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SECURE
BORDERS, ECONOMIC TITLE
I Sec. 1. Effective Date Triggers Neither
the temporary worker program (except for agricultural workers) nor post-
probationary phase of the earned legalization program for undocumented
immigrants may take place until the Secretary of Homeland Security certifies in
writing to the President and Congress that the following measures are funded,
in place, and in operation: Staff
Enhancements for Border Patrol:
CBP has increased the number of agents to 18,000 agents. Strong Border
barriers: 200 miles of
vehicle barriers; 370 miles of fencing; and 70 ground-based radar and camera
towers are installed and 4 unmanned aerial vehicles deployed along the southern
border. Catch and
Return: All removable aliens apprehended crossing the
southern border are detained (except as specifically ‘mandated’ by law or
humanitarian circumstances), and Immigration and Customs Enforcement has
sufficient resources to maintain this practice, including enough resources to
detain up to 27,500 non-citizens per day on an annual basis. Workplace
Enforcement Tools: DHS is using secure
and effective identification tools to prevent unauthorized workers from
obtaining jobs in the Processing
applications of Aliens: DHS must be
processing applications for Z status (probationary earned legalization) in a
timely manner, including the background and security checks. It
is the sense of Congress that the border security and other measures can be
completed within 18 months of enactment. The President must submit a report to
Congress 90 days after enactment and every 90 days thereafter, detailing
progress made in funding, appropriating, contractual agreements reached and
specific progress. If insufficient
progress is being made, the President must include specific spending
recommendations or other actions. TITLE
I – BORDER ENFORCEMENT Subtitle
A – Assets for Controlling Sec. 101.
Additional Personnel.
Requires
the hiring of additional enforcement personnel and authorizes funding for such
hires (subject to the availability of appropriations). Increases in each of fiscal years (FYs)
2008 through 2012 the hiring of not less than 500 Customs
and Border Protection officers and not less than 50 Deputy US Marshalls. Investigative
personnel: Boosts the
hiring of Immigration and Customs Enforcement investigators to 1000 (from the
current 800) in fiscal years 2006 through 2010.
Requires the annual hiring of not less than 200 Department of Homeland
Security alien smuggling investigators in fiscal years 2008-2012.. Recruitment of former military
personnel: CBP and DOD must recruit active duty
military personnel who have decided to leave the military and report to
Congress on the implementation of such a recruitment program not later than 180
days after enactment. Increase in Border Patrol: Increases the
number of full time Border Patrol Agents by not less than 2,000 in FY 2007 and 2,400
in FYs 2008 – 2012. Requires
deployment to the Northern Border of a number of border
patrol agents equal to at least 20 percent of the total net increase in
border patrol agents in each fiscal year.
Sec. 102. Technological Assets. Requires DHS to acquire additional
technological assets, such as unmanned aerial vehicles, cameras, sensors,
poles, and other technologies to achieve operational control of the Sec. 103. Infrastructure. Requires construction of 14 miles of fencing
near Sec. 104. Ports of Entry. Authorizes DHS to construct additional (and
improve existing) ports of entry along the Subtitle
B – Other Border Security Initiatives Sec.
111. Biometric
Entry-Exit System Authorizes DHS to require non-citizens crossing the border
to provide biometric data. Refusal to
provide biometric information when it is requested of an alien is a ground of
inadmissibility, but the Secretary is given waiver authority. The Administrative Procedures Act does not
have to be followed in implementing the entry and exit system. Section
112. Unlawful Flight From Immigration or Customs Controls Anyone operating a motor vehicle or
vessel who knowingly evades a checkpoint and knowingly or recklessly disregards
or disobeys a law enforcement agent’s lawful command can be imprisoned for 5 years, fined, or
both. Failure to obey a DHS officer can result in a fine, 2 yrs imprisonment or
both. The offense would be punishable by
up to 30 years in prison if the individual attempted to or inflicted bodily
injury. Alternative penalties are
listed for different offenses.
Forfeiture procedures are laid out and definitions provided. Section
113. Release of Aliens from Noncontiguous Territories. Nationals of
noncontiguous territories who have not been admitted and who are apprehended
within 100 miles of the border or present a ‘flight risk’ may only be released
upon paying a $5000 bond. There is no exception for asylum seekers who have
passed credible fear. Sec.
114. Seizure of Conveyance with Concealed Compartment: Expanding the definition of conveyances with
hidden compartments subject to forfeiture. Describes acts which constitute prima
facie evidence of vehicles that are engaged in smuggling and provides for the
seizure and forfeiture of these vehicles. Subtitle
C -- Other Measures Sec.
121. Deaths at the United States-Mexico Border. The CBP Commissioner must collect statistics on the total
number of deaths on the southern border and the causes of these deaths. The Commissioner must submit a report to the
Secretary of Homeland Security analyzing these statistics and recommending
actions that would reduce the number of deaths. Sec.
122. Border Security on Certain Sec. 123
Secure Communication. The Secretary of Homeland Security is
directed to develop and implement a plan to improve the use of satellite and
other technology to ensure clear and secure two-way communication capabilities,
among all Border Patrol agents conducting operations between ports of entry,
their respective border patrol stations, and between all appropriate border
security agencies of the Department and state, local and tribal law enforcement
agencies. Sec. 124.
Unmanned Aircraft. Systems. Secretary must acquire and maintain
additional unmanned aircraft for use on the border. Sec. 125.
Surveillance Technologies Sec. 126
Surveillance Plan. The Secretary must
develop a comprehensive plan. The
content must include, for example, assessments of existing technologies, a
description of the compatibility of new surveillance with existing ones, a
detailing of DHS consultations with the
FAA, and descriptions of the kind of surveillance to be employed. Sec. 127.
National Strategy for Border Security.
DHS is directed to coordinate in consultation with other appropriate
Federal agencies a comprehensive border security strategy. The strategy must include risk assessments,
staffing needs, research and development priorities, detention space needs,
legal requirements, an interagency division of labor, and performance metrics.
