency,
parent, and State educational agency have the
meanings given the terms in section 9101 of the Elementary and Secondary
Education Act of 1965 (20 U.S.C. 7801) and the term charter school
has the meaning given the term in section 5210 of such Act.
(G)
Institution of higher
education
The term institution of higher education
has the meaning given the term in section 101(a) of the Higher Education Act of
1965 (20 U.S.C. 1001(a)).
(H)
Low-income
student
The term low-income student means a student
who is eligible to receive a free or reduced price lunch under the Richard B.
Russell National School Lunch Act (42 U.S.C. 1751 et seq.).
(2)
Grant program
(A)
Program
authorized
The Secretary of
Education is authorized to award grants, on a competitive basis, to eligible
entities to enable such eligible entities to establish and administer American
Dream Accounts for a group of low-income students.
(B)
Reservation
From
the amount made available each fiscal year to carry out this section under
section 286(w)(6) of the Immigration and Nationality Act, the Secretary of
Education shall reserve not more than 5 percent of such amount to carry out the
evaluation activities described in paragraph (5)(A).
(C)
Duration
A
grant awarded under this subsection shall be for a period of not more than 3
years. The Secretary of Education may extend such grant for an additional
2-year period if the Secretary of Education determines that the eligible entity
has demonstrated significant progress, based on the factors described in
paragraph (3)(B)(xi).
(3)
Applications;
priority
(A)
In
general
Each eligible entity desiring a grant under this
subsection shall submit an application to the Secretary of Education at such
time, in such manner, and containing such information as the Secretary of
Education may require.
(B)
Contents
The
application described in subparagraph (A) shall include—
(i) a description of the
characteristics of a group of not less than 30 low-income public school
students who—
(I) are, at the time of the
application, attending a grade not higher than grade 9; and
(II) will, under the grant,
receive an American Dream Account;
(ii) a description of how the
eligible entity will engage, and provide support (such as tutoring and
mentoring for students, and training for teachers and other stakeholders)
either online or in person, to—
(I) the students in the group
described in clause (i);
(II) the family members and
teachers of such students; and
(III) other stakeholders such
as school administrators and school counselors;
(iii) an identification of
partners who will assist the eligible entity in establishing and sustaining
American Dream Accounts;
(iv) a description of what
experience the eligible entity or the eligible entity's partners have in
managing college savings accounts, preparing low-income students for
postsecondary education, managing online systems, and teaching financial
literacy;
(v) a description of how the
eligible entity will help increase the value of the college savings account
portion of each American Dream Account, such as by providing matching funds or
incentives for academic achievement;
(vi) a description of how the
eligible entity will notify each participating student in the group described
in subparagraph (A), on a semiannual basis, of the current balance and status
of the student’s college savings account portion of the student’s American
Dream Account;
(vii) a plan that describes
how the eligible entity will monitor participating students in the group
described in clause (i) to ensure that each student's American Dream Account
will be maintained if a student in such group changes schools before graduating
from secondary school;
(viii) a plan that describes
how the American Dream Accounts will be managed for not less than 1 year after
a majority of the students in the group described in clause (i) graduate from
secondary school;
(ix) a description of how the
eligible entity will encourage students in the group described in clause (i)
who fail to graduate from secondary school to continue their education;
(x) a description of how the
eligible entity will evaluate the grant program, including by collecting, as
applicable, data about the students in the group described in clause (i) during
the grant period, and, if sufficient grant funds are available, after the grant
period, including
(I) attendance rates;
(II) progress reports;
(III) grades and course
selections;
(IV) the student graduation
rate (as defined in section 1111 (b)(2)(C)(vi) of the Elementary and Secondary
Education Act of 1965 (20 U.S.C. 6311(b)(2)(C)(vi)));
(V) rates of student
completion of the Free Application for Federal Student Aid described in section
483 of the Higher Education Act of 1965 (20 U.S.C. 1090);
(VI) rates of enrollment in
an institution of higher education; and
(VII) rates of completion at
an institution of higher education;
(xi) a description of what
will happen to the funds in the college savings account portion of the American
Dream Accounts that are dedicated to participating students described in clause
(i) who have not matriculated at an institution of higher education at the time
of the conclusion of the period of American Dream Account management described
in clause (viii);
(xii) a description of how
the eligible entity will ensure that funds in the college savings account
portion of the American Dream Accounts will not make families ineligible for
public assistance; and
(xiii) a description of how
the eligible entity will ensure that participating students described in clause
(i) will have access to the Internet;
(C)
Priority
In
awarding grants under this subsection, the Secretary of Education shall give
priority to applications from eligible entities that—
(i) are described in
paragraph (1)(E)(vii);
(ii) serve the largest number
of low-income students;
(iii) emphasize preparing
students to pursue careers in science, technology, engineering, or mathematics;
or
(iv) in the case of an
eligible entity described in clause (i) or (ii) of paragraph (1)(E), provide
opportunities for participating students described in clause (i) to participate
in a dual enrollment program at no cost to the student.
(4)
Authorized
activities
(A)
In
general
An eligible entity that receives a grant under this
subsection shall use such grant funds to establish an American Dream Account
for each participating student described in paragraph (3)(B)(i), which will be
used to—
(i) open a college savings
account for such student;
(ii) monitor the progress of
such student online, which—
(I) shall include monitoring
student data relating to—
(aa) grades and course
selections;
(bb) progress reports;
and
(cc) attendance and
disciplinary records; and
(II) may also include
monitoring student data relating to a broad range of information, provided by
teachers and family members, related to postsecondary education readiness,
access, and completion;
(iii) provide opportunities
for such students, either online or in person, to learn about financial
literacy, including by—
(I) assisting such students
in financial planning for enrollment in an institution of higher education;
and
(II) assisting such students
in identifying and applying for financial aid (such as loans, grants, and
scholarships) for an institution of higher education;
(iv) provide opportunities
for such students, either online or in person, to learn about preparing for
enrollment in an institution of higher education, including by providing
instruction to students about—
(I) choosing the appropriate
courses to prepare for postsecondary education;
(II) applying to an
institution of higher education;
(III) building a student
portfolio, which may be used when applying to an institution of higher
education;
(IV) selecting an institution
of higher education;
(V) choosing a major for the
student's postsecondary program of education or a career path, including
specific instruction on pursuing science, technology, engineering, and
mathematics majors; and
(VI) adapting to life at an
institution of higher education; and
(v) provide opportunities for
such students, either online or in person, to identify skills or interests,
including career interests.
(B)
Access to american
dream account
(i)
In
general
Subject to clause (iii) and (iv), and in accordance with
applicable Federal laws and regulations relating to privacy of information and
the privacy of children, an eligible entity that receives a grant under this
subsection shall allow vested stakeholders described in clause (ii), to have
secure access, through the Internet, to an American Dream Account.
(ii)
Vested
stakeholders
The vested stakeholders that an eligible entity
shall permit to access an American Dream Account are individuals (such as the
student's teachers, school counselors, counselors at an institution of higher
education, school administrators, or other individuals) that are designated, in
accordance with the Family Educational Rights and Privacy Act of 1974 (20
U.S.C. 1232g), by the parent of a participating student in whose name such
American Dream Account is held, as having permission to access the account. A
student's parent may withdraw such designation from an individual at any
time.
(iii)
Exception for college
savings account
An eligible entity that receives a grant under
this subsection shall not be required to give vested stakeholders described in
clause (ii), access to the college savings account portion of a student's
American Dream Account.
(iv)
Adult
students
Notwithstanding clause (i) through (iii), if a
participating student is age 18 or older, an eligible entity that receives a
grant under this subsection shall not provide access to such participating
student's American Dream Account without the student's consent, in accordance
with the Family Educational Rights and Privacy Act of 1974 (20 U.S.C.
1232g).
(v)
Input of student
information
Student data collected pursuant to subparagraph
(A)(ii)(I) may only be entered into an American Dream Account by a school
administrator or such administrator's designee.
(C)
Prohibition on use of
student information
An eligible entity that receives a grant
under this subsection may not use any student-level information or data for the
purpose of soliciting, advertising, or marketing any financial or nonfinancial
consumer product or service that is offered by such eligible entity, or on
behalf of any other person.
(D)
Limitation on the use
of grant funds
An eligible entity shall not use more than 25
percent of the grant funds provided under this subsection to provide the
initial deposit into a college savings account portion of a student's American
Dream Account.
(5)
Reports and
evaluations
(A)
In
general
Not later than 1 year after the Secretary of Education
has disbursed grants under this subsection, and annually thereafter, the
Secretary of Education shall prepare and submit a report to the appropriate
committees of Congress that includes an evaluation of the effectiveness of the
grant program established under this subsection.
(B)
Contents
The
report described in subparagraph (A) shall—
(i) list the grants that have
been awarded under paragraph (2)(A);
(ii) include the number of
students who have an American Dream Account established through a grant awarded
under paragraph (2)(A);
(iii) provide data (including
the interest accrued on college savings accounts that are part of an American
Dream Account) in the aggregate, regarding students who have an American Dream
Account established through a grant awarded under paragraph (2)(A), as compared
to similarly situated students who do not have an American Dream
Account;
(iv) identify best practices
developed by the eligible entities receiving grants under this
subsection;
(v) identify any issues
related to student privacy and stakeholder accessibility to American Dream
Accounts;
(vi) provide feedback from
participating students and the parents of such students about the grant
program, including—
(I) the impact of the
program;
(II) aspects of the program
that are successful;
(III) aspects of the program
that are not successful; and
(IV) any other data required
by the Secretary of Education; and
(vii) provide recommendations
for expanding the American Dream Accounts program.
(6)
Eligibility to receive
federal student financial aid
Notwithstanding any other provision of law,
any funds that are in the college savings account portion of a student's
American Dream Account shall not affect such student's eligibility to receive
Federal student financial aid, including any Federal student financial aid
under the Higher Education Act of 1965 (20 U.S.C. 1001), and shall not be
considered in determining the amount of any such Federal student aid.
(f)
Conforming
amendment
Section 480(j) of
the Higher Education Act of 1965 (20 U.S.C. 1087vv(j)) is amended by adding at
the end the following:
(5) Notwithstanding paragraph
(1), amounts made available under the college savings account portion of an
American Dream Account under section 4105(e)(4) of the
Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 shall not be treated as estimated
financial assistance for purposes of section
471(3).
.
4105.
H–1B and L Visa
fees
Section 281 (8 U.S.C.
1351) is amended—
(1) by striking The fees and
inserting the following:
(a)
In
general
The
fees
;
(2) by striking :
Provided, That nonimmigrant visas and inserting the following:
“.
(b)
United Nations
visitors
Nonimmigrant
visas
;
(3) by striking
Subject to and inserting the following:
(c)
Fee waivers or
reductions
Subject to
;
and
(4) by adding at the end the
following:
(d)
H–1B and L Visa
fees
In addition to the fees authorized under subsection (a), the
Secretary of Homeland Security shall collect, from each employer (except for
nonprofit research institutions and nonprofit educational institutions) filing
a petition to hire nonimmigrants described in subparagraph (H)(i)(B) or (L) of
section 101(a)(15), a fee in an amount equal to—
(1) $1,250 for each such
petition filed by any employer with not more than 25 full-time equivalent
employees in the United States; and
(2) $2,500 for each such
petition filed by any employer with more than 25 such
employees.
.
B
H–1B visa fraud and abuse
protections
1
H–1B Employer Application
Requirements
4211.
Modification of
application requirements
(a)
General application
requirements
(1)
Wage
rates
Section 212(n)(1)(A) (8
U.S.C. 1182(n)(1)(A)) is amended—
(A) in clause (i)—
(i) in the matter preceding subclause (I), by
inserting if the employer is not an H–1B-dependent employer,
before is offering;
(ii) in subclause
(I), by striking question, or and inserting question;
or;
(iii) in subclause
(II), by striking employment, and inserting
employment; and
(iv) in the
undesignated material following subclause (II), by striking application,
and and inserting application;; and
(B) by striking
clause (ii) and inserting the following:
(ii) if the employer is an
H–1B-dependent employer, is offering and will offer to H–1B nonimmigrants,
during the period of authorized employment for each H–1B nonimmigrant, wages
that are not less than the level 2 wages set out in subsection (p); and
(iii) will provide working
conditions for H–1B nonimmigrants that will not adversely affect the working
conditions of other workers similarly
employed.
.
(2)
Strengthening the
prevailing wage system
Section 212(p) (8 U.S.C. 1182(p)) is
amended to read as follows:
(p)
Computation of
prevailing wage level
(1)
In general
(A)
Surveys
For employers of nonimmigrants admitted
pursuant to section 101(a)(15)(H)(i)(b), the Secretary of Labor shall make
available to employers a governmental survey to determine the prevailing wage
for each occupational classification by metropolitan statistical area in the
United States. Such survey, or other survey approved by the Secretary of Labor,
shall provide 3 levels of wages commensurate with experience, education, and
level of supervision. Such wage levels shall be determined as follows:
(i) The first level shall be the mean of the
lowest two-thirds of wages surveyed, but in no case less than 80 percent of the
mean of the wages surveyed.
(ii) The second level shall
be the mean of wages surveyed.
(iii) The third level shall
be the mean of the highest two-thirds of wages surveyed.
(B)
Educational, Nonprofit,
research, and governmental entities
In computing the prevailing
wage level for an occupational classification in an area of employment for
purposes of section 203(b)(1)(D) and subsections (a)(5)(A), (n)(1)(A)(i)(II),
and (t)(1)(A)(i)(II) of this section in the case of an employee of—
(i) an institution of higher
education, or a related or affiliated nonprofit entity; or
(ii) a nonprofit research
organization or a governmental research organization;
the prevailing wage level shall only take
into account employees at such institutions and organizations in the area of
employment.
(2)
Payment of prevailing
wage
The prevailing wage
level required to be paid pursuant to section 203(b)(1)(D) and subsections
(a)(5)(A), (n)(1)(A)(i)(II), and (t)(1)(A)(i)(II) of this section shall be 100
percent of the wage level determined pursuant to those sections.
(3)
Professional
athlete
With respect to a
professional athlete (as defined in subsection (a)(5)(A)(iii)(II)) when the job
opportunity is covered by professional sports league rules or regulations, the
wage set forth in those rules or regulations shall be considered as not
adversely affecting the wages of United States workers similarly employed and
shall be considered the prevailing wage.
(4)
Wages for H–2B
employees
(A)
In
general
The wages paid to H–2B nonimmigrants employed by the
employer will be the greater of—
(i) the actual wage level
paid by the employer to other employees with similar experience and
qualifications for such position; or
(ii) the prevailing wage
level for the occupational classification of the position in the geographic
area of the employment, based on the best information available as of the time
of filing the application.
(B)
Best information
available
In subparagraph (A), the term best information
available, with respect to determining the prevailing wage for a
position, means—
(i) a controlling collective
bargaining agreement or Federal contract wage, if applicable;
(ii) if there is no
applicable wage under clause (i), the wage level commensurate with the
experience, training, and supervision required for the job based on Bureau of
Labor Statistics data; or
(iii) if the data referred to
in clause (ii) is not available, a legitimate and recent private survey of the
wages paid for such positions in the metropolitan statistical
area.
.
(3)
Wages for educational,
nonprofit, research, and governmental entities
Section 212 (8
U.S.C. 1182), as amended by sections 2312 and 2313, is further amended by
adding at the end the following:
(x)
Determination of
prevailing wage
In the case of a nonprofit institution of higher
education (as defined in section 101(a) of the Higher Education Act of 1965 (20
U.S.C. 1001(a))), a related or affiliated nonprofit entity, a nonprofit
research organization, or a governmental research organization, the Secretary
of Labor shall determine such wage levels as follows:
(1) If the Secretary of Labor
uses, or makes available to employers, a governmental survey to determine the
prevailing wage, such survey shall provide at least 4 levels of wages
commensurate with experience, education, and the level of supervision.
(2) If an existing government
survey has only 2 levels, 2 intermediate levels may be created by dividing by
3, the difference between the 2 levels offered, adding the quotient thus
obtained to the first level and subtracting that quotient from the second
level.
(3) For institutions of
higher education, only teaching positions and research positions may be paid
using this special educational wage level.
(4) In computing the
prevailing wage level for an occupational classification in an area of
employment for purposes of subsections (a)(5)(A), (n)(1)(A)(i)(II), and
(t)(1)(A)(i)(II) and section 203(b)(1)(D) for an employee of an institution of
higher education, or a related or affiliated nonprofit entity or a nonprofit
research organization or a governmental research organization, the prevailing
wage level shall only take into account employees at such institutions and
organizations in the area of
employment.
.
(b)
Internet posting
requirement
Section 212(n)(1)(C) (8 U.S.C. 1182(n)(1)(C)) is
amended—
(1) by redesignating clause
(ii) as subclause (II);
(2) by striking (i)
has provided and inserting the following:
(ii)
(I) has
provided
;
(3) by striking
sought, or and inserting sought; or; and
(4) by inserting before
clause (ii), as redesignated by paragraph (2), the following:
(i) has advertised on the
Internet website maintained by the Secretary of Labor for the purpose of such
advertising, for at least 30 calendar days, a detailed description of each
position for which a nonimmigrant is sought that includes a description
of—
(I) the wage ranges and other
terms and conditions of employment;
(II) the minimum education,
training, experience, and other requirements for the position;
(III) the
process for applying for the position;
(IV) the
title and description of the position, including the location where the work
will be performed; and
(V) the name,
city, and zip code of the employer;
and
.
(c)
Application of
requirements to all employers
(1)
Nondisplacement
Section
212(n)(1)(E) (8 U.S.C. 1182(n)(1)(E)) is amended to read as follows:
(E)
(i)
(I) In the case of an
application filed by an employer that is an H–1B skilled worker dependent
employer, and is not an H–1B dependent employer, the employer did not displace
and will not displace a United States worker employed by the employer during
the period beginning 90 days before the date on which a visa petition supported
by the application is filed and ending 90 days after such filing.
(II) An employer that is not
an H–1B skilled worker dependent employer shall not be subject to subclause (I)
unless—
(aa) the employer is filing
the H–1B petition with the intent or purpose of displacing a specific United
States worker from the position to be occupied by the beneficiary of the
petition; or
(bb) workers are displaced
who—
(AA) provide services, in
whole or in part, at 1 or more worksites owned, operated, or controlled by a
Federal, State, or local government entity that directs and controls the work
of the H–1B worker; or
(BB) are employed as public
school kindergarten, elementary, middle school, or secondary school
teachers.
(ii)
(I) In the case of an application filed by an
H–1B-dependent employer, the employer did not displace and will not displace a
United States worker employed by the employer within the period beginning 180
days before the date on which a visa petition supported by the application is
filed and ending 180 days after such filing.
(II) An application described in this clause is
an application filed on or after the date final regulations are first
promulgated to carry out this subparagraph, and before by an H–1B-dependent
employer (as defined in paragraph (3)) or by an employer that has been found,
on or after the date of the enactment of the American Competitiveness and
Workforce Improvement Act of 1998, under paragraph (2)(C) or (5) to have
committed a willful failure or misrepresentation during the 5-year period
preceding the filing of the application.
(iii) In this subparagraph, the term job
zone means a zone assigned to an occupation by—
(I) the Occupational
Information Network Database (O*NET) on the date of the enactment of this Act;
or
(II) such database or a
similar successor database, as designated by the Secretary of Labor, after the
date of the enactment of Border Security,
Economic Opportunity, and Immigration Modernization
Act.
.
(2)
Recruitment
Section
212(n)(1)(G) (8 U.S.C. 1182(n)(1)(G)) is amended to read as follows:
(G) An employer, prior to
filing the application—
(i) has taken good faith
steps to recruit United States workers for the occupational classification for
which the nonimmigrant or nonimmigrants is or are 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 under subparagraph
(A);
(ii) has advertised the job
on an Internet website maintained by the Secretary of Labor for the purpose of
such advertising; and
(iii) if the employer is an
H–1B skilled worker dependent employer, has offered the job to any United
States worker who applies and is equally or better qualified for the job for
which the nonimmigrant or nonimmigrants is or are
sought.
.
(d)
Outplacement
Section
212(n)(1)(F) (8 U.S.C. 1182(n)(1)(F)) is amended to read as follows:
(F)
(i) An H–1B-dependent
employer may not place, outsource, lease, or otherwise contract for the
services or placement of an H–1B nonimmigrant employee.
(ii) An employer that is not
an H–1B-dependent employer and not described in paragraph (3)(A)(i) may not
place, outsource, lease, or otherwise contract for the services or placement of
an H–1B nonimmigrant employee unless the employer pays a fee of $500 per
outplaced worker.
(iii) A fee collected under
clause (ii) shall be deposited in the Comprehensive Immigration Reform Trust
Fund established under section 6 of the Border Security, Economic Opportunity, and Immigration
Modernization Act.
(iv) An H–1B dependent
employer shall be exempt from the prohibition on outplacement under clause (i)
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, a nurse, or a physical therapist or a substantially equivalent
health care occupation. Such employer shall be subject to the fee set forth in
clause
(ii).
.
(e)
H–1B-dependent employer
defined
Section 212(n)(3) (8 U.S.C. 1182(n)(3)) is amended to
read as follows:
(3)
(A) The term
H–1B-dependent employer means an employer that—
(i) in the case of an
employer that has 25 or fewer full-time equivalent employees who are employed
in the United States, employs more than 7 H–1B nonimmigrants;
(ii) in the case of an
employer that has at least 26 but not more than 50 full-time equivalent
employees who are employed in the United States, employs more than 12 H–1B
nonimmigrants; or
(iii) in the case of an
employer that has at least 51 full-time equivalent employees who are employed
in the United States, employs H–1B nonimmigrants in a number that is equal to
at least 15 percent of the number of such full-time equivalent
employees.
(B) In determining the number
of employees who are H–1B nonimmigrants under subparagraph (A)(ii), an
intending immigrant employee shall not count toward such
number.
.
(f)
H–1B skilled worker
dependent defined
Section 212(n)(3) (8 U.S.C. 1182(n)(3)) is
amended—
(1) by redesignating
subparagraph (B) as subparagraph (D); and
(2) by inserting after
subparagraph (A) the following:
(B)
(i) For purposes of this
subsection, an H–1B skilled worker dependent employer means an
employer who employs H–1B nonimmigrants in the United States in a number that
in total is equal to at least 15 percent of the number of its full-time
equivalent employees in the United States employed in occupations contained
within Occupational Information Network Database (O*NET) Job Zone 4 and Job
Zone 5.
(ii) An H–1B nonimmigrant who
is an intending immigrant shall be counted as a United States worker in making
a determination under clause
(i).
.
(g)
Intending immigrants
defined
Section 101(a) (8 U.S.C. 1101(a)), as amended by section
3504(a), is further amended by adding at the end the following:
(54)
(A) The term
intending immigrant means, with respect to the number of aliens
employed by an employer, an alien who intends to work and reside permanently in
the United States, as evidenced by—
(i) a pending or approved
application for a labor certification filed for such alien by a covered
employer; or
(ii) a pending or approved
immigrant status petition filed for such alien by a covered employer.
(B) In this paragraph:
(i) The term covered
employer means an employer that has filed immigrant status petitions for
not less than 90 percent of current employees who were the beneficiaries of
applications for labor certification that were approved during the 1-year
period ending 6 months before the filing of an application or petition for
which the number of intending immigrants is relevant.
(ii) The term immigrant
status petition means a petition filed under paragraph (1), (2), or (3)
of section 203(b).
(iii) The term labor
certification means an employment certification under section
212(a)(5)(A).
(C) Notwithstanding any other
provision of law—
(i) for all calculations
under this Act, of the number of aliens admitted pursuant to subparagraph
(H)(i)(b) or (L) of paragraph (15), an intending immigrant shall be counted as
an alien lawfully admitted for permanent residence and shall not be counted as
an employee admitted pursuant to such a subparagraph; and
(ii) for all determinations
of the number of employees or United States workers employed by an employer,
all of the employees in any group treated as a single employer under subsection
(b), (c), (m), or (o) of section 414 of the Internal Revenue Code of 1986 shall
be counted.
.
4212.
Requirements for
admission of nonimmigrant nurses in health professional shortage areas
(a)
Extension of period of
authorized admission
Section 212(m)(3) (8 U.S.C. 1182(m)(3))
is amended to read as follows:
(3) The initial period of authorized admission
as a nonimmigrant under section 101(a)(15)(H)(i)(c) shall be 3 years, and may
be extended once for an additional 3-year
period.
.
(b)
Number of
visas
Section 212(m)(4)
(8 U.S.C.
1182(m)(4)) is amended by striking 500. and
inserting 300..
(c)
Portability
Section 214(n) (8 U.S.C. 1184(n)),
as amended by section 4103(b), is further amended by adding at the end the
following:
(4)
(A) A nonimmigrant
alien described in subparagraph (B) who was previously issued a visa or
otherwise provided nonimmigrant status under section 101(a)(15)(H)(i)(c) is
authorized to accept new employment performing services as a registered nurse
for a facility described in section 212(m)(6) upon the filing by the
prospective employer of a new petition on behalf of such nonimmigrant as
provided under subsection (c). Employment authorization shall continue for such
alien until the new petition is adjudicated. If the new petition is denied,
such authorization shall cease.
(B) A nonimmigrant alien described in this
paragraph is a nonimmigrant alien—
(i) who has been lawfully
admitted into the United States;
(ii) on whose behalf an employer has filed a
nonfrivolous petition for new employment before the date of expiration of the
period of stay authorized by the Secretary of Homeland Security, except that,
if a nonimmigrant described in section 101(a)(15)(H)(i)(c) is terminated or
laid off by the nonimmigrant's employer, or otherwise ceases employment with
the employer, such petition for new employment shall be filed during the 60-day
period beginning on the date of such termination, lay off, or cessation;
and
(iii) who, subsequent to such
lawful admission, has not been employed without authorization in the United
States before the filing of such
petition.
.
(d)
Applicability
(1)
In
general
Beginning on the commencement date described in paragraph
(2), the amendments made by section 2 of the Nursing Relief for Disadvantaged
Areas Act of 1999 (Public Law 106–95; 113 Stat. 1313),
and the amendments made by this section, shall apply to classification
petitions filed for nonimmigrant status. This period shall be in addition to
the period described in section 2(e) of the Nursing Relief for Disadvantaged
Areas Act of 1999 (8 U.S.C. 1182 note).
(2)
Commencement
date
Not later than 60 days after the date of the enactment of
this Act, the Secretary shall determine whether regulations are necessary to
implement the amendments made by this section. If the Secretary determines that
no such regulations are necessary, the commencement date described in this
paragraph shall be the date of such determination. If the Secretary determines
that regulations are necessary to implement any amendment made by this section,
the commencement date described in this paragraph shall be the date on which
such regulations (in final form) take effect.
4213.
New application
requirements
Section 212(n)(1)
(8 U.S.C. 1182(n)(1)) is amended by inserting after clause (iii) of
subparagraph (G), as amended by section 4211(c)(2), the following:
(H)
(i) The employer has
not advertised any available position specified in the application in an
advertisement that states or indicates that—
(I) such position is only
available to an individual who is or will be an H–1B nonimmigrant or an alien
participating in optional practical training pursuant to section
101(a)(15)(F)(i); or
(II) an individual who is or
will be an H–1B nonimmigrant or participant in such optional practical training
shall receive priority or a preference in the hiring process for such
position.
