HR 4065
110th CONGRESS
1st Session
H. R. 4065
To amend the Immigration and Nationality Act to
strengthen enforcement of the immigration laws, to enhance border
security, and for other purposes.
IN THE HOUSE OF REPRESENTATIVES
November 1, 2007
Mr. SENSENBRENNER (for himself, Mr. BILBRAY, Mr. DREIER, Mr. FEENEY,
Mr. GALLEGLY, Mr. GOODLATTE, Mr. DANIEL E. LUNGREN of California, Mrs.
MYRICK, Mr. PORTER, and Mr. COBLE) introduced the following bill; which
was referred to the Committee on the Judiciary, and in addition to the
Committee on Homeland Security, for a period to be subsequently
determined by the Speaker, in each case for consideration of such
provisions as fall within the jurisdiction of the committee concerned
A BILL
To amend the Immigration and Nationality Act to
strengthen enforcement of the immigration laws, to enhance border
security, and for other purposes.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title- This Act may be cited as the `Border
Enforcement, Employment Verification, and Illegal Immigration Control
Act'.
(b) Table of Contents- The table of contents of this Act is as follows:
Sec. 1. Short title; table of contents.
Sec. 3. Sense of Congress on setting a manageable level of immigration.
TITLE I--SECURING UNITED STATES BORDERS
Sec. 101. Achieving operational control on the border.
Sec. 102. National Strategy for Border Security.
Sec. 103. Implementation of cross-border security agreements.
Sec. 104. Biometric data enhancements.
Sec. 105. One Face at the Border Initiative.
Sec. 106. Secure communication.
Sec. 107. Port of entry inspection personnel.
Sec. 108. Canine detection teams.
Sec. 109. Secure Border Initiative financial accountability.
Sec. 110. Border Patrol training capacity review.
Sec. 111. Airspace security mission impact review.
Sec. 112. Repair of private infrastructure on border.
Sec. 113. Border Patrol unit for Virgin Islands.
Sec. 114. Report on progress in tracking travel of Central American gangs along international border.
Sec. 115. Collection of data.
Sec. 116. Deployment of radiation detection portal equipment at United States ports of entry.
Sec. 117. Consultation with businesses and firms.
Sec. 118. Sense of Congress regarding enforcement of immigration laws.
Sec. 119. Securing access to Border Patrol uniforms.
Sec. 121. Voluntary relocation program extension.
Sec. 122. Completion of background and security checks.
TITLE II--COMBATTING ALIEN SMUGGLING AND ILLEGAL ENTRY AND PRESENCE
Sec. 201. Definition of aggravated felony.
Sec. 202. Alien smuggling and related offenses.
Sec. 203. Improper entry by, or presence of, aliens.
Sec. 204. Reentry of removed aliens.
Sec. 205. Prohibiting carrying or using a firearm during and in relation to an alien smuggling crime.
Sec. 206. Clarifying changes.
Sec. 207. Voluntary departure reform.
Sec. 208. Deterring aliens ordered removed from
remaining in the United States unlawfully and from unlawfully returning
to the United States after departing voluntarily.
Sec. 209. Establishment of the Forensic Documents Laboratory.
Sec. 210. Section 1546 amendments.
Sec. 211. Motions to reopen or reconsider.
Sec. 212. Reform of passport, visa, and immigration fraud offenses.
Sec. 213. Criminal detention of aliens.
Sec. 214. Uniform statute of limitations for certain immigration, naturalization, and peonage offenses.
Sec. 215. Conforming amendment.
Sec. 216. Inadmissibility for passport and immigration fraud.
Sec. 217. Removal for passport and immigration fraud.
Sec. 218. Reduction in immigration backlog.
Sec. 219. Federal affirmation of assistance in the immigration law enforcement by States and political subdivisions of States.
Sec. 220. Training of State and local law enforcement personnel relating to the enforcement of immigration laws.
Sec. 221. Financial assistance to State and local police agencies that assist in the enforcement of immigration laws.
Sec. 222. Institutional Removal Program (IRP).
Sec. 223. State Criminal Alien Assistance Program (SCAAP).
Sec. 224. State authorization for assistance in the enforcement of immigration laws encouraged.
TITLE III--BORDER SECURITY COOPERATION AND ENFORCEMENT
Sec. 301. Joint strategic plan for United States border surveillance and support.
Sec. 302. Border Security on protected land.
Sec. 303. Border Security threat assessment and information sharing test and evaluation exercise.
Sec. 304. Border Security Advisory Committee.
Sec. 305. Permitted use of Homeland Security grant funds for Border Security activities.
Sec. 306. Center of Excellence for Border Security.
Sec. 307. Sense of Congress regarding cooperation with Indian Nations.
Sec. 308. Communication between Government agencies and the Department of Homeland Security.
Sec. 309. Red Zone Defense Border Intelligence Pilot program.
TITLE IV--DETENTION AND REMOVAL
Sec. 401. Mandatory detention for aliens apprehended at or between ports of entry.
Sec. 402. Expansion and effective management of detention facilities.
Sec. 403. Enhancing transportation capacity for unlawful aliens.
Sec. 404. Denial of admission to nationals of country denying or delaying accepting alien.
Sec. 405. Report on financial burden of repatriation.
Sec. 406. Training program.
Sec. 407. Expedited removal.
Sec. 408. Report on apprehension and detention of certain aliens.
Sec. 409. Listing of immigration violators in the National Crime Information Center database.
TITLE V--EFFECTIVE ORGANIZATION OF BORDER SECURITY AGENCIES
Sec. 501. Enhanced Border Security coordination and management.
Sec. 502. Office of Air and Marine Operations.
Sec. 503. Shadow Wolves transfer.
TITLE VI--TERRORIST AND CRIMINAL ALIENS
Sec. 601. Removal of terrorist aliens.
Sec. 602. Detention of dangerous aliens.
Sec. 603. Increase in criminal penalties.
Sec. 604. Precluding admissibility of aggravated felons and other criminals.
Sec. 605. Precluding refugee or asylee adjustment of status for aggravated felonies.
Sec. 606. Removing drunk drivers.
Sec. 607. Designated county law enforcement assistance program.
Sec. 608. Rendering inadmissible and deportable aliens
participating in criminal street gangs; detention; ineligibility from
protection from removal and asylum.
Sec. 609. Naturalization reform.
Sec. 610. Expedited removal for aliens inadmissible on criminal or security grounds.
Sec. 611. Technical correction for effective date in change in inadmissibility for terrorists under REAL ID Act.
Sec. 612. Bar to good moral character.
Sec. 613. Strengthening definitions of `aggravated felony' and `conviction'.
Sec. 614. Deportability for criminal offenses.
Sec. 615. Declaration of Congress.
Sec. 616. Report on criminal alien prosecution.
Sec. 617. Determination of immigration status of individuals charged with Federal offenses.
Sec. 618. Increased criminal penalties for document fraud and crimes of violence.
Sec. 619. Laundering of monetary instruments.
TITLE VII--EMPLOYMENT ELIGIBILITY VERIFICATION
Subtitle A--Employment Eligibility Verification System
Sec. 701. Employment eligibility verification system.
Sec. 702. Employment eligibility verification process.
Sec. 703. Expansion of employment eligibility verification system to previously hired individuals and recruiting and referring.
Sec. 704. Basic pilot program.
Sec. 707. Report on Social Security card-based employment eligibility verification.
Sec. 708. Extension of preemption to required construction of day laborer shelters.
Sec. 709. Effective date.
Sec. 710. Limitation on verification responsibilities of Commissioner of Social Security.
Sec. 711. Report on employment eligibility verification system.
Subtitle B--Employment Eligibility Verification and Anti-Identity Theft Act
Sec. 722. Requiring agencies to send `no-match' letters.
Sec. 723. Requiring employers to take action upon receipt of a `no-match' letter.
Sec. 724. Verification system.
Sec. 725. Design and operation of system.
Sec. 726. Extension of time.
Sec. 727. Retention of proof of verification completion.
Sec. 728. Termination of employment.
Sec. 729. Final verification.
Sec. 730. Employer violations.
Sec. 731. Limitation on use.
Sec. 732. Federal Tort Claims Act remedy.
Sec. 733. Protection from liability for actions taken on the basis of information.
Subtitle C--Improved Security for Birth Certificates
Sec. 742. Applicability of minimum standards to local governments.
Sec. 743. Minimum standards for Federal recognition.
Sec. 744. Establishment of electronic birth and death registration systems.
Sec. 745. Electronic verification of vital events.
Sec. 746. Grants to States.
Subtitle D--Stop the Misuse of ITINs Act of 2007
Sec. 752. Notification of employment status of individuals not authorized to work in the United States.
Subtitle E--Miscellaneous
Sec. 761. Sharing of social security data for immigration enforcement purposes.
Sec. 762. Additional worksite enforcement and fraud detection agents.
TITLE VIII--IMMIGRATION LITIGATION ABUSE REDUCTION
Sec. 801. Board of Immigration Appeals removal order authority.
Sec. 802. Judicial review of visa revocation.
Sec. 804. Withholding of removal.
Sec. 805. Certificate of reviewability.
Sec. 806. Waiver of rights in nonimmigrant visa issuance.
Sec. 807. Clarification of jurisdiction on review.
Sec. 808. Fees and expenses in judicial proceedings.
TITLE IX--PRESCREENING OF AIR PASSENGERS
Sec. 901. Immediate International Passenger Prescreening Pilot program.
TITLE X--SECURITY AND FAIRNESS ENHANCEMENT
Sec. 1002. Elimination of diversity immigrant program.
TITLE XI--OATH OF RENUNCIATION AND ALLEGIANCE
Sec. 1101. Oath of renunciation and allegiance.
TITLE XII--ELIMINATION OF CORRUPTION AND PREVENTION OF ACQUISITION OF IMMIGRATION BENEFITS THROUGH FRAUD
Sec. 1203. Structure of the Office of Security and Investigations.
Sec. 1204. Authority of the Office of Security and Investigations to investigate internal corruption.
Sec. 1205. Authority of the Office of Security and Investigations to detect and investigate immigration benefits fraud.
Sec. 1206. Increase in full-time Office of Security and Investigations personnel.
Sec. 1207. Annual report.
Sec. 1208. Investigations of fraud to precede immigration benefits grant.
Sec. 1209. Elimination of the Fraud Detection and National Security Office.
TITLE XIII--TEMPORARY AGRICULTURAL WORKER PROGRAM
Sec. 1301. Admission of temporary H-2A workers.
Sec. 1302. Legal assistance provided by the legal services corporation.
Sec. 1303. Effective date.
TITLE XIV--MISCELLANEOUS
Sec. 1401. Prevention of congressional reapportionment distortions.
Sec. 1402. Increase in H-1B visa numbers.
SEC. 2. STATE DEFINED.
In titles I, III, IV, and V of this Act, the term `State'
has the meaning given it in section 2(14) of the Homeland Security Act
of 2002 (6 U.S.C. 101(14)).
SEC. 3. SENSE OF CONGRESS ON SETTING A MANAGEABLE LEVEL OF IMMIGRATION.
It is the sense of Congress that the immigration and
naturalization policy shall be designed to enhance the economic, social
and cultural well-being of the United States of America.
TITLE I--SECURING UNITED STATES BORDERS
SEC. 101. ACHIEVING OPERATIONAL CONTROL ON THE BORDER.