DHS must consult with state, local and tribal authorities in land and maritime
border communities. Sec. 128.
Border Patrol Training Capacity Review. The Comptroller General must conduct a study
of the basic training provided to Border Patrol agents to ensure that such
training is provided as efficiently and cost-effectively as possible. The study must identify language and cultural
diversity programs provided in this training and a comparison with similar
programs provided by other governmental, non-governmental, and private sector
institutions. Sec. 129.
Biometric Data Enhancements.
Requires DHS, not later than October 1, 2008, in consultation with the
Attorney General, to enhance connectivity between the IDENT (DHS) and IAFIS
(FBI) fingerprint systems to ensure
expeditious searches; as well as work with the State Department to ensure that
all fingers of aliens who must be fingerprinted are collected in the entry-exit
system. Sec. 130. Sec. 131.
Document Fraud Detection. DHS is required to provide training to
CBP officers on identifying and detecting fraudulent travel documents; provide
all CBP officers with access to the Forensic Documents Laboratory; assess and
report to Congress on the Forensic Document Laboratory. Sec. 132.
Border Relief Grant Sec. 133. Port
of Entry Infrastructure Assessment Study.
The General Services Administration must submitted not later than
January 31 of every year, in consultation with USCBP a report that identifies
and prioritizes the port of entry infrastructure and technology improvement
projects that would enhance border security and facilitate the flow of
legitimate commerce if implemented. Sec. 134. Sec. 135. Port
of Entry Technology Demonstration. DHS must carry out a technology
demonstration program at 3-5 sites to test and evaluate new port of entry
technologies, refine port of entry technologies and operational concepts and
train personnel under realistic conditions. Sec. 136.
Combating Human Smuggling. Requires ICE, CBP, and other Federal,
state, local, and tribal authorities to improve coordination efforts to combat
smuggling, to include interoperability of data bases, personnel training,
programs to target smuggling networks, and utilization of visas for victims of
trafficking and other crimes and joint measures with the Secretary of State to
enhance intelligence sharing. A report
must be submitted to Congress not later than one year after implementing the
plan. Sec. 137. Increase of Federal Detention Space and the
Utilization of Facilities Identified for Closures as a Result of the Defense
Base Closure Realignment Act of 1990.
Requires DHS to construct or acquire, in addition to existing
facilities, at least 20 detention facilities with enough capacity to detain a
combined total of not less than 20000 individuals at any time, for aliens
detained pending removal or a decision of removal. DHS is also required to fully utilize all possible options to cost
effectively increase available detention capacities. Sec. 138.
United States-Mexico Border Enforcement Review Commission Establishes a United States-Mexico Border Enforcement
Review Commission to study and make recommendations to the President and
Congress of the overall enforcement strategies, programs and policies along the
border. The Commission is to consist of local governmental, local law
enforcement, and community members appointed by border state governors. Title II –
Interior Enforcement Sec. 201. Additional Immigration
Personnel. Subject to appropriations,
authorizes increases in personnel in FY 2008 – 2012, as follows: DHS (trial attorneys and USCIS
adjudicators); DOJ (Judicial clerks,
Office of Immigration Litigation attorneys, U.S. Attorneys, immigration judges, BIA members, and staff attorneys); and Federal Defenders Program. This section
also authorizes continuation and expansion of Legal Orientation Program for
immigration detainees. Sec. 202. Detention and Removal
of Aliens Ordered Removed. Amends section
241 of the INA by authorizing detention beyond the statutory 90 day removal
period for aliens who do not cooperate with attempts to remove them and for
criminal aliens and other individuals who cannot be removed but who are
considered too dangerous to be released into the public. The Secretary is
required to create an administrative review process for aliens who have
cooperated fully with efforts to remove them, but who nonetheless cannot be
removed. Under this process, the
Secretary must certify that the alien poses a danger to the public based on a
highly contagious disease; the Secretary of State has determined that release
would have serious adverse foreign policy consequence; there is reason to
believe that the alien poses a risk to the national security of the United
States: or that based on the nature of past criminal activity or the likelihood
of future violent activity, the alien poses a danger to the public. Such
certifications are subject to review by the Attorney General; the Secretary
must release the alien if the Attorney General concludes detention is not
warranted. The decision to continue
detention must be reviewed every six months; any renewal is subject to review
by the Attorney General. The Secretary is authorized to require appropriate
conditions of release when it is determined that an alien cannot be detained
further. Aliens who have not been
admitted to the This
section also modifies Title 18 Section
3142 to allow a judicial officer in federal criminal proceedings to consider
immigration status when determining whether the defendant is a flight risk or
danger to the community, for the purposes of setting bail. Sec. 203. Aggravated Felony. This section amends the existing
definition of aggravated felony by clarifying that the definition includes
violations of law in a foreign country for which a term of imprisonment was
completed within the previous 15 years. This section also clarifies that sexual
abuse of a minor is an aggravated felony, regardless of whether the specific
age is included in the record of conviction, and clarifies that alien smuggling
under section 1342(a) of the Act is an aggravated felony. The amendments take effect on the date of
enactment. IIRAIRA amendments to the Act
shall continue to apply whether the conviction occurred on, before, or after
the date of enactment. Sec. 205. Increased Criminal Penalties Related to Gang
Violence and Removal.
This section establishes that an individual who has
participated in the activities of a criminal gang, knowing or having reason to
know that such activities furthered the activity of the gang will be
inadmissible or deportable. A “criminal
gang” is specifically defined as an ongoing entity of 5 or more persons which
has as one of its primary purposes the commission of a list of crimes
enumerated in this section and that such crimes have been committed in the past
5 years.
