To account for all aliens unlawfully present in the United States by providing incentives for such aliens to register with the Secretary of Homeland Security, to provide immunity from criminal prosecution for the employer of such an alien if the employer pays all taxes and penalties owed by reason of such employment, and for other purposes.

December 8, 2003

Mr. ISSA introduced the following bill; which was referred to the Committee on the Judiciary

To account for all aliens unlawfully present in the United States by providing incentives for such aliens to register with the Secretary of Homeland Security, to provide immunity from criminal prosecution for the employer of such an alien if the employer pays all taxes and penalties owed by reason of such employment, and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the `Alien Accountability Act'.

SEC. 2. ACCOUNTING FOR ALL UNLAWFULLY PRESENT ALIENS.

(a) Registration-

(1) In general- In the case of each alien unlawfully present in the United States on December 8, 2003 (or in the case of each alien who is a resident in a foreign contiguous territory and was habitually unlawfully present in the United States during the 6-month period ending on December 8, 2003) who registers with the Secretary of Homeland Security during the 6-month period beginning on a date (not later than 180 days after the date of the enactment of this Act) designated by the Secretary, and provides the Secretary with such biometric identifiers as the Secretary may require--

(A) if the alien is eligible for adjustment of status under section 251 of the Immigration and Nationality Act (as added by section 3 of this Act), the Secretary shall permit the alien to apply for such adjustment; or

(B) if the alien is not so eligible, or does not desire to apply for such adjustment, and has not been determined by an immigration judge to be inadmissible under paragraph (2) or (3) of section 212(a) of the Immigration and Nationality Act (8 U.S.C. 1182(a)) or deportable under paragraph (2)(A)(iii) or (4) of section 237(a) of such Act (8 U.S.C. 1227(a))--

(i) the Secretary shall permit the alien voluntarily to depart the United States at the alien's own expense in lieu of being subject to proceedings under section 240 of such Act (8 U.S.C. 1229a) during a voluntary departure period not exceeding 120 days; and

(ii) if the alien does so depart, the Secretary shall disregard such unlawful presence in the United States (and the alien's unlawful entrance into the United States, where applicable) for purposes of any determination under such Act, or any other immigration law of the United States, made subsequent to such departure.

(2) Employer-employee joint registration- An alien unlawfully present in the United States may register under paragraph (1) alone or together with the alien's present or former employer.

(3) Employer notification of unlawfully employed alien- If an employer desires to make a joint registration described in paragraph (2) with an alien who has not yet registered under paragraph (1), but the alien refuses to do so, the employer may notify the Secretary of Homeland Security of such refusal.

(b) Immunity From Fines and Penalties for Unlawful Employment of Aliens-

(1) In general- In the case of an employer who submits a joint registration described in subsection (a)(2) or a notification described in subsection (a)(3), if the employer pays to the Secretary of the Treasury any Federal tax (including penalties and interest) owed by reason of the employment of the alien, the employer shall considered relieved of liability for any violation of section 274A of the Immigration and Nationality Act (8 U.S.C. 1324a) arising out of such employment. Such immunity shall cover employment of the alien from the commencement of such employment through the earlier of--

(A) the end of the application period described in section 251(a)(1) of such Act (as added by section 3 of this Act), if the alien fails to submit an application under such section; or

(B) the date on which the application of the alien under such section is finally adjudicated.

(2) Recoupment of certain costs- The Secretary of the Treasury may impose a fee on an employer paying taxes, penalties, or interest under paragraph (1), to be set at a level necessary to recover the costs of collecting and processing such payments.

(3) Provision of information to states- The Secretary of the Treasury shall provide to any State in which an employer conducts (or has conducted) business information that is collected by the Federal Government pursuant to the employer's submission of a joint registration described in subsection (a)(2) or a notification described in subsection (a)(3), or pursuant to the employer's payment of taxes, penalties, or interest under paragraph (1), but only if the State agrees to accept payment of all State and local taxes (including penalties and interest) owed by the employer in lieu of criminal prosecution.