(ii) The employer has not
solely recruited individuals who are or who will be H–1B nonimmigrants or
participants in optional practical training pursuant to section
101(a)(15)(F)(i) to fill such position.
(I)
(i) If the employer
(other than an educational or research employer) employs 50 or more employees
in the United States, the sum of the number of such employees who are H–1B
nonimmigrants plus the number of such employees who are nonimmigrants described
in section 101(a)(15)(L) may not exceed—
(I) 75 percent of the total
number of employees, for fiscal year 2015;
(II) 65 percent of the total
number of employees, for fiscal year 2016; and
(III) 50 percent of the total
number of employees, for each fiscal year after fiscal year 2016.
(ii) In this
subparagraph:
(I) The term
educational or research employer means an employer that is a
nonprofit institution of higher education or a nonprofit research organization
described in section 501(c)(3) of the Internal Revenue Code of 1986 and exempt
from taxation under 501(a) of that Code.
(II) The term H–1B
nonimmigrant means an alien admitted as a nonimmigrant pursuant to
section 101(a)(15)(H)(i)(b).
(III) The term L
nonimmigrant means an alien admitted as a nonimmigrant pursuant to
section 101(a)(15)(L) to provide services to his or her employer involving
specialized knowledge.
(iii) In determining the
percentage of employees of an employer that are H–1B nonimmigrants or L
nonimmigrants under clause (i), an intending immigrant employee shall not count
toward such percentage.
(J) The employer shall submit to the Secretary
of Homeland Security an annual report that includes the Internal Revenue
Service Form W–2 Wage and Tax Statement filed by the employer for each H–1B
nonimmigrant employed by the employer during the previous
year.
.
4214.
Application review
requirements
(a)
Technical
amendment
Section 212(n)(1) (8 U.S.C. 1182(n)(1)), as amended by
section 4213, is further amended in the undesignated paragraph at the end, by
striking The employer and inserting the following:
(K) The
employer
.
(b)
Application review
requirements
Subparagraph (K) of such section 212(n)(1), as
designated by subsection (a), is amended—
(1) by inserting and
through the Department of Labor’s website, without charge. after
D.C.;
(2) by striking only
for completeness and inserting for completeness and evidence of
fraud or misrepresentation of material fact,;
(3) by striking or
obviously inaccurate and inserting , presents evidence of fraud
or misrepresentation of material fact, or is obviously
inaccurate;
(4) by striking within
7 days of the and inserting not later than 14 days
after; and
(5) by adding at the end the
following: If the Secretary’s review of an application identifies
evidence of fraud or misrepresentation of material fact, the Secretary may
conduct an investigation and hearing in accordance with paragraph
(2)..
(c)
Filing of petition for
nonimmigrant worker
Section 212(n)(1) (8 U.S.C. 1182(n)(1)), as
amended by section 4213, is further amended by adding at the end the
following:
(L) An I–129 Petition for
Nonimmigrant Worker (or similar successor form)—
(i) may be filed by an
employer with the Secretary of Homeland Security prior to the date the employer
receives an approved certification described in section 101(a)(15)(H)(i)(b)
from the Secretary of Labor; and
(ii) may not be approved by
the Secretary of Homeland Security until the date such certification is
approved.
.
2
Investigation and
Disposition of Complaints Against H–1B Employers
4221.
General modification
of procedures for investigation and disposition
Section 212(n) (8 U.S.C. 1182(n)) is
amended—
(1) in paragraph
(2)(A)—
(A) by striking (A)
Subject and inserting (A)(i) Subject;
(B) by inserting after the
first sentence the following: Such process shall include publicizing a
dedicated toll-free number and publicly available Internet website for the
submission of such complaints.;
(C) by striking 12
months and inserting 24 months;
(D) by striking the last
sentence and inserting the following: The Secretary shall issue
regulations requiring that employers that employ H–1B nonimmigrants, other than
nonprofit institutions of higher education and nonprofit research
organizations, through posting of notices or other appropriate means, inform
their employees of such toll-free number and Internet website and of their
right to file complaints pursuant to this paragraph.; and
(E) by adding at the end the
following:
(ii)
(I) Upon the receipt of
such a complaint, the Secretary may initiate an investigation to determine if
such a failure or misrepresentation has occurred.
(II) The Secretary may
conduct voluntary surveys of the degree to which employers comply with the
requirements of this subsection.
(III) The Secretary
shall—
(aa) conduct annual
compliance audits of each employer with more than 100 employees who work in the
United States if more than 15 percent of such employees are H–1B nonimmigrants;
and
(bb) make available to the
public an executive summary or report describing the general findings of the
audits carried out pursuant to this
subclause.
;
and
(2) by adding at the end the
following new paragraph:
(6)
Report
required
Not later than 1 year after the date of the enactment of
the Border Security, Economic Opportunity, and Immigration Modernization Act,
and every 5 years thereafter, the Inspector General of the Department of Labor
shall submit a report regarding the Secretary’s enforcement of the requirements
of this section to the Committee on the Judiciary and the Committee on Health,
Education, Labor, and Pensions of the Senate and the Committee on the Judiciary
and the Committee on Education and the Workforce of the House of
Representatives.
.
4222.
Investigation,
working conditions, and penalties
Subparagraph (C) of section 212(n)(2) (8
U.S.C. 1182(n)(2)) is amended—
(1) in clause (i)—
(A) in the matter preceding
subclause (I)—
(i) by striking a
condition of paragraph (1)(B), (1)(E), or (1)(F) and inserting a
condition under subparagraph (A), (B), (C)(i), (E), (F), (G), (H), (I), or (J)
of paragraph (1); and
(ii) by striking
(1)(C) and inserting (1)(C)(ii);
(B) in subclause (I)—
(i) by striking
$1,000 and inserting $2,000; and
(ii) by striking
and at the end;
(C) in subclause (II), by
striking the period at the end and inserting a semicolon and
and; and
(D) by adding at the end the
following:
(III) an employer that
violates such subparagraph (A) shall be liable to any employee harmed by such
violations for lost wages and benefits.
;
and
(2) in clause (ii)—
(A) in subclause (I)—
(i) by striking
may and inserting shall; and
(ii) by striking
$5,000 and inserting $10,000;
(B) in subclause (II), by
striking the period at the end and inserting a semicolon and
and; and
(C) by adding at the end the
following:
(III) an employer that
violates such subparagraph (A) shall be liable to any employee harmed by such
violations for lost wages and benefits.
;
(3) in clause (iii)—
(A) in the matter preceding
subclause (I), by striking 90 days both places it appears and
inserting 180 days;
(B) in subclause (I)—
(i) by striking
may and inserting shall; and
(ii) by striking
and at the end;
(C) in subclause (II), by
striking the period at the end and inserting a semicolon and
and; and
(D) by adding at the end the
following:
(III) an employer that
violates subparagraph (A) of such paragraph shall be liable to any employee
harmed by such violations for lost wages and
benefits.
;
(4) in clause (iv)—
(A) by inserting to
take, or threaten to take, a personnel action, or before to
intimidate;
(B) by inserting
(I) after (iv); and
(C) by adding at the end the
following:
(II) An employer that
violates this clause shall be liable to any employee harmed by such violation
for lost wages and benefits.
;
and
(5) in clause (vi)—
(A) by amending subclause (I)
to read as follows:
(I) It is a violation of this
clause for an employer who has filed an application under this
subsection—
(aa) to require an H–1B
nonimmigrant to pay a penalty for ceasing employment with the employer prior to
a date agreed to by the nonimmigrant and the employer (the Secretary shall
determine whether a required payment is a penalty, and not liquidated damages,
pursuant to relevant State law); and
(bb) to fail to offer to an
H–1B nonimmigrant, during the nonimmigrant's period of authorized employment,
on the same basis, and in accordance with the same criteria, as the employer
offers to similarly situated United States workers, benefits and eligibility
for benefits, including—
(AA) the opportunity to
participate in health, life, disability, and other insurance plans;
(BB) the opportunity to
participate in retirement and savings plans; and
(CC) cash bonuses and noncash
compensation, such as stock options (whether or not based on
performance).
;
and
(B) in subclause (III), by
striking $1,000 and inserting $2,000.
4223.
Initiation of
investigations
Subparagraph
(G) of section 212(n)(2) (8 U.S.C. 1182(n)(2)) is amended—
(1) in clause (i), by
striking if the Secretary and all that follows and inserting
with regard to the employer's compliance with the requirements of this
subsection.;
(2) in clause (ii), by
striking and whose identity and all that follows through
failure or failures. and inserting the Secretary of Labor
may conduct an investigation into the employer's compliance with the
requirements of this subsection.;
(3) in clause (iii), by
striking the last sentence;
(4) by striking clauses (iv)
and (v);
(5) by redesignating clauses
(vi), (vii), and (viii) as clauses (iv), (v), and (vi), respectively;
(6) in clause (iv), as so
redesignated, by striking meet a condition described in clause (ii),
unless the Secretary of Labor receives the information not later than 12
months and inserting comply with the requirements under this
subsection, unless the Secretary of Labor receives the information not later
than 24 months;
(7) by amending clause (v),
as so redesignated, to read as follows:
(v) The Secretary of Labor
shall provide notice to an employer of the intent to conduct an investigation.
The notice shall be provided in such a manner, and shall contain sufficient
detail, to permit the employer to respond to the allegations before an
investigation is commenced. The Secretary is not required to comply with this
clause if the Secretary determines that such compliance would interfere with an
effort by the Secretary to investigate or secure compliance by the employer
with the requirements of this subsection. A determination by the Secretary
under this clause shall not be subject to judicial
review.
;
(8) in clause (vi), as so
redesignated, by striking An investigation and all that follows
through the determination. and inserting If the Secretary
of Labor, after an investigation under clause (i) or (ii), determines that a
reasonable basis exists to make a finding that the employer has failed to
comply with the requirements under this subsection, the Secretary shall provide
interested parties with notice of such determination and an opportunity for a
hearing in accordance with section 556 of title 5, United States Code, not
later than 120 days after the date of such determination.; and
(9) by adding at the end the
following:
(vii) If the Secretary of
Labor, after a hearing, finds a reasonable basis to believe that the employer
has violated the requirements under this subsection, the Secretary shall impose
a penalty under subparagraph
(C).
.
4224.
Information
sharing
Section 212(n)(2) (8
U.S.C. 1182(n)(2)), as amended by sections 4222 and 4223, is further amended by
adding at the end the following:
(J) The Director of U.S. Citizenship and
Immigration Services shall provide the Secretary of Labor with any information
contained in the materials submitted by employers of H–1B nonimmigrants as part
of the adjudication process that indicates that the employer is not complying
with visa program requirements for H–1B nonimmigrants. The Secretary of Labor
may initiate and conduct an investigation related to H–1B nonimmigrants and a
hearing under this paragraph after receiving information of noncompliance under
this subparagraph. This subparagraph may not be construed to prevent the
Secretary of Labor from taking action related to wage and hour and workplace
safety laws.
(K) The Secretary of Labor shall facilitate the
posting of the descriptions described in paragraph (1)(C)(i) on the Internet
website of the State labor or workforce agency for the State in which the
position will be primarily located during the same period as the posting under
paragraph
(1)(C)(i).
.
4225.
Transparency of
high-skilled immigration programs
Section 416(c) of the American
Competitiveness and Workforce Improvement Act of 1998 (8 U.S.C. 1184 note) is
amended—
(1) by amending paragraph (2)
to read as follows:
(2)
Annual h–1b
nonimmigrant characteristics report
The Bureau of Immigration and
Labor Market Research shall submit an annual report to the
Committee on the Judiciary of the
Senate and the Committee on
the Judiciary of the House of Representatives that
contains—
(A) information on the
countries of origin of, occupations of, educational levels attained by, and
compensation paid to, aliens who were issued visas or otherwise provided
nonimmigrant status under section 101(a)(15)(H)(i)(b) of the Immigration and
Nationality Act (8 U.S.C. 1101(a)(15)(H)(i)(b)) during the previous fiscal
year;
(B) a list of all employers
who petition for H–1B visas, the number of such petitions filed and approved
for each such employer, the occupational classifications for the approved
positions, and the number of H–1B nonimmigrants for whom each such employer
files for adjustment to permanent resident status;
(C) the number of immigrant
status petitions filed during the prior year on behalf of H–1B
nonimmigrants;
(D) a list of all employers
who are H–1B-dependent employers;
(E) a list of all employers
who are H–1B skilled worker dependent employers;
(F) a list of all employers
for whom more than 30 percent of their United States workforce is H–1B or L–1
nonimmigrants;
(G) a list of all employers
for whom more than 50 percent of their United States workforce is H–1B or L–1
nonimmigrants;
(H) a gender breakdown by
occupation and by country of H–1B nonimmigrants;
(I) a list of all employers
who have been approved to conduct outplacement of H–1B nonimmigrants;
and
(J) the number of H–1B
nonimmigrants categorized by their highest level of education and whether such
education was obtained in the United States or in a foreign
country.
;
(2) by redesignating
paragraph (3) as paragraph (5);
(3) by inserting after
paragraph (2) the following:
(3)
Annual l–1 nonimmigrant
characteristics report
The Bureau of Immigration and Labor Market
Research shall submit an annual report to the
Committee on the Judiciary of the
Senate and the Committee on
the Judiciary of the House of Representatives that
contains—
(A) information on the
countries of origin of, occupations of, educational levels attained by, and
compensation paid to, aliens who were issued visas or otherwise provided
–nonimmigrant status under section 101(a)(15)(L) of the Immigration and
Nationality Act (8 U.S.C. 1101(a)(15)(L)) during the previous fiscal
year;
(B) a list of all employers
who petition for L–1 visas, the number of such petitions filed and approved for
each such employer, the occupational classifications for the approved
positions, and the number of L–1 nonimmigrants for whom each such employer
files for adjustment to permanent resident status;
(C) the number of immigrant
status petitions filed during the prior year on behalf of L–1
nonimmigrants;
(D) a list of all employers
who are L–1 dependent employers;
(E) a gender breakdown by
occupation and by country of L–1 nonimmigrants;
(F) a list of all employers
who have been approved to conduct outplacement of L–1 nonimmigrants; and
(G) the number of L–1
nonimmigrants categorized by their highest level of education and whether such
education was obtained in the United States or in a foreign country.
(4)
Annual employer
survey
The Bureau of Immigration and Labor Market Research
shall—
(A) conduct an annual survey
of employers hiring foreign nationals under the L–1 visa program; and
(B) shall issue an annual
report that—
(i) describes the methods
employers are using to meet the requirement of taking good faith steps to
recruit United States workers for the occupational classification for which the
nonimmigrants are sought, using procedures that meet industry-wide
standards;
(ii) describes the best
practices for recruiting among employers; and
(iii) contains
recommendations on which recruiting steps employers can take to maximize the
likelihood of hiring American workers.
;
and
(4) in paragraph (5), as
redesignated, by striking paragraph (2) and inserting
paragraphs (2) and (3).
3
Other
protections
4231.
Posting available
positions through the Department of Labor
(a)
Department of Labor
website
Section 212(n) (8 U.S.C. 1182(n)), as amended by section
4221(2), is further amended by adding at the end following:
(7)
(A) Not later than 90
days after the date of the enactment of the Border Security, Economic Opportunity, and Immigration
Modernization Act, the Secretary of Labor shall establish a
searchable Internet website for posting positions as required by paragraph
(1)(C). Such website shall be available to the public without charge.
(B) The Secretary may work
with private companies or nonprofit organizations to develop and operate the
Internet website described in subparagraph (A).
(C) The Secretary may
promulgate rules, after notice and a period for comment, to carry out the
requirements of this
paragraph.
.
(b)
Requirement for
publication
The Secretary of Labor shall submit to Congress and
publish in the Federal Register and other appropriate media a notice of the
date that the Internet website required by paragraph (6) of section 212(n) of
the Immigration and Nationality Act, as amended by subsection (a), will be
operational.
(c)
Application
The
amendments made by subsection (a) shall apply to an application filed on or
after the date that is 30 days after the date described in subsection
(b).
4232.
Requirements for
information for H–1B and L nonimmigrants
(a)
In
general
Section 214 (8 U.S.C.
1184), as amended by section 3608, is further amended by adding at the end the
following:
(t)
Requirements for
information for H–1B and L nonimmigrants
(1)
In
general
Upon issuing a visa to an applicant for nonimmigrant
status pursuant to subparagraph (H)(i)(b) or (L) of section 101(a)(15) who is
outside the United States, the issuing office shall provide the applicant
with—
(A) a brochure outlining the
obligations of the applicant’s employer and the rights of the applicant with
regard to employment under Federal law, including labor and wage protections;
and
(B) the contact information
for appropriate Federal agencies or departments that offer additional
information or assistance in clarifying such obligations and rights.
(2)
Provision of
material
Upon the approval of an application of an applicant
referred to in paragraph (1), the applicant shall be provided with the material
described in subparagraphs (A) and (B) of paragraph (1)—
(A) by the issuing officer of
the Department of Homeland Security, if the applicant is inside the United
States; or
(B) by the appropriate
official of the Department of State, if the applicant is outside the United
States.
(3)
Employer to provide
immigration paperwork exchanged with federal agencies
(A)
In
general
Not later than 30 days after a labor condition
application is filed under section 212(n)(1), an employer shall provide an
employee or beneficiary of such application who is or seeking nonimmigrant
status under subparagraph (H)(i)(b) or (L) of section 101(a)(15) with a copy
the original of all applications and petitions filed by the employer with the
Department of Labor or the Department of Homeland Security for such employee or
beneficiary.
(B)
Withholding of
financial or proprietary information
If a document required to be
provided to an employee or beneficiary under subparagraph (A) includes any
financial or propriety information of the employer, the employer may redact
such information from the copies provided to such employee or
beneficiary.
.
(b)
Report on job
classification and wage determinations
Not later than 1 year
after the date of the enactment of this Act, the Comptroller General of the
United States shall prepare a report analyzing the accuracy and effectiveness
of the Secretary of Labor’s current job classification and wage determination
system. The report shall—
(1) specifically address
whether the systems in place accurately reflect the complexity of current job
types as well as geographic wage differences; and
(2) make recommendations
concerning necessary updates and modifications.
4233.
Filing fee for
H–1B-dependent employers
(a)
In
general
Notwithstanding any
other provision of law, there shall be a fee required to be submitted by an
employer with an application for admission of an H–1B nonimmigrant as
follows:
(1) For each fiscal year
beginning in fiscal year 2015, $5,000 for applicants that employ 50 or more
employees in the United States if more than 30 percent and less than 50 percent
of the applicant's employees are H–1B nonimmigrants or L nonimmigrants.
(2) For each of the fiscal
years 2015 through 2017, $10,000 for applicants that employ 50 or more
employees in the United States if more than 50 percent and less than 75 percent
of the applicant's employees are H–1B nonimmigrants or L nonimmigrants. Fees
collected under this paragraph shall be deposited in the Comprehensive
Immigration Reform Trust Fund established under section 6(a)(1).
(b)
Definitions
In
this section:
(1)
Employer
The
term employer—
(A) means any entity or
entities treated as a single employer under subsection (b), (c), (m), or (o) of
section 414 of the Internal Revenue Code of 1986; and
(B) does not include a
nonprofit institution of higher education or a nonprofit research organization
described in section 501(c)(3) of the Internal Revenue Code of 1986 and exempt
from taxation under 501(a) of that Code that is—
(i) an institution of higher
education (as defined in section 101(a) of the Higher Education Act of 1965 (20
U.S.C. 1001(a))); or
(ii) a research
organization.
(2)
H–1B
nonimmigrant
The term H–1B nonimmigrant means an
alien admitted as a nonimmigrant pursuant to section 101(a)(15)(H)(i)(b) of the
Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(H)(i)(b)).
(3)
Intending
immigrant
The term intending immigrant has the
meaning given that term in paragraph (54)(A) of section 101(a)(54)(A) of the
Immigration and Nationality Act (8 U.S.C. 1101(a)).
(4)
L
nonimmigrant
The term L nonimmigrant means an alien
admitted as a nonimmigrant pursuant to section 101(a)(15)(L) of the Immigration
and Nationality Act (8 U.S.C. 1101(a)(15)(L)) to provide services to the
alien's employer involving specialized knowledge.
(c)
Exception for intending
immigrants
In determining the percentage of employees of an
employer that are H–1B nonimmigrants or L nonimmigrants under subsection (a),
an intending immigrant employee shall not count toward such percentage.
(d)
Conforming
amendment
Section 402 of the Act entitled An Act making
emergency supplemental appropriations for border security for the fiscal year
ending September 30, 2010, and for other purposes, approved August 13,
2010 (Public Law 111–230; 8 U.S.C. 1101 note) is amended by striking subsection
(b).
4234.
Providing premium
processing of employment-based visa petitions
Pursuant to section 286(u) of the
Immigration and Nationality Act (8 U.S.C. 1356(u)), the Secretary shall
establish and collect—
(1) a fee for premium
processing of employment-based immigrant petitions; and
(2) a fee for premium
processing of an administrative appeal of any decision on a permanent
employment-based immigrant petition.
4235.
Technical
correction
Section 212 (8
U.S.C. 1182) is amended by redesignating the second subsection (t), as added by
section 1(b)(2)(B) of the Act entitled An Act to amend and extend the
Irish Peace Process Cultural and Training Program Act of 1998 (Public
Law 108–449 (118 Stat. 3470)), as subsection (u).
4236.
Application
(a)
In
general
Except as otherwise
specifically provided, the amendments made by this subtitle shall apply to
applications filed on or after the date of the enactment of this Act.
(b)
Special
requirements
Notwithstanding any other provision of law, the
amendments made by section 4211(c) shall not apply to any application or
petition filed by an employer on behalf of an existing employee.
4237.
Portability for
beneficiaries of immigrant petitions
(a)
Increased
portability
Section 204(j) (8 U.S.C. 1154(j)) is amended—
(1) by amending the
subsection heading to read as follows:
(j)
Increased
portability
;
(2) by striking A
petition and inserting the following:
(1)
Long delayed applicants
for adjustment of status
A
petition
;
and
(3) by adding at the end the
following:
(2)
Portability for
beneficiaries of immigrant petitions
Regardless of whether an
employer withdraws a petition approved under paragraph (1), (2), or (3) of
section 203(b)—
(A) the petition shall remain
valid with respect to a new job if—
(i) the beneficiary changes
jobs or employers after the petition is approved; and
(ii) the new job is in the
same or a similar occupational classification as the job for which the petition
was approved; and
(B) the employer’s legal
obligations with respect to the petition shall terminate at the time the
beneficiary changes jobs or employers.
(3)
Documentation
The
Secretary of Labor shall develop a mechanism to provide the beneficiary or
prospective employer with sufficient information to determine whether a new
position or job is in the same or similar occupation as the job for which the
petition was approved. The Secretary of Labor shall provide confirmation of
application approval if required for eligibility under this subsection. The
Secretary of Homeland Security shall provide confirmation of petition approval
if required for eligibility under this
subsection.
.
(b)
Adjustment of status
for employment-based immigrants
Section 245 of the Immigration
and Nationality Act (8 U.S.C. 1255) is amended by adding at the end the
following:
(n)
Adjustment of status
for employment-based immigrants
(1)
Petition
An
alien, and any eligible dependents of such alien, who has filed a petition for
immigrant status, may concurrently, or at any time thereafter, file an
application with the Secretary of Homeland Security for adjustment of status if
such petition is pending or has been approved, regardless of whether an
immigrant visa is immediately available at the time the application is
filed.
(2)
Supplemental
fee
If a visa is not immediately available at the time an
application is filed under paragraph (1), the beneficiary of such application
shall pay a supplemental fee of $500, which shall be deposited in the STEM
Education and Training Account established under section 286(w). This fee shall
not be collected from any dependent accompanying or following to join such
beneficiary.
(3)
Availability
An
application filed pursuant to paragraph (2) may not be approved until the date
on which an immigrant visa becomes
available.
.
C
L visa fraud and abuse
protections
4301.
Prohibition on
outplacement of L nonimmigrants
Section 214(c)(2)(F) (8 U.S.C.
1184(c)(2)(F)) is amended to read as follows:
(F)
(i) An employer who employs
L-1 nonimmigrants in a number that is equal to at least 15 percent of the total
number of full-time equivalent employees employed by the employer shall not
place, outsource, lease, or otherwise contract for the services or placement of
such alien with another employer. In determining the number of employees who
are L-1 nonimmigrants, an intending immigrant shall count as a United States
worker.
(ii) The employer of an alien
described in section 101(a)(15)(L) shall not place, outsource, lease, or
otherwise contract for the services or placement of such alien with another
employer unless—
(I) such alien will not be
controlled or supervised principally by the employer with whom such alien would
be placed;
(II) the placement of such
alien at the worksite of the other employer is not essentially an arrangement
to provide labor for hire for the other employer; and
(III) the employer of such
alien pays a fee of $500, which shall be deposited in the STEM Education and
Training Account established under section
286(w).
.
4302.
L employer petition
requirements for employment at new offices
Section 214(c)(2) (8 U.S.C. 1184(c)(2)) is
amended by adding at the end the following:
(G)
(i) If the beneficiary
of a petition under this paragraph is coming to the United States to open, or
be employed in, a new office, the petition may be approved for up to 12 months
only if—
(I) the alien has not been
the beneficiary of 2 or more petitions under this subparagraph during the
immediately preceding 2 years; and
(II) the employer operating
the new office has—
(aa) an adequate business
plan;
(bb) sufficient physical
premises to carry out the proposed business activities; and
(cc) the financial ability to
commence doing business immediately upon the approval of the petition.
(ii) An extension of the
approval period under clause (i) may not be granted until the importing
employer submits an application to the Secretary of Homeland Security that
contains—
(I) evidence that the
importing employer meets the requirements of this subsection;
(II) evidence that the
beneficiary of the petition is eligible for nonimmigrant status under section
101(a)(15)(L);
(III) a statement summarizing
the original petition;
(IV) evidence that the
importing employer has complied with the business plan submitted under clause
(i)(I);
(V) evidence of the
truthfulness of any representations made in connection with the filing of the
original petition;
(VI) evidence that the
importing employer has been doing business at the new office through regular,
systematic, and continuous provision of goods and services;
(VII) a statement of the
duties the beneficiary has performed at the new office during the approval
period under clause (i) and the duties the beneficiary will perform at the new
office during the extension period granted under this clause;
(VIII) a statement describing
the staffing at the new office, including the number of employees and the types
of positions held by such employees;
(IX) evidence of wages paid
to employees;
(X) evidence of the financial
status of the new office; and
(XI) any other evidence or
data prescribed by the Secretary.
(iii) A new office employing
the beneficiary of an L–1 petition approved under this paragraph shall do
business only through regular, systematic, and continuous provision of goods
and services.
(iv) Notwithstanding clause
(ii), and subject to the maximum period of authorized admission set forth in
subparagraph (D), the Secretary of Homeland Security, in the Secretary’s
discretion, may approve a subsequently filed petition on behalf of the
beneficiary to continue employment at the office described in this subparagraph
for a period beyond the initially granted 12-month period if the importing
employer has been doing business at the new office through regular, systematic,
and continuous provision of goods and services for the 6 months immediately
preceding the date of extension of petition filing and demonstrates that the
failure to satisfy any of the requirements described in those subclauses was
directly caused by extraordinary circumstances, as determined by the Secretary
in the Secretary’s
discretion.