Aliens found to be inadmissible or deportable under this provision are
ineligible for TPS. This provision also authorizes detention for any individual
with TPS where the statute elsewhere authorizes such detention. This
section also amends Section 243, penalties related to removal, by increasing the penalty for failing to
depart to not more than five years and increasing the term of imprisonment for
willful failure to comply with the terms of release under supervision to no
more than five years or ten under certain categories Sec. 206. Illegal Entry. This section
amends section 275 of the INA by increasing current criminal penalties for
illegal entry, with escalation of fines and terms of imprisonment for repeated
entries and entries after criminal convictions. Offenses under this section continue until
the alien is discovered with the Sec. 207. Illegal Reentry. This section amends section 276 of the INA by increasing existing
criminal penalties for illegal re-entry. Provides for
affirmative defenses based on compliance
with any requirements to obtain consent to apply for readmission, the absence
of any requirements in a particular case, and for removal orders entered
against a minor who had not been convicted of a crime or adjudicated a delinquent
minor. Requires alien to provide clear and convincing evidence of exhaustion of
administrative remedies, fundamental unfairness in proceedings, or improper
proceedings, in order to challenge the validity of the removal order in any
criminal proceeding. Retains requirement
that an alien who was removed prior to completion of prison sentence shall be
re-incarcerated upon unlawful reentry. Sec. 208. Reform of Passport,
Visa and Immigration Fraud Offenses
This section revises and expands 18 USC, Chapter 75,
by increasing penalties for fraudulent use or manufacture of passports, travel
documents and other immigration documents.
It creates enhanced penalties for trafficking in passports, false
statements in an application for a passport, forgery and unlawful production of
a passport, misuse of a passport, schemes to defraud aliens, immigration and
visa fraud, including employment document fraud, and attempts and conspiracies
to commit such offenses. Seizure and
forfeiture of any property used to commit a violation of this chapter is
authorized. The Attorney General is authorized to
develop binding prosecution guidelines for federal prosecutors to ensure that
any prosecution of an alien’s entry into the Sec.
209. Inadmissibility and Removal for
Passport and Immigration Fraud Offenses.
Section 209 amends the grounds of inadmissibility and deportability,
consistent with the provisions of section 208,
to reflect violations of specific passport and immigration fraud
offenses under section 1541 (trafficking in passports), 1545 (schemes to
defraud aliens), 1546(b)(commercial production of fraudulent immigration
documents) and 1547(b)(entering into multiple marriages to evade immigration
laws) of the INA. Sec.
210. Incarceration of Criminal Aliens. Section 210 requires the
continuation of the Institutional Removal Sec. 211. Encouraging Aliens to
Depart Voluntarily. Revises and amends the procedures for voluntary departure in 240B. Continues
to permit voluntary departure in lieu of removal proceedings, at the alien’s
expense, for a period not longer than 120 days.
During removal proceedings, the Secretary and alien may enter into an
agreement for voluntary departure, not to exceed 60 days. As part of the
agreement, the Secretary may agree to a reduction in future periods of
inadmissibility. At the conclusion of removal proceedings, voluntary departure
may be granted by an immigration judge for no more than 45 days. Increases civil penalty for failure to depart
voluntarily. Revises bar on
discretionary relief to cover time within the Section 212. Deterring Aliens
Ordered Removed from Remaining in the Sec.
213. Prohibition of the Sec.
214. Uniform Statute of Limitations for Certain Immigration, Passport and
Naturalization Offenses. This section establishes a statute of
limitations for all immigration crimes and attempts at such crimes, including
willful failure to register or to provide a change of address, as well as
crimes involving trafficking in persons, for a period not later than ten
years.
Sec.
215. Diplomatic Security Services
Section 215 expands the authority of special agents of the Department of
State and the Foreign Service to investigate identity theft and document fraud
relating to the programs of the Department of State, peonage and slavery and
federal offenses committed in the special maritime and territorial jurisdiction
of the Sec. 216. Streamlined Processing of Background Checks Conducted for
Immigration Benefits. Under this section, the Secretary of Homeland
Security and the Attorney General would be required to establish a task force
to resolve cases where an application or benefit conferred under the Act was delayed due to an outstanding background
check pending for more than two years
from date the application or petition
was initially filed. Sec.
217. State Criminal Alien Assistance Sec.
218. Transportation and Processing of Illegal Aliens Apprehended by State and
Local Law Enforcement Officers. This section authorizes the Secretary
to provide sufficient transportation and officers to take illegal aliens
apprehended by state and local law enforcement authorities into federal custody. Sec.
219. Reducing Illegal Immigration and Alien Smuggling on Tribal Lands. Section 219 creates a grant program for
Indian tribes with land adjacent to an international border that may have been
adversely affected by illegal immigration.
The grants may be used for law enforcement, health care, environmental
restoration and preserving cultural resources. It would further provide that
within 180 days of enactment, the Secretary of DHS shall submit a report,
including information on the level of access of Border patrol agents on tribal
lands, the extent to which enforcement could be improved through enhanced
access, and a strategy for obtaining access and identifying grants provided to Indian
tribes that relate to border security. Sec.
220. Alternatives to Detention. Section 220 would require the Secretary to
conduct a study of the effectiveness of alternatives to detention, including
electronic monitoring devices and intensive supervision programs in ensuring
alien appearance at court and in compliance with removal orders.
Sec.
221. State and Local Enforcement of Immigration Laws. This section
amends section 287(g) of the INA to require DHS to reimburse state and local
governments for costs incurred for training and equipment related to
enforcement of Federal immigration laws.
Appropriations are authorized. Sec.
222. Protecting Immigrants from Convicted Sex Offenders. This section
offers a technical amendment to the Adam Walsh Act, by amending section 204(a)(1) of the INA to bar individuals
convicted of the sex offenses in § 101(a)(43)(A), (I) and (K) from sponsoring
family members unless DHS determines that the convicted citizen or permanent
resident poses no risk to the alien being sponsored. Sec.