(c) Exit Program- The Secretary of Homeland Security shall implement an exit program to ensure that appropriate data are collected about aliens departing voluntarily under subsection (a)(1)(B).

(d) Minors- In the case of an alien who is under 18 years of age, a parent or legal guardian of the alien may exercise the authorities under this section on behalf of the alien.

(e) Limitation on Registration- Any alien whose unlawful presence in the United States is known to officials of the Bureau of Immigration and Customs Enforcement of the Department of Homeland Security (as evidenced by documentary records) at any time prior to the alien's registration under this section is ineligible for such registration. Any purported registration by such an alien, or any purported notification made by an employer under subsection (a)(3) with respect to such an alien, shall be deemed null and void.

(f) Limitations on Voluntary Departure-

(1) Financial means- No alien may be permitted to depart voluntarily under this section unless the alien has established by clear and convincing evidence that the alien has the means to depart the United States and intends to do so.

(2) Bond- An alien permitted to depart voluntarily under this section shall be required to post a voluntary departure bond, in an amount necessary to ensure that the alien will depart, to be surrendered upon proof that the alien has departed the United States within the time specified.

(3) Aliens not eligible- The Secretary of Homeland Security shall not permit an alien to depart voluntarily under this section if the alien is subject to pending civil or criminal proceedings, imprisoned, sentenced to imprisonment, or on parole, supervised release, or probation.

(4) Civil penalty for failure to depart- In addition to being subject to removal proceedings under section 240 of the Immigration and Nationality Act (8 U.S.C. 1229a), if an alien is permitted to depart voluntarily under this section and fails to do so within the time period specified, the alien shall be subject to a civil penalty in accordance with section 240B(d) of such Act (8 U.S.C. 1229c(d)).

SEC. 3. ADJUSTMENT OF STATUS FOR CERTAIN REGISTRANTS.

(a) In General- Chapter 5 of title II of the Immigration and Nationality Act (8 U.S.C. 1255 et seq.) is amended by inserting after section 250 the following:

`SEC. 251. ADJUSTMENT OF STATUS FOR CERTAIN REGISTRANTS.

`(a) Adjustment of Status- The Secretary of Homeland Security shall adjust the status of an alien who has registered under section 2(a) of the Alien Accountability Act to that of a nonimmigrant under section 101(a)(15)(W) if the alien meets the following requirements:

`(1) Application period- The alien applies for such adjustment during the 6-month period beginning on a date designated by the Secretary and occurring not later than 6 months after the termination of the registration period described in such section.

`(2) Fee- The alien (or a present or former employer of the alien) pays a fee established by the Secretary in accordance with subsection (g).

`(3) Abandonment of other applications for relief- The alien must withdraw or otherwise demonstrate voluntary abandonment or termination of any other application for relief from removal under this Act, or any other Federal immigration law, which may have been pending prior to the submission of the application under paragraph (1), and the alien must permanently relinquish the opportunity subsequently to submit any such application.

`(4) Employment or sponsorship- The alien, or an employer or other sponsor of the alien, has satisfied the requirements of subsection (b).

`(5) Continuous unlawful residence or habitual presence-

`(A) In general- The alien must establish that the alien entered the United States before December 8, 2003, and has resided continuously in the United States in an unlawful status since such date and through the date the application is filed under this subsection.

`(B) Nonimmigrants-

`(i) In general- In the case of an alien who entered the United States as a nonimmigrant before December 8, 2003, the alien must establish that the alien's period of authorized stay as a nonimmigrant expired before such date through the passage of time.

`(ii) Exchange visitors- If the alien was at any time a nonimmigrant exchange alien (as defined in section 101(a)(15)(J)), the alien must establish that the alien was not subject to the two-year foreign residence requirement of section 212(e) or has fulfilled that requirement or received a waiver thereof.