(a) In General- Not later than 18 months after the date of
the enactment of this Act, the Secretary of Homeland Security shall
take all actions the Secretary determines necessary and appropriate to
achieve and maintain operational control over the entire international
land and maritime borders of the United States, to include the
following--
(1) systematic surveillance of the international land
and maritime borders of the United States through more effective use of
personnel and technology, such as unmanned aerial vehicles,
ground-based sensors, satellites, radar coverage, and cameras;
(2) physical infrastructure enhancements to prevent
unlawful entry by aliens into the United States and facilitate access
to the international land and maritime borders by United States Customs
and Border Protection, such as additional checkpoints, all weather
access roads, and vehicle barriers;
(3) hiring and training as expeditiously as possible
additional Border Patrol agents authorized under section 5202 of the
Intelligence Reform and Terrorism Prevention Act of 2004 (Public Law
108-458); and
(4) increasing deployment of United States Customs and
Border Protection personnel to areas along the international land and
maritime borders of the United States where there are high levels of
unlawful entry by aliens and other areas likely to be impacted by such
increased deployment.
(b) Operational Control Defined- In this section, the term
`operational control' means the prevention of all unlawful entries into
the United States, including entries by terrorists, other unlawful
aliens, instruments of terrorism, narcotics, and other contraband.
(c) Report- Not later than one year after the date of the
enactment of this Act and annually thereafter, the Secretary shall
submit to Congress a report on the progress made toward achieving and
maintaining operational control over the entire international land and
maritime borders of the United States in accordance with this section.
SEC. 102. NATIONAL STRATEGY FOR BORDER SECURITY.
(a) Surveillance Plan- Not later than six months after the
date of the enactment of this Act, the Secretary of Homeland Security
shall submit to the appropriate congressional committees a
comprehensive plan for the systematic surveillance of the international
land and maritime borders of the United States. The plan shall include
the following:
(1) An assessment of existing technologies employed on such borders.
(2) A description of whether and how new surveillance technologies will be compatible with existing surveillance technologies.
(3) A description of how the United States Customs and
Border Protection is working, or is expected to work, with the
Directorate of Science and Technology of the Department of Homeland
Security to identify and test surveillance technology.
(4) A description of the specific surveillance technology to be deployed.
(5) The identification of any obstacles that may impede full implementation of such deployment.
(6) A detailed estimate of all costs associated with
the implementation of such deployment and continued maintenance of such
technologies.
(7) A description of how the Department of Homeland
Security is working with the Federal Aviation Administration on safety
and airspace control issues associated with the use of unmanned aerial
vehicles in the National Airspace System.
(b) National Strategy for Border Security- Not later than
one year after the date of the enactment of this Act, the Secretary of
Homeland Security, in consultation with the heads of other appropriate
Federal agencies, shall submit to the appropriate congressional
committees a National Strategy for Border Security to achieve
operational control over all ports of entry into the United States and
the international land and maritime borders of the United States. The
Secretary shall update the Strategy as needed and shall submit to the
appropriate congressional committees, not later than 30 days after each
such update, the updated Strategy. The National Strategy for Border
Security shall include the following:
(1) The implementation timeline for the surveillance plan described in subsection (a).
(2) An assessment of the threat posed by terrorists and
terrorist groups that may try to infiltrate the United States at points
along the international land and maritime borders of the United States.
(3) A risk assessment of all ports of entry to the
United States and all portions of the international land and maritime
borders of the United States, except for ports of entry and facilities
subject to vulnerability assessments under section 70102 or 70103 of
title 46, United States Code, with respect to--
(A) preventing the entry of terrorists, other
unlawful aliens, instruments of terrorism, narcotics, and other
contraband into the United States; and
(B) protecting critical infrastructure at or near such ports of entry or borders.
(4) An assessment of all legal requirements that
prevent achieving and maintaining operational control over the entire
international land and maritime borders of the United States.
(5) An assessment of the most appropriate, practical,
and cost-effective means of defending the international land and
maritime borders of the United States against threats to security and
illegal transit, including intelligence capacities, technology,
equipment, personnel, and training needed to address security
vulnerabilities.
(6) An assessment of staffing needs for all border
security functions, taking into account threat and vulnerability
information pertaining to the borders and the impact of new security
programs, policies, and technologies.
(7) A description of the border security roles and
missions of Federal, State, regional, local, and tribal authorities,
and recommendations with respect to how the Department of Homeland
Security can improve coordination with such authorities, to enable
border security enforcement to be carried out in an efficient and
effective manner.
(8) A prioritization of research and development
objectives to enhance the security of the international land and
maritime borders of the United States.
(9) A description of ways to ensure that the free flow
of legitimate travel and commerce of the United States is not
diminished by efforts, activities, and programs aimed at securing the
international land and maritime borders of the United States.
(10) An assessment of additional detention facilities
and bed space needed to detain unlawful aliens apprehended at United
States ports of entry or along the international land borders of the
United States in accordance with the National Strategy for Border
Security required under this subsection and the mandatory detention
requirement described in section 401 of this Act.
(11) A description of how the Secretary shall ensure
accountability and performance metrics within the appropriate agencies
of the Department of Homeland Security responsible for implementing the
border security measures determined necessary upon completion of the
National Strategy for Border Security.
(12) A timeline for the implementation of the
additional security measures determined necessary as part of the
National Strategy for Border Security, including a prioritization of
security measures, realistic deadlines for addressing the security and
enforcement needs, and resource estimates and allocations.
(c) Consultation- In creating the National Strategy for
Border Security described in subsection (b), the Secretary shall
consult with--
(1) State, local, and tribal authorities along the international land and maritime borders of the United States; and
(2) an appropriate cross-section of private sector and nongovernmental organizations with relevant expertise.
(d) Coordination- The National Strategy for Border Security
described in subsection (b) shall be consistent with the National
Strategy for Maritime Security developed pursuant to Homeland Security
Presidential Directive 13.
(e) Immediate Action- Nothing in this section shall be
construed to relieve the Secretary of the responsibility to take all
actions necessary and appropriate to achieve and maintain operational
control over the entire international land and maritime borders of the
United States pursuant to section 101 of this Act or any other
provision of law.
(f) Reporting of Implementing Legislation- After submittal
of the National Strategy for Border Security described in subsection
(b) to the appropriate congressional committees, such committees shall
promptly report to their respective House legislation authorizing
necessary security measures based on its evaluation of the National
Strategy for Border Security.
(g) Appropriate Congressional Committee- For purposes of
this title and section 301(b), the term `appropriate congressional
committee' has the meaning given it in section 2(2) of the Homeland
Security Act of 2002 (6 U.S.C. 101(2)).
(h) Rule of Construction- Nothing in this section shall be
construed to alter, impact, diminish, or in any way undermine the
authority of the Administrator of the Federal Aviation Administration
to oversee, regulate, and control the safe and efficient use of the
airspace of the United States.
SEC. 103. IMPLEMENTATION OF CROSS-BORDER SECURITY AGREEMENTS.
(a) In General- Not later than six months after the date of
the enactment of this Act, the Secretary of Homeland Security shall
submit to the appropriate congressional committees (as defined in
section 102(g)) a report on the implementation of the cross-border
security agreements signed by the United States with Mexico and Canada,
including recommendations on improving cooperation with such countries
to enhance border security.
(b) Updates- The Secretary shall regularly update the
Committee on Homeland Security of the House of Representatives
concerning such implementation.
SEC. 104. BIOMETRIC DATA ENHANCEMENTS.
Not later than October 1, 2008, the Secretary of Homeland Security shall--
(1) in consultation with the Attorney General, enhance
connectivity between the IDENT and IAFIS fingerprint databases to
ensure more expeditious data searches; and
(2) in consultation with the Secretary of State,
collect all fingerprints from each alien required to provide
fingerprints during the alien's initial enrollment in the integrated
entry and exit data system described in section 110 of the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C.
1221 note).
SEC. 105. ONE FACE AT THE BORDER INITIATIVE.
Not later than 90 days after the date of the enactment of
this Act, the Secretary of Homeland Security shall submit to Congress a
report--
(1) describing the tangible and quantifiable benefits
of the One Face at the Border Initiative established by the Department
of Homeland Security;
(2) identifying goals for and challenges to increased effectiveness of the One Face at the Border Initiative;
(3) providing a breakdown of the number of inspectors who were--
(A) personnel of the United States Customs Service
before the date of the establishment of the Department of Homeland
Security;
(B) personnel of the Immigration and Naturalization Service before the date of the establishment of the Department;
(C) personnel of the Department of Agriculture before the date of the establishment of the Department; or
(D) hired after the date of the establishment of the Department;
(4) describing the training time provided to each
employee on an annual basis for the various training components of the
One Face at the Border Initiative; and
(5) outlining the steps taken by the Department to
ensure that expertise is retained with respect to customs, immigration,
and agriculture inspection functions under the One Face at the Border
Initiative.
SEC. 106. SECURE COMMUNICATION.
The Secretary of Homeland Security shall, as expeditiously
as practicable, develop and implement a plan to ensure clear and secure
two-way communication capabilities, including the specific use of
satellite communications--
(1) among all Border Patrol agents conducting operations between ports of entry;
(2) between Border Patrol agents and their respective Border Patrol stations;
(3) between Border Patrol agents and residents in
remote areas along the international land border who do not have mobile
communications, as the Secretary determines necessary; and
(4) between all appropriate Department of Homeland
Security border security agencies and State, local, and tribal law
enforcement agencies.
SEC. 107. PORT OF ENTRY INSPECTION PERSONNEL.
In each of fiscal years 2009 through 2012, the Secretary of
Homeland Security shall, subject to the availability of appropriations,
increase by not less than 250 the number of positions for full-time
active duty port of entry inspectors. There are authorized to be
appropriated to the Secretary such sums as may be necessary for each
such fiscal year to hire, train, equip, and support such additional
inspectors under this section.
SEC. 108. CANINE DETECTION TEAMS.
In each of fiscal years 2009 through 2013, the Secretary of
Homeland Security shall, subject to the availability of appropriations,
increase by not less than 25 percent above the number of such positions
for which funds were allotted for the preceding fiscal year the number
of trained detection canines for use at United States ports of entry
and along the international land and maritime borders of the United
States.
SEC. 109. SECURE BORDER INITIATIVE FINANCIAL ACCOUNTABILITY.
(a) In General- The Inspector General of the Department of
Homeland Security shall review each contract action related to the
Department's Secure Border Initiative having a value greater than
$20,000,000, to determine whether each such action fully complies with
applicable cost requirements, performance objectives, program
milestones, inclusion of small, minority, and women-owned business, and
timelines. The Inspector General shall complete a review under this
subsection with respect to a contract action--
(1) not later than 60 days after the date of the initiation of the action; and
(2) upon the conclusion of the performance of the contract.
(b) Report by Inspector General- Upon completion of each
review described in subsection (a), the Inspector General shall submit
to the Secretary of Homeland Security a report containing the findings
of the review, including findings regarding any cost overruns,
significant delays in contract execution, lack of rigorous departmental
contract management, insufficient departmental financial oversight,
bundling that limits the ability of small business to compete, or other
high risk business practices.
(c) Report by Secretary- Not later than 30 days after the
receipt of each report required under subsection (b), the Secretary of
Homeland Security shall submit to the appropriate congressional
committees (as defined in section 102(g)) a report on the findings of
the report by the Inspector General and the steps the Secretary has
taken, or plans to take, to address the problems identified in such
report.