223. Law Enforcement Authority of States and Political subdivisions and
transfer to Federal custody. This section creates new section 240D
to govern provisions for reimbursement of
state and local government expenses associated with the costs of taking illegal aliens into
custody. Sec.
224. Laundering of Monetary Instruments.
Section 224 would amend Title 18 USC, section 1956(c)(7)(D) by inserting
“section 1590 (relating to trafficking with respect to peonage, slavery,
involuntary servitude, or forced labor),” after “section 1363 (relating to
destruction of property within the special maritime and territorial
jurisdiction),”; and by inserting “section 274(a) of the INA (relating to
bringing in and harboring certain aliens),” after “section 590 of the Tariff
Act of 1930.” These changes would add
alien smuggling and trafficking to the list of crimes the financial proceeds
from which are subject to the money laundering provisions of 18 USC. Sec.
225. Cooperative Enforcement Sec.
226. Expansion of the Justice Prisoner and Alien Transfer System. This section requires the Attorney General to
expand the operations of the Justice Prisoner and Alien Transfer System (JPATS)
to provide additional services with respect to aliens who are unlawfully
present in the Sec. 227. Directive to the Sentencing
Commission This section directs
the Sentencing Commission to come up with guidelines and commentaries on
sentencing for document and passport fraud. Sec. 228. Cancellation of Visas. Allows
cancellation of all non-immigrant visas in an alien’s possession based on the
alien’s violation of the terms of his or her nonimmigrant classification. TITLE
III: Worksite Enforcement Title
III re-writes section 274A of the INA, which makes it illegal to knowingly
employ undocumented immigrants. In
general, Title III strengthens enforcement by tightening employment
verification, improving systems through which employers verify workers’
identity and work eligibility (including by requiring employers to participate
in an electronic eligibility verification system), and increasing penalties for
non-compliance. Section
301. Purposes. This section
lists the purposes of Title III. Section
302. Unlawful Employment of Aliens. Making
Employment of Unauthorized Aliens Unlawful:
In
general, it is unlawful for an employer to hire, recruit, refer for a fee, or
continue to employ an alien in the Document
Verification Requirements: As in the current system, employers
would be required to verify the identity and work authorization of employees by
examining relevant documents, and attest to the employee’s work authorization
under penalty of perjury. Employees may present either: a Employers
are required to keep records of document verification for seven years after the
date of hire or two years after an employee is terminated, whichever is
earlier. Employers must also keep copies of employee documents as well as
records related to Social Security no-match letters. Electronic
Eligibility Verification System: The government will establish an
electronic verification system. The
Secretary of DHS may require any employer to participate in the system
immediately upon passage of the Act based upon risks to critical
infrastructure, national security, or homeland security needs. All employers
must run new hires through the EEVS within 18 months, and must re-verify all
existing employees no later than three years after passage of the Act. Employers
must register with the EEVS and receive training prior to participating.
Employers submit employees’ names, social security numbers, and alien numbers
(non-citizens only) no earlier than the date of hire and no later than the
first date of employment. Re-verification must occur on the date work
authorization expires in the case of employees with limited work authorization,
including Z-visa holders. The
System will return a confirmation, non-confirmation, or further action notice
immediately in most cases, and always within three days. If the employee is
confirmed, the employer records the confirmation and the process ends. If the
employee receives a further action notice, the employer is required to
communicate this information to the employee. The employee then has ten days to
contact the appropriate agency to contest the further action notice or the
System will issue a final non-confirmation. Employment must be terminated in
the case of a final non-confirmation. The
System is supposed to provide a final confirmation or non-confirmation within
10 days of the employee’s contest. As long as the employee is taking steps
required under the further action notice, the Secretary must extend the period
of investigation until a final confirmation or non-confirmation is issued. An
employer may not terminate an employee on the basis of work eligibility until a
non-confirmation becomes final. An employer cannot terminate a non-confirmed
employee if the employee has filed an administrative or judicial appeal and the
Secretary or Commissioner or a court of appeals has stayed the
non-confirmation. Such a stay is
mandatory unless the appeal is frivolous, unlikely to succeed on the merits, or
filed for purposes of delay. Impermissible
Use of the EEVS: An employer
may not use the EEVS to verify an employee prior to an offer of employment, may
not require the individual to self-verify as a condition of an offer of
employment, may not terminate an employee solely as the result of a further
action notice, and may not require employees to submit additional or different
documents than those explicitly required. The employer also may not take any of
the following actions in response to a further action notice: reduce salary or
other compensation, suspend the employee without pay, reduce hours (if the
reduction is accompanied by a reduction in salary), or deny necessary training.