`(C) Habitual border crossers- Notwithstanding subparagraph (A), in the case of an alien who is a resident of a foreign contiguous territory and has not established a residence in the United States, the alien must establish that the alien was habitually unlawfully present in the United States during the 6-month period ending on December 8, 2003.

`(6) Criminal, security, or related grounds- The alien must establish that the alien has not been determined by an immigration judge to be inadmissible under paragraph (2) or (3) of section 212(a) or deportable under paragraph (2)(A)(iii) or (4) of section 237(a).

`(7) Cooperation- The alien must have provided truthful answers to all questions posed by officials of the Department of Homeland Security, and otherwise have cooperated in investigative efforts by such officials.

`(b) Means of Support-

`(1) Employment- An employer employing an alien in the United States may demonstrate (to the satisfaction of the Secretary pursuant to such standards as the Secretary shall by regulations establish) that such employment produces adequate means financially to support the alien, and dependents of the alien, for the duration of the period during which the alien will be a nonimmigrant described in section 101(a)(15)(W). Alternatively, if the employer of the alien does not desire to make such demonstration, the alien may do so using adequate employment documentation established by the Secretary.

`(2) Sponsorship- In the case of an alien who is not able to satisfy the requirements of paragraph (1), if the alien is a financial dependent of another individual, the alien may demonstrate (to the satisfaction of the Secretary pursuant to such standards as the Secretary shall by regulations establish) that such individual possesses lawful means adequately to support the alien financially and has agreed (in a legally enforceable writing promulgated by the Secretary under such regulations) to provide such support for the duration of the period during which the alien will be a nonimmigrant described in section 101(a)(15)(W).

`(c) Identification Document-

`(1) In general- Each alien provided status under section 101(a)(15)(W) shall be given an identification document that uses biometric identifiers. In carrying out the preceding sentence, the Secretary of Homeland Security shall select from among biometric identifiers recognized by domestic and international standards organizations.

`(2) Cost- The cost of producing and issuing the identification documents described in paragraph (1) shall be taken into account in establishing fees under subsection (g).

`(d) Benefits- --

`(1) Work authorization- The Secretary of Homeland Security shall authorize an adult alien whose status has been adjusted under subsection (a) to engage in employment in the United States during the term of the alien's lawful status and shall provide the alien with an `employment authorized' endorsement or other appropriate document signifying authorization of employment.

`(2) Change in nonimmigrant classification; adjustment of status- In the case of a nonimmigrant having lawful status under section 101(a)(15)(W), the Secretary of Homeland Security may authorize a change of nonimmigrant classification, or may adjust the status of the alien to that of an alien lawfully admitted for permanent residence, if the alien otherwise satisfies the requirements for such change or adjustment.

`(3) Travel abroad- The Secretary of Homeland Security shall permit the alien to travel abroad for temporary periods without the prior consent of the Secretary during periods of lawful status as a nonimmigrant under section 101(a)(15)(W).

`(4) Inapplicability of certain grounds for removal- For purposes of obtaining the benefits described in this subsection, and for purposes of any other determination under the immigration laws of the United States, any ground for removal or denial of admission applicable to an alien granted status under section 101(a)(15)(W) shall be disregarded if the ground is reflected in the records of the Department of Homeland Security or the Department of State on the date on which the alien first applied for such status.

`(5) Special rule for habitual border crossers- Notwithstanding any other provision of this section, in the case of an alien described in subsection (a)(5)(C), the Secretary of Homeland Security shall have the discretion to impose conditions on the alien's status under section 101(a)(15)(W) designed to permit the alien to engage solely in those activities in the United States in which the alien engaged during the 6-month period described in subsection (a)(5)(C).

`(6) Family members may not follow to join- No relative of an alien having status under section 101(a)(15)(W) may follow to join the alien.

`(e) Minors- In the case of an alien who is under 18 years of age, a parent or legal guardian of the alien may exercise the authorities under this section on behalf of the alien.

`(f) Period of Authorized Admission-

`(1) In general- The initial period of authorized admission as a nonimmigrant described in section 101(a)(15)(W) shall be 1 year.