(d) Authorization of Appropriations- In addition to amounts
that are otherwise authorized to be appropriated to the Office of the
Inspector General, an additional amount equal to at least five percent
for fiscal year 2009, at least six percent for fiscal year 2010, and at
least seven percent for fiscal year 2011 of the overall budget of the
Office for each such fiscal year is authorized to be appropriated to
the Office to enable the Office to carry out this section.
(e) Action by Inspector General- In the event the Inspector
General becomes aware of any improper conduct or wrongdoing in
accordance with the contract review required under subsection (a), the
Inspector General shall, as expeditiously as practicable, refer
information related to such improper conduct or wrongdoing to the
Secretary of Homeland Security or other appropriate official in the
Department of Homeland Security for purposes of evaluating whether to
suspend or debar the contractor.
SEC. 110. BORDER PATROL TRAINING CAPACITY REVIEW.
(a) In General- The Comptroller General of the United
States shall conduct a review of the basic training provided to Border
Patrol agents by the Department of Homeland Security to ensure that
such training is provided as efficiently and cost-effectively as
possible.
(b) Components of Review- The review under subsection (a) shall include the following components:
(1) An evaluation of the length and content of the
basic training curriculum provided to new Border Patrol agents by the
Federal Law Enforcement Training Center, including a description of how
the curriculum has changed since September 11, 2001.
(2) A review and a detailed breakdown of the costs
incurred by United States Customs and Border Protection and the Federal
Law Enforcement Training Center to train one new Border Patrol agent.
(3) A comparison, based on the review and breakdown
under paragraph (2) of the costs, effectiveness, scope, and quality,
including geographic characteristics, with other similar law
enforcement training programs provided by State and local agencies,
non-profit organizations, universities, and the private sector.
(4) An evaluation of whether and how utilizing
comparable non-Federal training programs, proficiency testing to
streamline training, and long-distance learning programs may affect--
(A) the cost-effectiveness of increasing the number
of Border Patrol agents trained per year and reducing the per agent
costs of basic training; and
(B) the scope and quality of basic training needed to fulfill the mission and duties of a Border Patrol agent.
SEC. 111. AIRSPACE SECURITY MISSION IMPACT REVIEW.
Not later than 120 days after the date of the enactment of
this Act, the Secretary of Homeland Security shall submit to the
appropriate congressional committees a report detailing the impact the
airspace security mission in the National Capital Region (in this
section referred to as the `NCR') will have on the ability of the
Department of Homeland Security to protect the international land and
maritime borders of the United States. Specifically, the report shall
address:
(1) The specific resources, including personnel,
assets, and facilities, devoted or planned to be devoted to the NCR
airspace security mission, and from where those resources were obtained
or are planned to be obtained.
(2) An assessment of the impact that diverting
resources to support the NCR mission has or is expected to have on the
traditional missions in and around the international land and maritime
borders of the United States.
SEC. 112. REPAIR OF PRIVATE INFRASTRUCTURE ON BORDER.
(a) In General- Subject to the amount appropriated in
subsection (d) of this section, the Secretary of Homeland Security
shall reimburse property owners for costs associated with repairing
damages to the property owners' private infrastructure constructed on a
United States Government right-of-way delineating the international
land border when such damages are--
(1) the result of unlawful entry of aliens; and
(2) confirmed by the appropriate personnel of the
Department of Homeland Security and submitted to the Secretary for
reimbursement.
(b) Value of Reimbursements- Reimbursements for submitted
damages as outlined in subsection (a) shall not exceed the value of the
private infrastructure prior to damage.
(c) Reports- Not later than six months after the date of
the enactment of this Act and every subsequent six months until the
amount appropriated for this section is expended in its entirety, the
Secretary of Homeland Security shall submit to the Committee on
Homeland Security of the House of Representatives a report that details
the expenditures and circumstances in which those expenditures were
made pursuant to this section.
(d) Authorization of Appropriations- There shall be
authorized to be appropriated an initial $50,000 for each fiscal year
to carry out this section.
SEC. 113. BORDER PATROL UNIT FOR VIRGIN ISLANDS.
Not later than September 30, 2008, the Secretary of
Homeland Security shall establish at least one Border Patrol unit for
the Virgin Islands of the United States.
SEC. 114. REPORT ON PROGRESS IN TRACKING TRAVEL OF CENTRAL AMERICAN GANGS ALONG INTERNATIONAL BORDER.
Not later than one year after the date of the enactment of
this Act, the Secretary of Homeland Security shall report to the
Committee on Homeland Security of the House of Representatives on the
progress of the Department of Homeland Security in tracking the travel
of Central American gangs across the international land border of the
United States and Mexico.
SEC. 115. COLLECTION OF DATA.
Beginning on October 1, 2008, the Secretary of Homeland
Security shall annually compile data on the following categories of
information:
(1) The number of unauthorized aliens who require medical care taken into custody by Border Patrol officials.
(2) The number of unauthorized aliens with serious
injuries or medical conditions Border Patrol officials encounter, and
refer to local hospitals or other health facilities.
(3) The number of unauthorized aliens with serious
injuries or medical conditions who arrive at United States ports of
entry and subsequently are admitted into the United States for
emergency medical care, as reported by United States Customs and Border
Protection.
(4) The number of unauthorized aliens described in
paragraphs (2) and (3) who subsequently are taken into custody by the
Department of Homeland Security after receiving medical treatment.
SEC. 116. DEPLOYMENT OF RADIATION DETECTION PORTAL EQUIPMENT AT UNITED STATES PORTS OF ENTRY.
(a) Deployment- Not later than one year after the date of
the enactment of this Act, the Secretary of Homeland Security shall
deploy radiation portal monitors at all United States ports of entry
and facilities as determined by the Secretary to facilitate the
screening of all inbound cargo for nuclear and radiological material.
(b) Report- Not later than 180 days after the date of the
enactment of this Act, the Secretary shall submit to the Committee on
Homeland Security of the House of Representatives and the Committee on
Homeland Security and Governmental Affairs of the Senate a report on
the Department's progress toward carrying out the deployment described
in subsection (a).
(c) Authorization of Appropriations- There is authorized to
be appropriated to the Secretary to carry out subsection (a) such sums
as may be necessary for each of fiscal years 2008 and 2009.
SEC. 117. CONSULTATION WITH BUSINESSES AND FIRMS.
With respect to the Secure Border Initiative and for the
purposes of strengthening security along the international land and
maritime borders of the United States, the Secretary of Homeland
Security shall conduct outreach to and consult with members of the
private sector, including business councils, associations, and small,
minority-owned, women-owned, and disadvantaged businesses to--
(1) identify existing and emerging technologies, best practices, and business processes;
(2) maximize economies of scale, cost-effectiveness, systems integration, and resource allocation; and
(3) identify the most appropriate contract mechanisms
to enhance financial accountability and mission effectiveness of border
security programs.
SEC. 118. SENSE OF CONGRESS REGARDING ENFORCEMENT OF IMMIGRATION LAWS.
(a) Findings- Congress finds the following:
(1) A primary duty of the Federal Government is to
secure the homeland and ensure the safety of United States citizens and
lawful residents.
(2) As a result of the terrorist attacks on September
11, 2001, perpetrated by al Qaida terrorists on United States soil, the
United States is engaged in a Global War on Terrorism.
(3) According to the National Commission on Terrorist
Attacks Upon the United States, up to 15 of the 9/11 hijackers could
have been intercepted or deported through more diligent enforcement of
immigration laws.
(4) Six years after those attacks, there is still a failure to secure the borders of the United States against illegal entry.
(5) The failure to enforce immigration laws in the
interior of the United States means that illegal aliens face little or
no risk of apprehension or removal once they are in the country.
(6) If illegal aliens can enter and remain in the
United States with impunity, so, too, can terrorists enter and remain
while they plan, rehearse, and then carry out their attacks.
(7) The failure to control and to prevent illegal
immigration into the United States increases the likelihood that
terrorists will succeed in launching catastrophic or harmful attacks on
United States soil.
(8) There are numerous immigration laws that are currently not being enforced.
(9) Law enforcement officers are often discouraged from enforcing the law by superiors.
(b) Sense of Congress- It is the sense of Congress that the
President, the Attorney General, Secretary of State, Secretary of
Homeland Security, and other Department Secretaries should immediately
use every tool available to them to enforce the immigration laws of the
United States, as enacted by Congress.
SEC. 119. SECURING ACCESS TO BORDER PATROL UNIFORMS.
Notwithstanding any other provision of law, all uniforms
procured for the use of Border Patrol agents shall be manufactured in
the United States substantially all from articles, materials, or
supplies mined, produced, or manufactured, as the case may be, in the
United States.
SEC. 120. US-VISIT.
Not later than one year after the date of the enactment of
this Act, the Secretary of Homeland Security, in consultation with the
heads of other appropriate Federal agencies, shall submit to the
appropriate congressional committees a timeline for--
(1) equipping all land border ports of entry with the US-VISIT system;
(2) developing and deploying at all land border ports of entry the exit component of the US-VISIT system; and
(3) making interoperable all immigration screening systems operated by the Department of Homeland Security.
SEC. 121. VOLUNTARY RELOCATION PROGRAM EXTENSION.
Section 5739(e) of title 5, United States Code, is amended by striking `7' and inserting `12'.
SEC. 122. COMPLETION OF BACKGROUND AND SECURITY CHECKS.
Section 103 of the Immigration and Nationality Act (8 U.S.C. 1103) is amended by adding at the end the following:
`(i) Notwithstanding any other provision of law, the
Secretary of Homeland Security, the Attorney General, and the courts
may not--
`(1) grant or order the grant of adjustment of status
of an alien to that of an alien lawfully admitted for permanent
residence,
`(2) grant or order the grant of any other status,
relief, protection from removal, or other benefit under the immigration
laws, or
`(3) issue any documentation evidencing or related to such grant by the Secretary, the Attorney General, or any court,
until an IBIS check on the alien has been initiated at a
Treasury Enforcement Communications System (TECS) access level of no
less than Level 3, results from the check have been returned, and any
derogatory information has been obtained and assessed, and until any
other such background and security checks have been completed as the
Secretary may require.
`(j) Notwithstanding any other provision of law, the
Secretary of Homeland Security, the Attorney General, and the courts
may not--
`(1) grant or order the grant of adjustment of status
of an alien to that of an alien lawfully admitted for permanent
residence,
`(2) grant or order the grant of any other status,
relief, protection from removal, or other benefit under the immigration
laws, or
`(3) issue any documentation evidencing or related to such grant by the Secretary, the Attorney General, or any court,
until any suspected or alleged fraud relating to the
granting of any status (including the granting of adjustment of
status), relief, protection from removal, or other benefit under this
subsection has been fully investigated and found to be
unsubstantiated.'.
TITLE II--COMBATTING ALIEN SMUGGLING AND ILLEGAL ENTRY AND PRESENCE
SEC. 201. DEFINITION OF AGGRAVATED FELONY.
(a) In General- Section 101(a)(43) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(43)) is amended--
(1) in subparagraph (N), by striking `paragraph (1)(A)
or (2) of section 274(a) (relating to alien smuggling)' and inserting
`section 274(a)' and by adding a semicolon at the end;
(2) in subparagraph (O), by striking `section 275(a) or
276 committed by an alien who was previously deported on the basis of a
conviction for an offense described in another subparagraph of this
paragraph', and inserting `section 275 or section 276 for which the
term of imprisonment was at least one year'; and
(3) by striking all that follows subparagraph (U) and inserting the following:
`(i) to an offense described in this paragraph
whether in violation of Federal or State law and applies to such an
offense in violation of the law of a foreign country for which the term
of imprisonment was completed within the previous 15 years;
`(ii) even if the length of the term of imprisonment is based on recidivist or other enhancements;
`(iii) to an offense described in this paragraph
even if the statute setting forth the offense of conviction sets forth
other offenses not described in this paragraph, unless the alien
affirmatively shows, by a preponderance of evidence and using public
records related to the conviction, including court records, police
records and presentence reports, that the particular facts underlying
the offense do not satisfy the generic definition of that offense; and
`(iv) regardless of whether the conviction was
entered before, on, or after September 30, 1996, and notwithstanding
any other provision of law (including any effective date).'.