Employers must enforce document verification and other EEVS procedures in an
even manner without regard to the employee’s national origin or citizenship
status. The
Secretary of DHS will establish a system for oversight and enforcement of these
requirements (bypassing the existing Office of Special Counsel for Unfair
Immigration-Related Employment Practices) and shall work with the Secretary of
Labor to establish and maintain an employee complaint procedure. Fines for
violating these provisions are up to $10,000 for each violation. The Secretary
of DHS will disseminate information to employers and employees about these
protections. Employers
may not require an employee to post a bond or security (indemnity bond) to
provide a financial guarantee or indemnity against a potential liability
arising from the hiring, recruiting, or referring for a fee of the individual. Administrative
and Judicial Review for Employees: Following a final non-confirmation, an
employee has 15 days to file an administrative appeal of such notice with the
Commissioner of Social Security (in the case of US citizens) or the Secretary
of DHS (non-citizens) based upon information the individual has provided as
well as any additional evidence not previously considered. The Secretary or
Commissioner shall stay the final non-confirmation unless the Secretary or the
Commissioner determines that the administrative appeal is frivolous, unlikely
to succeed on the merits, or filed for purposes of delay. In this case, the
employer cannot terminate the employee until the administrative appeal is
concluded. Administrative relief is limited to an order upholding, reversing,
modifying, amending, or setting aside the final non-confirmation; there is no
compensation for lost wages or other money damages of any kind. Within
30 days of an administrative review decision, an employee may file a petition
for judicial review with the US Court of Appeals for the judicial circuit in
which the employee resides. The court must stay the final non-confirmation
unless the petition for review is frivolous, unlikely to succeed on the merits,
or filed for purposes of delay. An
employee must file a brief not later than 40 days after the date on which the
administrative record is available. The court of appeals shall decide the
petition only on the administrative record on which the final nonconfirmation
is based. The burden is on the petitioner to show that the final
nonconfirmation decision was arbitrary, capricious, not supported by
substantial evidence, or otherwise not in accordance with law. Administrative findings of fact are
conclusive unless any reasonable adjudicator would be compelled to conclude to
the contrary. Management
of Electronic Employment Verification System: The System
shall be designed to maximize reliability and ease of use, to respond
accurately to queries, to protect private information, to allow for auditing
and use of data mining to detect identity fraud, and to display a digital
photograph of the employee based on records maintained by federal, state, and
territorial agencies. DHS shall have access to data kept by these other
agencies, including Social Security and IRS data. The Secretary and other
federal and state agencies shall develop procedures to regulate this access and
protect private data; no specific limitations are discussed in the title. Limits
on use of the Electronic Eligibility Verification System: The use of the system shall be limited
to enforcement of immigration laws, enforcement and administration of
anti-terrorism laws, and enforcement of federal criminal law relating to
functions of EEVS, including prohibitions on forgery, fraud, and identity
theft. Unauthorized
Use or Disclosure of Information: Any employee
who knowingly uses or discloses EEVS data for unauthorized purposes is subject
to a fine of $5,000 - $50,000 per violation Compliance: The secretary shall establish
procedures for individuals to file complaints respecting potential violations
of this title and to investigate those complaints. Immigration officers shall
have reasonable access to examine employment records, and may compel witnesses
by subpoena. If
the secretary believes there has been a civil violation of these requirements,
the secretary shall issue a pre-penalty notice disclosing the material facts
and alleged violations. Employers may file a petition for the remission or
mitigation of fines or penalties within 15 days, including any relevant
evidence of good faith compliance. After considering an employer petition, if
the secretary determines there was a violation, the secretary issues a written
penalty claim, which may include:
The
Secretary may also impose an order of internal review and certification of
compliance, requiring the employer to certify that the employer is in
compliance or has instituted a program to come into compliance. An employer is
required to respond to the order within 60 days. If
an employer fails to comply with a final penalty determination and the final
determination is not subject to judicial review, the Attorney General may file
suit to enforce compliance in district court. If an employer is liable for a fee
or penalty that is not eligible for judicial review, the fee or penalty becomes
a lien on the employer’s property. Judicial
Review for Employers: The employer may file a petition for review of a penalty by
posting a bond or other guarantee of payment and filing the petition within 30
days of a final penalty determination. The petition shall be filed in the
judicial circuit court where the penalty claim was issued, and shall file a
brief no later than 40 days after the date on which the administrative record
is available. The court of appeals shall adjudicate the employer’s petition
based only on the administrative record on which the final determination is
based. Miscellaneous
Provisions: The provisions of this section preempt any State or local
law that requires the use of the EEVS in a fashion that conflicts with federal
policies, procedures or timetables, or that imposes civil or criminal sanctions
(other than through licensing and similar laws) upon those who employ, or
recruit or refer for a fee for employment, unauthorized aliens. No-Match
Notice: DHS
and SSA are authorized to establish regulatory requirements for verifying the
identity and work authorization of employees who are the subject of SSA
no-match notices. Challenges
to validity: Challenges to validity of this section are limited to
constitutional challenges and title 5, chapter 5 of the US Code. Any challenges
must be brought within 90 days after the date the challenged section or
regulation is first implemented. The court may not certify a class for purposes
of a class action lawsuit, and may not award attorneys’ fees. Section
303. Effective Date. This title shall become effective on
the date of enactment. Section
304. Disclosure of Certain Taxpayer
Information to Assist in Immigration Enforcement. Section 6103
of the Internal Revenue Code is amended to allow the Social Security
Administration to provide protected taxpayer data to DHS for purposes of
immigration enforcement. The Commissioner of Social Security may disclose:
taxpayer identity information of each person who has filed an information
return after calendar year 2005 which contains mismatched name and Social
Security data or duplicate name and Social Security data. DHS contractors are
required to comply with Social Security Administration confidentiality
safeguards. Section
305. Increasing Security and Integrity
of Social Security Cards. The
Commissioner of Social Security must begin work to administer and issue
fraud-resistant Social Security cards within six months of passage of the Act,
and must exclusively issue fraud-resistant cards beginning within two years of
passage of the Act. The Social Security Administration will issue a report
within six months on the feasibility of including biometric information on the
Social Security Card. Section
306. Increasing Security and Integrity
of Identity Documents. DHS
establishes a grant program to award states grants for the purpose of bringing
their driver’s licenses into compliance with the REAL ID Act. Only states that
intend to comply with the REAL ID Act are eligible for these grants. Section
307. Voluntary Advanced Verification
Program to Combat Identity Theft. The Secretary
shall establish a voluntary program through which employers may submit an
employee’s fingerprints to the EEVS for purposes of determining the identity
and work authorization of the employee. Fingerprints may only be used for
purposes of this program and fingerprint data must be discarded after ten days
unless citizens authorize DHS to retain their prints for purposes of preventing
identity theft. Section
308. Responsibilities of the Social
Security Administration. The Social
Security Administration is required to cooperate with DHS in managing the EEVS.