`(2) Renewal- Such initial period may be renewed by the Secretary of Homeland Security up to 5 times, in 1-year increments. The Secretary of Homeland Security shall impose a fee on applicants for status renewal in accordance with subsection (g). Renewal shall be contingent on the alien, or an employer or other sponsor of the alien, demonstrating continuous satisfaction of the employment or sponsorship requirements of subsection (b).

`(3) Employment or sponsorship termination- If at any time the employment or sponsorship conditions described in subsection (b) that were the predicate for an initial or subsequent grant of status as a nonimmigrant under section 101(a)(15)(W) terminate or change, the nonimmigrant shall notify the Secretary of Homeland Security. The Secretary shall grant the alien 30 days to arrange new employment or sponsorship so as to satisfy such conditions. Such 30-day period may be extended by the Secretary in 30-day increments not more than twice. If the alien is unable to satisfy such conditions within the period granted by the Secretary, the Secretary shall terminate the alien's authorization to remain in the United States. If the Secretary determines that an alien has failed to comply with the notification requirement of this paragraph, the Secretary shall terminate the alien's authorization to remain in the United States.

`(g) Amount of Fees- Fees collected under subsection (a)(2), and upon renewal of nonimmigrant status pursuant to subsection (f)(2), shall be set at a level that ensures recovery of at least the following costs:

`(1) The cost of processing applications for adjustment of status under subsection (a)(1) and applications for status renewal under subsection (f)(2).

`(2) Other costs of administering this section and section 2 of the Alien Accountability Act.

`(3) The cost of increasing the personnel of the Bureau of Immigration and Customs Enforcement by the number established under section 5(a)(2) of such Act.

`(h) Sunset- The authority of the Secretary of Homeland Security to adjust the status of an alien under subsection (a) shall expire 6 years after the first day on which any alien is provided status under section 101(a)(15)(W).

`(i) Work Authorization for Applicants- The Secretary of Homeland Security may authorize an alien who has applied for adjustment of status under subsection (a) to engage in employment in the United States during the pendency of such application and may provide the alien with an `employment authorized' endorsement or other appropriate document signifying authorization of employment, except that if such application is pending for a period exceeding 180 days, and has not been denied, the Secretary shall authorize such employment. Notwithstanding the preceding sentence, the Secretary shall not be required to authorize employment for an alien described in subsection (a)(5)(C) unless the alien engaged in employment in the United States during the 6-month period described in such subsection.'.

(b) Clerical Amendment- The table of contents for the Immigration and Nationality Act is amended by inserting after the item relating to section 250 the following:

`Sec. 251. Adjustment of status for certain registrants.'.

SEC. 4. NEW NONIMMIGRANT VISA CATEGORY.

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 whose status is adjusted under section 251.'.

SEC. 5. AUTHORIZATION OF APPROPRIATIONS FOR INCREASE IN NUMBER OF CERTAIN IMMIGRATION-RELATED PERSONNEL.

(a) In General- There are authorized to be appropriated for fiscal year 2005 and subsequent fiscal years such sums as may be necessary to enable the Secretary of Homeland Security to increase, above the number of positions for which funds were allotted for the preceding fiscal year, the total number of personnel of the Bureau of Immigration and Customs Enforcement engaged in interior enforcement and alien removal functions by--

(1) 3,000, for the fiscal year in which this Act is enacted; and

(2) the number derived under subsection (b) for each subsequent fiscal year.

(b) Increase- The number derived under this subsection shall equal 1,000 for each 1,000,000 aliens initially granted status as nonimmigrants under section 101(a)(15)(H)(W) of the Immigration and Nationality Act (as added by section 4 of this Act) during the previous fiscal year.

SEC. 6. STUDY OF IMMIGRATION LEVELS.

The Secretary of Homeland Security shall conduct a study to determine whether, for each program under Federal immigration law for which a number of eligible aliens is specified for a year or otherwise, such number ought to be modified in view of the number of aliens registered under section 2.

END