(b) Effective Date- The amendments made by subsection (a)
shall apply to offenses that occur before, on, or after the date of the
enactment of this Act.
SEC. 202. ALIEN SMUGGLING AND RELATED OFFENSES.
(a) In General- Section 274 of the Immigration and Nationality Act (8 U.S.C. 1324) is amended to read as follows:
`ALIEN SMUGGLING AND RELATED OFFENSES
`Sec. 274. (a) Criminal Offenses and Penalties-
`(1) PROHIBITED ACTIVITIES- Whoever--
`(A) assists, encourages, directs, or induces a
person to come to or enter the United States, or to attempt to come to
or enter the United States, knowing or in reckless disregard of the
fact that such person is an alien who lacks lawful authority to come to
or enter the United States;
`(B) assists, encourages, directs, or induces a
person to come to or enter the United States at a place other than a
designated port of entry or place other than as designated by the
Secretary of Homeland Security, regardless of whether such person has
official permission or lawful authority to be in the United States,
knowing or in reckless disregard of the fact that such person is an
alien;
`(C) transports or moves a person in the United
States, knowing or in reckless disregard of the fact that such person
is an alien who lacks lawful authority to enter or be in the United
States, where the transportation or movement will aid or further in any
manner the person's illegal entry into or illegal presence in the
United States;
`(D) transports, moves, harbors, conceals, or
shields from detection a person outside of the United States knowing or
in reckless disregard of the fact that such person is an alien in
unlawful transit from one country to another or on the high seas, under
circumstances in which the person is in fact seeking to enter the
United States without official permission or lawful authority; or
`(E) conspires or attempts to commit any of the preceding acts,
shall be punished as provided in paragraph (2),
regardless of any official action which may later be taken with respect
to such alien.
`(2) CRIMINAL PENALTIES- A person who violates the provisions of paragraph (1) shall--
`(A) except as provided in subparagraphs (D)
through (H), in the case where the offense was not committed for
commercial advantage, profit, or private financial gain, be imprisoned
for not more than 5 years, or fined under title 18, United States Code,
or both;
`(B) except as provided in subparagraphs (C)
through (H), where the offense was committed for commercial advantage,
profit, or private financial gain--
`(i) in the case of a first violation of this
subparagraph, be imprisoned for not more than 20 years, or fined under
title 18, United States Code, or both; and
`(ii) for any subsequent violation, be
imprisoned for not less than 3 years nor more than 20 years, or fined
under title 18, United States Code, or both;
`(C) in the case where the offense was committed
for commercial advantage, profit, or private financial gain and
involved 2 or more aliens other than the offender, be imprisoned for
not less than 3 nor more than 20 years, or fined under title 18, United
States Code, or both;
`(D) in the case where the offense furthers or aids
the commission of any other offense against the United States or any
State, which offense is punishable by imprisonment for more than 1
year, be imprisoned for not less than 5 nor more than 20 years, or
fined under title 18, United States Code, or both;
`(E) in the case where any participant in the
offense created a substantial risk of death or serious bodily injury to
another person, including--
`(i) transporting a person in an engine compartment, storage compartment, or other confined space;
`(ii) transporting a person at an excessive speed or in excess of the rated capacity of the means of transportation; or
`(iii) transporting or harboring a person in a crowded, dangerous, or inhumane manner,
be imprisoned not less than 5 nor more than 20 years, or fined under title 18, United States Code, or both;
`(F) in the case where the offense caused serious
bodily injury (as defined in section 1365 of title 18, United States
Code, including any conduct that would violate sections 2241 or 2242 of
title 18, United States Code, if the conduct occurred in the special
maritime and territorial jurisdiction of the United States) to any
person, be imprisoned for not less than 7 nor more than 30 years, or
fined under title 18, United States Code, or both;
`(G) in the case where the offense involved an alien who the offender knew or had reason to believe was an alien--
`(i) engaged in terrorist activity (as defined in section 212(a)(3)(B)); or
`(ii) intending to engage in such terrorist activity,
be imprisoned for not less than 10 nor more than 30 years, or fined under title 18, United States Code, or both; and
`(H) in the case where the offense caused or
resulted in the death of any person, be punished by death or imprisoned
for not less than 10 years, or any term of years, or for life, or fined
under title 18, United States Code, or both.
`(3) EXTRATERRITORIAL JURISDICTION- There is
extraterritorial Federal jurisdiction over the offenses described in
this subsection.
`(b) Employment of Unauthorized Aliens-
`(1) IN GENERAL- Any person who, during any 12-month
period, knowingly hires for employment at least 10 individuals with
actual knowledge that the individuals are aliens described in paragraph
(2), shall be fined under title 18, United States Code, imprisoned for
not more than 5 years, or both.
`(2) ALIEN DESCRIBED- A alien described in this paragraph is an alien who--
`(A) is an unauthorized alien (as defined in section 274A(h)(3)); and
`(B) has been brought into the United States in violation of subsection (a).
`(c) Seizure and Forfeiture-
`(1) IN GENERAL- Any property, real or personal, that
has been used to commit or facilitate the commission of a violation of
this section, the gross proceeds of such violation, and any property
traceable to such property or proceeds, shall be subject to forfeiture.
`(2) APPLICABLE PROCEDURES- Seizures and forfeitures
under this subsection shall be governed by the provisions of chapter 46
of title 18, United States Code, relating to civil forfeitures,
including section 981(d) of such title, except that such duties as are
imposed upon the Secretary of the Treasury under the customs laws
described in that section shall be performed by such officers, agents,
and other persons as may be designated for that purpose by the
Secretary of Homeland Security.
`(d) Authority To Arrest- No officer or person shall have
authority to make any arrests for a violation of any provision of this
section except officers and employees designated by the Secretary of
Homeland Security, either individually or as a member of a class, and
all other officers whose duty it is to enforce criminal laws.
`(e) Admissibility of Evidence-
`(1) PRIMA FACIE EVIDENCE IN DETERMINATIONS OF
VIOLATIONS- Notwithstanding any provision of the Federal Rules of
Evidence, in determining whether a violation of subsection (a) has
occurred, any of the following shall be prima facie evidence that an
alien involved in the violation lacks lawful authority to come to,
enter, reside, remain, or be in the United States or that such alien
had come to, entered, resided, remained or been present in the United
States in violation of law:
`(A) Any order, finding, or determination
concerning the alien's status or lack thereof made by a Federal judge
or administrative adjudicator (including an immigration judge or an
immigration officer) during any judicial or administrative proceeding
authorized under the immigration laws or regulations prescribed
thereunder.
`(B) An official record of the Department of
Homeland Security, Department of Justice, or the Department of State
concerning the alien's status or lack thereof.
`(C) Testimony by an immigration officer having personal knowledge of the facts concerning the alien's status or lack thereof.
`(2) VIDEOTAPED TESTIMONY- Notwithstanding any
provision of the Federal Rules of Evidence, the videotaped (or
otherwise audiovisually preserved) deposition of a witness to a
violation of subsection (a) who has been deported or otherwise expelled
from the United States, or is otherwise unavailable to testify, may be
admitted into evidence in an action brought for that violation if the
witness was available for cross examination at the deposition and the
deposition otherwise complies with the Federal Rules of Evidence.
`(f) Definitions- For purposes of this section:
`(1) The term `lawful authority' means permission,
authorization, or license that is expressly provided for in the
immigration laws of the United States or the regulations prescribed
thereunder. Such term does not include any such authority secured by
fraud or otherwise obtained in violation of law, nor does it include
authority that has been sought but not approved. No alien shall be
deemed to have lawful authority to come to, enter, reside, remain, or
be in the United States if such coming to, entry, residence, remaining,
or presence was, is, or would be in violation of law.
`(2) The term `unlawful transit' means travel,
movement, or temporary presence that violates the laws of any country
in which the alien is present, or any country from which or to which
the alien is traveling or moving.'.
(b) Clerical Amendment- The item relating to section 274 in the table of contents of such Act is amended to read as follows:
`Sec. 274. Alien smuggling and related offenses.'.
SEC. 203. IMPROPER ENTRY BY, OR PRESENCE OF, ALIENS.
Section 275 of the Immigration and Nationality Act (8 U.S.C. 1325) is amended--
(1) in the section heading, by inserting `UNLAWFUL PRESENCE;' after `IMPROPER TIME OR PLACE;';
(A) by striking `Any alien' and inserting `Except as provided in subsection (b), any alien';
(B) by striking `or' before (3); and
(C) by inserting after `concealment of a material
fact,' the following: `or (4) is otherwise present in the United States
in violation of the immigration laws or the regulations prescribed
thereunder,';
(3) by amending subsection (c) to read as follows:
`(A) knowingly enters into a marriage for the purpose of evading any provision of the immigration laws; or
`(B) knowingly misrepresents the existence or circumstances of a marriage--
`(i) in an application or document arising under or
authorized by the immigration laws of the United States or the
regulations prescribed thereunder, or
`(ii) during any immigration proceeding conducted
by an administrative adjudicator (including an immigration officer or
examiner, a consular officer, an immigration judge, or a member of the
Board of Immigration Appeals);
shall be fined under title 18, United States Code, or imprisoned not more than 10 years, or both.
`(A) knowingly enters into two or more marriages for the purpose of evading any provision of the immigration laws; or
`(B) knowingly arranges, supports, or facilitates two
or more marriages designed or intended to evade any provision of the
immigration laws;
shall be fined under title 18, United States Code, imprisoned not less than 2 years nor more than 20 years, or both.
`(3) An offense under this subsection continues until the
fraudulent nature of the marriage or marriages is discovered by an
immigration officer.
`(4) For purposes of this section, the term `proceeding' includes an adjudication, interview, hearing, or review.';
(A) by striking `5 years' and inserting `10 years';
(B) by adding at the end the following: `An offense
under this subsection continues until the fraudulent nature of the
commercial enterprise is discovered by an immigration officer.'; and
(5) by adding at the end the following new subsections:
`(e)(1) Any alien described in paragraph (2)--
`(A) shall be fined under title 18, United States Code,
imprisoned not more than 10 years, or both, if the offense described in
such paragraph was committed subsequent to a conviction or convictions
for commission of three or more misdemeanors involving drugs, crimes
against the person, or both, or a felony;
`(B) whose violation was subsequent to conviction for a
felony for which the alien received a sentence of 30 months or more,
shall be fined under title 18, United States Code, imprisoned not more
than 10 years, or both; or
`(C) whose violation was subsequent to conviction for a
felony for which the alien received a sentence of 60 months or more,
shall be fined under title 18, United States Code, imprisoned not more
than 20 years, or both.
`(2) An alien described in this paragraph is an alien who--
`(A) enters or attempts to enter the United States at any time or place other than as designated by immigration officers;
`(B) eludes examination or inspection by immigration officers;
`(C) attempts to enter or obtains entry to the
United States by a willfully false or misleading representation or the
willful concealment of a material fact; or
`(D) is otherwise present in the United States in violation of the immigration laws or the regulations prescribed thereunder.