The SSA is also required to identify and correct database errors. The SSA must
also develop a process whereby an individual can “freeze” the individual’s
social security number to preclude confirmation under the EEVS based on that
individual’s number until it is reactivated by that individual. Section
309. Immigration Enforcement Support by
the IRS and the SSA. Secretary
of Treasury and Secretary of DHS shall establish a unit within the criminal
investigation office of the Internal Revenue Service to investigate violations
of the Internal Revenue Code, including cases in which tax records seem to
reveal identity fraud. Penalties for failing to file correct tax returns are
increased. Section
310. Authorization of Appropriations. The Act authorizes funds to be
appropriated in each of the five years beginning on the date of the enactment
of this Act to increase to a level not less than 4,500 the number of DHS
personnel assigned exclusively or principally to an office or offices dedicated
to monitoring and enforcing compliance with this section and to acquiring,
installing, and maintaining the technological equipment necessary to support
the EEVS. Funds are also authorized to
be appropriated to the Commissioner of Social Security for purposes of this
section. Title
IV – Nonimmigrant and Immigrant Visa Reform Section 401. –
Nonimmigrant Temporary Worker. Creates a new
temporary worker Y-1 visa that would allow an alien, who has a residence in a
foreign country which the alien has no intention of abandoning and who is
coming here to temporarily perform labor or services, if unemployed persons
capable of performing such services cannot be found. The H-2A program is reclassified as Y-2A and
the H-2B program is reclassified as Y-2B.
The Y-1program commences after the Secretary of Homeland Security certifies
that the “trigger” requirements in section 1 of this Act have been met. Section 402. –
Admission of Nonimmigrant Workers. The Secretary
of Labor shall issue regulations prescribing procedures that employers shall follow
to obtain a labor certification for Y-1 nonimmigrant workers. The Secretary of DHS shall issue regulations
prescribing procedures that employers shall follow to petition for Y-1
nonimmigrant workers. The 2 secretaries
shall also prescribe by regulations additional procedures for the collection of
and verification of biometric data and validating the employment
arrangement. An employer desiring to employ a Y nonimmigrant
worker shall submit an application for labor certification of the job
opportunity with the procedures established by section 218B. An employer that seeks to
employ a Y nonimmigrant worker must file a petition with the Secretary of
Homeland Security. The petition must be accompanied by evidence that the
employer has obtained a certification; evidence that the job offer was and
remains valid; the name and other biographical information of the alien
beneficiary and any accompanying spouse or child; any biometrics from the
beneficiary that the Secretary of Homeland Security may require by regulation. A petition under this
subsection must be filed with the Secretary of Homeland Security within 180
days of the date of certification under section 218B by the Secretary of Labor
of the job opportunity. If a labor certification is
not filed in support of a petition within 180 days of the date of certification
by the Secretary of Labor, then the certification expires and may not support a
Y nonimmigrant petition or be the basis for Y nonimmigrant visa issuance. The Secretary of Homeland Security may request
information to verify the attestations the employer made during the labor
certification process and any other fact relevant to the adjudication of the
petition. An
approved petition shall have the same period of validity as the labor
certification. The Secretary may terminate
an approved petition if it is determined that a material fact has changed,
including a proffered wage rate, geographic location or job duties. A single level of administrative review shall
be established to denied or terminated petitions. A consular officer may grant a
single-entry temporary visa to a Y nonimmigrant who demonstrates an intent to
perform non-agricultural, lower skilled labor or services if there are no Y nonimmigrant status will be granted
if an individual can establish capacity to perform the labor or services
required and present evidence of employment.
Evidence from employers, employer associations, and labor representatives
may be considered. Individuals
will be required to pay processing and adjudication fees, a state impact
fee of $500 and an additional $250 for each dependent accompanying or following
to join the alien, not to exceed $1500 per family. They will be required to undergo a medical examination. They shall submit a completed
application, providing the following information: physical and mental health; criminal history, including all arrests and dispositions, and gang
membership; immigration history; and involvement with groups or individuals
that have engaged in terrorism, genocide, persecution, or who seek the
overthrow of the U.S. Government. Spouses
and children may only accompany the Y nonimmigrant applicant if the family can
demonstrate household income that is 150% of the The
Y nonimmigrant applicant must be admissible under the same criteria as the Z
visa applicants and undergo all appropriate background checks. Approved
Y nonimmigrant applicants, not accompanied by dependents, will be admitted for
two years, and can be extended for two additional two-year periods, provided
the applicants reside one year outside the U.S. between each two year
extension. Approved
Y nonimmigrant applicants accompanied by dependents shall be limited to two
two-year periods, but the family may only remain during one of the two two-year
periods. Each period of admission shall be supplemented by one week of travel
time at the beginning of the period and 14 days of at the end of the period for
departure. A Y nonimmigrant who resides
outside the The
period of admission shall terminate if the applicant is deemed ineligible,
becomes inadmissible, uses false documents, or in the case of a Y-1
nonimmigrant is unemployed for 60 or more consecutive days or an aggregate of
120 days, or in the case of a Y-2A applicant, is unemployed for an aggregate of
30 days. The applicant’s status will not
terminate if the applicant establishes that unemployment was caused by physical
or mental disability, authorized leave or circumstances beyond the applicant’s
control. Y
nonimmigrants who overstay their period of authorized admission or enter
illegally will be permanently barred from any immigration benefits. A
Y nonimmigrant may accept new employment with a subsequent employer, provided a
new labor certification and petition are approved. It
shall be a violation of the Act for employers who petition for Y nonimmigrants
to threaten the applicants for exercising their protected rights. A
Temporary Worker Program Account is established to fund: 1) the Standing Commission on Immigration and
Labor Markets, 2) Department of Labor functions and responsibilities, including
enforcement of labor standards and other applicable labor laws, and 3) the
Department of Homeland Security to improve immigration services and
enforcement. A
State Impact Assistance Grant Program is established to provide health and
education services to noncitizens. Section 403.