.
4303.
Cooperation with
Secretary of State
Section
214(c)(2) (8 U.S.C. 1184(c)(2)), as amended by section 4302, is further amended
by adding at the end the following:
(H) For purposes of approving
petitions under this paragraph, the Secretary of Homeland Security shall work
cooperatively with the Secretary of State to verify the existence or continued
existence of a company or office in the United States or in a foreign
country.
.
4304.
Limitation on
employment of L nonimmigrants
Section 214(c)(2) (8 U.S.C. 1184(c)(2)), as
amended by sections 4302 and 4303, is further amended by adding at the end the
following:
(I)
(i) If the employer
employs 50 or more employees in the United States, the sum of the number of
such employees who are H–1B nonimmigrants plus the number of such employees who
are L nonimmigrants may not exceed—
(I) 75 percent of the total
number of employees, for fiscal year 2015;
(II) 65 percent of the total
number of employees, for fiscal year 2016; and
(III) 50 percent of the total
number of employees, for each fiscal year after fiscal year 2016.
(ii) In this
subparagraph:
(I) The term
employer does not include a nonprofit institution of higher
education or a nonprofit research organization described in section 501(c)(3)
of the Internal Revenue Code of 1986 and exempt from taxation under 501(a) of
that Code that is—
(aa) an institution of higher
education (as defined in section 101(a) of the Higher Education Act of 1965 (20
U.S.C. 1001(a))); or
(bb) a research
organization.
(II) The term H–1B
nonimmigrant means an alien admitted as a nonimmigrant pursuant to
section 101(a)(15)(H)(i)(b).
(III) The term L
nonimmigrant means an alien admitted as a nonimmigrant pursuant to
section 101(a)(15)(L) to provide services to the alien's employer involving
specialized knowledge.
(iii) In determining the
percentage of employees of an employer that are H–1B nonimmigrants or L
nonimmigrants under clause (i), an intending immigrant employee shall not count
toward such percentage.
.
4305.
Filing fee for L
nonimmigrants
(a)
In
general
Notwithstanding any
other provision of law, the filing fee for an application for admission of an L
nonimmigrant shall be as follows:
(1) For each of the fiscal
years beginning in fiscal year 2014, $5,000 for applicants that employ 50 or
more employees in the United States if more than 30 percent and less than 50
percent of the applicant's employees are H–1B nonimmigrants or L
nonimmigrants.
(2) For each of the fiscal
years 2014 through 2017, $10,000 for applicants that employ 50 or more
employees in the United States if more than 50 percent and less than 75 percent
of the applicant's employees are H–1B nonimmigrants or L nonimmigrants. Fees
collected under this paragraph shall be deposited in the Comprehensive
Immigration Reform Trust Fund established under section 6(a)(1).
(b)
Definitions
In
this section:
(1)
Employer
The
term employer does not include a nonprofit institution of higher
education or a nonprofit research organization described in section 501(c)(3)
of the Internal Revenue Code of 1986 and exempt from taxation under 501(a) of
that Code that is—
(A) an institution of higher
education (as defined in section 101(a) of the Higher Education Act of 1965 (20
U.S.C. 1001(a))); or
(B) a research
organization.
(2)
H–1B
nonimmigrant
The term H–1B nonimmigrant means an
alien admitted as a nonimmigrant pursuant to section 101(a)(15)(H)(i)(b) of the
Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(H)(i)(b)).
(3)
L
nonimmigrant
The term L nonimmigrant means an alien
admitted as a nonimmigrant pursuant to section 101(a)(15)(L) of the Immigration
and Nationality Act (8 U.S.C. 1101(a)(15)(L)) to provide services to the
alien's employer involving specialized knowledge.
(c)
Exception for intending
immigrants
In determining the percentage of employees of an
employer that are H–1B nonimmigrants or L nonimmigrants under subsection (a),
an intending immigrant employee (as defined in section 101(a)(54)(A) of the
Immigration and Nationality Act shall not count toward such percentage.
(d)
Conforming
amendment
Section 402 of the Act entitled An Act making
emergency supplemental appropriations for border security for the fiscal year
ending September 30, 2010, and for other purposes, approved August 13,
2010 (Public Law 111–230; 8 U.S.C. 1101 note), as amended by section 4233(d),
is further amended by striking subsections (a) and (c).
4306.
Investigation and
disposition of complaints against L nonimmigrant employers
Section 214(c)(2) (8 U.S.C. 1184(c)(2)), as
amended by sections 4302, 4303, and 4304 is further amended by adding at the
end the following:
(J)
(i) The Secretary of Homeland Security may
initiate an investigation of any employer that employs nonimmigrants described
in section 101(a)(15)(L) with regard to the employer's compliance with the
requirements of this subsection.
(ii)
(I) If the Secretary receives specific credible
information from a source who is likely to have knowledge of an employer's
practices, employment conditions, or compliance with the requirements under
this subsection, the Secretary may conduct an investigation into the employer's
compliance with the requirements of this subsection.
(II) The Secretary may withhold the identity of
a source referred to in subclause (I) from an employer and the identity of such
source shall not be subject to disclosure under section 552 of title 5, United
States Code.
(iii) The Secretary shall establish a procedure
for any person desiring to provide to the Secretary information described in
clause (ii)(I) that may be used, in whole or in part, as the basis for the
commencement of an investigation described in such clause, to provide the
information in writing on a form developed and provided by the Secretary and
completed by or on behalf of the person.
(iv) No investigation described in clause
(ii)(I) (or hearing described in clause (vi) based on such investigation) may
be conducted with respect to information about a failure to comply with the
requirements under this subsection, unless the Secretary receives the
information not later than 24 months after the date of the alleged
failure.
(v)
(I) Subject to subclause (III), before
commencing an investigation of an employer under clause (i) or (ii), the
Secretary shall provide notice to the employer of the intent to conduct such
investigation.
(II) The notice required by subclause (I) shall
be provided in such a manner, and shall contain sufficient detail, to permit
the employer to respond to the allegations before an investigation is
commenced.
(III) The Secretary is not required to comply
with this clause if the Secretary determines that to do so would interfere with
an effort by the Secretary to investigate or secure compliance by the employer
with the requirements of this subsection.
(IV) There shall be no judicial review of a
determination by the Secretary under this clause.
(vi) If the Secretary, after an investigation
under clause (i) or (ii), determines that a reasonable basis exists to make a
finding that the employer has failed to comply with the requirements under this
subsection, the Secretary shall provide the interested parties with notice of
such determination and an opportunity for a hearing in accordance with section
556 of title 5, United States Code, not later than 120 days after the date of
such determination. If such a hearing is requested, the Secretary shall make a
finding concerning the matter by not later than 120 days after the date of the
hearing.
(vii) If the Secretary, after a hearing, finds a
reasonable basis to believe that the employer has violated the requirements
under this subsection, the Secretary shall impose a penalty under subparagraph
(K).
(viii)
(I) The Secretary may conduct voluntary surveys
of the degree to which employers comply with the requirements under this
section.
(II) The Secretary shall—
(aa) conduct annual compliance audits of each
employer with more than 100 employees who work in the United States if more
than 15 percent of such employees are nonimmigrants described in 101(a)(15)(L);
and
(bb) make available to the public an executive
summary or report describing the general findings of the audits carried out
pursuant to this
subclause.
.
4307.
Penalties
Section 214(c)(2) (8 U.S.C. 1184(c)(2)), as
amended by sections 4302, 4303, 4304, and 4306, is further amended by adding at
the end the following:
(K)
(i) If the Secretary of
Homeland Security finds, after notice and an opportunity for a hearing, a
failure by an employer to meet a condition under subparagraph (F), (G), or (L)
or a misrepresentation of material fact in a petition to employ 1 or more
aliens as nonimmigrants described in section 101(a)(15)(L)—
(I) the Secretary shall
impose such administrative remedies (including civil monetary penalties in an
amount not to exceed $2,000 per violation) as the Secretary determines to be
appropriate;
(II) the Secretary may not,
during a period of at least 1 year, approve a petition for that employer to
employ 1 or more aliens as such nonimmigrants; and
(III) in the case of a
violation of subparagraph (J), the employer shall be liable to the employees
harmed by such violation for lost wages and benefits.
(ii) If the Secretary finds,
after notice and an opportunity for a hearing, a willful failure by an employer
to meet a condition under subparagraph (F), (G), or (L) or a willful
misrepresentation of material fact in a petition to employ 1 or more aliens as
nonimmigrants described in section 101(a)(15)(L)—
(I) the Secretary shall
impose such administrative remedies (including civil monetary penalties in an
amount not to exceed $10,000 per violation) as the Secretary determines to be
appropriate;
(II) the Secretary may not,
during a period of at least 2 years, approve a petition filed for that employer
to employ 1 or more aliens as such nonimmigrants; and
(III) in the case of a
violation of subparagraph (J), the employer shall be liable to the employees
harmed by such violation for lost wages and
benefits.
.
4308.
Prohibition on
retaliation against L nonimmigrants
Section 214(c)(2) (8 U.S.C. 1184(c)(2)), as
amended by sections 4302, 4303, 4303, 4306, and 4307, is further amended by
adding at the end the following:
(L)
(i) It is a violation
of this subparagraph for an employer who has filed a petition to import 1 or
more aliens as nonimmigrants described in section 101(a)(15)(L) to take, fail
to take, or threaten to take or fail to take, a personnel action, or to
intimidate, threaten, restrain, coerce, blacklist, discharge, or discriminate
in any other manner against an employee because the employee—
(I) has disclosed information
that the employee reasonably believes evidences a violation of this subsection,
or any rule or regulation pertaining to this subsection; or
(II) cooperates or seeks to
cooperate with the requirements of this subsection, or any rule or regulation
pertaining to this subsection.
(ii) In this subparagraph,
the term employee includes—
(I) a current
employee;
(II) a former employee;
and
(III) an applicant for
employment.
.
4309.
Reports on L
nonimmigrants
Section
214(c)(8) (8 U.S.C. 1184(c)(8)) is amended by inserting (L),
after (H),.
4310.
Application
The amendments made by this subtitle shall
apply to applications filed on or after the date of the enactment of this
Act.
4311.
Report on L blanket
petition process
Not later
than 6 months after the date of the enactment of this Act, the Inspector
General of the Department shall submit to the Committee on the Judiciary of the
Senate and the Committee on the Judiciary of the House of Representatives a
report regarding the use of blanket petitions under section 214(c)(2)(A) of the
Immigration and Nationality Act (8 U.S.C. 1184(c)(2)(A)). Such report shall
assess the efficiency and reliability of the process for reviewing such blanket
petitions, including whether the process includes adequate safeguards against
fraud and abuse.
D
Other nonimmigrant
visas
4401.
Nonimmigrant visas
for students
(a)
Authorization of dual
intent for F nonimmigrants seeking bachelor's or graduate
degrees
Section 101(a)(15)(F) (8 U.S.C. 1101(a)(15)(F)) is
amended to read as follows:
(F)
(i) an alien having a
residence in a foreign country who is a bona fide student qualified to pursue a
full course of study and who seeks to enter the United States temporarily and
solely for the purpose of pursuing such a course of study consistent with
section 214(m) at an accredited college, university, or language training
program, or at an established seminary, conservatory, academic high school,
elementary school, or other academic institution in the United States,
particularly designated by the alien and approved by the Secretary of Homeland
Security after consultation with the Secretary of Education, which institution
or place of study shall have agreed to report to the Secretary of Homeland
Security the termination of attendance of each nonimmigrant student, and if any
such institution of learning or place of study fails to make reports promptly
the approval shall be withdrawn, except that such an alien who is not seeking
to pursue a degree that is a bachelor's degree or a graduate degree shall have
a residence in a foreign country that the alien has no intention of
abandoning;
(ii) the alien spouse and
minor children of any alien described in clause (i) if accompanying or
following to join such an alien; and
(iii) an alien who is a
national of Canada or Mexico, who maintains actual residence and place of abode
in the country of nationality, who is described in clause (i) except that the
alien's qualifications for and actual course of study may be full or part-time,
and who commutes to the United States institution or place of study from Canada
or
Mexico.
.
(b)
Dual
intent
Section 214(h) (8 U.S.C. 1184(h)) is amended to read as
follows:
(h)
Dual
intent
The fact that an alien is, or intends to be, the
beneficiary of an application for a preference status filed under section 204,
seeks a change or adjustment of status after completing a legitimate period of
nonimmigrant stay, or has otherwise sought permanent residence in the United
States shall not constitute evidence of intent to abandon a foreign residence
that would preclude the alien from obtaining or maintaining—
(1) a visa or admission as a
nonimmigrant described in subparagraph (E), (F)(i), (F)(ii), (H)(i)(b),
(H)(i)(c), (L), (O), (P), (V), or (W) of section 101(a)(15); or
(2) the status of a
nonimmigrant described in any such
subparagraph.
.
(c)
Requirement of student
visa data transfer and certification
(1)
In
general
The Secretary shall implement real-time transmission of
data from the Student and Exchange Visitor Information System to databases used
by U.S. Customs and Border Protection.
(2)
Certification
(A)
In
general
Not later than 120 days after the date of the enactment
of this Act, the Secretary shall certify to Congress that the transmission of
data referred to in paragraph (1) has been implemented.
(B)
Temporary suspension of
visa issuance
If the Secretary has not made the certification
referred to in subparagraph (A) during the 120-day period, the Secretary shall
suspend issuance of visas under subparagraphs (F) and (M) of section 101(a)(15)
of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)) until the
certification is made.
4402.
Classification for
specialty occupation workers from free trade countries
(a)
Nonimmigrant
status
Section 101(a)(15)(E)(8 U.S.C. 1101(a)(15)(E)) is
amended—
(1) in the matter preceding
clause (i), by inserting , bilateral investment treaty, or free trade
agreement after treaty of commerce and
navigation;
(2) in clause (ii), by
striking or at the end; and
(3) by adding at the end the
following:
(iv) solely to perform
services in a specialty occupation in the United States if the alien is a
national of a country, other than Chile, Singapore, or Australia, with which
the United States has entered into a free trade agreement (regardless of
whether such an agreement is a treaty of commerce and navigation) and with
respect to whom the Secretary of Labor determines and certifies to the
Secretary of Homeland Security and the Secretary of State that the intending
employer has filed with the Secretary of Labor an attestation under section
212(t);
(v) solely to perform
services in a specialty occupation in the United States if the alien is a
national of the Republic of Korea and with respect to whom the Secretary of
Labor determines and certifies to the Secretary of Homeland Security and the
Secretary of State that the intending employer has filed with the Secretary of
Labor an attestation under section 212(t); or
(vi) solely to perform
services as an employee and who has at least a high school education or its
equivalent, or has, during the most recent 5-year period, at least 2 years of
work experience in an occupation which requires at least 2 years of training or
experience if the alien is a national of a country—
(I) designated as an eligible
sub-Saharan African country under section 104 of the African Growth and
Opportunity Act (19 U.S.C. 3703); or
(II) designated as a
beneficiary country for purposes of the Caribbean Basin Economic Recovery Act
(19 U.S.C. 2701 et
seq.);
.
(b)
Numerical
limitation
Section 214(g)(11) (8 U.S.C. 1184(g)(11)) is
amended—
(1) in subparagraph (A), by
striking section 101(a)(15)(E)(iii) and inserting clauses
(iii) and (vi) of section 101(a)(15)(E); and
(2) in subparagraph (B), by
striking the period at the end and inserting for each of the
nationalities identified under clause (iii) of section 101(a)(15)(E) and for
all visas issued pursuant to clause (vi) of such section..
(c)
Free trade
agreements
Section 214(g) (8 U.S.C. 1184(g)) is amended by adding
at the end the following:
(12)
(A) The free trade
agreements referred to in section 101(a)(15)(E)(iv) are defined as any free
trade agreement designated by the Secretary of Homeland Security with the
concurrence of the United States Trade Representative and the Secretary of
State.
(B) The Secretary of State
may not approve a number of initial applications submitted for aliens described
in clause (iv) or (v) of section 101(a)(15)(E) that is more than 5,000 per
fiscal year for each country with which the United States has entered into a
Free Trade Agreement.
(C) The applicable numerical
limitation referred to in subparagraph (A) shall apply only to principal aliens
and not to the spouses or children of such
aliens.
.
(d)
Nonimmigrant
professionals
Section 212(t) (8 U.S.C. 1182(t)) is amended by
striking section 101(a)(15)(E)(iii) each place that term appears
and inserting clause (iv) or (v) of section
101(a)(15)(E).
4403.
E–visa
reform
(a)
Nonimmigrant
category
Section 101(a)(15)(E)(iii) (8 U.S.C.
1101(a)(15)(E)(iii)) is amended by inserting , or solely to perform
services as an employee and who has at least a high school education or its
equivalent, or has, within 5 years, at least 2 years of work experience in an
occupation which requires at least 2 years of training or experience if the
alien is a national of the Republic of Ireland, after
Australia.
(b)
Temporary
admission
Section 212(d)(3)(A) (8 U.S.C. 1182(d)(3)(A)) is
amended to read as follows:
(A) Except as otherwise
provided in this subsection—
(i) an alien who is applying
for a nonimmigrant visa and who the consular officer knows or believes to be
ineligible for such visa under subsection (a) (other than subparagraphs
(A)(i)(I), (A)(ii), (A)(iii), (C), (E)(i), and (E)(ii) of paragraph (3) of such
subsection)—
(I) after approval by the
Secretary of Homeland Security of a recommendation by the Secretary of State or
by the consular officer that the alien be admitted temporarily despite the
alien's inadmissibility, may be granted such a visa and may be admitted into
the United States temporarily as a nonimmigrant, in the discretion of the
Secretary of Homeland Security; or
(II) absent such
recommendation and approval, be granted a nonimmigrant visa pursuant to section
101(a)(15)(E) if such ineligibility is based solely on conduct in violation of
paragraph (6), (7), or (9) of section 212(a) that occurred before the date of
the enactment of the Border Security,
Economic Opportunity, and Immigration Modernization Act;
and
(ii) an alien who is
inadmissible under subsection (a) (other than subparagraphs (A)(i)(I), (A)(ii),
(A)(iii), (C), (E)(i), and (E)(ii) of paragraph (3) of such subsection), is in
possession of appropriate documents or was granted a waiver from such document
requirement, and is seeking admission, may be admitted into the United States
temporarily as a nonimmigrant, in the discretion of the Secretary of Homeland
Security, who shall prescribe conditions, including exaction of such bonds as
may be necessary, to control and regulate the admission and return of
inadmissible aliens applying for temporary admission under this
paragraph.
.
(c)
Numerical
limitation
Section 214(g)(11)(B) (8 U.S.C. 1184(g)(11)(B)) is
amended by striking the period at the end and inserting for each of the
nationalities identified under section 101(a)(15)(E)(iii)..
4404.
Other changes to
nonimmigrant visas
(a)
Portability
Paragraphs (1) and (2) of section 214(n) (8
U.S.C. 1184(n)) are amended to read as follows:
(1) A nonimmigrant alien
described in paragraph (2) who was previously issued a visa or otherwise
provided nonimmigrant status under section 101(a)(15)(H)(i)(b) or
101(a)(15)(O)(i) is authorized to accept new employment pursuant to such
section upon the filing by the prospective employer of a new petition on behalf
of such nonimmigrant as provided under subsection (a). Employment authorization
shall continue for such alien until the new petition is adjudicated. If the new
petition is denied, such authorization shall cease.
(2) A nonimmigrant alien
described in this paragraph is a nonimmigrant alien—
(A) who has been lawfully
admitted into the United States;
(B) on whose behalf an
employer has filed a nonfrivolous petition for new employment before the date
of expiration of the period of stay authorized by the Secretary of Homeland
Security; and
(C) who, subsequent to such
lawful admission, has not been employed without authorization in the United
States before the filing of such
petition.
.
(b)
Waiver
The
undesignated material at the end of section 214(c)(3) (8 U.S.C. 1184(c)(3)) is
amended to read as follows:
The
Secretary of Homeland Security shall provide by regulation for the waiver of
the consultation requirement under subparagraph (A) in the case of aliens who
have been admitted as nonimmigrants under section 101(a)(15)(O)(i) because of
extraordinary ability in the arts or extraordinary achievement in motion
picture or television production and who seek readmission to perform similar
services within 3 years after the date of a consultation under such
subparagraph provided that, in the case of aliens admitted because of
extraordinary achievement in motion picture or television production, such
waiver shall apply only if the prior consultations by the appropriate union and
management organization were favorable or raised no objection to the approval
of the petition. Not later than 5 days after such a waiver is provided, the
Secretary shall forward a copy of the petition and all supporting documentation
to the national office of an appropriate labor organization. In the case of an
alien seeking entry for a motion picture or television production (i) any
opinion under the previous sentence shall only be advisory; (ii) any such
opinion that recommends denial must be in writing; (iii) in making the decision
the Attorney General shall consider the exigencies and scheduling of the
production; (iv) the Attorney General shall append to the decision any such
opinion; and (v) upon making the decision, the Attorney General shall
immediately provide a copy of the decision to the consulting labor and
management
organizations.
.
4405.
Treatment of
nonimmigrants during adjudication of application
Section 214 (8 U.S.C. 1184), as amended by
sections 3609 and 4233, is further amended by adding at the end the
following:
(u)
Treatment of
nonimmigrants during adjudication of application
A nonimmigrant
alien granted employment authorization pursuant to sections 101(a)(15)(A),
101(a)(15)(E), 101(a)(15)(G), 101(a)(15)(H), 101(a)(15)(I), 101(a)(15)(J),
101(a)(15)(L), 101(a)(15)(O), 101(a)(15)(P), 101(a)(15)(Q), 101(a)(15)(R),
214(e), and such other sections as the Secretary of Homeland Security may by
regulations prescribe whose status has expired but who has, or whose sponsoring
employer or authorized agent has, filed a timely application or petition for an
extension of such employment authorization and nonimmigrant status as provided
under subsection (a) is authorized to continue employment with the same
employer until the application or petition is adjudicated. Such authorization
shall be subject to the same conditions and limitations as the initial grant of
employment
authorization.
.
4406.
Nonimmigrant
elementary and secondary school students
Section 214(m)(1)(B) (8 U.S.C.
1184(m)(1)(B)) is amended striking unless— and all that follows
through (ii) and inserting unless.
4407.
J–1 Summer Work
Travel Visa Exchange Visitor Program fee
Section 281 (8 U.S.C. 1351), as amended by
section 4105, is further amended by adding at the end the following:
(e)
J–1 visa exchange
visitor program fee
(1)
In
general
In addition to the fees authorized under subsection (a),
the Secretary of State shall collect from designated program sponsors, a $500
fee for each nonimmigrant entering under the Summer Work Travel program
conducted by the Secretary of State pursuant to the Foreign Affairs Reform and
Restructuring Act of 1998 (division G of Public Law 105–277; 112 Stat.
2681–761). Fees collected under this subsection shall be deposited into the
Comprehensive Immigration Reform Trust Fund established under section 6(a)(1)
of the Border Security, Economic Opportunity, and Immigration Modernization
Act.
(2)
Regulations and
limitations
The Secretary of Homeland Security, in conjunction
with the Secretary of State, shall promulgate regulations ensuring that a fee
required by paragraph (1) is paid on behalf of all summer work travel
nonimmigrants under section 101(a)(15)(J) seeking entry into the United States.
A fee related to the hiring of such a summer work travel nonimmigrant shall be
paid by the designated program sponsor and may not be charged to such summer
work travel nonimmigrant. There shall not be more than 1 fee collected per such
summer work travel
nonimmigrant.
.
4408.
J visa eligibility
for speakers of certain foreign languages
(a)
In
general
Section 101(a)(15)(J)
(8 U.S.C. 1101(a)(15)(J)) is amended to read as follows:
(J) an alien having a
residence in a foreign country which he has no intention of abandoning
who—
(i) is a bona fide student,
scholar, trainee, teacher, professor, research assistant, specialist, or leader
in a field of specialized knowledge or skill, or other person of similar
description, who is coming temporarily to the United States as a participant in
a program designated by the Director of the United States Information Agency,
for the purpose of teaching, instructing or lecturing, studying, observing,
conducting research, consulting, demonstrating special skills, or receiving
training and who, if such alien is coming to the United States to participate
in a program under which such alien will receive graduate medical education or
training, also meets the requirements of section 212(j), and the alien spouse
and minor children of any such alien if accompanying such alien or following to
join such alien; or
(ii) is coming to the United
States to perform work involving specialized knowledge or skill, including
teaching on a full-time or part-time basis, that requires proficiency of
languages 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;
.
(b)
Requirement for annual
list of countries
The Secretary of State shall publish an annual
list of the countries described in clause (ii) of section 101(a)(15)(J) of the
Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(J)), as added by
subsection (a).
4409.
F–1 Visa
fee
Section 281 (8 U.S.C.
1351), as amended by sections 4105 and 4407, is further amended by adding at
the end the following:
(f)
F–1 visa fee
(1)
In
general
In addition to the
fees authorized under subsection (a), the Secretary of Homeland Security shall
collect a $100 fee from each nonimmigrant admitted under section
101(a)(15)(F)(i). Fees collected under this subsection shall be deposited into
the Comprehensive Immigration Reform Trust Fund established under section
6(a)(1) of the Border Security, Economic
Opportunity, and Immigration Modernization Act.
(2)
Rulemaking
The Secretary of Homeland Security, in
conjunction with the Secretary of State, shall promulgate regulations to ensure
that—
(A) the fee authorized under paragraph (1) is
paid on behalf of all J–1 nonimmigrants seeking entry into the United
States;
(B) a fee related to the hiring of a J–1
nonimmigrant is not deducted from the wages or other compensation paid to the
J–1 nonimmigrant; and
(C) not more than 1 fee is collected per J–1
nonimmigrant.
.
4410.
Pilot program for
remote B nonimmigrant visa interviews
Section 222 (8 U.S.C. 1202) is amended by
adding at the end the following:
(i)
(1) Except as provided in
paragraph (3), the Secretary of State—
(A) shall develop and conduct
a pilot program for processing visas under section 101(a)(15)(B) using secure
remote videoconferencing technology as a method for conducting any required in
person interview of applicants; and
(B) in consultation with the
heads of other Federal agencies that use such secure communications, shall help
ensure the security of the videoconferencing transmission and encryption
conducted under subparagraph (A).
(2) Not later than 90 days
after the termination of the pilot program authorized under paragraph (1), the
Secretary of State shall submit to the appropriate committees of Congress a
report that contains—
(A) a detailed description of
the results of such program, including an assessment of the efficacy,
efficiency, and security of the remote videoconferencing technology as a method
for conducting visa interviews of applicants; and
(B) recommendations for
whether such program should be continued, broadened, or modified.
(3) The pilot program
authorized under paragraph (1) may not be conducted if the Secretary of State
determines that such program—
(A) poses an undue security
risk; and
(B) cannot be conducted in a
manner consistent with maintaining security controls.
(4) If the Secretary of State
makes a determination under paragraph (3), the Secretary shall submit a report
to the appropriate committees of Congress that describes the reasons for such
determination.
(5) In this
subsection:
(A) The term
appropriate committees of Congress means—
(i) the Committee on the
Judiciary, the Committee on Foreign Relations, and the Committee on
Appropriations of the Senate; and
(ii) the Committee on the
Judiciary, the Committee on Foreign Affairs, and the Committee on
Appropriations of the House of Representatives.