`(3) The prior convictions in subparagraph (A), (B), or (C)
of paragraph (1) are elements of those crimes and the penalties in
those subparagraphs shall apply only in cases in which the conviction
(or convictions) that form the basis for the additional penalty are
alleged in the indictment or information and are proven beyond a
reasonable doubt at trial or admitted by the defendant in pleading
guilty. Any admissible evidence may be used to show that the prior
conviction is a qualifying crime, and the criminal trial for a
violation of this section shall not be bifurcated.
`(4) An offense under subsection (a) or paragraph (1) of
this subsection continues until the alien is discovered within the
United States by immigration officers.
`(f) For purposes of this section, the term `attempts to
enter' refers to the general intent of the alien to enter the United
States and does not refer to the intent of the alien to violate the
law.'.
SEC. 204. REENTRY OF REMOVED ALIENS.
Section 276 of the Immigration and Nationality Act (8 U.S.C. 1326) is amended--
(A) in paragraph (2), by striking all that follows `United States' the first place it appears and inserting a comma;
(B) in the matter following paragraph (2), by
striking `imprisoned not more than 2 years,' and inserting `imprisoned
for a term of not less than 1 year and not more than 2 years,';
(C) by adding at the end the following: `It shall
be an affirmative defense to an offense under this subsection that (A)
prior to an alien's reembarkation at a place outside the United States
or an alien's application for admission from foreign contiguous
territory, the Secretary of Homeland Security has expressly consented
to the alien's reapplying for admission; or (B) with respect to an
alien previously denied admission and removed, such alien was not
required to obtain such advance consent under this Act or any prior
Act.';
(A) in paragraph (1), by striking `imprisoned not
more than 10 years,' and insert `imprisoned for a term of not less than
5 years and not more than 10 years,';
(B) in paragraph (2), by striking `imprisoned not
more than 20 years,' and insert `imprisoned for a term of not less than
10 years and not more than 20 years,';
(C) in paragraph (3), by striking `. or' and inserting `; or';
(D) in paragraph (4), by striking `imprisoned for
not more than 10 years,' and insert `imprisoned for a term of not less
than 5 years and not more than 10 years,'; and
(E) by adding at the end the following: `The prior
convictions in paragraphs (1) and (2) are elements of enhanced crimes
and the penalties under such paragraphs shall apply only where the
conviction (or convictions) that form the basis for the additional
penalty are alleged in the indictment or information and are proven
beyond a reasonable doubt at trial or admitted by the defendant in
pleading guilty. Any admissible evidence may be used to show that the
prior conviction is a qualifying crime and the criminal trial for a
violation of either such paragraph shall not be bifurcated.';
(3) in subsections (b)(3), (b)(4), and (c), by striking
`Attorney General' and inserting `Secretary of Homeland Security' each
place it appears;
(4) in subsection (c), by striking `242(h)(2)' and inserting `241(a)(4)'; and
(5) by adding at the end the following new subsection:
`(e) For purposes of this section, the term `attempts to
enter' refers to the general intent of the alien to enter the United
States and does not refer to the intent of the alien to violate the
law.'.
SEC. 205. PROHIBITING CARRYING OR USING A FIREARM DURING AND IN RELATION TO AN ALIEN SMUGGLING CRIME.
Section 924(c) of title 18, United States Code, is amended--
(1) in paragraphs (1)(A) and (1)(D)(ii), by inserting
`, alien smuggling crime,' after `crime of violence' each place it
appears; and
(2) by adding at the end the following new paragraph:
`(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,
or 1328).'.
SEC. 206. CLARIFYING CHANGES.
(a) Exclusion Based on False Claim of Nationality-
(1) IN GENERAL- Section 212(a)(6)(C)(ii) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(6)(C)(ii)) is amended--
(A) in the heading, by inserting `OR NATIONALITY' after `CITIZENSHIP'; and
(B) by inserting `or national' after `citizen' each place it appears.
(2) EFFECTIVE DATE- The amendments made by paragraph
(1) shall take effect on the date of the enactment of this Act and
shall apply to acts occurring before, on, or after such date.
(b) Sharing of Information- Section 290(b) of such Act (8 U.S.C. 1360(b)) is amended--
(1) by inserting `, or as to any person seeking any benefit or privilege under the immigration laws,' after `United States';
(2) by striking `Service' and inserting `Secretary of Homeland Security'; and
(3) by striking `Attorney General' and inserting `Secretary'.
(c) Exceptions Authority- Section 212(a)(3)(B)(ii) of such
Act (8 U.S.C. 1182(a)(3)(B)(ii)) is amended by striking `Subclause
(VII)' and inserting `Subclause (IX)'.
SEC. 207. VOLUNTARY DEPARTURE REFORM.
(a) Encouraging Aliens To Depart Voluntarily-
(1) AUTHORITY- Subsection (a) of section 240B of the Immigration and Nationality Act (8 U.S.C. 1229c) is amended--
(A) by amending paragraph (1) to read as follows:
`(1) IN LIEU OF REMOVAL PROCEEDINGS- The Secretary of
Homeland Security may permit an alien voluntarily to depart the United
States at the alien's own expense under this subsection, in lieu of
being subject to proceedings under section 240, if the alien is not
described in section 237(a)(2)(A)(iii) or section 237(a)(4).';
(B) by striking paragraph (3);
(C) by redesignating paragraph (2) as paragraph (3);
(D) by inserting after paragraph (1) the following new paragraph:
`(2) PRIOR TO THE CONCLUSION OF REMOVAL PROCEEDINGS-
After removal proceedings under section 240 are initiated, the Attorney
General may permit an alien voluntarily to depart the United States at
the alien's own expense under this subsection, prior to the conclusion
of such proceedings before an immigration judge, if the alien is not
described in section 237(a)(2)(A)(iii) or section 237(a)(4).'; and
(E) in paragraph (4), by striking `paragraph (1)' and inserting `paragraphs (1) and (2)'.
(2) VOLUNTARY DEPARTURE PERIOD- Such section is further amended--
(A) in subsection (a)(3), as redesignated by paragraph (1)(C)--
(i) by amending subparagraph (A) to read as follows:
`(A) IN LIEU OF REMOVAL- Subject to subparagraph
(C), permission to depart voluntarily under paragraph (1) shall not be
valid for a period exceeding 120 days. The Secretary of Homeland
Security may require an alien permitted to depart voluntarily under
paragraph (1) to post a voluntary departure bond, to be surrendered
upon proof that the alien has departed the United States within the
time specified.';
(ii) in subparagraph (B), by striking `subparagraphs (C) and (D)(ii)' and inserting `subparagraphs (D) and (E)(ii)';
(iii) in subparagraphs (C) and (D), by striking `subparagraph (B)' and inserting `subparagraph (C)' each place it appears;
(iv) by redesignating subparagraphs (B), (C), and (D) as subparagraphs (C), (D), and (E), respectively; and
(v) by inserting after subparagraph (A) the following new subparagraph:
`(B) PRIOR TO THE CONCLUSION OF REMOVAL
PROCEEDINGS- Permission to depart voluntarily under paragraph (2) shall
not be valid for a period exceeding 60 days, and may be granted only
after a finding that the alien has established that the alien has the
means to depart the United States and intends to do so. An alien
permitted to depart voluntarily under paragraph (2) must 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. An immigration
judge may waive posting of a voluntary departure bond in individual
cases upon a finding that the alien has presented compelling evidence
that the posting of a bond will be a serious financial hardship and the
alien has presented credible evidence that such a bond is unnecessary
to guarantee timely departure.'; and
(B) in subsection (b)(2), by striking `60 days' and inserting `45 days'.
(3) VOLUNTARY DEPARTURE AGREEMENTS- Subsection (c) of such section is amended to read as follows:
`(c) Conditions on Voluntary Departure-
`(1) VOLUNTARY DEPARTURE AGREEMENT- Voluntary departure
will be granted only as part of an affirmative agreement by the alien.
A voluntary departure agreement under subsection (b) shall include a
waiver of the right to any further motion, appeal, application,
petition, or petition for review relating to removal or relief or
protection from removal.
`(2) CONCESSIONS BY THE SECRETARY- In connection with
the alien's agreement to depart voluntarily under paragraph (1), the
Secretary of Homeland Security in the exercise of discretion may agree
to a reduction in the period of inadmissibility under subparagraph (A)
or (B)(i) of section 212(a)(9).
`(3) FAILURE TO COMPLY WITH AGREEMENT AND EFFECT OF
FILING TIMELY APPEAL- If an alien agrees to voluntary departure under
this section and fails to depart the United States within the time
allowed for voluntary departure or fails to comply with any other terms
of the agreement (including a failure to timely post any required
bond), the alien automatically becomes ineligible for the benefits of
the agreement, subject to the penalties described in subsection (d),
and subject to an alternate order of removal if voluntary departure was
granted under subsection (a)(2) or (b). However, if an alien agrees to
voluntary departure but later files a timely appeal of the immigration
judge's decision granting voluntary departure, the alien may pursue the
appeal instead of the voluntary departure agreement. Such appeal
operates to void the alien's voluntary departure agreement and the
consequences thereof, but the alien may not again be granted voluntary
departure while the alien remains in the United States.'.
(4) ELIGIBILITY- Subsection (e) of such section is amended to read as follows:
`(1) PRIOR GRANT OF VOLUNTARY DEPARTURE- An alien shall
not be permitted to depart voluntarily under this section if the
Secretary of Homeland Security or the Attorney General previously
permitted the alien to depart voluntarily.
`(2) ADDITIONAL LIMITATIONS- The Secretary of Homeland
Security may by regulation limit eligibility or impose additional
conditions for voluntary departure under subsection (a)(1) for any
class or classes of aliens. The Secretary or Attorney General may by
regulation limit eligibility or impose additional conditions for
voluntary departure under subsection (a)(2) or (b) for any class or
classes of aliens. Notwithstanding any other provision of law
(statutory or nonstatutory), including section 2241 of title 28, United
States Code, or any other habeas corpus provision, and section 1361 and
1651 of such title, no court may review any regulation issued under
this subsection.'.
(b) Avoiding Delays in Voluntary Departure-
(1) Alien's OBLIGATION TO DEPART WITHIN THE TIME
ALLOWED- Subsection (c) of section 240B of the Immigration and
Nationality Act (8 U.S.C. 1229c), as amended by subsection (a), is
further amended by adding at the end the following new paragraph:
`(4) VOLUNTARY DEPARTURE PERIOD NOT AFFECTED- Except as
expressly agreed to by the Secretary of Homeland Security in writing in
the exercise of the Secretary's discretion before the expiration of the
period allowed for voluntary departure, no motion, appeal, application,
petition, or petition for review shall affect, reinstate, enjoin,
delay, stay, or toll the alien's obligation to depart from the United
States during the period agreed to by the alien and the Secretary.'.
(2) NO TOLLING- Subsection (f) of such section is
amended by adding at the end the following new sentence:
`Notwithstanding any other provision of law (statutory or
nonstatutory), including section 2241 of title 28, United States Code,
or any other habeas corpus provision, and section 1361 and 1651 of such
title, no court shall have jurisdiction to affect, reinstate, enjoin,
delay, stay, or toll the period allowed for voluntary departure under
this section.'.