Employer Obligations. Employers
seeking to employ temporary workers (“Y workers”) must file an application
(including an attestation of the terms and conditions of the temporary worker’s
employment) and pay a processing fee between $500 and $1250, depending on the
size of the employer. Before
applying for a temporary worker, employers must work with the appropriate state
agency to circulate the job description, post the availability of the job in
the employer’s workplace, advertise the job for 10 consecutive days in a
newspaper of wide circulation, and advertise in trade or ethnic publications,
if appropriate. The employer must also
offer the job to any qualified American worker at the same wages, benefits, and
working conditions that the employer would be legally required to pay a
temporary worker. The attestation accompanying an
employer’s application must confirm that: ·
The temporary worker is not taking a ·
The temporary worker will be paid prevailing competitive
wages (defined by the Bureau of Labor Statistics unless a union contract or
other prevailing wage law applies). ·
The temporary worker is not going to a workplace where there
is a strike, lockout, or other labor dispute. ·
The temporary worker will have workers compensation
insurance or other equivalent insurance for workplace injury and disease. ·
The employer has notified its employees and/or their bargaining
representative of the application. ·
There are not sufficient American workers willing and
available to take the job, despite efforts to recruit them at prevailing wages. ·
The employer is not barred from participating in the
temporary worker program. The
Secretary of Labor can audit the attestations of employers who apply for Y
workers. Bars certain employers from seeking Y
workers: ·
Up to three year bar: employers who have misrepresented a
material fact or made a fraudulent statement on an attestation; failed to
comply with the terms of an attestation; committed serious violations of child
labor laws, wage and hour laws, or occupational safety and health laws within
three years prior to filing the application; or failed to cooperate with the
Secretary of Labor’s audit of an attestation. ·
Permanent bar: employers convicted of a slavery or human
trafficking offense. Employers
are also barred from applying for temporary workers if the work to be performed
is located in a county with a high unemployment rate (higher than 7%). Employers can apply to the Department of
Labor for a waiver; employers must submit documentation of their recruitment
efforts and advertise for an additional ten days in local markets. Temporary workers may not be treated as
independent contractors; employers must comply with all applicable federal,
state, and local tax and revenue laws with respect to temporary workers. Employers cannot retaliate against
workers that report violations of the Y program. Y workers who have filed non-frivolous
complaints about violations of immigration law or labor or employment laws may
have additional time (120 days or such period as the Secretary prescribes if
the workers is a necessary witness) to seek another job. Employers can only use foreign labor
contractors that are registered with the Secretary of Labor. Employers, and the foreign labor contractors
that they use, must disclose to workers at the time of recruitment – in the
worker’s native language – the details of the employment offer, including the
place and type of employment, compensation, term of employment, any benefits
provided, the availability of workers’ compensation coverage, any travel or
transportation expenses to be assessed, and any education or training to be
provided to the worker. Labor
contractors can have their license suspended or revoked for misrepresenting
information. A labor contractor – or, in
some cases, the employer who uses that contractor – can also face civil
penalties for failing to comply with these requirements or failing to adhere to
the representations made to workers. Temporary workers cannot be required to
waive their rights under this section. Employers or labor recruiters who fail
to comply with the requirements of this section are subject to penalties
including back wages and benefits, civil monetary penalties up to $5,000 per
violation per affected worker, or – for a willful violation where a United
States worker was harmed – up to $35,000 per violation per affected worker. They are also subject to criminal penalties
for retaliation against whistleblowers when such retaliation results in extreme
physical or financial harm to the individual.
Sec. 404. Amendment
to the Immigration and Nationality Act. This title reforms the existing
H-2A program for the temporary admission of alien agricultural workers. Employers
desiring to employ H-2A aliens must first file an application with the
Secretary of Labor and a job offered to domestic workers. If the job opportunities for which the
application is filed are covered by a collective bargaining agreement, the
applicant must assure that the collective bargaining representative has been
notified of the application and that the job opportunities are not vacant
because the occupant is on strike or locked out, are temporary or seasonal
(maximum duration of 10 months), have been or will be offered to U.S. workers,
and are covered by workers’ compensation insurance. If the job opportunities for which the
application is filed are not covered by a collective bargaining agreement, the
applicant must also assure the minimum wages, benefits and working conditions
required in Section 218A, non-displacement of Workers
in H-2A approved occupations from outside normal commuting distance must be
provided with housing, at no cost to the worker, or a monetary housing
allowance if there is sufficient housing in the area of intended employment Workers
outside normal commuting distance must be reimbursed reasonable costs for
inbound transportation and subsistence if they complete 50-percent of the
period of employment, and return transportation and subsistence if they
complete the period of employment. Workers
must be paid the highest of the federal, state or local statutory minimum wage,
the prevailing wage for the occupation in the area of intended employment, or
the applicable Adverse Effect Wage Rate (AEWR). The AEWR may not be greater than the
applicable AEWR on January 1, 2003. If
Congress fails to set a new wage standard applicable to H-2A workers within
three years after the date of enactment, thereafter the existing AEWRs will be
annually indexed by the percentage change in the Consumer Price Index, with a
maximum adjustment of 4 percent annually.
During the three years after enactment, the General Accounting Office is
mandated to conduct a study of the H-2A wage standard and make a report to
Congress. A Congressional commission is
also appointed to conduct such a study and make recommendations to Congress. Workers
are guaranteed employment for a minimum of three-quarters of the period of
employment for which they were recruited.
Motor
vehicle safety and insurance standards are required for vehicles and drivers
used to transport agricultural workers in H-2A occupations similar to those
required for domestic farm workers under current law. Employers
of H-2A workers must assure compliance with all applicable federal, state and
local labor laws. Employers
with valid labor certifications from the Secretary of Labor (DOL) may petition
the Secretary of DHS for approval for the admission of aliens to perform the
work described on the labor certification, or for the extension of stay of H-2A
aliens already in the H-2A
aliens are admitted or extended for the period of employment of an approved
labor application, not to exceed 10 months.