(B) The term in person
interview includes interviews conducted using remote video
technology.
.
4411.
Providing consular
officers with access to all terrorist databases and requiring heightened
scrutiny of applications for admission from persons listed on terrorist
databases
Section 222 (8
U.S.C. 1202), as amended by section 4410, is further amended by adding at the
end the following:
(j)
Providing consular
officers with access to all terrorist databases and requiring heightened
scrutiny of applications for admission from persons listed on terrorist
databases
(1)
Access to the Secretary
of State
(A)
In
general
Except as provided in subparagraph (B), the Secretary of
State shall have access to all terrorism records and databases maintained by
any agency or department of the United States for the purposes of determining
whether an applicant for admission poses a security threat to the United
States.
(B)
Exception
The
head of such an agency or department may only withhold access to terrorism
records and databases from the Secretary of State if such head is able to
articulate that withholding is necessary to prevent the unauthorized disclosure
of information that clearly identifies, or would reasonably permit ready
identification of, intelligence or sensitive law enforcement sources, methods,
or activities.
(2)
Biographic and
biometric screening
(A)
Requirement for
biographic and biometric screening
Notwithstanding any other
provision of this Act, the Secretary of State shall require every alien
applying for admission to the United States to submit to biographic and
biometric screening to determine whether the alien’s name or biometric
information is listed in any terrorist watch list or database maintained by any
agency or department of the United States.
(B)
Exclusions
No
alien applying for a visa to the United States shall be granted such visa by a
consular officer if the alien's name or biometric information is listed in any
terrorist watch list or database referred to in subparagraph (A) unless—
(i) screening of the alien’s
visa application against interagency counterterrorism screening systems which
compare the applicant’s information against data in all counterterrorism watch
lists and databases reveals no potentially pertinent links to terrorism;
(ii) the consular officer
submits the application for further review to the Secretary of State and the
heads of other relevant agencies, including the Secretary of Homeland Security
and the Director of National Intelligence; and
(iii) the Secretary of State,
after consultation with the Secretary of Homeland Security, the Director of
National Intelligence, and the heads of other relevant agencies, certifies that
the alien is admissible to the United
States.
.
4412.
Visa revocation
information
Section 428 of the
Homeland Security Act of 2002 (6 U.S.C. 236) is amended by adding at the end
the following:
(j)
Visa revocation
information
If the Secretary of State or the Secretary of
Homeland Security revoke a visa—
(1) the fact of the
revocation shall be immediately provided to the relevant consular officers, law
enforcement, and terrorist screening databases; and
(2) a notice of such
revocation shall be posted to all Department of Homeland Security port
inspectors and to all consular
officers.
.
4413.
Status for certain
battered spouses and children
(a)
Nonimmigrant status for
certain battered spouses and children
Section 101(a)(51) (8
U.S.C. 1101(a)(51)), as amended by section 2305(d)(6)(B)(i)(III), is further
amended—
(1) in subparagraph
(E), by striking or at the end;
(2) in subparagraph
(F), by striking the period at the end and inserting ; or;
and
(3) by adding at the
end the following:
(G) section 106 as an abused
derivative
alien.
.
(b)
Relief for abused
derivative aliens
(1)
In
general
Section 106 (8 U.S.C. 1105a) is amended to read as
follows:
106.
Relief for abused
derivative aliens
(a)
Abused derivative alien
defined
In this section, the term abused derivative
alien means an alien who—
(1) is the spouse or child
admitted under section 101(a)(15) or pursuant to a blue card status granted
under section 2211 of the Border Security,
Economic Opportunity, and Immigration Modernization Act;
(2) is accompanying or
following to join a principal alien admitted under such a section; and
(3) has been subjected to
battery or extreme cruelty by such principal alien.
(b)
Relief for abused
derivative aliens
The
Secretary of Homeland Security—
(1) shall grant or extend the
status of admission of an abused derivative alien under section 101(a)(15) or
section 2211 of the Border Security, Economic
Opportunity, and Immigration Modernization Act under which the
principal alien was admitted for the longer of—
(A) the same period for which
the principal was initially admitted; or
(B) a period of 3
years;
(2) may renew a grant or
extension of status made under paragraph (1);
(3) shall grant employment
authorization to an abused derivative alien; and
(4) may adjust the status of
the abused derivative alien to that of an alien lawfully admitted for permanent
residence if—
(A) the alien is admissible
under section 212(a) or the Secretary of Homeland Security finds 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
(B) the status under which
the principal alien was admitted to the United States would have potentially
allowed for eventual adjustment of status.
(c)
Effect of termination
of relationship
Termination of the relationship with principal
alien shall not affect the status of an abused derivative alien under this
section if battery or extreme cruelty by the principal alien was 1 central
reason for termination of the relationship.
(d)
Procedures
Requests
for relief under this section shall be handled under the procedures that apply
to aliens seeking relief under section
204(a)(1)(C).
.
(2)
Table of contents
amendment
The table of contents in the first section is amended
by striking the item relating to section 106 and inserting the
following:
Sec. 106. Relief for abused derivative
aliens.
.
4414.
Nonimmigrant crewmen
landing temporarily in Hawaii
(a)
In
general
Section 101(a)(15)(D)(ii) (8 U.S.C. 1101(a)(15)(D)(ii))
is amended—
(1) by striking
Guam both places that term appears and inserting Hawaii,
Guam,; and
(2) by striking the semicolon
at the end and inserting or some other vessel or
aircraft;.
(b)
Treatment of
departures
In the administration of section 101(a)(15)(D)(ii) of
the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(D)(ii)), an alien
crewman shall be considered to have departed from Hawaii, Guam, or the
Commonwealth of the Northern Mariana Islands after leaving the territorial
waters of Hawaii, Guam, or the Commonwealth of the Northern Mariana Islands,
respectively, without regard to whether the alien arrives in a foreign state
before returning to Hawaii, Guam, or the Commonwealth of the Northern Mariana
Islands.
(c)
Conforming
amendment
The Act entitled An Act to amend the Immigration
and Nationality Act to permit nonimmigrant alien crewmen on fishing vessels to
stop temporarily at ports in Guam, approved October 21, 1986 (Public
Law 99–505; 8 U.S.C. 1101 note) is amended by striking section 2.
4415.
Treatment of compact
of free association migrants
(a)
In
general
Title II (8 U.S.C. 1151 et seq.) is amended by inserting
after section 214 the following:
214A.
Treatment of compact
of free association migrants
Notwithstanding any other provision of law,
with respect to eligibility for benefits for the Federal program defined in
402(b)(3)(C) of the Personal Responsibility and Work Opportunity Reconciliation
Act of 1996 (8 U.S.C. 1612(b)(3)(C)) (relating to the Medicaid program),
sections 401(a), 402(b)(1), and 403(a) of the Personal Responsibility and Work
Opportunity Reconciliation Act of 1996 (8 U.S.C. 1611(a), 1612(b)(1), 1613(a))
shall not apply to any individual who lawfully resides in the United States in
accordance with the Compacts of Free Association between the Government of the
United States and the Governments of the Federated States of Micronesia, the
Republic of the Marshall Islands, and the Republic of Palau. Any individual to
which the preceding sentence applies shall be considered to be a qualified
alien for purposes of title IV of the Personal Responsibility and Work
Opportunity Reconciliation Act of 1996 (8 U.S.C. 1601 et seq.), but only with
respect to the designated Federal program defined in section 402(b)(3)(C) of
such Act (relating to the Medicaid program) (8 U.S.C.
1612(b)(3)(C)).
.
(b)
Conforming
amendments
Section 1108 of the Social Security Act (42 U.S.C.
1308) is amended—
(1) in subsection (f), in the
matter preceding paragraph (1), by striking subsection (g) and
inserting subsections (g) and (h); and
(2) by adding at the end the
following:
(h) The limitations of
subsections (f) and (g) shall not apply with respect to medical assistance
provided to an individual described in section 214A of the Immigration and
Nationality
Act.
.
(c)
Effective
date
The amendments made by this section shall apply to benefits
for items and services furnished on or after the date of the enactment of this
Act.
E
JOLT Act
4501.
Short
titles
This subtitle may be
cited as the Jobs Originated through
Launching Travel Act of 2013 or the JOLT Act of 2013.
4502.
Premium
processing
Section 221 (8
U.S.C. 1201) is amended by inserting at the end the following:
(j)
Premium
processing
(1)
Pilot processing
service
Recognizing that the best solution for expedited
processing is low interview wait times for all applicants, the Secretary of
State shall nevertheless establish, on a limited, pilot basis only, a fee-based
premium processing service to expedite interview appointments. In establishing
a pilot processing service, the Secretary may—
(A) determine the consular
posts at which the pilot service will be available;
(B) establish the duration of
the pilot service;
(C) define the terms and
conditions of the pilot service, with the goal of expediting visa appointments
and the interview process for those electing to pay said fee for the service;
and
(D) resources permitting,
during the pilot service, consider the addition of consulates in locations
advantageous to foreign policy objectives or in highly populated
locales.
(2)
Fees
(A)
Authority to
collect
The Secretary of State is authorized to collect, and set
the amount of, a fee imposed for the premium processing service. The Secretary
of State shall set the fee based on all relevant considerations including, the
cost of expedited service.
(B)
Use of
fees
Fees collected under the authority of subparagraph (A) shall
be deposited as an offsetting collection to any Department of State
appropriation, to recover the costs of providing consular services. Such fees
shall remain available for obligation until expended.
(C)
Relationship to other
fees
Such fee is in addition to any existing fee currently being
collected by the Department of State.
(D)
Nonrefundable
Such
fee will be nonrefundable to the applicant.
(3)
Description of premium
processing
Premium processing pertains solely to the expedited
scheduling of a visa interview. Utilizing the premium processing service for an
expedited interview appointment does not establish the applicant’s eligibility
for a visa. The Secretary of State shall, if possible, inform applicants
utilizing the premium processing of potential delays in visa issuance due to
additional screening requirements, including necessary security-related checks
and clearances.
(4)
Report to
Congress
(A)
Requirement for
report
Not later than 18 months after the date of the enactment
of the JOLT Act of 2013, the
Secretary of State shall submit to the appropriate committees of Congress a
report on the results of the pilot service carried out under this
section.
(B)
Appropriate committees
of Congress defined
In this paragraph, the term
appropriate committees of Congress means—
(i) the Committee on the
Judiciary, the Committee on Foreign Relations, and the Committee on
Appropriations of the Senate; and
(ii) the Committee on the
Judiciary, the Committee on Foreign Affairs, and the Committee on
Appropriations of the House of
Representatives.
.
4503.
Encouraging Canadian
tourism to the United States
Section 214 (8 U.S.C. 1184), as amended by
sections 3609, 4233, and 4405, is further amended by adding at the end the
following:
(v)
Canadian
retirees
(1)
In
general
The Secretary of Homeland Security may admit as a visitor
for pleasure as described in section 101(a)(15)(B) any alien for a period not
to exceed 240 days, if the alien demonstrates, to the satisfaction of the
Secretary, that the alien—
(A) is a citizen of
Canada;
(B) is at least 55 years of
age;
(C) maintains a residence in
Canada;
(D) owns a residence in the
United States or has signed a rental agreement for accommodations in the United
States for the duration of the alien's stay in the United States;
(E) is not inadmissible under
section 212;
(F) is not described in any
ground of deportability under section 237;
(G) will not engage in
employment or labor for hire in the United States; and
(H) will 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)).
(2)
Spouse
The
spouse of an alien described in paragraph (1) may be admitted under the same
terms as the principal alien if the spouse satisfies the requirements of
paragraph (1), other than subparagraphs (B) and (D).
(3)
Immigrant
intent
In determining eligibility for admission under this
subsection, 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.
(4)
Period of
admission
During any single 365-day period, an alien may be
admitted as described in section 101(a)(15)(B) pursuant to this subsection for
a period not to exceed 240 days, beginning on the date of admission. Unless an
extension is approved by the Secretary, periods of time spent outside the
United States during such 240-day period shall not toll the expiration of such
240-day
period.
.
4504.
Retiree visa
(a)
Nonimmigrant
status
Section 101(a)(15), as
amended, is further amended by inserting after subparagraph (X) the
following:
(Y) subject to section
214(w), an alien who, after the date of the enactment of the
JOLT Act of 2013—
(i)
(I) uses at least
$500,000 in cash to purchase 1 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;
(II) 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 as a nonimmigrant
described in this subparagraph; and
(III) resides for more than
180 days per year in a residence in the United States that is worth at least
$250,000; and
(ii) the alien spouse and
children of the alien described in clause (i) if accompanying or following to
join the
alien.
.
(b)
Visa application
procedures
Section 214 (8 U.S.C. 1184), as amended by sections
3609, 4233, 4405, and 4503, is further amended by adding at the end the
following:
(w)
Visas of nonimmigrants
described in section 101(a)(15)(Y)
(1) The Secretary of Homeland
Security shall authorize the issuance of a nonimmigrant visa to any alien
described in section 101(a)(15)(Y) who submits a petition to the Secretary
that—
(A) demonstrates, to the
satisfaction of the Secretary, that the alien—
(i) has purchased a residence
in the United States that meets the criteria set forth in section
101(a)(15)(Y)(i);
(ii) is at least 55 years of
age;
(iii) possesses health
insurance coverage;
(iv) is not inadmissible
under section 212; and
(v) will comply with the
terms set forth in paragraph (2); and
(B) includes payment of a fee
in an amount equal to $1,000.
(2) An alien who is issued a
visa under this subsection—
(A) shall reside in the
United States at a residence that meets the criteria set forth in section
101(a)(15)(Y)(i) for more than 180 days per year;
(B) is not authorized to
engage in employment in the United States, except for employment that is
directly related to the management of the residential property described in
section 101(Y)(i)(II);
(C) is 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)); and
(D) may renew such visa every
3 years under the same terms and
conditions.
.
(c)
Use of
fee
Fees collected under section 214(w)(1)(B) of the Immigration
and Nationality Act, as added by subsection (b), shall be deposited in the
Comprehensive Immigration Reform Trust Fund established under section
6(a)(1).
4505.
Incentives for
foreign visitors visiting the United States during low peak
seasons
The Secretary of State
shall make publically available, on a monthly basis, historical data, for the
previous 2 years, regarding the availability of visa appointments for each visa
processing post, to allow applicants to identify periods of low demand, when
wait times tend to be lower.
4506.
Visa waiver program
enhanced security and reform
(a)
Definitions
Section
217(c)(1) (8 U.S.C. 1187(c)(1)) is amended to read as follows:
(1)
Authority to designate;
definitions
(A)
Authority to
designate
The Secretary of Homeland Security, in consultation
with the Secretary of State, may designate any country as a program country if
that country meets the requirements under paragraph (2).
(B)
Definitions
In
this subsection:
(i)
Appropriate
congressional committees
The term appropriate congressional
committees means—
(I) the Committee on Foreign
Relations, the Committee on Homeland Security and Governmental Affairs, and the
Committee on the Judiciary of the Senate; and
(II) the Committee on Foreign
Affairs, the Committee on Homeland Security, and the Committee on the Judiciary
of the House of Representatives.
(ii)
Overstay rate
(I)
Initial
designation
The term overstay rate means, with
respect to a country being considered for designation in the program, the ratio
of—
(aa) the number of nationals
of that country who were admitted to the United States on the basis of a
nonimmigrant visa under section 101(a)(15)(B) whose periods of authorized stay
ended during a fiscal year but who remained unlawfully in the United States
beyond such periods; to
(bb) the number of nationals
of that country who were admitted to the United States on the basis of a
nonimmigrant visa under section 101(a)(15)(B) whose periods of authorized stay
ended during that fiscal year.
(II)
Continuing
designation
The term overstay rate means, for each
fiscal year after initial designation under this section with respect to a
country, the ratio of—
(aa) the number of nationals
of that country who were admitted to the United States under this section or on
the basis of a nonimmigrant visa under section 101(a)(15)(B) whose periods of
authorized stay ended during a fiscal year but who remained unlawfully in the
United States beyond such periods; to
(bb) the number of nationals
of that country who were admitted to the United States under this section or on
the basis of a nonimmigrant visa under section 101(a)(15)(B) whose periods of
authorized stay ended during that fiscal year.
(III)
Computation of
overstay rate
In determining the overstay rate for a country, the
Secretary of Homeland Security may utilize information from any available
databases to ensure the accuracy of such rate.
(iii)
Program
country
The term program country means a country
designated as a program country under subparagraph
(A).
.
(b)
Technical and
conforming amendments
Section 217 (8 U.S.C. 1187) is
amended—
(1) by striking
Attorney General each place the term appears (except in
subsection (c)(11)(B)) and inserting Secretary of Homeland
Security; and
(2) in subsection (c)—
(A) in paragraph (2)(C)(iii),
by striking Committee on the Judiciary and the Committee on
International Relations of the House of Representatives and the Committee on
the Judiciary and the Committee on Foreign Relations of the Senate and
inserting appropriate congressional committees;
(B) in paragraph
(5)(A)(i)(III), by striking Committee on the Judiciary, the Committee on
Foreign Affairs, and the Committee on Homeland Security, of the House of
Representatives and the Committee on the Judiciary, the Committee on Foreign
Relations, and the Committee on Homeland Security and Governmental Affairs of
the Senate and inserting appropriate congressional
committees; and
(C) in paragraph (7), by
striking subparagraph (E).
(c)
Designation of program
countries based on overstay rates
(1)
In
general
Section 217(c)(2)(A) (8 U.S.C. 1187(c)(2)(A)) is amended
to read as follows:
(A)
General numerical
limitations
(i)
Low nonimmigrant visa
refusal rate
The percentage of nationals of that country refused
nonimmigrant visas under section 101(a)(15)(B) during the previous full fiscal
year was not more than 3 percent of the total number of nationals of that
country who were granted or refused nonimmigrant visas under such section
during such year.
(ii)
Low nonimmigrant
overstay rate
The overstay rate for that country was not more
than 3 percent during the previous fiscal
year.
.
(2)
Qualification
criteria
Section 217(c)(3) (8 U.S.C. 1187(c)(3)) is amended to
read as follows:
(3)
Qualification
criteria
After designation as a program country under section
217(c)(2), a country may not continue to be designated as a program country
unless the Secretary of Homeland Security, in consultation with the Secretary
of State, determines, pursuant to the requirements under paragraph (5), that
the designation will be
continued.
.
(3)
Initial
period
Section 217(c) (8 U.S.C. 1187(c)) is amended by striking
paragraph (4).
(4)
Continuing
designation
Section 217(c)(5)(A)(i)(II) (8 U.S.C.
1187(c)(5)(A)(i)(II)) is amended to read as follows:
(II) shall determine, based
upon the evaluation in subclause (I), whether any such designation under
subsection (d) or (f), or probation under subsection (f), ought to be continued
or
terminated;
.
(5)
Computation of visa
refusal rates; judicial review
Section 217(c)(6) (8 U.S.C.
1187(c)(6)) is amended to read as follows:
(6)
Computation of visa
refusal rates and judicial review
(A)
Computation of visa
refusal rates
For purposes of determining the eligibility of a
country to be designated as a program country, the calculation of visa refusal
rates shall not include any visa refusals which incorporate any procedures
based on, or are otherwise based on, race, sex, or disability, unless otherwise
specifically authorized by law or regulation.
(B)
Judicial
review
No court shall have jurisdiction under this section to
review any visa refusal, the Secretary of State’s computation of a visa refusal
rate, the Secretary of Homeland Security’s computation of an overstay rate, or
the designation or nondesignation of a country as a program
country.
.
(6)
Visa waiver
information
Section 217(c)(7) (8 U.S.C. 1187(c)(7)), as amended
by subsection (b)(2)(C), is further amended—
(A) by striking subparagraphs
(B) through (D); and
(B) by striking
waiver
information.— and all that follows through In
refusing and inserting waiver information.—In refusing.
(7)
Waiver
authority
Section 217(c)(8) (8 U.S.C. 1187(c)(8)) is amended to
read as follows:
(8)
Waiver
authority
The Secretary of Homeland Security, in consultation
with the Secretary of State, may waive the application of paragraph (2)(A)(i)
for a country if—
(A) the country meets all
other requirements of paragraph (2);
(B) the Secretary of Homeland
Security determines that the totality of the country's security risk mitigation
measures provide assurance that the country's participation in the program
would not compromise the law enforcement, security interests, or enforcement of
the immigration laws of the United States;
(C) there has been a general
downward trend in the percentage of nationals of the country refused
nonimmigrant visas under section 101(a)(15)(B);
(D) the country consistently
cooperated with the Government of the United States on counterterrorism
initiatives, information sharing, preventing terrorist travel, and extradition
to the United States of individuals (including the country's own nationals) who
commit crimes that violate United States law before the date of its designation
as a program country, and the Secretary of Homeland Security and the Secretary
of State assess that such cooperation is likely to continue; and
(E) the percentage of
nationals of the country refused a nonimmigrant visa under section
101(a)(15)(B) during the previous full fiscal year was not more than 10 percent
of the total number of nationals of that country who were granted or refused
such nonimmigrant
visas.
.
(d)
Termination of
designation; probation
Section 217(f) (8 U.S.C. 1187(f)) is
amended to read as follows:
(f)
Termination of
designation; probation
(1)
Definitions
In
this subsection:
(A)
Probationary
period
The term probationary period means the fiscal
year in which a probationary country is placed in probationary status under
this subsection.
(B)
Program
country
The term program country has the meaning
given that term in subsection (c)(1)(B).
(2)
Determination, notice,
and initial probationary period
(A)
Determination of
probationary status and notice of noncompliance
As part of each
program country’s periodic evaluation required by subsection (c)(5)(A), the
Secretary of Homeland Security shall determine whether a program country is in
compliance with the program requirements under subparagraphs (A)(ii) through
(F) of subsection (c)(2).
(B)
Initial probationary
period
If the Secretary of Homeland Security determines that a
program country is not in compliance with the program requirements under
subparagraphs (A)(ii) through (F) of subsection (c)(2), the Secretary of
Homeland Security shall place the program country in probationary status for
the fiscal year following the fiscal year in which the periodic evaluation is
completed.
(3)
Actions at the end of
the initial probationary period
At the end of the initial
probationary period of a country under paragraph (2)(B), the Secretary of
Homeland Security shall take 1 of the following actions:
(A)
Compliance during
initial probationary period
If the Secretary determines that all
instances of noncompliance with the program requirements under subparagraphs
(A)(ii) through (F) of subsection (c)(2) that were identified in the latest
periodic evaluation have been remedied by the end of the initial probationary
period, the Secretary shall end the country’s probationary period.
(B)
Noncompliance during
initial probationary period
If the Secretary determines that any
instance of noncompliance with the program requirements under subparagraphs
(A)(ii) through (F) of subsection (c)(2) that were identified in the latest
periodic evaluation has not been remedied by the end of the initial
probationary period—
(i) the Secretary may
terminate the country’s participation in the program; or
(ii) on an annual basis, the
Secretary may continue the country’s probationary status if the Secretary, in
consultation with the Secretary of State, determines that the country’s
continued participation in the program is in the national interest of the
United States.
(4)
Actions at the end of
additional probationary periods
At the end of all probationary
periods granted to a country pursuant to paragraph (3)(B)(ii), the Secretary
shall take 1 of the following actions:
(A)
Compliance during
additional period
The Secretary shall end the country’s
probationary status if the Secretary determines during the latest periodic
evaluation required by subsection (c)(5)(A) that the country is in compliance
with the program requirements under subparagraphs (A)(ii) through (F) of
subsection (c)(2).
(B)
Noncompliance during
additional periods
The Secretary shall terminate the country's
participation in the program if the Secretary determines during the latest
periodic evaluation required by subsection (c)(5)(A) that the program country
continues to be in noncompliance with the program requirements under
subparagraphs (A)(ii) through (F) of subsection (c)(2).
(5)
Effective
date
The termination of a country's participation in the program
under paragraph (3)(B) or (4)(B) shall take effect on the first day of the
first fiscal year following the fiscal year in which the Secretary determines
that such participation shall be terminated. Until such date, nationals of the
country shall remain eligible for a waiver under subsection (a).
(6)
Treatment of nationals
after termination
For purposes of this subsection and subsection
(d)—
(A) nationals of a country
whose designation is terminated under paragraph (3) or (4) shall remain
eligible for a waiver under subsection (a) until the effective date of such
termination; and
(B) a waiver under this
section that is provided to such a national for a period described in
subsection (a)(1) shall not, by such termination, be deemed to have been
rescinded or otherwise rendered invalid, if the waiver is granted prior to such
termination.
(7)
Consultative role of
the Secretary of State
In this subsection, references to
subparagraphs (A)(ii) through (F) of subsection (c)(2) and subsection (c)(5)(A)
carry with them the consultative role of the Secretary of State as provided in
those
provisions.
.
(e)
Review of overstay
tracking methodology
Not later than 180 days after the date of
the enactment of this Act, the Comptroller General of the United States shall
conduct a review of the methods used by the Secretary—
(1) to track aliens entering
and exiting the United States; and
(2) to detect any such alien
who stays longer than such alien's period of authorized admission.
(f)
Evaluation of
electronic system for travel authorization
Not later than 90 days
after the date of the enactment of this Act, the Secretary shall submit to
Congress—
(1) an evaluation of the
security risks of aliens who enter the United States without an approved
Electronic System for Travel Authorization verification; and
(2) a description of any
improvements needed to minimize the number of aliens who enter the United
States without the verification described in paragraph (1).
(g)
Sense of Congress on
priority for review of program countries
It is the sense of
Congress that the Secretary, in the process of conducting evaluations of
countries participating in the visa waiver program under section 217 of the
Immigration and Nationality Act (8 U.S.C. 1187), should prioritize the reviews
of countries in which circumstances indicate that such a review is necessary or
desirable.
(h)
Eligibility of Hong
Kong Special Administrative Region for designation for participation in visa
waiver program for certain visitors to the United States
Section 217(c) (8 U.S.C. 1187(c)) is
amended by adding at the end the following new paragraph:
(12)
Eligibility of certain
region for designation as program country
The Hong Kong Special
Administrative Region of the People's Republic of China—
(A) shall be eligible for
designation as a program country for purposes of this subsection; and
(B) may be designated as a
program country for purposes of this subsection if such region meets
requirements applicable for such designation in this
subsection.
.
4507.
Expediting entry for
priority visitors
Section
7208(k)(4) of the Intelligence Reform and Terrorism Prevention Act of 2004 (8
U.S.C. 1365b(k)(4)) is amended to read as follows:
(4)
Expediting entry for
priority visitors
(A)
In
general
The Secretary of Homeland Security may expand the
enrollment across registered traveler programs to include eligible individuals
employed by international organizations, selected by the Secretary, which
maintain strong working relationships with the United States.
(B)
Requirements
An
individual may not be enrolled in a registered traveler program unless—
(i) the individual is
sponsored by an international organization selected by the Secretary under
subparagraph (A); and
(ii) the government that
issued the passport that the individual is using has entered into a Trusted
Traveler Arrangement with the Department of Homeland Security to participate in
a registered traveler program.
(C)
Security
requirements
An individual may not be enrolled in a registered
traveler program unless the individual has successfully completed all
applicable security requirements established by the Secretary, including
cooperation from the applicable foreign government, to ensure that the
individual does not pose a risk to the United States.