(c) Penalties for Failure To Depart Voluntarily-
(1) PENALTIES FOR FAILURE TO DEPART- Subsection (d) of
section 240B of the Immigration and Nationality Act (8 U.S.C. 229c) is
amended to read as follows:
`(d) Penalties for Failure To Depart- If an alien is
permitted to depart voluntarily under this section and fails
voluntarily to depart from the United States within the time period
specified or otherwise violates the terms of a voluntary departure
agreement, the following provisions apply:
`(A) IN GENERAL- The alien will be liable for a civil penalty of $3,000.
`(B) SPECIFICATION IN ORDER- The order allowing
voluntary departure shall specify the amount of the penalty, which
shall be acknowledged by the alien on the record.
`(C) COLLECTION- If the Secretary of Homeland
Security thereafter establishes that the alien failed to depart
voluntarily within the time allowed, no further procedure will be
necessary to establish the amount of the penalty, and the Secretary may
collect the civil penalty at any time thereafter and by whatever means
provided by law.
`(D) INELIGIBILITY FOR BENEFITS- An alien will be
ineligible for any benefits under this title until any civil penalty
under this subsection is paid.
`(2) INELIGIBILITY FOR RELIEF- The alien will be
ineligible during the time the alien remains in the United States and
for a period of 10 years after the alien's departure for any further
relief under this section and sections 240A, 245, 248, and 249.
`(A) IN GENERAL- Subject to subparagraph (B), the
alien will be ineligible to reopen a final order of removal which took
effect upon the alien's failure to depart, or the alien's violation of
the conditions for voluntary departure, during the period described in
paragraph (2).
`(B) EXCEPTION- Subparagraph (A) does not preclude
a motion to reopen to seek withholding of removal under section
241(b)(3) or protection against torture.
The order permitting the alien to depart voluntarily
under this section shall inform the alien of the penalties under this
subsection.'.
(2) IMPLEMENTATION OF EXISTING STATUTORY PENALTIES- The
Secretary of Homeland Security shall implement regulations to provide
for the imposition and collection of penalties for failure to depart
under section 240B(d) of the Immigration and Nationality Act, as
amended by paragraph (1).
(1) IN GENERAL- Except as provided in paragraph (2),
the amendments made by this section shall apply with respect to all
orders granting voluntary departure under section 240B of the
Immigration and Nationality Act (8 U.S.C. 1229c) made on or after the
date that is 180 days after the date of the enactment of this Act.
(2) EXCEPTION- The amendment made by subsection (b)(2)
shall take effect on the date of the enactment of this Act and shall
apply with respect to any petition for review which is entered on or
after such date.
SEC. 208. DETERRING ALIENS ORDERED REMOVED FROM REMAINING IN
THE UNITED STATES UNLAWFULLY AND FROM UNLAWFULLY RETURNING TO THE
UNITED STATES AFTER DEPARTING VOLUNTARILY.
(a) Inadmissible Aliens- Paragraph (9) of section 212(a) of
the Immigration and Nationality Act (8 U.S.C. 1182(a)) is amended--
(1) in subparagraph (A)(i), by striking `within 5 years of' and inserting `before, or within 5 years of,'; and
(2) in subparagraph (A)(ii) by striking `within 10 years of' and inserting `before, or within 10 years of,'.
(b) Failure To Depart, Apply for Travel Documents, or
Appear for Removal or Conspiracy To Prevent or Hamper Departure-
Section 274D of such Act (8 U.S.C. 1324d) is amended--
(1) in subsection (a), by striking `Commissioner' and inserting `Secretary of Homeland Security'; and
(2) by adding at the end the following new subsection:
`(c) Ineligibility for Relief-
`(1) IN GENERAL- Subject to paragraph (2), unless a
timely motion to reopen is granted under section 240(c)(6), an alien
described in subsection (a) shall be ineligible for any discretionary
relief from removal pursuant to a motion to reopen during the time the
alien remains in the United States and for a period of 10 years after
the alien's departure.
`(2) EXCEPTION- Paragraph (1) does not preclude a
motion to reopen to seek withholding of removal under section 241(b)(3)
or protection against torture.'.
(c) Deterring Aliens From Unlawfully Returning to the
United States After Departing Voluntarily- Section 275(a) of such Act
(8 U.S.C. 1325(a)) is amended by inserting `or following an order of
voluntary departure' after `a subsequent commission of any such
offense'.
(1) IN GENERAL- The amendments made by subsections (a)
and (b) shall take effect on the date of the enactment of this Act with
respect to aliens who are subject to a final order of removal, whether
the removal order was entered before, on, or after such date.
(2) VOLUNTARY DEPARTURE- The amendment made by
subsection (c) shall take effect on the date of the enactment of this
Act and shall apply with respect to conduct occurring on or after such
date.
SEC. 209. ESTABLISHMENT OF THE FORENSIC DOCUMENTS LABORATORY.
(a) In General- The Secretary of Homeland Security shall
establish a Fraudulent Documents Center (to be known as the Forensic
Document Laboratory) to carry out the following:
(1) Collect information from Federal, State, and local
law enforcement agencies, and foreign governments on the production,
sale, distribution, and use of fraudulent documents intended to be used
to enter, travel, or remain within the United States unlawfully.
(2) Maintain the information described in paragraph (1) in a comprehensive database.
(3) Maintain a repository of genuine and fraudulent travel and identity document exemplars.
(4) Convert the information collected into reports that
provide guidance to government officials in identifying fraudulent
documents being used to enter into, travel within, or remain in the
United States.
(5) Develop a system for distributing these reports on
an ongoing basis to appropriate Federal, State, and local law
enforcement agencies.
(b) Distribution of Information- The Forensic Document
Laboratory shall distribute its reports to appropriate Federal, State,
and local law enforcement agencies on an ongoing basis.
SEC. 210. SECTION 1546 AMENDMENTS.
(a) Section 1546(a) of title 18, United States Code, is
amended in the first paragraph by inserting `distributes (or intends to
distribute),' before `or falsely' the first place it appears.
(b) Section 1546(a) of title 18, United States Code, is
amended in the first paragraph by inserting `distributed,' before `or
falsely' the second place it appears.
SEC. 211. MOTIONS TO REOPEN OR RECONSIDER.
(a) Exercise of Discretion- Section 240(c) of the Immigration and Nationality Act (8 U.S.C. 1229a(c)) is amended--
(1) by adding at the end of paragraph (5) the following new subparagraph:
`(D) DISCRETION- The decision to grant or deny a motion to reconsider is committed to the Attorney General's discretion.'; and
(2) by adding at the end of paragraph (6) the following new subparagraph:
`(D) DISCRETION- The decision to grant or deny a motion to reopen is committed to the Attorney General's discretion.'.
(b) Prima Facie Eligibility for Protection From Removal to
Alternative Country of Removal Not Previously Considered- Section
240(c) of the Immigration and Nationality Act (8 U.S.C. 1229a) is
further amended by adding at the end of paragraph (6) the following new
subparagraph:
`(E) SPECIAL RULE FOR ALTERNATIVE COUNTRIES OF
REMOVAL- The time and numerical limitations specified in this paragraph
shall not apply if--
`(i) the Secretary seeks to remove the alien to
an alternative or additional country of removal under subparagraph (D)
or (E) of section 241(b)(2) that had not been considered during the
alien's prior removal proceedings;
`(ii) the alien's motion to reopen is filed
within 30 days after the date the alien receives notice of the
Secretary's intention to remove the alien to that country; and
`(iii) the alien establishes a prima facie case
that the alien is entitled by law to withholding of removal under
section 241(b)(3) or protection under the Convention Against Torture
with respect to that particular country.'.
(c) Effective Date- This section, and the amendments made
by this section, shall apply to motions to reopen and reconsider that
are filed on or after the date of the enactment of this Act in removal,
deportation, or exclusion proceedings, regardless of whether a final
administrative order is entered before, on, or after such date.
SEC. 212. REFORM OF PASSPORT, VISA, AND IMMIGRATION FRAUD OFFENSES.
Chapter 75 of title 18, United States Code is amended to read as follows:
`CHAPTER 75--PASSPORT, VISA, AND IMMIGRATION FRAUD
`1541. Trafficking in passports.
`1542. False statement in an application for a passport.
`1543. Forgery and unlawful production of a passport.
`1544. Misuse of a passport.
`1545. Schemes to defraud aliens.
`1546. Immigration and visa fraud.
`1547. Attempts and conspiracies.
`1548. Increased penalties for certain offenses.
`1549. Seizure and forfeiture.
`1550. Additional jurisdiction.
`1553. Authorized law enforcement activities.
`Sec. 1541. Trafficking in passports
`(a) Whoever, during any three-year period--
`(1) knowingly and without lawful authority produces, issues, or transfers 10 or more passports; or
`(2) knowingly forges, counterfeits, alters, or falsely makes 10 or more passports; or
`(3) knowingly secures, possesses, uses, receives,
buys, or sells 10 or more passports, knowing the passports to be
forged, counterfeited, altered, falsely made, stolen, procured by
fraud, issued, or designed for the use of another, or produced or
issued without lawful authority; or
`(4) knowingly completes, mails, prepares, presents,
signs, or submits 10 or more applications for a United States passport
(including any supporting documentation) knowing the applications to
contain any false statement or representation;
shall be fined under this title, imprisoned not less than 3 years nor more than 20 years, or both.
`(b) Whoever knowingly and without lawful authority
produces, counterfeits, secures, possesses, or uses any official paper,
seal, hologram, image, text, symbol, stamp, engraving, plate, or other
material used to make a passport shall be fined under this title,
imprisoned not less than 3 years nor more than 20 years, or both.
`Sec. 1542. False statement in an application for a passport
`(1) makes any false statement or representation in an
application for a United States passport (including any supporting
documentation); or
`(2) completes, mails, prepares, presents, signs, or
submits an application for a United States passport (including any
supporting documentation) knowing it to contain any false statement or
representation; or
`(3) causes or attempts to cause the production of a
passport by means of any fraud or false application for a United States
passport (including any supporting documentation), when such production
occurs or would occur at a facility authorized by the Secretary of
State for the production of passports;
shall be fined under this title, imprisoned not more than 15 years, or both.
`Sec. 1543. Forgery and unlawful production of a passport
`(1) knowingly forges, counterfeits, alters, or falsely makes any passport; or
`(2) knowingly transfers any passport knowing it to be
forged, counterfeited, altered, falsely made, stolen, or to have been
produced or issued without lawful authority;
shall be fined under this title, imprisoned not more than 15 years, or both.
`(b) Whoever knowingly and without lawful authority--
`(1) produces, issues, authorizes, or verifies a
passport in violation of the laws, regulations, or rules governing the
issuance of the passport; or
`(2) produces, issues, authorizes, or verifies a United
States passport for or to any person not owing allegiance to the United
States; or
`(3) transfers or furnishes a passport to a person for
use when such person is not the person for whom the passport was issued
or designed;
shall be fined under this title, imprisoned not more than 15 years, or both.
`Sec. 1544. Misuse of a passport
`(1) knowingly uses any passport issued or designed for the use of another; or
`(2) knowingly uses any passport in violation of the
conditions or restrictions therein contained, or in violation of the
laws, regulations, or rules governing the issuance and use of the
passport; or
`(3) knowingly secures, possesses, uses, receives,
buys, or sells any passport knowing it to be forged, counterfeited,
altered, falsely made, procured by fraud, or produced or issued without
lawful authority; or
`(4) knowingly violates the terms and conditions of any
safe conduct duly obtained and issued under the authority of the United
States;
shall be fined under this title, imprisoned not more than 15 years, or both.