Employers may petition to extend the stay of H-2A aliens until they have
accumulated a maximum of [TBD] years of continuous stay in the Secretary
of Labor must establish a process for the receipt, investigation and
disposition of complaints respecting an employer’s failure to meet the
conditions of employment. H-2A
aliens are provided a private right of action to enforce the housing,
transportation, wage, employment guarantee, motor vehicle safety provisions and
discrimination provisions, and the written promises contained in the employer’s
job offer. Mediation of the complaint is
required, if any party requests it, before a lawsuit may proceed. Workers’
compensation benefits are the exclusive remedy for losses covered by workers’
compensation. Discrimination
against a worker who files a complaint or cooperates in an investigation or
proceeding in connection with a complaint is prohibited. Provisions
of current law apply to associations and members of associations employing
workers in H-2A certified occupations who commit violations. Sec. 405.
Determination and Use of User Fees.
The
Secretary is authorized to establish fees applicable to employers applying for
certification to employ H-2A aliens to cover the actual direct costs of
operating the H-2A program. Sec. 406. Regulations. Regulations of the Secretary of Labor,
the Secretary of the DHS and the Secretary of State shall be issued not later
than one year after the date of enactment. Sec. 407. Reports to
Congress. Not later than
September 30 of each year, the Secretary shall report to Congress regarding
information compiled during the previous year with regard to the usage and
operation of the H-2A program, as well as the number of workers who applied and
were adjusted to blue card and permanent resident status. Not later than 180 days after the date of
enactment of this Act, the Secretary shall report to Congress regarding steps
being taken to implement it. Section 408.
Effective Date. Sections 404
and 405 shall take effect one year after the date of enactment of this act, or
the promulgation of regulations, whichever is sooner. Section 409. Numerical
Limitations. Sets the
following numeric limits: o
400K annual
limit on Y-1 visa holders with an escalator up to 600K o
100K with an
escalator up to 200K for Y-2B (formerly H-2B) Section 410.
Requirements for Participating Countries. The
Department of State may, as a condition of granting Y nonimmigrant status to
foreign nationals, negotiate bilateral agreements with the foreign
countries. It is the sense of Congress
that such bilateral agreements shall require participating countries to accept
the return of removed nationals, cooperate in reducing gang membership,
trafficking and smuggling, and control illegal immigration. Section 411.
Compliance Investigators.
Requires
the Department of Labor to hire 200 new investigator per year for the next 5
years, dedicated to the enforcement of labor standards, including those under
the immigration laws, the Fair Labor Standards Act, and the Occupational Safety
and Health At, in geographic and occupational areas with high percentages of Y
nonimmigrant workers. Section 412.
Standing Commission on Immigration and Labor Markets. Creates a commission to study
nonimmigrant programs, including the development and implementation of such
programs; the criteria for the admission of temporary workers; the formula for
determining the annual numerical limitations of the Program; the impact on immigration; the impact on the
economy, unemployment rate, wages, workforce, and businesses of the United
States; the allocation of immigrant visas; and y other matters considers
appropriate. The commission shall make
recommendations to Congress. Section
412A. Agency Representation and Coordination.
Amends
the immigration laws to prohibit US ICE officials from misrepresenting to
employees or employers that they are members of any other agency or
organization that provides domestic violence services, enforces, health and
safety laws, provides heath care services, or any other services intended to protect
life and safety. Section 413.
Bilateral Efforts with Section 414.
Willing Worker-Willing Employer Electronic Database. The Department of Labor shall establish
a publicly accessible Web page on the internet website that provides a single
Internet link to each State workforce agency’s statewide electronic registry of
jobs available throughout the United States to United States workers. Section 415.
Enumeration of Social Security Numbers.
The
Secretary of Homeland Security, in consultation with the Commissioner of Social
Security, shall implement a system to allow the issuance of social security
numbers to Y nonimmigrants. Section 416.
Contracting. Allows the Secretary of Homeland Security or Labor to
contract with or license entities to implement provisions of this title. Section
417. Federal Rulemaking Requirements. Allows the Secretary of Homeland
Security and Secretary of Labor to issue an interim final rule within 6 months
of enactment of this subtitle to implement it.
Subtitle C –
Nonimmigrant Visa Reform Section 418.
Student Visa. Extends foreign
students’ post-curricular Optional Practical Section 419. H-1B
Streamlining and Simplification. Raises the
H-1B cap to 115,000 visas per year, with a formula for additional increases,
but establishes a ceiling of 180,000 visas in any given fiscal year. As
a minimum for entry, requires the attainment of a bachelor’s or higher degree
in a specialty occupation from a Section 420. H-1B
Employer Requirements. Require all employers seeking to hire an H-1B visa holder to pledge that they have made
a good-faith effort to hire American workers first and that the H-1B visa
holder will not displace an American worker for 180 days. Requires
that H-1B employers may not advertise a job as available only for H-1B visa
holders or recruit only H-1B visa holders for a job. Prohibits
companies from hiring H-1B employees if they employ 50 or more people and more
than 50% of their employees are H-1B visa holders. Section 421. H-1B
Government Authority and Requirements. Gives DOL authority to review employers’ H-1B applications
for “clear indicators of fraud or misrepresentation of material fact.”
Currently, DOL is only authorized to review applications for “completeness and
obvious inaccuracies.” Gives DOL 14 days to review H-1B applications,
instead of the seven days currently permitted. Gives DOL
authority to conduct investigations for 24 months instead of the 12 currently
permitted. Gives
DOL more authority to conduct employer investigations and streamline the
investigative process by permitting DOL to initiate its own investigations and
eliminating the requirement that the DOL Secretary personally authorize an
investigation. Requires
the Department of Homeland Security (DHS) to share with DOL any information in
H-1B visa applications indicating that an H-1B employer is not complying with
program requirements. | |||||||