(D)
Discretion
Except
as provided in subparagraph (E), the Secretary shall retain unreviewable
discretion to offer or revoke enrollment in a registered traveler program to
any individual.
(E)
Ineligible
travelers
An individual who is a citizen of a state sponsor of
terrorism (as defined in section 301(13) of the Comprehensive Iran Sanctions,
Accountability, and Divestment Act of 2010 (22 U.S.C. 8541(13)) may not be
enrolled in a registered traveler
program.
.
4508.
Visa
processing
(a)
In
general
Notwithstanding any other provision of law and not later
than 90 days after the date of the enactment of this Act, the Secretary of
State shall—
(1) require United States
diplomatic and consular missions—
(A) to conduct visa
interviews for nonimmigrant visa applications determined to require a consular
interview in an expeditious manner, consistent with national security
requirements, and in recognition of resource allocation considerations, such as
the need to ensure provision of consular services to citizens of the United
States;
(B) to set a goal of
interviewing 80 percent of all nonimmigrant visa applicants, worldwide, within
3 weeks of receipt of application, subject to the conditions outlined in
subparagraph (A); and
(C) to explore expanding visa
processing capacity in China and Brazil, with the goal of maintaining interview
wait times under 15 work days on a consistent, year-round basis, recognizing
that demand can spike suddenly and unpredictably and that the first priority of
United States missions abroad is the protection of citizens of the United
States; and
(2) submit to the appropriate
committees of Congress a detailed strategic plan that describes the resources
needed to carry out paragraph (1)(A).
(b)
Appropriate committees
of Congress
In this section, the term appropriate
committees of Congress means—
(1) the Committee on the
Judiciary, the Committee on Foreign Relations, and the Committee on
Appropriations of the Senate; and
(2) the Committee on the
Judiciary, the Committee on Foreign Affairs, and the Committee on
Appropriations of the House of Representatives.
(c)
Semi-Annual
report
Not later than 30 days after the end of the first 6 months
after the implementation of subsection (a), and not later than 30 days after
the end of each subsequent quarter, the Secretary of State shall submit to the
appropriate committees of Congress a report that provides—
(1) data substantiating the
efforts of the Secretary of State to meet the requirements and goals described
in subsection (a);
(2) any factors that have
negatively impacted the efforts of the Secretary to meet such requirements and
goals; and
(3) any measures that the
Secretary plans to implement to meet such requirements and goals.
(d)
Savings
provision
(1)
In
general
Nothing in subsection (a) may be construed to affect a
consular officer’s authority—
(A) to deny a visa
application under section 221(g) of the Immigration and Nationality Act (8
U.S.C. 1201(g)); or
(B) to initiate any necessary
or appropriate security-related check or clearance.
(2)
Security
checks
The completion of a security-related check or clearance
shall not be subject to the time limits set out in subsection (a).
4509.
B Visa
fee
Section 281 (8 U.S.C.
1351), as amended by sections 4105, 4407, and 4408, is further amended by
adding at the end the following:
(g)
B visa fee
In addition to the fees authorized under
subsection (a), the Secretary of Homeland Security shall collect a $5 fee from
each nonimmigrant admitted under section 101(a)(15)(B). Fees collected under
this subsection shall be deposited into the Comprehensive Immigration Reform
Trust Fund established under section 6(a)(1) of the
Illegal Immigration Reform and Immigrant
Responsibility Act of
1996.
.
F
Reforms to the H–2B Visa
Program
4601.
Extension of
returning worker exemption to H–2B numerical limitation
(a)
In general
(1)
In
general
Subparagraph (A) of paragraph (10) of section 214(g) (8
U.S.C. 1184(g)), as redesignated by section 4101(a)(3), is amended by striking
fiscal year 2004, 2005, or 2006 shall not again be counted toward such
limitation during fiscal year 2007. and inserting fiscal year
2013 shall not again be counted toward such limitation during fiscal years 2014
through 2018. .
(2)
Effective
period
The amendment made by paragraph (1) shall be effective
during the period beginning on the effective date described in subsection (c)
and ending on September 30, 2018.
(b)
Technical and
clarifying amendments
(1)
Nonimmigrant
status
Section 101(a)(15)(P) (8 U.S.C. 1101(a)(15)(P)) is
amended—
(A) in clause (iii), by
striking or at the end;
(B) in clause (iv), by
striking clause (i), (ii), or (iii), and inserting clause
(i), (ii), (iii), or (iv);
(C) by redesignating clause
(iv) as clause (v); and
(D) by inserting after clause
(iii) the following:
(iv) is a ski instructor, who
has been certified as a level I, II, or III ski and snowboard instructor by the
Professional Ski Instructors of America or the American Association of
Snowboard Instructors, or received an equivalent certification in the alien's
country of origin, and is seeking to enter the United States temporarily to
perform instructing services;
or
.
(2)
Authorized period of
stay; numerical limitation
Section 214(a)(2)(B) (8 U.S.C.
1184(a)(2)(B)) is amended in the second sentence—
(A) by inserting or
ski instructors after athletes; and
(B) by inserting or
ski instructor after athlete.
(3)
Construction
Nothing
in the amendments made by this subsection may be construed as preventing an
alien who is a ski instructor from obtaining nonimmigrant status under section
101(a)(15)(H)(ii)(b) of the Immigration and Nationality Act (8 U.S.C.
1101(a)(15)(H)(ii)(b)) if such alien is otherwise qualified for such
status.
(c)
Effective
date
The amendment made by subsection (a) shall take effect as if
enacted on January 1, 2013.
4602.
Other requirements
for H–2B employers
Section 214
(8 U.S.C. 1184), as amended by sections 3609, 4233, 4405, 4503, and 4504, is
further amended by adding at the end the following:
(x)
Requirements for H–2B
employers
(1)
H–2B nonimmigrant
defined
In this subsection the term H–2B
nonimmigrant means an alien admitted to the United States pursuant to
section 101(a)(15)(H)(ii)(B).
(2)
Non-displacement of
United States workers
An employer who seeks to employ an H–2B
nonimmigrant admitted in an occupational classification shall certify and
attest that the employer did not displace and will not displace a United States
worker employed by the employer in the same metropolitan statistical area where
such nonimmigrant will be hired within the period beginning 90 days before the
start date and ending on the end date for which the employer is seeking the
services of such nonimmigrant as specified on an application for labor
certification under this Act.
(3)
Transportation
costs
The employer shall pay the transportation costs, including
reasonable subsistence costs during the period of travel, for an H–2B
nonimmigrant hired by the employer—
(A) from the place of
recruitment to the place of such nonimmigrant's employment; and
(B) from the place of
employment to such nonimmigrant's place of permanent residence or a subsequent
worksite.
(4)
Payment of
fees
A fee related to the hiring of an H–2B 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 an H–2B
nonimmigrant.
(5)
H–2B nonimmigrant labor
certification application fee
(A)
In
general
To recover costs of carrying out labor certification
activities under the H–2B program, the Secretary of Labor shall impose a $500
fee on an employer that submits an application for an employment certification
for aliens granted H–2B nonimmigrant status to the Secretary of Labor under
this subparagraph on or after the date that is 30 days after the date of the
enactment of the Illegal Immigration Reform
and Immigrant Responsibility Act of
1996.
.
(B)
Use of
fees
The fees collected under subparagraph (A) shall be deposited
in the Comprehensive Immigration Reform Trust Fund established under section 6
of the Illegal Immigration Reform and
Immigrant Responsibility Act of
1996.
.
4603.
Executives and
managers
Section 214(a)(1) (8
U.S.C. 1184(a)(1)) is amended by adding at the end the following: “Aliens
admitted under section 101(a)(15) should include—
(A) executives and managers
employed by a firm or corporation or other legal entity or an affiliate or
subsidiary thereof who are principally stationed abroad and who seek to enter
the United States for periods of 90 days or less to oversee and observe the
United States operations of their related companies, and establish strategic
objectives when needed; or
(B) employees of
multinational corporations who enter the United States to observe the
operations of a related United States company and participate in select
leadership and development training activities, whether or not the activity is
part of a formal or classroom training program for a period not to exceed 180
days.
Nonimmigrant aliens admitted pursuant
to section 101(a)(15) and engaged in the activities described in the
subparagraph (A) or (B) may not receive a salary from a United States source,
except for incidental expenses for meals, travel, lodging and other basic
services.
.
4604.
Honoraria
Section 212(q) (8 U.S.C. 1182(q)) is amended
to read as follows:
(q)
(1) Any alien admitted
under section 101(a)(15)(B) may accept an honorarium payment and associated
incidental expenses, for a usual academic activity or activities (lasting not
longer than 9 days at any single institution), as defined by the Attorney
General in consultation with the Secretary of Education, or for a performance,
appearance and participation in United States based programming, including
scripted or unscripted programming (with services not rendered for more than 60
days in a 6 month period) if the alien has received a letter of invitation from
the institution, organization, or media outlet, such payment is offered by an
institution, organization, or media outlet described in paragraph (2) and is
made for services conducted for the benefit of that institution, entity or
media outlet and if the alien has not accepted such payment or expenses from
more than 5 institutions, organizations, or media outlets in the previous
6-month period. Any alien who is admitted under section 101(a)(15)(B) or any
other valid visa may perform services under this section without reentering the
United States and without a letter of invitation, if the alien does not receive
any remuneration including an honorarium payment or incidental expenses, but
may receive prize money.
(2) An institution,
organization, or media outlet described in this paragraph—
(A) an institution of higher
education (as defined in section 101(a) of the Higher Education Act of 1965 (20
U.S.C. 1001(a))) or a related or affiliated nonprofit entity;
(B) a nonprofit research
organization or a governmental research organization; and
(C) a broadcast network,
cable entity, production company, new media, internet and mobile based
companies, who create or distribute programming
content.
.
4605.
Nonimmigrants
participating in relief operations
Section 214 (8 U.S.C. 1184), as amended by
sections 3609, 4233, 4405, 4503, 4504, and 4602, is further amended by adding
at the end following:
(y)
Nonimmigrants
participating in relief operations
(1)
In
general
An alien coming
individually, or aliens coming as a group, to participate in relief operations,
including critical infrastructure repairs or improvements, needed in response
to a Federal or State declared emergency or disaster, may be admitted to the
United States pursuant to section 101(a)(15)(B) for a period of not more than
90 days if each such alien has been employed in a foreign country by 1 employer
for not less than 1 year prior to the date the alien is so admitted.
(2)
Prohibition on income
from a United States source
During a period of admission pursuant to
paragraph (1), an alien may not receive income from a United States source,
except for incidental expenses for meals, travel, lodging, and other basic
services.
.
4606.
Nonimmigrants
performing maintenance on common carriers
Section 214 (8 U.S.C. 1184), as amended by
sections 3609, 4233, 4405, 4503, 4504, 4602, and 4603, is further amended by
adding at the end following:
(z)
Nonimmigrants
performing maintenance on common carrier
(1)
In
general
An alien coming
individually, or aliens coming as a group, who possess specialized knowledge to
perform maintenance or repairs for common carriers, including to airlines,
cruise lines, and railways, if such maintenance or repairs are occurring to
equipment or machinery manufactured outside of the United States and are needed
for purposes relating to life, health, and safety, may be admitted to the
United States pursuant to section 101(a)(15)(B) for a period of not more than
90 days if each such alien has been employed in a foreign country by 1 employer
for not less than 1 year prior to the date the alien is so admitted.
(2)
Prohibition on income
from a United States source
During a period of admission pursuant to
paragraph (1), an alien may not receive income from a United States source,
except for incidental expenses for meals, travel, lodging, and other basic
services.
(3)
Fee
(A)
In
general
An alien admitted pursuant to paragraph (1) shall pay a
fee of $500 in addition to any fee assessed to cover the costs to process an
application under this subsection.
(B)
Use of
fee
The fees collected under subparagraph (A) shall be deposited
in the Comprehensive Immigration Reform Trust Fund established under section
6(a)(1) of the Illegal Immigration Reform and
Immigrant Responsibility Act of
1996.
.
G
W nonimmigrant
visas
4701.
Bureau of Immigration
and Labor Market Research
(a)
Definitions
In this section:
(1)
Bureau
Except
as otherwise specifically provided, the term Bureau means the
Bureau of Immigration and Labor Market Research established under subsection
(b).
(2)
Commissioner
The
term Commissioner means the Commissioner of the Bureau.
(3)
Construction
occupation
The term construction occupation means an
occupation classified by the Bureau of Labor Statistics as being within the
construction industry for the purposes of publishing the Bureau's workforce
statistics.
(4)
Metropolitan
statistical area
The term metropolitan statistical
area means a geographic area designated as a metropolitan statistical
area by the Director of the Office of Management and Budget.
(5)
Shortage
occupation
The term shortage occupation means an
occupation that the Commissioner determines is experiencing a shortage of
labor—
(A) throughout the United
States; or
(B) in a specific
metropolitan statistical area.
(6)
W visa
program
The term W Visa Program means the program
for the admission of nonimmigrant aliens described in subparagraph (W)(i) of
section 101(a)(15) of the Immigration and Nationality Act (8 U.S.C.
1101(a)(15)), as added by section 4702.
(7)
Zone 1
occupation
The term zone 1 occupation means an
occupation that requires little or no preparation and is classified as a zone 1
occupation on—
(A) the Occupational
Information Network Database (O*NET) on the date of the enactment of this Act;
or
(B) such Database or a
similar successor database, as designated by the Secretary of Labor, after the
date of the enactment of this Act.
(8)
Zone 2
occupation
The term zone 2 occupation means an
occupation that requires some preparation and is classified as a zone 2
occupation on—
(A) the Occupational
Information Network Database (O*NET) on the date of the enactment of this Act;
or
(B) such Database or a
similar successor database, as designated by the Secretary of Labor, after the
date of the enactment of this Act.
(9)
Zone 3
occupation
The term zone 3 occupation means an
occupation that requires medium preparation and is classified as a zone 3
occupation on—
(A) the Occupational
Information Network Database (O*NET) on the date of the enactment of this Act;
or
(B) such Database or a
similar successor database, as designated by the Secretary of Labor, after the
date of the enactment of this Act.
(b)
Establishment
There
is established a Bureau of Immigration and Labor Market Research as an
independent statistical agency within U.S. Citizenship and Immigration
Services.
(c)
Commissioner
The
head of the Bureau of Immigration and Labor Market Research is the
Commissioner, who shall be appointed by the President, by and with the advice
and consent of the Senate.
(d)
Duties
The
duties of the Commissioner are limited to the following:
(1) To devise a methodology
subject to publication in the Federal Register and an opportunity for public
comment regarding the calculation for the index referred to in section
220(g)(2)(C) of the Immigration and Nationality Act, as added by section
4703.
(2) To determine and to
publish in the Federal Register the annual change to the numerical limitation
for nonimmigrant aliens described in subparagraph (W)(i) of section 101(a)(15)
of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)), as added by
section 4702.
(3) With respect to the W
Visa Program, to supplement the recruitment methods employers may use to
attract United States workers and current nonimmigrant aliens described in
paragraph (2).
(4) With respect to the W
Visa Program, to devise a methodology subject to publication in the Federal
Register and an opportunity for public comment to designate shortage
occupations in zone 1 occupations, zone 2 occupations, and zone 3
occupations.
(5) With respect to the W
Visa Program, to designate shortage occupations in any zone 1 occupation, zone
2 occupation, or zone 3 occupation and publish such occupations in the Federal
Register.
(6) With respect to the W
Visa Program, to conduct a survey once every 3 months of the unemployment rate
of zone 1 occupations, zone 2 occupations, or zone 3 occupations that are
construction occupations in each metropolitan statistical area.
(7) To study and report to
Congress on employment-based immigrant and nonimmigrant visa programs in the
United States and to make annual recommendations to improve such
programs.
(8) To carry out any
functions required to perform the duties described in paragraphs (1) through
(7).
(e)
Determination of
changes to numerical limitations
The methodology required under
subsection (d)(1) shall be published in the Federal Register not later than 18
months after the date of the enactment of this Act.
(f)
Designation of shortage
occupations
(1)
Methods to
determine
The Commissioner shall—
(A) establish the methodology
to designate shortage occupations under subsection (d)(4); and
(B) publish such methodology
in the Federal Register not later than 18 months after the date of the
enactment of this Act.
(2)
Petition by
employer
The methodology established under paragraph (1) shall
permit an employer to petition the Commissioner for a determination that a
particular occupation in a particular metropolitan statistical area is a
shortage occupation.
(3)
Requirement for notice
and comment
The methodology established under paragraph (1) shall
be effective only after publication in the Federal Register and an opportunity
for public comment.
(g)
Employee
expertise
The employees of the Bureau shall have the expertise
necessary to identify labor shortages in the United States and make
recommendations to the Commissioner on the impact of immigrant and nonimmigrant
aliens on labor markets in the United States, including expertise in economics,
labor markets, demographics and methods of recruitment of United States
workers.
(h)
Interagency
cooperation
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—
(1) provide data to the
Commissioner;
(2) conduct appropriate
surveys; and
(3) assist the Commissioner
in preparing the recommendations referred to subsection (d)(5).
(i)
Budget
(1)
Report
Not
later than 1 year after the date of the enactment of this Act, the Director of
U.S. Citizenship and Immigration Services shall submit to Congress a report of
the estimated budget that the Bureau will need to carry out the duties
described in subsection (d).
(2)
Audit
The
Comptroller General of the United States shall submit to Congress a report that
is an audit of the budget prepared by the Director under paragraph (1).
(j)
Funding
(1)
Appropriation of
funds
There is hereby appropriated, out of any money in the
Treasury not otherwise appropriated, $20,000,000 to establish the
Bureau.
(2)
Use of W nonimmigrant
fees
The amounts collected for fees under section 220(e)(6)(B) of
the Immigration and Nationality Act, as added by section 4703, shall be used to
establish and fund the Bureau.
(3)
Other
fees
The Secretary may establish other fees for the sole purpose
of funding the W Visa Program, including the Bureau, that are related to the
hiring of alien workers.
4702.
Nonimmigrant
classification for W nonimmigrants
Section 101(a)(15)(W), as added by section
2211, is amended by inserting before clause (iii) the following:
(i) to perform services or
labor for a registered nonagricultural employer in a registered position (as
those terms are defined in section 220(a)) in accordance with the requirements
under section 220;
(ii) to accompany or follow
to join such an alien described in clause (i) as the spouse or child of such
alien;
.
4703.
Admission of W
nonimmigrant workers
(a)
In
general
Chapter 2 of title II (8 U.S.C. 1181 et seq.) is amended
by adding at the end the following:
220.
Admission of W
nonimmigrant workers
(a)
Definitions
In
this section:
(1)
Bureau
The
term Bureau means the Bureau of Immigration and Labor Market
Research established by section 4701 of the Illegal Immigration Reform and Immigrant Responsibility
Act of 1996.
(2)
Certified
alien
The term certified alien means an alien that
the Secretary of State has certified is eligible to be a W nonimmigrant if the
alien is hired by a registered employer for a registered position.
(3)
Commissioner
The
term Commissioner means the Commissioner of the Bureau.
(4)
Construction
occupation
The term construction occupation means an
occupation defined by the Bureau of Labor Statistics as being within the
construction industry for the purposes of publishing the Bureau's workforce
statistics.
(5)
Department
Except
as otherwise provided, the term Department means the Department of
Homeland Security.
(6)
Eligible
occupation
The term eligible occupation means an
eligible occupation described in subsection (e)(3).
(7)
Employer
(A)
In
general
The term employer means any person or entity
hiring an individual for employment in the United States.
(B)
Treatment of single
employer
For purposes of determining the number of employees or
United States workers employed by an employer, a single entity shall be treated
as 1 employer.
(8)
Excluded geographic
location
The term excluded geographic location means
an excluded geographic location described in subsection (f).
(9)
Initial W
nonimmigrant
The term initial W nonimmigrant means a
certified alien issued a W nonimmigrant visa by the Secretary of State pursuant
to section 101(a)(15)(W)(i) in order to seek initial admission to the United
States to commence employment for a registered employer in a registered
position subject to the numerical limit at section 220(g).
(10)
Metropolitan
statistical area
The term metropolitan statistical
area means a geographic area designated as a metropolitan statistical
area by the Director of the Office of Management and Budget.
(11)
Registered
employer
The term registered employer means a
nonagricultural employer that the Secretary has designated as a registered
employer under subsection (d).
(12)
Secretary
Except
as otherwise specifically provided, the term Secretary means the
Secretary of Homeland Security.
(13)
Single
entity
The term single entity means any group
treated as a single employer under subsection (b), (c), (m), or (o) of section
414 of the Internal Revenue Code of 1986.
(14)
Shortage
occupation
The term shortage occupation means a
shortage occupation designated by the Commissioner pursuant to section
4701(d)(4) of the Illegal Immigration Reform
and Immigrant Responsibility Act of 1996.
(15)
Small
business
The term small business means an employer
that employs 25 or fewer full-time equivalent employees.
(16)
United States
worker
The term United States worker means an
individual who is—
(A) employed or seeking
employment in the United States; and
(B)
(i) a national of the
United States;
(ii) an alien lawfully
admitted for permanent residence;
(iii) an alien in Registered
Provisional Immigrant Status; or
(iv) any other alien
authorized to work in the United States with no limitation as to the alien's
employer.
(17)
W
nonimmigrant
The term W nonimmigrant means an alien
admitted as a nonimmigrant pursuant to section 101(a)(15)(W)(i).
(18)
W nonimmigrant
visa
The term W nonimmigrant visa means a visa
issued to a certified alien by the Secretary of State pursuant to section
101(a)(15)(W)(i).
(19)
W visa
program
The term W Visa Program means the program
for the admission of nonimmigrant aliens described in section
101(a)(15)(W)(i).
(20)
Zone 1
occupation
The term zone 1 occupation means an
occupation that requires little or no preparation and is classified as a zone 1
occupation on—
(A) the Occupational
Information Network Database (O*NET) on the date of the enactment of the
Illegal Immigration Reform and Immigrant
Responsibility Act of 1996; or
(B) such Database or a
similar successor database, as designated by the Secretary of Labor, after the
date of the enactment of the Illegal
Immigration Reform and Immigrant Responsibility Act of
1996.
(21)
Zone 2
occupation
The term zone 2 occupation means an
occupation that requires some preparation and is classified as a zone 2
occupation on—
(A) the Occupational
Information Network Database (O*NET) on the date of the enactment of the
Illegal Immigration Reform and Immigrant
Responsibility Act of 1996; or
(B) such Database or a
similar successor database, as designated by the Secretary of Labor, after the
date of the enactment of the Illegal
Immigration Reform and Immigrant Responsibility Act of
1996.
(22)
Zone 3
occupation
The term zone 3 occupation means an
occupation that requires medium preparation and is classified as a zone 3
occupation on—
(A) the Occupational
Information Network Database (O*NET) on the date of the enactment of the
Illegal Immigration Reform and Immigrant
Responsibility Act of 1996; or
(B) such Database or a
similar successor database, as designated by the Secretary of Labor, after the
date of the enactment of the Illegal
Immigration Reform and Immigrant Responsibility Act of
1996.
(b)
Admission into the
United States
(1)
W
nonimmigrants
Subject to this section, a certified alien is
eligible to be admitted to the United States as a W nonimmigrant if the alien
is hired by a registered employer for employment in a registered position in a
location that is not an excluded geographic location.
(2)
Spouse and minor
children
The—
(A) alien spouse and minor
children of a W nonimmigrant may be admitted to the United States pursuant to
clause (ii) of section 101(a)(15)(W) during the period of the principal W
nonimmigrant's admission; and
(B) such alien spouse shall
be—
(i) authorized to engage in
employment in the United States during such period of admission; and
(ii) provided with an
employment authorization document, stamp, or other appropriate work
permit.
(c)
W
nonimmigrants
(1)
Certified
alien
(A)
Application
An
alien seeking to be a W nonimmigrant shall apply to the Secretary of State at a
United States embassy or consulate in a foreign country to be a certified
alien.
(B)
Criteria
An
alien is eligible to be a certified alien if the alien—
(i) is not inadmissible under
this Act;
(ii) passes a criminal
background check;
(iii) agrees to accept only
registered positions in the United States; and
(iv) meets other criteria as
established by the Secretary.
(2)
W nonimmigrant
status
Only an alien that is a certified alien may be admitted to
the United States as a W nonimmigrant.
(3)
Initial
employment
A W nonimmigrant shall report to such nonimmigrant's
initial employment in a registered position not later than 14 days after such
nonimmigrant is admitted to the United States.
(4)
Term of
admission
(A)
Initial
term
A certified alien may be granted W nonimmigrant status for
an initial period of 3 years.
(B)
Renewal
A
W nonimmigrant may renew his or her status as a W nonimmigrant for additional
3-year periods. Such a renewal may be made while the W nonimmigrant is in the
United States and shall not require the alien to depart the United
States.
(5)
Periods of
unemployment
A W nonimmigrant—
(A) may be unemployed for a
period of not more than 60 consecutive days; and
(B) shall depart the United
States if such W nonimmigrant is unable to obtain employment during such
period.
(6)
Travel
A
W nonimmigrant may travel outside the United States and be readmitted to the
United States. Such travel may not extend the period of authorized admission of
such W nonimmigrant.
(d)
Registered
employer
(1)
Application
An
employer seeking to be a registered employer shall submit an application to the
Secretary. Each such application shall include the following:
(A) Documentation to
establish that the employer is a bona-fide employer.
(B) The employer's Federal
tax identification number or employer identification number issued by the
Internal Revenue Service.
(C) The number of W
nonimmigrants the employer estimates it will seek to employ annually.
(2)
Referral for fraud
investigation
The Secretary may refer an application submitted
under paragraph (1) or subsection (e)(1)(A) to the Fraud Detection and National
Security Directorate of U.S. Citizenship and Immigration Services if there is
evidence of fraud for potential investigation.
(3)
Ineligible
employers
(A)
In
general
Notwithstanding any other applicable penalties under law,
the Secretary may deny an employer’s application to be a registered employer if
the Secretary determines, after notice and an opportunity for a hearing, that
the employer submitting such application—
(i) has, with respect to the
application required under paragraph (1), including any attestations required
by law—
(I) knowingly misrepresented
a material fact;
(II) knowingly made a
fraudulent statement; or
(III) knowingly failed to
comply with the terms of such attestations; or
(ii) failed to cooperate in
the audit process in accordance with regulations promulgated by the
Secretary;
(iii) has been convicted of
an offense set out in chapter 77 of title 18, United States Code, or any
conspiracy to commit such offenses, or any human trafficking offense under
State or territorial law;
(iv) has, within 2 years
prior to the date of application—
(I) received a final
adjudication of having committed any hazardous occupation orders violation
resulting in injury or death under the child labor provisions contained in
section 12 of the Fair Labor Standards Act of 1938 (29 U.S.C. 211) and any
pertinent regulation;
(II) received a final
adjudication assessing a civil money penalty for any repeated or willful
violation of the minimum wage provisions of section 6 of the Fair Labor
Standards Act of 1938 (29 U.S.C. 206); or
(III) received a final
adjudication assessing a civil money penalty for any willful violation of the
overtime provisions of section 7 of the Fair Labor Standards Act of 1938 or any
regulations thereunder; or
(v) has, within 2 years prior
to the date of application, received a final adjudication for a willful
violation or repeated serious violations involving injury or death—
(I) of section 5 of the
Occupational Safety and Health Act of 1970 (29 U.S.C. 654);
(II) of any standard, rule,
or order promulgated pursuant to section 6 of the Occupational Safety and
Health Act of 1970 (29 U.S.C. 655); or
(III) of a plan approved
under section 18 of the Occupational Safety and Health Act of 1970 (29 U.S.C.