`(b) Whoever knowingly uses any passport--
`(1) to enter or to attempt to enter the United States, or
`(2) to defraud an agency of the United States, a State, or a political subdivision of a State,
knowing the passport to be forged, counterfeited, altered,
falsely made, procured by fraud, produced or issued without lawful
authority, or issued or designed for the use of another, shall be fined
under this title, imprisoned not less than 6 months nor more than 15
years, or both.
`Sec. 1545. Schemes to defraud aliens
`(a) Whoever knowingly defrauds any person in connection with--
`(1) any matter that is authorized by or arises under the immigration laws of the United States, or
`(2) any matter the offender claims or represents is authorized by or arises under the immigration laws of the United States,
shall be fined under this title, imprisoned not more than 15 years, or both.
`(b) Whoever knowingly and falsely represents himself to be
an attorney in any matter authorized by or arising under the
immigration laws of the United States shall be fined under this title,
imprisoned not more than 15 years, or both.
`Sec. 1546. Immigration and visa fraud
`(1) knowingly uses any immigration document issued or designed for the use of another; or
`(2) knowingly forges, counterfeits, alters, or falsely makes any immigration document; or
`(3) knowingly completes, mails, prepares, presents,
signs, or submits any immigration document knowing it to contain any
materially false statement or representation; or
`(4) knowingly secures, possesses, uses, transfers,
receives, buys, or sells any immigration document knowing it to be
forged, counterfeited, altered, falsely made, stolen, procured by
fraud, issued or designed for another, or produced or issued without
lawful authority; or
`(5) knowingly adopts or uses a false or fictitious name to evade or to attempt to evade the immigration laws; or
`(6) knowingly and without lawful authority transfers
or furnishes an immigration document to a person for use when such
person is not the person for whom the immigration document was issued
or designed;
shall be fined under this title, imprisoned not more than 15 years, or both.
`(b) Whoever, during any three-year period--
`(1) knowingly and without lawful authority produces, issues, or transfers 10 or more immigration documents; or
`(2) knowingly forges, counterfeits, alters, or falsely makes 10 or more immigration documents; or
`(3) knowingly secures, possesses, uses, buys, or sells
10 or more immigration documents, knowing the immigration documents to
be forged, counterfeited, altered, stolen, falsely made, procured by
fraud, or issued or designed for the use of another, or produced or
issued without lawful authority; or
`(4) knowingly completes, mails, prepares, presents,
signs, or submits 10 or more immigration documents knowing the
documents to contain any materially false statement or representation;
shall be fined under this title, imprisoned not less than 2 years nor more than 20 years, or both.
`(c) Whoever knowingly and without lawful authority
produces, counterfeits, secures, possesses, or uses any official paper,
seal, hologram, image, text, symbol, stamp, engraving, plate, or other
material used to make an immigration document shall be fined under this
title, imprisoned not less than 2 years nor more than 20 years, or both.
`Sec. 1547. Attempts and conspiracies
`Whoever attempts or conspires to violate any section
within this chapter shall be punished in the same manner as a completed
violation of that section. An attempt offense under this chapter is a
general intent crime.
`Sec. 1548. Increased penalties for certain offenses
`(a) Whoever violates any of the sections within this
chapter with the intent to facilitate an act of international terrorism
(as defined in section 2331 of this title) shall be fined under this
title, imprisoned not less than 7 years nor more than 25 years, or both.
`(b) Whoever violates any section in this chapter with the
intent to facilitate the commission of any offense against the United
States (other than an offense in this chapter) or against any State,
which offense is punishable by imprisonment for more than 1 year, shall
be fined under this title, imprisoned not less than 3 years nor more
than 20 years, or both.
`Sec. 1549. Seizure and forfeiture
`(a) Any property, real or personal, that has been used to
commit or facilitate the commission of a violation of any section
within this chapter, the gross proceeds of such violation, and any
property traceable to such property or proceeds, shall be subject to
forfeiture.
`(b) Seizures and forfeitures under this section shall be
governed by the provisions of chapter 46 of this title, relating to
civil forfeitures, including section 981(d) of such title, except that
such duties as are imposed upon the Secretary of the Treasury under the
customs laws described in that section shall be performed by such
officers, agents, and other persons as may be designated for that
purpose by the Secretary of Homeland Security, the Secretary of State,
or the Attorney General.
`Sec. 1550. Additional jurisdiction
`(a) Whoever commits an offense under this chapter within
the special maritime and territorial jurisdiction of the United States
shall be punished as provided by that offense.
`(b) Whoever commits an offense under this chapter outside
the United States shall be punished as provided by that offense if--
`(1) the offense involves a United States immigration
document (or any document purporting to be the same) or any matter,
right, or benefit arising under or authorized by the immigration laws
of the United States or the regulations prescribed thereunder; or
`(2) the offense is in or affects foreign commerce; or
`(3) the offense affects, jeopardizes, or poses a
significant risk to the lawful administration of the immigration laws
of the United States, or the national security of the United States; or
`(4) the offense is committed to facilitate an act of
international terrorism (as defined in section 2331 of this title) or a
drug trafficking crime (as defined in section 929(a) of this title)
that affects or would affect the national security of the United
States; or
`(5) an offender is a national of the United States (as
defined in section 101(a)(22) of the Immigration and Nationality Act (8
U.S.C. 1001(a)(22)) or an alien lawfully admitted for permanent
residence in the United States (as defined in section 101(a)(20) of the
Immigration and Nationality Act (8 U.S.C. 1001(a)(20)); or
`(6) an offender is a stateless person whose habitual residence is in the United States.
`Sec. 1551. Additional venue
`An offense under section 1542 of this chapter may be prosecuted in--
`(1) any district in which the false statement or representation was made; or
`(2) any district in which the passport application was prepared, submitted, mailed, received, processed, or adjudicated; or
`(3) in the case of an application prepared and
adjudicated outside the United States, in the district in which the
resultant passport was produced.
Nothing in this section limits the venue otherwise available under sections 3237 and 3238 of this title.
`Sec. 1552. Definitions
`For purposes of this chapter:
`(1) The term `falsely make' means to prepare or
complete an immigration document with knowledge or in reckless
disregard of the fact that the document--
`(A) contains a statement or representation that is false, fictitious, or fraudulent;
`(B) has no basis in fact or law; or
`(C) otherwise fails to state a fact that is
material to the purpose for which the document was created, designed,
or submitted.
`(2) The term a `false statement or representation' includes a personation or an omission.
`(3) 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.
`(4) The term `immigration document' means--
`(A) any passport or visa; or
`(B) any application, petition, affidavit,
declaration, attestation, form, identification card, alien registration
document, employment authorization document, border crossing card,
certificate, permit, order, license, stamp, authorization, grant of
authority, or other evidentiary document, arising under or authorized
by the immigration laws of the United States.
Such term includes any document, photograph, or other
piece of evidence attached to or submitted in support of an immigration
document.
`(5) The term `immigration laws' includes--
`(A) the laws described in section 101(a)(17) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(17));
`(B) the laws relating to the issuance and use of passports; and
`(C) the regulations prescribed under the authority of any law described in paragraphs (1) and (2) of this subsection.
`(6) A person does not exercise `lawful authority' if
the person abuses or improperly exercises lawful authority the person
otherwise holds.
`(7) The term `passport' means a travel document
attesting to the identity and nationality of the bearer that is issued
under the authority of the Secretary of State, a foreign government, or
an international organization; or any instrument purporting to be the
same.
`(8) The term `produce' means to make, prepare, assemble, issue, print, authenticate, or alter.
`(9) The term `State' means a State of the United
States, the District of Columbia, and any commonwealth, territory, or
possession of the United States.
`Sec. 1553. Authorized law enforcement activities
`The sections in this chapter do not prohibit any lawfully
authorized investigative, protective, or intelligence activity of a law
enforcement agency of the United States, a State, or a subdivision of a
State, or of an intelligence agency of the United States, or any
activity authorized under title V of the Organized Crime Control Act of
1970 (18 U.S.C. note prec. 3481).'.
SEC. 213. CRIMINAL DETENTION OF ALIENS.
(a) Section 3142(e) of title 18, United States Code, is amended by inserting at the end the following:
`Subject to rebuttal by the person, it shall be presumed
that no condition or combination of conditions will reasonably assure
the appearance of the person as required if the judicial officer finds
that there is probable cause to believe that the person is an alien and
that the person--
`(1) has no lawful immigration status in the United States;
`(2) is the subject of a final order of removal; or
`(3) has committed a felony offense under section 911,
922(g)(5), 1015, 1028, 1425, or 1426 of this title, or any section of
chapters 75 and 77 of this title, or section 243, 274, 275, 276, 277,
or 278, of the Immigration and Nationality Act.'.
(b) Section 3142(g)(3) of title 18, United States Code, is
amended by striking `and' at the end of subparagraph (A) and by adding
at the end the following new subparagraph:
`(C) the person's immigration status; and'.
SEC. 214. UNIFORM STATUTE OF LIMITATIONS FOR CERTAIN IMMIGRATION, NATURALIZATION, AND PEONAGE OFFENSES.
Section 3291 of title 18, United States Code, is amended to read as follows:
`SEC. 3291. IMMIGRATION, NATURALIZATION, AND PEONAGE OFFENSES.
`No person shall be prosecuted, tried, or punished for a
violation of any section of chapters 69 (relating to nationality and
citizenship offenses), 75 (relating to passport, visa, and immigration
offenses), or 77 (relating to peonage, slavery, and trafficking in
persons) of this title (or for attempt or conspiracy to violate any
such section), or for a violation of any criminal provision of sections
243, 266, 274, 275, 276, 277, or 278 of the Immigration and Nationality
Act (or for attempt or conspiracy to violate any such section), unless
the indictment is returned or the information filed within ten years
after the commission of the offense.'.
SEC. 215. CONFORMING AMENDMENT.
Subparagraph (P) of section 101(a)(43) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(43)) is amended--
(1) by striking `(i) which either is falsely making,
forging, counterfeiting, mutilating, or altering a passport or
instrument in violation of section 1543 of title 18 or is described in
section 1546(a) of such title (relating to document fraud) and (ii)'
and inserting `which is described in any section of chapter 75 of title
18, United States Code,'; and
(2) by inserting after `first offense' the following:
`(i) that is not described in section 1548 (relating to increased
penalties), and (ii)'.
SEC. 216. INADMISSIBILITY FOR PASSPORT AND IMMIGRATION FRAUD.
(a) In General- Section 212(a)(2)(A)(i) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(2)(A)(i)) is amended--
(1) by striking `or' at the end of subclause (I);
(2) by inserting `or' at the end of subclause (II); and
(3) by inserting the following new subparagraph:
`(III) a violation of (or a conspiracy or attempt to violate) any section of chapter 75 of title 18, United States Code,'.
(b) Effective Date- The amendments made by subsection (a)
shall apply to proceedings pending on or after the date of the
enactment of this Act.
SEC. 217. REMOVAL FOR PASSPORT AND IMMIGRATION FRAUD.
(a) In General- Clause (iii) of section 237(a)(3)(B) of the
Immigration and Nationality Act (8 U.S.C.1227(a)(3)(B)) is amended to
read as follows `(iii) of a violation of, or an attempt or a conspiracy
to violate, any section of chapter 75 of title 18, United States Code,'.
(b) Effective Date- This amendment made by subsection (a)
shall apply to proceedings pending on or after the date of the
enactment of this Act.