667).
(B)
Length of
ineligibility
(i)
Temporary
ineligibility
An employer described in subparagraph (A) may be
ineligible to be a registered employer for a period that is not less than the
time period determined by the Secretary and not more than 3 years.
(ii)
Permanent
ineligibility
An employer who has been convicted of any offense
set out in chapter 77 of title 18, United States Code, or any conspiracy to
commit such offenses, or any human trafficking offense under State or
territorial law shall be permanently ineligible to be a registered
employer.
(4)
Term of
registration
The Secretary shall approve applications meeting the
criteria of this subsection for a term of 3 years.
(5)
Renewal
An
employer may submit an application to renew the employer's status as a
registered employer for additional 3-year periods.
(6)
Fee
At
the time an employer's application to be a registered employer or to renew such
status 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.
(7)
Continued
eligibility
Each registered employer shall submit to the
Secretary an annual report that demonstrates that the registered employer has
provided the wages and working conditions the registered employer agreed to
provide to its employees.
(e)
Registered
positions
(1)
In general
(A)
Application
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. The Secretary is authorized to determine if the wage to be paid by
the employer complies with subparagraph (B)(iv). Each such application shall
include a description of each such position.
(B)
Attestation
An
application submitted under subparagraph (A) shall include an attestation of
the following:
(i) The number of full-time
equivalent employees of the employer.
(ii) The occupational
category, as classified by the Secretary of Labor, for which the registered
position is sought.
(iii) Whether the occupation
for which the registered position is sought is a shortage occupation.
(iv) Except as provided in
subsection (g)(4)(C)(i), the wages to be paid to W nonimmigrants employed by
the employer in the registered position, including a position in a shortage
occupation, will be the greater of—
(I) the actual wage level
paid by the employer to other employees with similar experience and
qualifications for such position; or
(II) the prevailing wage
level for the occupational classification of the position in the metropolitan
statistical area of the employment, as determined by the Secretary, based on
the best information available as of the time of filing the application.
(v) The working conditions
for W nonimmigrants will not adversely affect the working conditions of other
workers employed in similar positions.
(vi) The employer has carried
out the recruiting activities required by paragraph (2)(B).
(vii) There is no qualified
United States worker who has applied for the position and who is ready,
willing, and able to fill such position pursuant to the requirements in
subparagraphs (B) and (C) of paragraph (2).
(viii) There is not a strike,
lockout, or work stoppage in the course of a labor dispute in the occupation at
the place of employment at which the W nonimmigrant will be employed. If such
strike, lockout, or work stoppage occurs following submission of the
application, the employer will provide notification in accordance with all
applicable regulations.
(ix)
(I) The employer has
not laid off and will not layoff a United States worker during the period
beginning 90 days prior to and ending 90 days after the date the employer files
an application for designation of a position for which the W nonimmigrant is
sought or hires such W nonimmigrant, unless the employer has notified such
United States worker of the position and documented the legitimate reasons that
such United States worker is not qualified or available for the
position.
(II) A United States worker
is not laid off for purposes of this subparagraph if, at the time such worker’s
employment is terminated, such worker is not employed in the same occupation
and in the same metropolitan statistical area where the registered position
referred to in subclause (I) is located.
(C)
Best information
available
In subparagraph (B)(iv)(II), the term best
information available, with respect to determining the prevailing wage
for a position, means—
(i) a controlling collective
bargaining agreement or Federal contract wage, if applicable;
(ii) if there is no
applicable wage under clause (i), the wage level commensurate with the
experience, training, and supervision required for the job based on Bureau of
Labor Statistics data; or
(iii) if the data referred to
in clause (ii) is not available, a legitimate and recent private survey of the
wages paid for such positions in the metropolitan statistical area.
(D)
Permit
The
Secretary shall provide each registered employer whose application submitted
under subparagraph (A) is approved with a permit that includes the number and
description of such employer's approved registered positions.
(E)
Term of
registration
The approval of a registered position under
subparagraph (A) is for a term that begins on the date of such approval and
ends on the earlier of—
(i) the date the employer's
status as a registered employer is terminated;
(ii) 3 years after the date
of such approval; or
(iii) upon proper termination
of the registered position by the employer.
(F)
Registry of registered
positions
(i)
Maintenance of
registry
The Secretary shall develop and maintain a registry of
approved registered positions for which the Secretary has issued a permit under
subparagraph (D).
(ii)
Availability on
website
The registry required by clause (i) shall be accessible
on a website maintained by the Secretary.
(iii)
Availability on State
workforce agency websites
Each State workforce agency shall be
linked to such registry and provide access to such registry through the website
maintained by such agency.
(iv)
Conditions of
availability on website
(I)
In
general
Each approved registered position for which the Secretary
has issued a permit shall be included in the registry of registered positions
maintained by the Secretary and shall remain available for viewing on such
registry throughout the term of registration referred to in subparagraph (E) or
paragraph (5).
(II)
Indication of
vacancy
The Secretary shall ensure that such registry indicates
whether each approved registered position in the registry is filled or
unfilled.
(III)
Requirement for
10-day posting
If a W nonimmigrant’s employment in a registered
position ends, either voluntarily or involuntarily, the Secretary shall ensure
that such registry indicates that the registered position is unfilled for a
period of 10 calendar days, unless such registered position is filled by a
United States worker.
(2)
Requirements
(A)
Eligible
occupation
Each registered position shall be for a position in an
eligible occupation as described in paragraph (3).
(B)
Recruitment of United
States workers
(i)
Requirements
A
position may not be a registered position unless the registered
employer—
(I) advertises the position
for a period of 30 days, including the wage range, location, and proposed start
date—
(aa) on the Internet website
maintained by the Secretary of Labor for the purpose of such advertising;
and
(bb) with the workforce
agency of the State where the position will be located; and
(II) except as provided for
in subsection (g)(4)(B)(i), carries out not less than 3 of the recruiting
activities described in subparagraph (C).
(ii)
Duration of
advertising
The 30 day periods required by item (aa) of (bb) of
clause (i)(I) may occur at the same time.
(C)
Recruiting
activities
The recruiting activities described in this
subparagraph, with respect to a position for which the employer is seeking a W
nonimmigrant, shall consist of any combination of the following as defined by
the Secretary of Homeland Security:
(i) Advertising such position
at job fairs.
(ii) Advertising such
position on the employer’s external website.
(iii) Advertising such
position on job search Internet websites.
(iv) Advertising such
position using presentations or postings at vocational, career technical
schools, community colleges, high schools, or other educational or training
sites.
(v) Posting such position
with trade associations.
(vi) Utilizing a search firm
to seek applicants for such position.
(vii) Advertising such
position through recruitment programs with placement offices at vocational
schools, career technical schools, community colleges, high schools, or other
educational or training sites.
(viii) Advertising such
position through advertising or postings with local libraries, journals, or
newspapers.
(ix) Seeking a candidate for
such position through an employee referral program with incentives.
(x) Advertising such position
on radio or television.
(xi) Advertising such
position through advertising, postings, or presentations with newspapers,
Internet websites, job fairs, or community events targeted to constituencies
designed to increase employee diversity.
(xii) Advertising such
position through career day presentations at local high schools or community
organizations.
(xiii) Providing in-house
training.
(xiv) Providing third-party
training.
(xv) Advertising such
position through recruitment, educational, or other cooperative programs
offered by the employer and a local economic development authority.
(xvi) Advertising such
position twice in the Sunday ads in the primary daily circulation newspaper in
the area.
(xvii) Any other recruitment
activities determined to be appropriate to be added by the Commissioner.
(3)
Eligible
occupation
(A)
In
general
An occupation is an eligible occupation if the
occupation—
(i) is a zone 1 occupation, a
zone 2 occupation, or zone 3 occupation; and
(ii) is not an excluded
occupation under subparagraph (B).
(B)
Excluded
occupations
(i)
Occupations requiring
college degrees
An occupation that is listed in the Occupational
Outlook Handbook published by the Bureau of Labor Statistics (or similar
successor publication) that is classified as requiring an individual with a
bachelor’s degree or higher level of education may not be an eligible
occupation.
(ii)
Computer
occupations
An occupation in the field of computer operation,
computer programming, or computer repair may not be an eligible
occupation.
(C)
Publication
The
Secretary of Labor shall publish the eligible occupations, designated as zone 1
occupations, zone 2 occupations, or zone 3 occupations, on an on-going basis on
a publicly available website.
(4)
Filling of
vacancies
If a W nonimmigrant’s employment in a registered
position ends, such employer may fill that vacancy—
(A) by hiring a United States
worker; or
(B) after the 10 calendar day
posting period in subsection (e)(1)(F)(iv)(III) by hiring—
(i) a W nonimmigrant;
or
(ii) if available under
subsection (g)(4), a certified alien.
(5)
Period of
approval
(A)
In
general
Except as provided in subparagraph (B), a registered
position shall be approved by the Secretary for a period of 3 years.
(B)
Returning W
nonimmigrants
(i)
Extension of
period
A registered position shall continue to be a registered
position at the end of the 3-year period referred to in subparagraph (A) if the
W nonimmigrant hired for such position is the beneficiary of a petition for
immigrant status filed by the registered employer pursuant to this Act or is
returning to the same registered employer.
(ii)
Termination of
period
The term of a registration position extended under clause
(i) shall terminate on the date that is the earlier of—
(I) the date an application
or petition by or for a W nonimmigrant to obtain immigrant status is approved
or denied by the Secretary; or
(II) the date of the
termination of such W nonimmigrant’s employment with the registered
employer.
(6)
Fees
(A)
Registration
fee
(i)
In
general
At the time a W nonimmigrant commences employment in the
registered position for a registered employer, such employer shall pay a
registration fee in an amount determined by the Secretary.
(ii)
Use of
fee
A fee collected under clause (i) shall be used to fund any
aspect of the operation of the W Visa Program.
(B)
Additional fee
(i)
In
general
In addition to the fee required by subparagraph (A), a
registered employer, at the time a W nonimmigrant commences employment in the
registered position for the registered employer, shall pay an additional fee
for each such approved registered position as follows:
(I) A fee of $1,750 for the
registered position if the registered employer, at the time of filing the
application for the registered position, is a small business and more than 50
percent and less than 75 percent of the employees of the registered employer
are not United States workers.
(II) A fee of $3,500 for the
registered position if the registered employer, at the time of filing the
application for the registered position, is a small business and more than 75
percent of the employees of the registered employer are not United States
workers.
(III) A fee of $3,500 for the
registered position if the registered employer, at the time of filing the
application for the registered position, is not a small business and more than
15 percent and less than 30 percent of the employees of the registered employer
are not United States workers.
(ii)
Use of
fee
A fee collected under clause (i) shall be used to fund the
operations of the Bureau.
(C)
Prohibition on other
fees
A registered employer may not be required to pay an
additional fee other than any fees specified in this Act if the registered
employer is a small business.
(7)
Prohibition on
registered positions for certain employers
The Secretary may not
approve an application for a registered position for an employer if the
employer is not a small business and 30 percent or more of the employees of the
employer are not United States workers.
(f)
Excluded geographic
location
No application for a registered position filed by a
registered employer for an eligible occupation may be approved if the
registered position is located in a metropolitan statistical area that has an
unemployment rate that is more than 81/2 percent as
reported in the most recent month preceding the date that the application is
submitted to the Secretary unless—
(1) the Commissioner has
identified the eligible occupation as a shortage occupation; or
(2) the Secretary approves
the registered position under subsection (g)(4).
(g)
Numerical
limitation
(1)
Registered
positions
(A)
In
general
Subject to paragraphs (3) and (4), the maximum number of
registered positions that may be approved by the Secretary for a year is as
follows:
(i) For the first year aliens
are admitted as W nonimmigrants, 20,000.
(ii) For the second such
year, 35,000.
(iii) For the third such
year, 55,000.
(iv) For the fourth such
year, 75,000.
(v) For each year after the
fourth such year, the level calculated for that year under paragraph
(2).
(B)
Dates
The
first year referred to in subparagraph (A)(i) shall begin on April 1, 2015, and
end on March 31, 2016, unless the Secretary determines that such first year
shall begin on October 1, 2015, and end on September 30, 2016.
(2)
Years after year
4
(A)
Current year and
preceding year
In this paragraph—
(i) the term current
year shall refer to the 12-month period for which the calculation of
the numerical limits under this paragraph is being performed; and
(ii) the term
preceding year shall refer to the 12-month period immediately
preceding the current year.
(B)
Numerical
limitation
Subject to subparagraph (D), the number of registered
positions that may be approved by the Secretary for a year after the fourth
year referred to in paragraph (1)(A)(iv) shall be equal to the sum of—
(i) the number of such
registered positions available under this paragraph for the preceding year;
and
(ii) the product of—
(I) the number of such
registered positions available under this paragraph for the preceding year;
multiplied by
(II) the index for the
current year calculated under subparagraph (C).
(C)
Index
The
index calculated under this subparagraph for a current year equals the sum
of—
(i) one-fifth of a
fraction—
(I) the numerator of which is
the number of registered positions that registered employers applied to have
approved under subsection (e)(1) for the preceding year minus the number of
registered positions approved under subsection (e) for the preceding year;
and
(II) the denominator of which
is the number of registered positions approved under subsection (e) for the
preceding year;
(ii) one-fifth of a
fraction—
(I) the numerator of which is
the number of registered positions the Commissioner recommends be available
under this subparagraph for the current year minus the number of registered
positions available under this subsection for the preceding year; and
(II) the denominator of which
is the number of registered positions available under this subsection for the
preceding year;
(iii) three-tenths of a
fraction—
(I) the numerator of which is
the number of unemployed United States workers for the preceding year minus the
number of unemployed United States workers for the current year; and
(II) the denominator of which
is the number of unemployed United States workers for the preceding year;
and
(iv) three-tenths of a
fraction—
(I) the numerator of which is
the number of job openings as set out in the Job Openings and Labor Turnover
Survey of the Bureau of Labor Statistics for the current year minus such number
of job openings for the preceding year; and
(II) the denominator of which
is the number of such job openings for the preceding year;
(D)
Minimum and maximum
levels
The number of registered positions calculated under
subparagraph (B) for a 12-month period may not be less than 20,000 nor more
than 200,000.
(3)
Additional registered
positions for shortage occupations
In addition to the number of
registered positions made available for a year under paragraph (1), the
Secretary shall make available for a year an additional number of registered
positions for shortage occupations in a particular metropolitan statistical
area.
(4)
Special allocations of
registered positions
(A)
Authority to make
available
In addition to the number of registered positions made
available for a year under paragraph (1) or (3), the Secretary shall make
additional registered positions available for the year for a specific
registered employer as described in this paragraph, if—
(i) the maximum number of
registered positions available under paragraph (1) have been approved for the
year and none remain available for allocation; or
(ii) such registered employer
is located in a metropolitan statistical area that has an unemployment rate
that is more than 81/2 percent as reported in the most
recent month preceding the date that the application is submitted to the
Secretary.
(B)
Recruitment
(i)
In
general
Except as provided in clause (ii), an initial W
nonimmigrant may only enter the United States for initial employment pursuant
to a special allocation under this paragraph if the registered employer has
carried out at least 7 of the recruiting activities described in subsection
(e)(2)(C).
(ii)
Requirement to recruit
W nonimmigrants in the United States
A registered employer may
register a position pursuant to a special allocation under this paragraph by
conducting at least 3 of the recruiting activities described in subsection
(e)(2)(C), however a position registered pursuant to this clause may not be
filled by an initial W nonimmigrant entering the United States for initial
employment.
(iii)
30 day
posting
(I)
Requirement
Any
registered employer registering any position under the special allocation
authority shall post the position, including the wage range, location, and
initial date of employment, for not less than 30 days—
(aa) on the Internet website
maintained by the Secretary of Labor for the purpose of such advertising;
and
(bb) with the workforce
agency of the State where the position will be located.
(II)
Contemporaneous
posting
The 30 day periods required by items (aa) and (bb) of
subclause (I) may occur at the same time.
(C)
Wages
(i)
Initial W
nonimmigrants
An initial W nonimmigrant entering the United
States for initial employment pursuant to a registered position made available
under this paragraph may not be paid less than the greater of—
(I) the level 4 wage set out
in the Foreign Labor Certification Data Center Online Wage Library (or similar
successor website) maintained by the Secretary of Labor for such occupation in
that metropolitan statistical area; or
(II) the mean of the highest
two-thirds of wages surveyed for such occupation in that metropolitan
statistical area.
(ii)
Other W
nonimmigrants
A W nonimmigrant employed in a registered position
referred to in subsection (g)(4)(B)(ii) may not be paid less than the wages
required under subsection (e)(1)(B)(iv).
(D)
Reduction of future
registered positions
Each registered position made available for
a year subject to the wage conditions of subparagraph (C)(i) shall reduce by 1
the number of registered positions made available under paragraph (g)(1) for
the following year or the earliest possible year for which a registered
position is available. The limitation contained in subsection (h)(4) shall not
be reduced by any registered position made available under this
paragraph.
(h)
Allocation of
registered positions
(1)
In general
(A)
First 6-month
period
The number of registered positions available for the
6-month period beginning on the first day of a year is 50 percent of the
maximum number of registered positions available for such year under paragraph
(1) or (2) of subsection (g). Such registered positions shall be allocated as
described in this subsection.
(B)
Second 6-month
period
The number of registered positions available for the
6-month period ending on the last day of a year is the maximum number of
registered positions available for such year under paragraph (1) or (2) of
subsection (g) minus the number of registered positions approved during the
6-month period referred to in subsection (A). Such registered positions shall
be allocated as described in this subsection.
(2)
Shortage
occupations
(A)
In
general
For the first month of each 6-month period referred to in
subparagraph (A) or (B) of paragraph (1) a registered position may not be
created in an occupation that is not a shortage occupation.
(B)
Initial
designations
Subparagraph (A) shall not apply in any period for
which the Commissioner has not designated any shortage occupations.
(3)
Small
businesses
During the second, third, and fourth months of each
6-month period referred to in subparagraph (A) or (B) of paragraph (1),
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 such
registered positions not approved for such small businesses during such months
shall be available for any registered employer during the last 2 months of each
such 6-month period.
(4)
Animal production
subsectors
In addition to the number of registered positions made
available for a year under paragraph (1) or (3) of such section (g), the
Secretary shall make additional registered positions available for the year for
occupations designated by the Secretary of Labor as Animal Production
Subsectors. The numerical limitation for such additional registered positions
shall be no more than 10 percent of the annual numerical limitation provided
for in such paragraph (1).
(5)
Limitation for
construction occupations
(A)
In
general
Subject to subparagraph (B), not more than 33 percent of
the registered positions made available under paragraph (1) or (2) of
subsection (g) for a year may be granted to perform work in a construction
occupation.
(B)
Maximum
level
Notwithstanding subparagraph (A), the number of registered
positions granted to perform work in a construction occupation under subsection
(g)(1) may not exceed 15,000 for a year and 7,500 for any 6-month
period.
(C)
Prohibition for
occupations with high unemployment
(i)
In
general
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 that metropolitan statistical area was more than
81/2 percent.
(ii)
Determination of
unemployment rate
The unemployment rate used in clause (i) shall
be determined—
(I) using the most recent
survey taken by the Bureau; or
(II) if a survey referred to
in subclause (I) is not available, using a recent and legitimate private
survey.
(i)
Portability
A
W nonimmigrant who is admitted to the United States for employment by a
registered employer may—
(1) terminate such employment
for any reason; and
(2) seek and accept
employment with another registered employer in any other registered position
within the terms and conditions of the W nonimmigrant’s visa.
(j)
Promotion
A
registered employer may promote a W nonimmigrant if the W nonimmigrant has been
employed with that employer for a period of not less than 12 months. Such a
promotion shall not increase the total number of registered positions available
to that employer.
(k)
Prohibition 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.
(l)
W nonimmigrant
protections
(1)
Applicability of
laws
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 United States worker employed in a similar position with the employer
because of the alien's status as a nonimmigrant worker.
(2)
Waiver of rights
prohibited
(A)
In
general
A W nonimmigrant may not be required to waive any
substantive rights or protections under this Act.
(B)
Construction
Nothing
under this paragraph may be construed to affect the interpretation of any other
law.
(3)
Prohibition on
treatment as independent contractors
(A)
In
general
Notwithstanding any other provision of law—
(i) a W nonimmigrant is
prohibited from being treated as an independent contractor under any Federal or
State law; and
(ii) no person, including an
employer or labor contractor and any persons who are affiliated with or
contract with an employer or labor contractor, may treat a W nonimmigrant as an
independent contractor.
(B)
Construction
Subparagraph
(A) may not be construed to prevent registered employers who operate as
independent contractors from employing W nonimmigrants.
(4)
Payment of
fees
(A)
In
general
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.
(B)
Excluded
costs
The cost of round trip transportation from a certified
alien's home to the location of a registered position and the cost of obtaining
a foreign passport are not fees required to be paid by the employer.
(5)
Tax
responsibilities
An employer shall comply with all applicable
Federal, State, and local tax laws with respect to each W nonimmigrant employed
by the employer.
(6)
Prohibited
activities
It shall be 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—
(A) discloses information to
the employer or any other person that the employee or former employee
reasonably believes demonstrates a violation of this section; or
(B) cooperates or seeks to
cooperate in an investigation or other proceeding concerning compliance with
the requirements of this section.
(m)
Complaint
process
The Secretary shall establish a process for the receipt,
investigation, and disposition of complaints by an aggrieved applicant,
employee, or nonimmigrant (or a person acting on behalf of such applicant,
employee, or nonimmigrant) with respect to—
(1) the failure of a
registered employer to meet a condition of this section; or
(2) the lay off or nonhiring
of a United States worker as prohibited under this section.
(n)
Enforcement
(1)
In
general
The Secretary shall promulgate regulations for the
receipt, investigation, and disposition of complaints by an aggrieved W
nonimmigrant respecting a violation of this section.
(2)
Filing
deadline
No investigation or hearing shall be conducted on a
complaint concerning a violation under this section unless the complaint was
filed not later than 6 months after the date of such violation.
(3)
Reasonable
basis
The Secretary shall conduct an investigation under this
subsection if there is reasonable basis to believe that a violation of this
section has occurred. The process established under this subsection shall
provide that, not later than 30 days after a complaint is filed, the Secretary
shall determine if there is reasonable cause to find such a violation.
(4)
Notice and
hearing
(A)
In
general
Not later than 60 days after the Secretary makes a
determination of reasonable basis under paragraph (3), the Secretary shall
issue a notice to the interested parties and offer an opportunity for a hearing
on the complaint, in accordance with section 556 of title 5, United States
Code.
(B)
Hearing
deadline
Not later than 60 days after the date of a hearing under
this paragraph, the Secretary shall make a finding on the matter.
(5)
Attorney's
fees
(A)
Award
A
complainant who prevails in an action under this subsection with respect to a
claim related to wages or compensation for employment, or a claim for a
violation of subsection (l) or (m), shall be entitled to an award of reasonable
attorney's fees and costs.
(B)
Frivolous
complaints
A complainant who files a frivolous complaint for an
improper purpose under this subsection shall be liable for the reasonable
attorney’s fees and costs of the person named in the complaint.
(6)
Power of the
Secretary
The Secretary may bring an action in any court of
competent jurisdiction—
(A) to seek remedial action,
including injunctive relief;
(B) to recover the damages
described in this subsection and subsection (o); or
(C) to ensure compliance with
terms and conditions described in subsection (l)(6).
(7)
Other rights of
employees
The rights and remedies provided to W nonimmigrants
under this section are in addition to any other contractual or statutory rights
and remedies of the workers, and are not intended to alter or affect such
rights and remedies.
(o)
Penalties
(1)
In
general
If, after notice and an opportunity for a hearing, the
Secretary finds a violation of this section, the Secretary may impose
administrative remedies and penalties, including—
(A) back wages;
(B) benefits; and
(C) civil monetary
penalties.
(2)
Civil
penalties
The Secretary may impose, as a civil penalty—
(A) for a violation of this
subsection—
(i) a fine in an amount not
more than $2,000 per violation per affected worker and $4,000 per violation per
affected worker for each subsequent violation;
(ii) if the violation was
willful, a fine in an amount not more than $5,000 per violation per affected
worker; and
(iii) if the violation was
willful and if in the course of such violation a United States worker was
harmed, a fine in an amount not more than $25,000 per violation per affected
worker; or
(B) for knowingly failing to
materially comply with the terms of representations made in petitions,
applications, certifications, or attestations under this section—
(i) a fine in an amount not
more than $4,000 per aggrieved worker; and
(ii) upon the occasion of a
third offense of failure to comply with representations, a fine in an amount
not to exceed $5,000 per affected worker and designation as an ineligible
employer, recruiter, or broker for purposes of any immigrant or nonimmigrant
program.
(3)
Criminal
penalty
Any person who knowingly misrepresents the number of
full-time equivalent employees of an employer or the number of employees of a
person who are United States workers for the purpose of reducing a fee under
subsection (e)(6) or avoiding the limitation in subsection (e)(7), shall be
fined in accordance with title 18, United States Code, in an amount up to
$25,000 or imprisoned not more than 1 year, or both.
(p)
Monitoring
(1)
Requirement to
monitor
The Secretary shall monitor the movement of W
nonimmigrants in registered positions through—
(A) the Employment
Verification System described in section 274A(d); and
(B) the electronic monitoring
system described in paragraph (2).
(2)
Electronic monitoring
system
(A)
Requirement for
system
The Secretary, through U.S. Citizenship and Immigration
Services, shall implement an electronic monitoring system to monitor presence
and employment of W nonimmigrants, including a requirement that registered
employers update the system when W nonimmigrants start and end employment in
registered positions.
(B)
System
description
Such system shall be modeled on the Student and
Exchange Visitor Information System (SEVIS) and SEVIS II tracking system of
U.S. Immigration and Customs Enforcement.
(C)
Interaction with
registry
Such system shall interact with the registry referred to
in subsection (e)(1)(F) to ensure that the Secretary designates and updates
approved registered positions as being filled or
unfilled.
.
(b)
Table of
contents amendment
The table of contents in the first section (8
U.S.C. 1101 et seq.) is amended by adding after the item relating to section
219 the following:
Sec. 220. Admission of W nonimmigrant
workers..
H
Investing in new venture,
entrepreneurial startups, and technologies
4801.
Nonimmigrant INVEST
visas
(a)
INVEST nonimmigrant
category
Section 101(a)(15)
(8 U.S.C. 1101(a)(15)), as amended by sections 2231, 2308, 2309, 3201, 4402,
4504, 4601, and 4702, is further amended by inserting after subparagraph (W)
the following:
(X) in accordance with the
definitions in section 203(b)(6)(A), a qualified entrepreneur who has
demonstrated that, during the 3-year period ending on the date on which the
alien filed an initial petition for nonimmigrant status described in this
clause—
(i) a qualified venture
capitalist, a qualified super angel investor, a qualified government entity, a
qualified community development financial institution, qualified startup
accelerator, or such other type of entity or investors, as determined by the
Secretary, or any combination of such entities or investors, has made a
qualified investment or combination of qualified investments of not less than
$100,000 in total in the alien’s United States business entity; or
(ii) the alien’s United
States business entity has created no fewer than 3 qualified jobs and during
the 2-year period ending on such date has generated not less than $250,000 in
annual revenue arising from business conducted in the United States;
or
.
(b)
Admission of INVEST
nonimmigrants
Section 214 (8 U.S.C. 1184), as amended by sections
3608, 4232, 4405, 4503, 4504, 4602, 4605, and 4606, is further amended by
adding at the end the following:
(aa)
INVEST nonimmigrant
visas
(1)
Definitions
The
definitions in section 203(b)(6)(A) apply to this subsection.
(2)
Initial period of
authorized admission
The
initial period of authorized status as a nonimmigrant described in section
101(a)(15)(X) shall be for an initial 3-year period.
(3)
Renewal of
admission
Subject to
paragraph (4), the initial period of authorized nonimmigrant status described
in paragraph (2) may be renewed for additional 3-year periods if during the
most recent 3-year period that the alien was granted such status—
(A) the alien’s United States
business entity has created no fewer than 3 qualified jobs and a qualified
venture capitalist, a qualified super angel investor, a qualified government
entity, a qualified community development financial institution, qualified
startup accelerator, or such other type of entity or investors, as determined
by the Secretary, or any combination of such entities or investors, has made a
qualified investment or combination of qualified investments of not less than
$250,000 in total to the alien's United States business entity; or
(B) the alien’s United States
business entity has created no fewer than 3 qualified jobs and, during the
2-year period ending on the date that the alien petitioned for an extension,
has generated not less than $250,000 in annual revenue arising from business
conducted within the United States.
(4)
Waiver of renewal
requirements
The Secretary may renew an alien's status as a
nonimmigrant described in section 101(a)(15)(X) for not more than 1 year at a
time, up to an aggregate of 2 years if the alien—
(A) does not meet the
criteria under paragraph (3); and
(B) meets the criteria
established by the Secretary, in consultation with the Secretary of Commerce,
for approving renewals under this subsection, which shall include a finding
that—
(i) the alien has made
substantial progress in meeting such criteria; and
(ii) such renewal is
economically beneficial to the United States.
(5)
Attestation
The
Secretary may require an alien seeking status as a nonimmigrant described in
section 101(a)(15)(X) to attest, under penalty of perjury, that the alien meets
the application criteria.
(6)
X–1 visa
fee
In addition to processing fees, the Secretary shall collect a
$1,000 fee from each nonimmigrant admitted under section 101(a)(15)(X). Fees
collected under this paragraph shall be deposited into the Comprehensive
Immigration Reform Trust Fund established under section 6(a)(1) of the
Illegal Immigration Reform and Immigrant
Responsibility Act of
1996.
.
4802.
INVEST immigrant
visa
Section 203(b) (8 U.S.C.
1153(b)) is amended—
(1) by redesignating
paragraph (6) as paragraph (7); and
(2) by inserting after
paragraph (5) the following:
(6)
INVEST
immigrants
(A)
Definitions
In
this paragraph, section 101(a)(15)(X), and section 214(s):
(i)
Qualified community
development financial institution
The term qualified
community development financial institution is defined as provided under
section 1805.201 45D(c) of title 12, Code of Federal Regulations, or any
similar successor regulations.
(ii)
Qualified
entrepreneur
The term qualified entrepreneur means
an individual who—
(I) has a significant
ownership interest, which need not constitute a majority interest, in a United
States business entity;
(II) is employed in a senior
executive position of such United States business entity;
(III) submits a business plan
to U.S. Citizenship and Immigration Services; and
(IV) had a substantial role
in the founding or early-stage growth and development of such United States
business entity.
(iii)
Qualified government
entity
The term qualified government entity means an
agency or instrumentality of the United States or of a State, local, or tribal
government.
(iv)
Qualified
investment
The term qualified investment—
(I) means an investment in a
qualified entrepreneur's United States business entity that is—
(aa) a purchase from the
United States business entity or equity or convertible debt issued by such
entity;
(bb) a secured loan;
(cc) a convertible debt
note;
(dd) a public securities
offering;
(ee) a research and
development award from a qualified government entity to the United States
entity;
(ff) other investment
determined appropriate by the Secretary; or
(gg) a combination of the
investments described in items (aa) through (ff); and
(II) may not include an
investment from such qualified entrepreneur, the parents, spouse, son, or
daughter of such qualified entrepreneur, or from any corporation, company,
association, firm, partnership, society, or joint stock company over which such
qualified entrepreneur has a substantial ownership interest.
(v)
Qualified
job
The term qualified job means a full-time
position of a United States business entity owned by a qualified entrepreneur
that—
(I) is located in the United
States;
(II) has been filled for at
least 2 years by an individual who is not the qualified entrepreneur or the
spouse, son, or daughter of the qualified entrepreneur; and
(III) pays a wage that is not
less than 250 percent of the Federal minimum wage.
(vi)
Qualified startup
accelerator
The term qualified startup accelerator
means a corporation, company, association, firm, partnership, society, or joint
stock company that—
(I) is organized under the
laws of the United States or any State and conducts business in the United
States;
(II) in the ordinary course
of business, provides a program of training, mentorship, and logistical support
to assist entrepreneurs in growing their businesses;
(III) is managed by
individuals, the majority of whom are citizens of the United States or aliens
lawfully admitted for permanent residence;
(IV)
(aa) regularly acquires an
equity interest in companies that participate in its programs, where the
majority of the capital so invested is committed from individuals who are
United States citizens or aliens lawfully admitted for permanent residence, or
from entities organized under the laws of the United States or any State;
or
(bb) is an entity that has
received not less than $250,000 in funding from a qualified government entity
or entities during the previous 5 years and regularly makes grants to companies
that participate in its programs (in which case, such grant shall be treated as
a qualified investment for purposes of clause (iv));
(V) during the previous 5
years, has acquired an equity interest in, or, in the case of an entity
described in subclause (IV)(bb), regularly made grants to, not fewer than 10
United States business entities that have participated in its programs and that
have—
(aa) each secured at least
$100,000 in initial investments; or
(bb) during any 2-year period
following the date of such acquisition, generated not less than $500,000 in
aggregate annual revenue within the United States;
(VI) has its primary location
in the United States; and
(VII) satisfies such other
criteria as may be established by the Secretary.
(vii)
Qualified super angel
investor
The term qualified super angel investor
means an individual or organized group of individuals investing directly or
through a legal entity—
(I) each of whom is an
accredited investor, as defined in section 230.501(a) of title 17, Code of
Federal Regulations, or any similar successor regulation, investing the funds
owned by such individual or organized group in a qualified entrepreneur's
United States business entity;
(II)
(aa) if an individual,
is a citizen of the United States or an alien lawfully admitted for permanent
residence; or
(bb) if an organized group or
legal entity, a majority of the individuals investing through such group or
entity are citizens of the United States or aliens lawfully admitted for
permanent residence; and
(III) each of whom in the
previous 3 years has made qualified investments in a total amount determined to
be appropriate by the Secretary, that is not less than $50,000, in United
States business entities which are less than 5 years old.
(viii)
Qualified venture
capitalist
The term qualified venture capitalist
means an entity—
(I) that—
(aa) is a venture capital
operating company (as defined in section 2510.3–101(d) of title 29, Code of
Federal Regulations (or any successor to such regulation)); or
(bb) has management rights,
as defined in, and to the extent required by, such section 2510.3–101(d) (or
successor regulation), in its portfolio companies;
(II) that has capital
commitments of not less than $10,000,000; and
(III) the investment adviser,
that is registered under the Investment Advisers Act of 1940 (15 U.S.C. 80b–2),
for which—
(aa) has its primary office
location in the United States;
(bb) is owned, directly or
indirectly, by individuals, the majority of whom are citizens of the United
States or aliens lawfully admitted for permanent residence in the United
States;
(cc) has been advising such
entity or other similar funds or entities for at least 2 years; and
(dd) has advised such entity
or a similar fund or entity with respect to at least 2 investments of not less
than $500,000 made by such entity or similar fund or entity during each of the
most recent 2 years.
(ix)
Secretary
Except
as otherwise specifically provided, the term Secretary means the
Secretary of Homeland Security.
(x)
Senior executive
position
The term senior executive position
includes the position of chief executive officer, chief technology officer, and
chief operating officer.
(xi)
United States business
entity
The term United States business entity
means any corporation, company, association, firm, partnership, society, or
joint stock company that is organized under the laws of the United States or
any State and that conducts business in the United States that is not—
(I) a private fund, as
defined in 202(a) of the Investment Advisers Act of 1940 (15 U.S.C.
80b–2);
(II) a commodity pool, as
defined in section 1a of the Commodity Exchange Act (7 U.S.C. 1a);
(III) an investment company,
as defined in section 3 of the Investment Company Act of 1940 (15 U.S.C.
80a–3); or
(IV) an issuer that would be
an investment company but for an exemption provided in—
(aa) section 3(c) of the
Investment Company Act of 1940 (15 U.S.C. 80a–3(c); or
(bb) section 270.3a–7 of
title 17 of the Code of Federal Regulations or any similar successor
regulation.
(B)
In
general
Visas shall be available, in a number not to exceed
10,000 for each fiscal year, to qualified immigrants seeking to enter the
United States for the purpose of creating new businesses, as described in this
paragraph.
(C)
Eligibility
An
alien is eligible for a visa under this paragraph if—
(i)
(I) the alien is a
qualified entrepreneur;
(II) the alien maintained
valid nonimmigrant status in the United States for at least 2 years;
(III) during the 3-year
period ending on the date the alien files an initial petition for such status
under this section—
(aa) (AA) the alien has a
significant ownership in a United States business entity that has created no
fewer than 5 qualified jobs; and
(BB) a qualified venture
capitalist, a qualified super angel investor, a qualified government entity, a
qualified community development financial institution, qualified startup
accelerator, or such other entity or type of investors, as determined by the
Secretary, or any combination of such entities or investors, has devoted a
qualified investment or combination of qualified investments of not less than
$500,000 in total to the alien's United States business entity; or
(bb) (AA) the alien has a
significant ownership interest in a United States business entity that has
created no fewer than 5 qualified jobs; and
(BB) during the 2-year period
ending on such date has generated not less than $750,000 in annual revenue
within the United States; and
(IV) no more than 2 other
aliens have received nonimmigrant status under this section on the basis of an
alien's ownership of such United States business entity;
(ii)
(I) the alien is a
qualified entrepreneur;
(II) the alien maintained
valid nonimmigrant status in the United States for at least 3 years prior to
the date of filing an application for such status;
(III) the alien holds an
advanced degree in a field of science, technology, engineering, or mathematics,
approved by the Secretary; and
(IV) during the 3-year period
ending on the date the alien files an initial petition for such status under
this section—
(aa) (AA) the alien has a
significant ownership interest in a United States business entity that has
created no fewer than 4 qualified jobs; and
(BB) a qualified venture
capitalist, a qualified super angel investor, a qualified government entity, a
qualified community development financial institution, qualified startup
accelerator, or such other entity or type of investors, as determined by the
Secretary, or any combination of such entities or investors, has devoted a
qualified investment or combination of qualified investments of not less than
$500,000 in total to the alien's United States business entity; or
(bb) (AA) the alien has a
significant ownership interest in a United States business entity that has
created no fewer than 3 qualified jobs; and
(BB) during the 2-year period
ending on such date has generated not less than $500,000 in annual revenue
within the United States; and
(V) no more than 3 other
aliens have received nonimmigrant status under this section on the basis of an
alien's ownership of such United States business entity.
(D)
Attestation
The
Secretary may require an alien seeking a visa under this paragraph to attest,
under penalties of perjury, to the alien's
qualifications.
.
4803.
Administration and
oversight
(a)
Regulations
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 heads of other relevant Federal
agencies and departments, shall promulgate regulations to carry out the
amendments made by this subtitle. Such regulations shall ensure that such
amendments are implemented in a manner that is consistent with the protection
of national security and promotion of United States economic growth, job
creation, and competitiveness.
(b)
Modification of dollar
amounts
(1)
In
general
The Secretary may from time to time prescribe regulations
increasing or decreasing any dollar amount specified in section 203(b)(6) of
the Immigration and Nationality Act, as added by section 4802, section
101(a)(15)(X) of such Act, as added by section 4801, or section 214(s), as
added by section 4801.
(2)
Automatic
adjustment
Unless a dollar amount referred to in paragraph (1) is
adjusted by the Secretary under paragraph (1), such dollar amount shall
automatically adjust on January 1, 2016, by the percentage change in the
Consumer Price Index (CPI–U) during fiscal year 2015, and on every fifth
subsequent January 1 by the percentage change in the CPI–U during the previous
5 fiscal years, for any petition filed to classify an alien under this
paragraph on or after the date of each automatic adjustment.
(c)
Other
authority
The Secretary, in the Secretary's unreviewable
discretion, may deny or revoke the approval of a petition seeking
classification of an alien under paragraph (6) of section 203(b) of the
Immigration and Nationality Act, as added by section 4802, or any other
petition, application, or benefit based upon the previous or concurrent filing
or approval of a petition for classification of an alien under such paragraph
(6), if the Secretary determines, in the Secretary's sole and unreviewable
discretion, that the approval or continuation of such petition, application, or
benefit is contrary to the national interest of the United States or for other
good cause.
(d)
Reports
Once
every 3 years, the Secretary shall submit to Congress a report on this subtitle
and the amendments made by this subtitle. Each such report shall
include—
(1) the number and percentage
of entrepreneurs able to meet thresholds for nonimmigrant renewal and
adjustment to green card status under the amendments made by this
subtitle;
(2) an analysis of the
program’s economic impact including job and revenue creation, increased
investments and growth within business sectors and regions;
(3) a description and
breakdown of types of businesses that entrepreneurs granted nonimmigrant or
immigrant status are creating;
(4) for each report following
the Secretary’s initial report submitted under this subsection, a description
of the percentage of the businesses initially created by the entrepreneurs
granted immigrant and nonimmigrant status under this subtitle and the
amendments made by this subtitle, that are still in operation; and
(5) any recommendations for
improving the program established by this subtitle and the amendments made by
this subtitle.
4804.
Permanent
authorization of EB–5 Regional Center Program
(a)
Repeal
Section
610 of the Departments of Commerce, Justice, and State, the Judiciary, and
Related Agencies Appropriations Act, 1993 (8 U.S.C. 1153 note) is
repealed.
(b)
Authorization
Section
203(b)(5) (8 U.S.C. 1153(b)(5)) is amended by adding at the end the
following:
(E)
Regional center
program
(i)
In
general
Visas under this paragraph shall be made available to
qualified immigrants participating in a program implementing this paragraph
that involves a regional center in the United States, which has been designated
by the Secretary of Homeland Security, in consultation with the Secretary of
Commerce, on the basis of a general proposal for the promotion of economic
growth, including—
(I) increased export
sales;
(II) improved regional
productivity;
(III) job creation; or
(IV) increased domestic
capital investment.
(ii)
Establishment of a
regional center
A regional center shall have jurisdiction over a
defined geographic area, which shall be described in the proposal and
consistent with the purpose of concentrating pooled investment in defined
economic zones. The establishment of a regional center may be based on general
predictions, contained in the proposal, concerning—
(I) the kinds of commercial
enterprises that will receive investments from aliens;
(II) the jobs that will be
created directly or indirectly as a result of such investments; and
(III) other positive economic
effects such investments will have.
(iii)
Compliance
In
determining compliance with subparagraph (A)(ii), the Secretary of Homeland
Security shall permit aliens admitted under the program described in this
subparagraph to establish reasonable methodologies for determining the number
of jobs created by the program, including jobs estimated to have been created
indirectly through—
(I) revenues generated from
increased exports, improved regional productivity, job creation; or
(II) increased domestic
capital investment resulting from the program, including jobs created outside
of the geographic boundary of the regional center as a result of the
immigrant’s investment in regional center-affiliated commercial
enterprises.
(iv)
Indirect job
creation
The Secretary shall permit immigrants admitted under
this paragraph to satisfy the requirements under subparagraph (A)(ii) with jobs
that are estimated to be created indirectly through investment under this
paragraph in accordance with this subparagraph.
(F)
Preapproval of business
plans for regional center investments
(i)
Petition
Before
the filing of a petition under this subparagraph by an alien investor, a
commercial enterprise affiliated with a regional center may file a petition
with the Secretary of Homeland Security to preapprove a particular investment
in the commercial enterprise, as provided in—
(I) a business plan for a
specific capital investment project;
(II) investment documents,
such as subscription, investment, partnership, and operating agreements;
and
(III) a credible economic
analysis regarding estimated job creation that is based upon reasonable
methodologies.
(ii)
Preapproval
procedure
The Secretary shall establish a process to facilitate
the preapproval of business plans under this subparagraph related to investment
in a regional center commercial enterprise, which shall include an opportunity
for the applicant to address and cure any deficiencies identified by the
Secretary in the applicant’s business plan, investment documents, or statement
regarding job creation prior to a final determination. The Secretary shall
impose a fee for the use of the process described in this clause sufficient to
recover the costs of its administration.
(iii)
Effect of preapproval
of business plan for investment in regional center commercial
enterprise
The preapproval of a petition under this subparagraph
shall be binding for purposes of the adjudication of petitions filed under this
subparagraph by immigrants investing in the commercial enterprise unless the
Secretary determines that there is evidence of fraud, misrepresentation,
criminal misuse, a threat to national security, or other evidence affecting
program eligibility that was not disclosed by the petitioner during the
preapproval process.
(iv)
Expedited processing
option for alien investor petitions affiliated with preapproved business
plans
The Secretary may establish a premium processing option for
alien investors who are investing in a commercial enterprise that has received
preapproval under this subparagraph and may impose a fee for the use of that
option sufficient to recover all costs of the option.
(v)
Consideration of
criminal activity in establishing eligibility criteria
The
Secretary shall consider the potential for fraud, misrepresentation, criminal
misuse, and threats to national security in establishing eligibility criteria
for any program the Secretary may establish under this subparagraph.
(G)
Regional center
financial statements
(i)
In
general
Each regional center designated under subparagraph (E)
shall annually submit, to the Director of U.S. Citizenship and Immigration
Services (referred to in this subparagraph as the Director), in
a manner prescribed by the Secretary of Homeland Security, financial
statements, including—
(I) an accounting of all
foreign investor money invested through the regional center; and
(II) for each capital
investment project—
(aa) an accounting of the
aggregate capital invested through the regional center or affiliated commercial
enterprises by immigrants under this paragraph;
(bb) a description of how
such funds are being used to execute the approved business plan;
(cc) evidence that 100
percent of such investor funds have been dedicated to the project;
(dd) detailed evidence of the
progress made toward the completion of the project;
(ee) an accounting of the
aggregate direct and indirect jobs created or preserved; and
(ff) a certification by the
regional center that such statements are accurate.
(ii)
Amendment of financial
statements
If the Director determines that a financial statement
required under clause (i) is deficient, the Director may require the regional
center to amend or supplement such financial statement.
(iii)
Sanctions
(I)
Effect of
violation
If the Director determines, after reviewing the
financial statements submitted under clause (i), that a regional center,
director, or other individual involved with a regional center (other than an
alien investor) has violated any requirement under clause (i) or that the
regional center is conducting itself in a manner inconsistent with its
designation, the Director may sanction the violating entity or individual under
subclause (II).
(II)
Authorized
sanctions
The Director shall establish a graduated set of
sanctions for violations referred to in subclause (I), including—
(aa) fines equal to not more
than 5 percent of the total capital invested by immigrant investors in the
commercial enterprise’s approved business plan;
(bb) temporary suspension
from participation in the program described in subparagraph (E), which may be
lifted by the Director if the individual or entity cures the alleged violation
after being provided such an opportunity by the Director;
(cc) permanent bar from
program participation for 1 or more individuals affiliated with the regional
center; and
(dd) termination of regional
center status.
(H)
Bona fides of persons
involved in regional centers
(i)
In
general
No person shall be permitted by any regional center to be
involved with the regional center as its principal, representative,
administrator, owner, officer, board member, manager, executive, general
partner, fiduciary, marketer, promoter, or other similar position of
substantive authority for the operations, management or promotion of the
regional center if the Secretary of Homeland Security—
(I) determines such person
has been found liable within the previous 5 years for any criminal or civil
violation of any law relating to fraud or deceit, or at any time if such
violation involved a criminal conviction with a term of imprisonment of at
least 1 year or a criminal or civil violation of any law or agency regulation
in connection with the purchase or sale of a security; or
(II) knows or has reasonable
cause to believe that the person is engaged in, has ever been engaged in, or
seeks to engage in any—
(aa) illicit trafficking in
any controlled substance;
(bb) activity relating to
espionage or sabotage;
(cc) activity related to
money laundering (as described in section 1956 or 1957 of title 18, United
States Code);
(dd) terrorist activity (as
defined in clauses (iii) and (iv) of section 212(a)(3)(B));
(ee) human trafficking or
human rights offense; or
(ff) violation of any
statute, regulation, or Executive Order regarding foreign financial
transactions or foreign asset control.
(ii)
Information
required
The Secretary shall require such attestations and
information, including, the submission of fingerprints to the Federal Bureau of
Investigation, and shall perform such criminal record checks and other
background checks with respect to a regional center, and persons involved in a
regional center as described in clause (i), as the Secretary considers
appropriate to determine whether the regional center is in compliance with
clause (i). The Secretary may require the information and attestations
described in this clause from such regional center, and any person involved in
the regional center, at any time on or after the date of the enactment of the
Border Security, Economic Opportunity, and
Immigration Modernization Act.
(iii)
Termination
The
Secretary is authorized, in his or her unreviewable discretion, to terminate
any regional center from the program under this paragraph if he or she
determines that—
(I) the regional center is in
violation of clause (i);
(II) the regional center or
any person involved with the regional center has provided any false attestation
or information under clause (ii);
(III) the regional center or
any person involved with the regional center fails to provide an attestation or
information requested by the Secretary under clause (ii); or
(IV) the regional center or
any person involved with the regional center is engaged in fraud,
misrepresentation, criminal misuse, or threats to national security.
(I)
Regional center
compliance with securities laws
(i)
Certification
required
The Secretary of Homeland Security shall not approve an
application for regional center designation or regional center amendment that
does not certify that the regional center and, to the best knowledge of the
applicant, all parties to the regional center are in, and will maintain,
compliance with the securities laws of the United States.
(ii)
Termination or
suspension
The Secretary shall terminate the designation of any
regional center that does not provide the certification described in subclause
(i) on an annual basis. In addition to any other authority provided to the
Secretary regarding the regional center program described in subparagraph (E),
the Secretary may, in his or her unreviewable discretion, suspend or terminate
the designation of any regional center if he or she determines that the
regional center or any party to the regional center—
(I) is permanently or
temporarily enjoined by order, judgment, or decree of any court of competent
jurisdiction in connection with the purchase or sale of a security;
(II) is subject to any final
order of the Securities and Exchange Commission that—
(aa) bars such person from
association with an entity regulated by the Securities and Exchange Commission;
or
(bb) constitutes a final
order based on violations in connection with the purchase or sale of a
security; or
(III) knowingly submitted or
caused to be submitted a certification described in clause (i) that contained
an untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements made, in the light of the
circumstances under which they were made, not misleading.
(iii)
Savings
provision
Nothing in this subparagraph may be construed to impair
or limit the authority of the Securities and Exchange Commission under the
Federal securities laws.
(iv)
Defined
term
For the purpose of this subparagraph, the term party
to the regional center shall include the regional center, its agents,
employees, and attorneys, and any persons in active concert or participation
with the regional center.
(J)
Denial or
revocation
If the Secretary of Homeland Security determines, in
his or her unreviewable discretion, that the approval of a petition,
application, or benefit described in this subparagraph is contrary to the
national interest of the United States for reasons relating to fraud,
misrepresentation, criminal misuse, or threats to national security, the
Secretary may deny or revoke the approval of—
(i) a petition seeking
classification of an alien as an alien investor under this paragraph;
(ii) a petition to remove
conditions under section 216A before granting lawful permanent resident status
or any other petition, application, or benefit based upon the previous or
concurrent filing or approval of a petition for classification of an alien
under this paragraph; or
(iii) an application for
designation as a regional
center.
.
(c)
Assistance by the
Secretary of Commerce
(1)
In
general
The Secretary of Commerce, upon the request of the
Secretary, shall provide consultation assistance for determining
whether—
(A) a proposed regional
center should be designated, terminated, or subject to other adjudicative
action; or
(B) a petitioner or applicant
for a benefit under section 203(b)(5) of the Immigration and Nationality Act,
as amended by subsection (b), has met the requirements under such paragraph
with respect to job creation.
(2)
Rulemaking
The
Secretary and the Secretary of Commerce may each adopt such rules and
regulations as are necessary to carry out the consultation process provided for
in paragraph (1).
(3)
Savings
provision
Nothing in this subsection shall be construed to
require consultation with the Secretary of Commerce to continue the designation
of a regional center approved before the date of the enactment of this
Act.
(d)
Effective
date
The amendments made by this section—
(1) shall be effective upon
the enactment of this Act; and
(2) shall apply to—
(A) any application to
designate a regional center, and any person involved with the regional center,
that is pending or approved on or after the date of the enactment of this Act;
and
(B) any regional center
approved before the date of the enactment of this Act, on or after a delayed
effective date that is 1 year after such date of enactment with respect to any
person involved in the regional center on or after such delayed effective
date.
4805.
Conditional permanent
resident status for certain employment-based immigrants, spouses, and
children
(a)
In
general
Section 216A (8 U.S.C. 1186b) is amended to read as
follows:
216A.
Conditional permanent
resident status for certain employment-based immigrants, spouses, and
children
(a)
In general
(1)
Conditional basis for
status
Notwithstanding any other provision of this Act,
employment-based immigrants (as defined in subsection (f) (1) or (2)), alien
spouses, and alien children (as defined in subsection (f)(3)) shall be
considered, at the time of obtaining the status of an alien lawfully admitted
for permanent residence, to have obtained such status on a conditional basis
subject to the provisions of this section.
(2)
Notice of
requirements
(A)
At time of obtaining
permanent residence
At the time an employment-based immigrant,
alien spouse, or alien child obtains permanent resident status on a conditional
basis under paragraph (1), the Secretary of Homeland Security shall provide for
notice to the alien, spouse, or child respecting the provisions of this section
and the requirements of subsection (c)(1) to have the conditional basis of such
status removed.
(B)
At time of required
petition
In addition, the Secretary of Homeland Security shall
attempt to provide notice to an employment-based immigrant, alien spouse, or
alien child, at or about the beginning of the 90-day period described in
subsection (d)(3), of the requirements of subsection (c)(1).
(C)
Effect of failure to
provide notice
The failure of the Secretary of Homeland Security
to provide a notice under this paragraph shall not affect the enforcement of
the provisions of this section with respect to an employment-based immigrant,
alien spouse, or alien child.
(b)
Termination of status
if finding that qualifying employment improper
(1)
Alien
investor
In the case of an alien investor with permanent resident
status on a conditional basis under subsection (a), if the Secretary of
Homeland Security determines, before the second anniversary of the alien's
obtaining the status of lawful admission for permanent residence, that—
(A) the investment in the
commercial enterprise was intended as a means of evading the immigration laws
of the United States;
(B)
(i) the alien did not
invest, or was not actively in the process of investing, the requisite capital;
or
(ii) the alien was not
sustaining the actions described in clause (i) throughout the period of the
alien's residence in the United States; or
(C) subject to the exception
in subsection (d)(4), the alien was otherwise not conforming to the
requirements under section 203(b)(5),
the
Secretary shall so notify the alien investor and, subject to paragraph (3),
shall terminate the permanent resident status of the alien (and the alien
spouse and alien child) involved as of the date of the determination.
(2)
Employee of a Federal
national security, science, and technology laboratory, center or
agency
In the case of an employee of a Federal national security,
science, and technology laboratory, center, or agency (as defined pursuant to
section 203(b)(2)(C)) with permanent resident status on a conditional basis
under subsection (a), if the Secretary of Homeland Security, in consultation
with the relevant employing department or agency, determines, before the first
anniversary of the alien's obtaining the status of lawful admission for
permanent residence, that—
(A) the qualifying employment
was intended as a means of evading the immigration laws of the United
States;
(B) the alien has not
completed or is not likely to complete 12 months of qualifying continuous
employment; or
(C) the alien did not
otherwise conform with the requirements of section 203(b)(2),
the
Secretary shall so notify the alien involved and, subject to paragraph (3),
shall terminate the permanent resident status of the alien (and the alien
spouse and alien child) involved as of the date of the determination.
(3)
Hearing in removal
proceeding
Any alien whose permanent resident status is
terminated under paragraph (1) or (2) may request a review of such
determination in a proceeding to remove the alien. In such proceeding, the
burden of proof shall be on the Secretary of Homeland Security to establish, by
a preponderance of the evidence, that a condition described in paragraph (1) or
(2), as appropriate, is met.
(c)
Requirements of timely
petition and interview for removal of condition
(1)
In general
(A)
Petition and
interview
In order for the conditional basis established under
subsection (a) for an employment-based immigrant, alien spouse, or alien child
to be removed—
(i) the employment-based
immigrant shall submit to the Secretary of Homeland Security, during the period
described in subsection (d)(3), a petition which requests the removal of such
conditional basis and which states, under penalty of perjury, the facts and
information described in paragraph (1) or (2) of subsection (d), as
appropriate; and
(ii) in accordance with
subsection (d)(3), the employment-based immigrant must appear for a personal
interview before an officer or employee of U.S. Citizenship and Immigration
Services respecting such facts and information.
(B)
Separate petition not
required
An alien spouse or alien child shall not be required to
file separate petitions under subparagraph (A)(i) if the employment-based
immigrant’s petition includes such alien spouse or alien child.
(C)
Effect on spouse or
child
If the alien spouse or alien child obtains permanent
residence on a conditional basis after the employment-based immigrant files a
petition under subparagraph (A)(i)—
(i) the conditional basis of
the permanent residence of the alien spouse or alien child shall be removed
upon approval of the employment-based immigrant’s petition under this
subsection;
(ii) the permanent residence
of the alien spouse or alien child shall be unconditional if—
(I) the employment-based
immigrant’s petition is approved before the date on which the spouse or child
obtains permanent residence; or
(II) the employment-based
immigrant dies after the approval of a petition under section 203(b)(5);
and
(iii) the alien child shall
not be deemed ineligible for approval under section 203(b)(5) or removal of
conditions under this section if the alien child reaches 21 years of age
during—
(I) the pendency of the
employment-based immigrant’s petition under section 203(b)(5); or
(II) conditional residency
under such section.
(D)
Additional
fee
Notwithstanding any other provision under this section, the
Secretary may require the employment-based immigrant to pay an additional fee
for a petition filed under subparagraph (A)(i) that includes the alien’s spouse
and child or children.
(2)
Termination of
permanent resident status for failure to file petition or have personal
interview
(A)
In
general
In the case of an alien with permanent resident status on
a conditional basis under subsection (a), if—
(i) no petition is filed with
respect to the alien in accordance with the provisions of paragraph (1)(A);
or
(ii) unless there is good
cause shown, the employment-based immigrant fails to appear at the interview
described in paragraph (1)(B) (if required under subsection (d)(4)),
the Secretary of Homeland Security shall
terminate the permanent resident status of the alien (and the alien's spouse
and children if it was obtained on a conditional basis under this section or
section 216) as of the second anniversary of the alien's lawful admission for
permanent residence.
(B)
Hearing in removal
proceeding
In any removal proceeding with respect to an alien
whose permanent resident status is terminated under subparagraph (A), the
burden of proof shall be on the alien to establish compliance with the
conditions of paragraphs (1)(A) and (1)(B).
(3)
Determination after
petition and interview
(A)
In
general
If—
(i) a petition is filed in
accordance with the provisions of paragraph (1)(A); and
(ii) the employment-based
immigrant appears at any interview described in paragraph (1)(B),
the Secretary of Homeland Security shall
make a determination, not later than 90 days after the date of such filing or
interview (whichever is later), as to whether the facts and information
described in paragraph (1) or (2) of subsection (d), as appropriate, and
alleged in the petition are true.
(B)
Removal of conditional
basis if favorable determination
(i)
Header
If
the Secretary of Homeland Security determines with respect to a petition filed
by an alien investor that such facts and information are true, the Secretary
shall so notify the alien investor and shall remove the conditional basis of
the alien's status effective as of the second anniversary of the alien's lawful
admission for permanent residence.
(ii)
Removal of conditional
basis for employee of a Federal national security, science, and technology
laboratory, center or agency
If the Secretary of Homeland
Security determines with respect to a petition filed by an employee of a
Federal national security, science, and technology laboratory, center, or
agency that such facts and information are true, the Secretary shall so notify
the alien and shall remove the conditional basis of the alien's status
effective as of the first anniversary of the alien's lawful admission for
permanent residence.
(C)
Termination if adverse
determination
If the Secretary of Homeland Security determines
that such facts and information are not true, the Secretary shall so notify the
alien involved and, subject to subparagraph (D), shall terminate the permanent
resident status of an employment-based immigrant, alien spouse, or alien child
as of the date of the determination.
(D)
Hearing in removal
proceeding
Any alien whose permanent resident status is
terminated under subparagraph (C) may request a review of such determination in
a proceeding to remove the alien. In such proceeding, the burden of proof shall
be on the Secretary of Homeland Security to establish, by a preponderance of
the evidence, that the facts and information described in subsection (d)(1) and
alleged in the petition are not true.
(d)
Details of petition and
interview
(1)
Contents of petition by
alien investor
Each petition filed by an alien investor under
section (c)(1)(A) shall contain facts and information demonstrating that the
alien—
(A)
(i) invested, or is
actively in the process of investing, the requisite capital; and
(ii) sustained the actions
described in clause (i) throughout the period of the alien's residence in the
United States; and
(B) except as provided in
paragraph (4), is otherwise conforming to the requirements under section
203(b)(5).
(2)
Contents of petition by
employee of a Federal national security, science, and technology laboratory,
center, or agency
Each petition under subsection (c)(1)(A) filed
by an employee of a Federal national security, science, and technology
laboratory, center, or agency shall contain facts and information demonstrating
that the alien is conforming to the requirements of section 203(b)(2).
(3)
Period for filing
petition
(A)
90-day period before
anniversary
Except as provided in subparagraph (B), the petition
under subsection (c)(1)(A) must be filed as follows:
(i) In the case of an alien
investor, during the 90-day period before the second anniversary of the alien's
lawful admission for permanent residence.
(ii) In the case of an
employee of a Federal national security, science, and technology laboratory,
center, or agency, during the 90-day period before the first anniversary of the
alien's lawful admission for permanent residence.
(B)
Late
petitions
Such a petition may be considered if filed after such
date, but only if the alien establishes to the satisfaction of the Secretary of
Homeland Security good cause and extenuating circumstances for failure to file
the petition during the period described in subparagraph (A).
(C)
Filing of petitions
during removal
In the case of an alien who is the subject of
removal hearings as a result of failure to file a petition on a timely basis in
accordance with subparagraph (A), the Secretary of Homeland Security may stay
such removal proceedings against an alien pending the filing of the petition
under subparagraph (B).
(4)
Personal
interview
The interview under subsection (c)(1)(B) shall be
conducted within 90 days after the date of submitting a petition under
subsection (c)(1)(A) and at a local office of U.S. Citizenship and Immigration
Services, designated by the Secretary of Homeland Security, which is convenient
to the parties involved. The Secretary, in the discretion of the Secretary, may
waive the deadline for such an interview or the requirement for such an
interview in such cases as may be appropriate.
(5)
Special rule for alien
investors in a regional center
Each petition under subsection
(c)(1)(A) filed by an alien investor who invests in accordance with section
203(b)(5)(E) shall contain facts and information demonstrating that the alien
is complying with the requirements under section 203(b)(5), except—
(A) the alien shall not be
subject to the requirements under section 203(b)(5)(A)(ii); and
(B) the petition shall
contain the most recent financial statement filed by the regional center in
which the alien has invested in accordance with section 203(b)(5)(G).
(e)
Treatment of period for
purposes of naturalization
For purposes of title III, in the case
of an alien who is in the United States as a lawful permanent resident on a
conditional basis under this section, the alien shall be considered to have
been admitted as an alien lawfully admitted for permanent residence and to be
in the United States as an alien lawfully admitted to the United States for
permanent residence, if the alien has had the conditional basis removed
pursuant to this section.
(f)
Fraud,
misrepresentation, criminal misuse, or threats to the public safety or national
security
If the Secretary of Homeland Security determines, in his
or her sole and unreviewable discretion, that the conditional permanent
resident status granted to an employment-based immigrant under subsection (a),
or to an alien researcher described in section 203(b)(2)(A)(ii) is contrary to
the national interest of the United States for reasons relating to fraud,
misrepresentation, criminal misuse, or threats to national security, the
Secretary shall—
(1) notify the immigrant
involved of such determination; and
(2) terminate the permanent
resident status of the immigrant involved (and the alien spouse and alien
children of such immigrant) as of the date of such determination.
(g)
Definitions
In
this section:
(1) The term alien
investor means an alien who obtains the status of an alien lawfully
admitted for permanent residence (whether on a conditional basis or otherwise)
under section 203(b)(5).
(2) The term alien
spouse and the term alien child mean an alien who obtains
the status of an alien lawfully admitted for permanent residence (whether on a
conditional basis or otherwise) by virtue of being the spouse or child,
respectively, of an alien investor or an employee of a Federal national
security, science, and technology laboratory, center, or agency.
(3) The term commercial
enterprise includes a limited partnership.
(4) The term
employment-based immigrant means an alien described in paragraph
(1) or (5).
(5) The term employee
of a Federal national security, science, and technology laboratory, center, or
agency means an alien who obtains the status of an alien lawfully
admitted for permanent residence (whether on a conditional basis or otherwise)
under section
203(b)(2)(A)(ii).
.
(b)
Conforming
amendment
Section 216(e) (8 U.S.C. 1186a(e)) is amended by
inserting before the period at the end the following: , if the alien has
had the conditional basis removed pursuant to this section.
(c)
Clerical
amendment
The table of contents is amended by striking the item
relating to section 216A and inserting the following:
Sec. 216A. Conditional
permanent resident status for certain employment-based immigrants, spouses, and
children.
.
4806.
EB–5 Visa
reforms
(a)
Aliens not subject to
direct numerical limitation
Section 201(b)(1) (8 U.S.C.
1151(b)(1)), as amended by sections 2103(c)(2), 2212(d)(2), 2307(b), and 2402,
is further amended by adding at the end the following:
(P) Aliens who are the spouse
or a child of an alien admitted as an employment-based immigrant under section
203(b)(5).
.
(b)
Technical
amendment
Section 203(b)(5), as amended by this Act, is further
amended by striking Attorney General each place it appears and
inserting Secretary of Homeland Security.
(c)
Targeted employment
areas
(1)
In
general
Section 203(b)(5)(B) (8 U.S.C. 1153(b)(5)(B)) is amended
to read as follows:
(B)
Set-aside for targeted
employment areas
(i)
In
general
Not fewer than 5,000 of the visas made available under
this paragraph in each fiscal year shall be reserved for qualified immigrants
who invest in a new commercial enterprise described in subparagraph (A),
which—
(I) is investing such capital
in a targeted employment area; and
(II) will create employment
in such targeted employment area.
(ii)
Duration of high
unemployment and poverty area designation
A designation of a high
unemployment or poverty area as a targeted employment area shall be valid for 5
years and may be renewed for additional 5-year periods if the area continues to
meet the definition of a high unemployment or poverty area. An investor who has
made the required amount of investment in such a targeted employment area
during its period of designation shall not be required to increase the amount
of investment based upon expiration of the
designation.
.
(d)
Adjustment of minimum
EB–5 investment amount
Section 203(b)(5)(C)(i) (8 U.S.C.
1153(b)(5)(C)(i)) is amended—
(1) by striking The
Attorney General and inserting The Secretary of
Commerce;
(2) by striking
Secretary of State and inserting Secretary of Homeland
Security; and
(3) by adding at the end the
following: Unless adjusted by the Secretary of Commerce, the amount
specified in this clause shall automatically adjust, on January 1, 2016, by the
percentage change in the Consumer Price Index (CPI–U) during fiscal year 2015,
and on every fifth subsequent January 1 by the cumulative percentage change in
the CPI–U during the previous 5 fiscal years, for any petition filed to
classify an alien under this paragraph on or after the date of each automatic
adjustment..
(e)
Definitions
(1)
In
general
Section 203(b)(5) (8
U.S.C. 1153(b)(5)), as amended by subsections (b) and (c) and section 4804, is
further amended—
(A) by striking subparagraph (D) and inserting
following:
(D)
Calculation of
full-time employment
Job creation under this paragraph may
consist of employment measured in full-time equivalents, such as intermittent
or seasonal employment opportunities and construction jobs. A full-time
employment position is not a requirement for indirect job
creation.
;
and
(B) by adding at the end the
following:
(K)
Definitions
In
this paragraph:
(i) The term
capital means 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 fair market value in United States dollars, in
accordance with Generally Accepted Accounting Principles, at the time it is
invested under this paragraph.
(ii) The term full-time employment
means employment in a position that requires at least 35 hours of service per
week, regardless of how many employees fill the position.
(iii) The term high
unemployment and poverty area means—
(I) an area consisting of a
census tract or contiguous census tracts that has an unemployment rate that is
at least 150 percent of the national average unemployment rate and includes at
least 1 census tract with 20 percent of its residents living below the poverty
level as determined by the Bureau of the Census; or
(II) an area that is within
the boundaries established for purposes of a Federal or State economic
development incentive program, including areas defined as Enterprise Zones,
Renewal Communities, Promise Zones, and Empowerment Zones.
(iv) The term rural
area means—
(I) any area other than an
area within a metropolitan statistical area or within the outer boundary of any
city or town having a population of 20,000 or more (based on the most recent
decennial census of the United States); or
(II) any city or town having
a population of fewer than 20,000 (based on the most recent decennial census of
the United States) that is located within a State having a population of fewer
than 1,500,000 (based on the most recent decennial census of the United
States).
(v) The term targeted
employment area means a rural area or a high unemployment and poverty
area.
.
(2)
Effective
date
The amendment made by paragraph (1) shall apply to any
application for a visa under section 203(b)(5) of the Immigration and
Nationality Act that is filed on or after the date that is 1 year after the
date of the enactment of this Act.
(f)
Age determination for
children of alien investors
Section 203(h) (8 U.S.C. 1153(h)) is
amended by adding at the end the following:
(5)
Age determination for
children of alien investors
An alien admitted under subsection
(d) as a lawful permanent resident on a conditional basis as the child of an
alien lawfully admitted for permanent residence under subsection (b)(5), whose
lawful permanent resident status on a conditional basis is terminated under
section 216A, shall continue to be considered a child of the principal alien
for the purpose of a subsequent immigrant petition by such alien under
subsection (b)(5) if the alien remains unmarried and the subsequent petition is
filed by the principal alien not later than 1 year after the termination of
conditional lawful permanent resident status. No alien shall be considered a
child under this paragraph with respect to more than 1 petition filed after the
alien’s 21st
birthday.
.
(g)
Enhanced pay scale for
certain Federal employees administering the EB–5 Program
The Secretary may establish, fix the
compensation of, and appoint individuals to, designated critical
administrative, technical, and professional positions needed to administer
sections 203(b)(5) and 216A of the Immigration and Nationality Act (8 U.S.C.
1153(b)(5) and 1186b).
(h)
Delegation of certain
EB–5 authority
(1)
In
general
The Secretary of Homeland Security may delegate to the
Secretary of Commerce authority and responsibility for determinations under
sections 203(b)(5) and 216A (with respect to alien entrepreneurs) of the
Immigration and Nationality Act (8 U.S.C. 1153(b)(5) and 1186a), including
determining whether an alien has met employment creation requirements.
(2)
Regulations
The
Secretary of Homeland Security and the Secretary of Commerce may each adopt
such rules and regulations as are necessary to carry out the delegation
authorized under paragraph (1), including regulations governing the eligibility
criteria for obtaining benefits pursuant to the amendments made by this
section.
(3)
Use of
fees
Adjudication fees described in section 286(m) of the
Immigration and Nationality Act (8 U.S.C. 1356(m)) shall remain available until
expended to reimburse the Secretary of Commerce for the costs of any
determinations made by the Secretary of Commerce under paragraph (1).
(i)
Concurrent filing of
EB–5 petitions and applications for adjustment of status
Section 245 (8 U.S.C. 1255), as amended by
section 4237(b), is further amended—
(1) in subsection (k), in the
matter preceding paragraph (1), by striking or (3) and inserting
(3), (5), or (7); and
(2) by adding at the end the
following:
(o) At the time a petition is
filed for classification under section 203(b)(5), if the approval of such
petition would make a visa immediately available to the alien beneficiary, the
alien beneficiary’s application for adjustment of status under this section
shall be considered to be properly filed whether the application is submitted
concurrently with, or subsequent to, the visa
petition.
.
4807.
Authorization of
appropriations
(a)
Funding
There
are authorized to be appropriated from the Trust Fund established under section
6(a) such sums as may be necessary to carry out sections 1110, 2101, 2104,
2212, 2213, 2221, 2232, 3301, 3501, 3502, 3503, 3504, 3505, 3506, 3605, 3610,
4221, and 4401 of this Act.
(b)
Availability of
funds
Amounts appropriated pursuant to this section shall remain
available until expended unless otherwise specified in this Act.
I
Student and Exchange
Visitor Programs
4901.
Short
title
This subtitle may be
cited as the Student Visa Integrity
Act.
4902.
SEVIS and SEVP
defined
In this
subtitle:
(1)
SEVIS
The
term SEVIS means the Student and Exchange Visitor Information
System of the Department of Homeland Security.
(2)
SEVP
The
term SEVP means the Student and Exchange Visitor Program of the
Department of Homeland Security.
4903.
Increased criminal
penalties
Section 1546(a) of
title 18, United States Code, is amended by striking 10 years
and inserting 15 years (if the offense was committed by an owner,
official, employee, or agent of an educational institution with respect to such
institution's participation in the Student and Exchange Visitor Program), 10
years.
4904.
Accreditation
requirement
Section 101(a)(52)
(8 U.S.C. 1101(a)(52)) is amended to read as follows:
(52) Except as provided in
section 214(m)(4), the term accredited college, university, or language
training program means a college, university, or language training
program that is accredited by an accrediting agency recognized by the Secretary
of
Education.
.
4905.
Other academic
institutions
Section 214(m) (8
U.S.C. 1184(m)) is amended by adding at the end the following:
(3) The Secretary of Homeland Security shall
require accreditation of an academic institution (except for seminaries or
other religious institutions) for purposes of section 101(a)(15)(F) if—
(A) that institution is not already required to
be accredited under section 101(a)(15)(F)(i); and
(B) an appropriate accrediting agency
recognized by the Secretary of Education is able to provide such
accreditation.
(4) The Secretary of Homeland Security, in the
Secretary’s discretion, may waive the accreditation requirement in section
101(a)(15)(F)(i) with respect to an accredited college, university, or language
training program if the academic institution—
(A) is otherwise in
compliance with the requirements of such section; and
(B) is, on the date of the
enactment of the Illegal Immigration Reform
and Immigrant Responsibility Act of 1996, a candidate for
accreditation or, after such date, has been a candidate for accreditation for
at least 1 year and continues to progress toward accreditation by an
accreditation agency recognized by the Secretary of
Education.
.
4906.
Penalties for failure
to comply with SEVIS reporting requirements
Section 641 of the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1372) is
amended—
(1) in subsection (c)(1)—
(A) by striking institution,,
each place it appears and inserting institution,; and
(B) in subparagraph (D), by
striking and at the end;
(2) in subsection (d)(2), by striking
fails to provide the specified information and all that follows
and inserting “does not comply with the reporting requirements set forth in
this section, the Secretary of Homeland Security may—
(A) impose a monetary fine on such institution
in an amount to be determined by the Secretary; and
(B) suspend the authority of such institution
to issue a Form I–20 to any
alien.
.
4907.
Visa fraud
(a)
Immediate withdrawal of
SEVP certification
Section
641(d) of the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (8 U.S.C. 1372(d)) is
amended—
(1) in paragraph (1)(A), by striking
institution,, and inserting institution,;
and
(2) by adding at the end the following:
(3)
Effect of reasonable
suspicion of fraud
If the
Secretary of Homeland Security has reasonable suspicion that an owner of, or a
designated school official at, an approved institution of higher education, an
other approved educational institution, or a designated exchange visitor
program has committed fraud or attempted to commit fraud relating to any aspect
of the Student and Exchange Visitor Program, or if such owner or designated
school official is indicted for such fraud, the Secretary may
immediately—
(A) suspend such
certification without prior notification; and
(B) suspend such official’s
or such school’s access to the Student and Exchange Visitor Information System
(SEVIS).
.
(b)
Effect of conviction
for visa fraud
Section 641(d) of the
Illegal Immigration Reform and Immigrant
Responsibility Act of 1996, as amended by subsection (a), is
further amended by adding at the end the following:
(5)
Permanent
disqualification for fraud
A designated school official at, or an
owner of, an approved institution of higher education, an other approved
educational institution, or a designated exchange visitor program who is
convicted for fraud relating to any aspect of the Student and Exchange Visitor
Program shall be permanently disqualified from filing future petitions and from
having an ownership interest or a management role (including serving as a
principal, owner, officer, board member, general partner, designated school
official, or any other position of substantive authority for the operations or
management of the institution) in any United States educational institution
that enrolls nonimmigrant alien students described in subparagraph (F) or (M)
of section 101(a)(15) of the Immigration and Nationality Act (8 U.S.C.
1101(a)(15)).
.
4908.
Background
checks
(a)
In
general
Section 641(d) of the
Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (8 U.S.C. 1372(d)), as amended by
section 4907 of this Act, is further amended by adding at the end the
following:
(6)
Background check
requirement
(A)
In
general
An individual may not serve as a designated school
official or be granted access to SEVIS unless the individual is a national of
the United States or an alien lawfully admitted for permanent residence and
during the most recent 3-year period—
(i) the Secretary of Homeland
Security has—
(I) conducted a thorough
background check on the individual, including a review of the individual’s
criminal and sex offender history and the verification of the individual’s
immigration status; and
(II) determined that the
individual—
(aa) has not been convicted
of any violation of United States immigration law; and
(bb) is not a risk to the
national security of the United States; and
(ii) the individual has
successfully completed an on-line training course on SEVP and SEVIS, which has
been developed by the Secretary.
(B)
Interim designated
school official
(i)
In
general
An individual may serve as an interim designated school
official during the period that the Secretary is conducting the background
check required by subparagraph (A)(i)(I).
(ii)
Reviews by the
Secretary
If an individual serving as an interim designated
school official under clause (i) does not successfully complete the background
check required by subparagraph (A)(i)(I), the Secretary shall review each Form
I–20 issued by such interim designated school official.
(7)
Fee
The
Secretary is authorized to collect a fee from an approved school for each
background check conducted under paragraph (6)(A)(i). The amount of such fee
shall be equal to the average amount expended by the Secretary to conduct such
background
checks.
.
(b)
Effective
date
The amendment made by subsection (a) shall take effect on
the date that is 1 year after the date of the enactment of this Act.
4909.
Revocation of
authority to issue Form I–20 of flight schools not certified by the Federal
Aviation Administration
Immediately upon the enactment of this Act,
the Secretary shall prohibit any flight school in the United States from
accessing SEVIS or issuing a Form I–20 to an alien seeking a student visa
pursuant to subparagraph (F)(i) or (M)(i) of section 101(a)(15) of the
Immigration and Nationality Act (8 U.S.C. 1101(a)(15)) if the flight school has
not been certified to the satisfaction of the Secretary and by the Federal
Aviation Administration pursuant to part 141 or part 142 of title 14, Code of
Federal Regulations (or similar successor regulations).
4910.
Revocation of
accreditation
At the time an
accrediting agency or association is required to notify the Secretary of
Education and the appropriate State licensing or authorizing agency of the
final denial, withdrawal, suspension, or termination of accreditation of an
institution pursuant to section 496 of the Higher Education Act of 1965 (20
U.S.C. 1099b), such accrediting agency or association shall notify the
Secretary of Homeland Security of such determination and the Secretary of
Homeland Security shall immediately withdraw the school from the SEVP and
prohibit the school from accessing SEVIS.
4911.
Report on risk
assessment
Not later than 180
days after the date of the enactment of this Act, the Secretary shall submit to
the Committee on the Judiciary of the
Senate and the Committee on
the Judiciary of the House of Representatives a report that
contains the risk assessment strategy that will be employed by the Secretary to
identify, investigate, and take appropriate action against schools and school
officials that are facilitating the issuance of Form I–20 and the maintenance
of student visa status in violation of the immigration laws of the United
States.
4912.
Implementation of GAO
recommendations
Not later than
180 days after the date of the enactment of this Act, the Secretary shall
submit to the Committee on the Judiciary
of the Senate and the Committee on the Judiciary of the House of
Representatives a report that describes—
(1) the process in place to
identify and assess risks in the SEVP;
(2) a risk assessment process
to allocate SEVP’s resources based on risk;
(3) the procedures in place
for consistently ensuring a school’s eligibility, including consistently
verifying in lieu of letters;
(4) how SEVP identified and
addressed missing school case files;
(5) a plan to develop and
implement a process to monitor State licensing and accreditation status of all
SEVP-certified schools;
(6) whether all flight
schools that have not been certified to the satisfaction of the Secretary and
by the Federal Aviation Administration have been removed from the program and
have been restricted from accessing SEVIS;
(7) the standard operating
procedures that govern coordination among SEVP, Counterterrorism and Criminal
Exploitation Unit, and U.S. Immigration and Customs Enforcement field offices;
and
(8) the established criteria
for referring cases of a potentially criminal nature from SEVP to the
counterterrorism and intelligence community.
4913.
Implementation of
SEVIS II
Not later than 2
years after the date of the enactment of this Act, the Secretary shall complete
the deployment of both phases of the second generation Student and Exchange
Visitor Information System (commonly known as SEVIS II).
May 28, 2013
Reported, under authority of the order of the Senate of May
23, 2013, with an amendment