SEC. 218. REDUCTION IN IMMIGRATION BACKLOG.
(a) In General- The Secretary of Homeland Security shall
require that, not later than six months after the date of the enactment
of this Act, the Director of United States Citizenship and Immigration
Services (in this section referred to as `USCIS') undertake maximum
efforts to reduce to the greatest extent practicable the backlog in the
processing and adjudicative functions of USCIS.
(b) Pilot Program Initiatives-
(1) IN GENERAL- The Director is authorized to implement
a pilot program for the purposes of, to the greatest extent
practicable--
(A) reducing the backlog in the processing of immigration benefit applications; and
(B) preventing such backlog from recurring.
(2) INITIATIVES- To carry out paragraph (1),
initiatives may include measures such as increasing personnel,
transferring personnel to focus on areas with the largest potential for
backlog, streamlining paperwork processes, and increasing information
technology and service centers.
SEC. 219. FEDERAL AFFIRMATION OF ASSISTANCE IN THE IMMIGRATION LAW ENFORCEMENT BY STATES AND POLITICAL SUBDIVISIONS OF STATES.
(a) In General- Notwithstanding any other provision of law
and reaffirming the existing inherent authority of States, law
enforcement personnel of a State or a political subdivision of a State
have the inherent authority of a sovereign entity to investigate,
identify, apprehend, arrest, detain, or transfer to Federal custody
aliens in the United States (including the transportation of such
aliens across State lines to detention centers), for the purposes of
assisting in the enforcement of the immigration laws of the United
States in the course of carrying out routine duties. This State
authority has never been displaced or preempted by Congress.
(b) Construction- Nothing in this section may be construed
to require law enforcement personnel of a State or political
subdivision of a State to--
(1) report the identity of a victim of, or a witness
to, a criminal offense to the Secretary of Homeland Security for
immigration enforcement purposes; or
(2) arrest such victim or witness for a violation of the immigration laws of the United States.
SEC. 220. TRAINING OF STATE AND LOCAL LAW ENFORCEMENT PERSONNEL RELATING TO THE ENFORCEMENT OF IMMIGRATION LAWS.
(a) Establishment of Training Manual and Pocket Guide- Not
later than 180 days after the date of the enactment of this Act, the
Secretary of Homeland Security shall establish--
(1) a training manual for law enforcement personnel of
a State or political subdivision of a State to train such personnel in
the investigation, identification, apprehension, arrest, detention, and
transfer to Federal custody of aliens in the United States (including
the transportation of such aliens across State lines to detention
centers and the identification of fraudulent documents); and
(2) an immigration enforcement pocket guide for law
enforcement personnel of a State or political subdivision of a State to
provide a quick reference for such personnel in the course of duty.
(b) Availability- The training manual and pocket guide
established in accordance with subsection (a) shall be made available
to all State and local law enforcement personnel.
(c) Applicability- Nothing in this section shall be
construed to require State or local law enforcement personnel to carry
the training manual or pocket guide established under subsection (a)(2)
with them while on duty.
(d) Costs- The Secretary of Homeland Security shall be
responsible for any and all costs incurred in establishing the training
manual and pocket guide under subsection (a).
(e) Training Flexibility-
(1) IN GENERAL- The Secretary of Homeland Security
shall make training of State and local law enforcement officers
available through as many means as possible, including residential
training at the Center for Domestic Preparedness, onsite training held
at State or local police agencies or facilities, online training
courses by computer, teleconferencing, and videotape, or the digital
video display (DVD) of a training course or courses. E-learning through
a secure, encrypted distributed learning system that has all its
servers based in the United States, is sealable, survivable, and can
have a portal in place within 30 days, shall be made available by the
Federal Law Enforcement Training Center Distributed Learning Program
for State and local law enforcement personnel.
(2) FEDERAL PERSONNEL TRAINING- The training of State
and local law enforcement personnel under this section shall not
displace the training of Federal personnel.
(3) CLARIFICATION- Nothing in this Act or any other
provision of law shall be construed as making any immigration-related
training a requirement for, or prerequisite to, any State or local law
enforcement officer to assist in the enforcement of Federal immigration
laws in the normal course of carrying out their normal law enforcement
duties.
(f) Training Limitation- Section 287(g) of the Immigration and Nationality Act (8 U.S.C. 1357(g)) is amended--
(1) by striking `Attorney General' and inserting `Secretary of Homeland Security' each place it appears; and
(2) in paragraph (2), by adding at the end the
following: `Such training shall not exceed 14 days or 80 hours,
whichever is longer.'.
SEC. 221. FINANCIAL ASSISTANCE TO STATE AND LOCAL POLICE AGENCIES THAT ASSIST IN THE ENFORCEMENT OF IMMIGRATION LAWS.
(a) Grants for Special Equipment for Housing and Processing
Illegal Aliens- From amounts made available to make grants under this
section, the Secretary of Homeland Security shall make grants to States
and political subdivisions of States for procurement of equipment,
technology, facilities, and other products that facilitate and are
directly related to investigating, apprehending, arresting, detaining,
or transporting immigration law violators, including additional
administrative costs incurred under this Act.
(b) Eligibility- To be eligible to receive a grant under
this section, a State or political subdivision of a State must have the
authority to, and have in effect the policy and practice to, assist in
the enforcement of the immigration laws of the United States in the
course of carrying out such agency's routine law enforcement duties.
(c) Funding- There is authorized to be appropriated for grants under this section $300,000,000 for each fiscal year.
(d) GAO Audit- Not later than 3 years after the date of the
enactment of this Act, the Comptroller General of the United States
shall conduct an audit of funds distributed to States and political
subdivisions of States under subsection (a).
SEC. 222. INSTITUTIONAL REMOVAL PROGRAM (IRP).
(a) Continuation and Expansion-
(1) IN GENERAL- The Department of Homeland Security
shall continue to operate and implement the program known as the
Institutional Removal Program (IRP) which--
(A) identifies removable criminal aliens in Federal and State correctional facilities;
(B) ensures such aliens are not released into the community; and
(C) removes such aliens from the United States after the completion of their sentences.
(2) EXPANSION- The institutional removal program shall
be extended to all States. Any State that receives Federal funds for
the incarceration of criminal aliens shall--
(A) cooperate with officials of the institutional removal program;
(B) expeditiously and systematically identify criminal aliens in its prison and jail populations; and
(C) promptly convey such information to officials of such program as a condition for receiving such funds.
(b) Authorization for Detention After Completion of State
or Local Prison Sentence- Law enforcement officers of a State or
political subdivision of a State have the authority to--
(1) hold an illegal alien for a period of up to 14 days
after the alien has completed the alien's State prison sentence in
order to effectuate the transfer of the alien to Federal custody when
the alien is removable or not lawfully present in the United States; or
(2) issue a detainer that would allow aliens who have
served a State prison sentence to be detained by the State prison until
personnel from United States Immigration and Customs Enforcement can
take the alien into custody.
(c) Technology Usage- Technology such as video conferencing
shall be used to the maximum extent possible in order to make the
Institutional Removal Program (IRP) available in remote locations.
Mobile access to Federal databases of aliens, such as IDENT, and live
scan technology shall be used to the maximum extent practicable in
order to make these resources available to State and local law
enforcement agencies in remote locations.
(d) Authorization of Appropriations- There is authorized to be appropriated to carry out the institutional removal program--
(1) $100,000,000 for fiscal year 2009;
(2) $115,000,000 for fiscal year 2010;
(3) $130,000,000 for fiscal year 2011;
(4) $145,000,000 for fiscal year 2012; and
(5) $160,000,000 for fiscal year 2013.
SEC. 223. STATE CRIMINAL ALIEN ASSISTANCE PROGRAM (SCAAP).
Section 241(i)(5) of the Immigration and Nationality Act (8
U.S.C. 1231(i)) is amended by inserting before the period at the end
the following: `and $1,000,000,000 for each subsequent fiscal year'.
SEC. 224. STATE AUTHORIZATION FOR ASSISTANCE IN THE ENFORCEMENT OF IMMIGRATION LAWS ENCOURAGED.
(a) In General- Effective 2 years after the date of the
enactment of this Act, a State (or political subdivision of a State)
that has in effect a statute, policy, or practice that prohibits law
enforcement officers of the State, or of a political subdivision within
the State, from assisting or cooperating with Federal immigration law
enforcement in the course of carrying out the officers' routine law
enforcement duties shall not receive any of the funds that would
otherwise be allocated to the State under section 241(i) of the
Immigration and Nationality Act (8 U.S.C. 1231(i)).
(b) Construction- Nothing in this section shall require law
enforcement officials from States or political subdivisions of States
to report or arrest victims or witnesses of a criminal offense.
(c) Reallocation of Funds- Any funds that are not allocated
to a State or political subdivision of a State due to the failure of
the State to comply with subsection (a) shall be reallocated to States
that comply with such subsection.
TITLE III--BORDER SECURITY COOPERATION AND ENFORCEMENT
SEC. 301. JOINT STRATEGIC PLAN FOR UNITED STATES BORDER SURVEILLANCE AND SUPPORT.
(a) In General- The Secretary of Homeland Security and the
Secretary of Defense shall develop a joint strategic plan to use the
authorities provided to the Secretary of Defense under chapter 18 of
title 10, United States Code, to increase the availability and use of
Department of Defense equipment, including unmanned aerial vehicles,
tethered aerostat radars, and other surveillance equipment, to assist
with the surveillance activities of the Department of Homeland Security
conducted at or near the international land and maritime borders of the
United States.
(b) Report- Not later than six months after the date of the
enactment of this Act, the Secretary of Homeland Security and the
Secretary of Defense shall submit to appropriate congressional
committees (as defined in section 102(g)) a report containing--
(1) a description of the use of Department of Defense
equipment to assist with the surveillance by the Department of Homeland
Security of the international land and maritime borders of the United
States;
(2) the joint strategic plan developed pursuant to subsection (a);
(3) a description of the types of equipment and other
support to be provided by the Department of Defense under the joint
strategic plan during the one-year period beginning after submission of
the report under this subsection; and
(4) a description of how the Department of Homeland
Security and the Department of Defense are working with the Department
of Transportation on safety and airspace control issues associated with
the use of unmanned aerial vehicles in the National Airspace System.
(c) Rules of Construction- (1) Nothing in this section
shall be construed as altering or amending the prohibition on the use
of any part of the Army or the Air Force as a posse comitatus under
section 1385 of title 18, United States Code.
(2) Nothing in this section shall be construed to alter,
impact, diminish, or in any way undermine the authority of the
Administrator of the Federal Aviation Administration to oversee,
regulate, and control the safe and efficient use of the airspace of the
United States.
SEC. 302. BORDER SECURITY ON PROTECTED LAND.
(a) In General- The Secretary of Homeland Security, in
consultation with the Secretary of the Interior, shall evaluate border
security vulnerabilities on land directly adjacent to the international
land border of the United States under the jurisdiction of the
Department of the Interior related to the prevention of the entry of
terrorists, other unlawful aliens, narcotics, and other contraband into
the United States.
(b) Support for Border Security Needs- Based on the
evaluation conducted pursuant to subsection (a), the Secretary of
Homeland Security shall provide appropriate border security assistance
on land directly adjacent to the international land border of the
United States under the jurisdiction of the Department of the Interior,
its bureaus, and tribal entities.
SEC. 303. BORDER SECURITY THREAT ASSESSMENT AND INFORMATION SHARING TEST AND EVALUATION EXERCISE.
Not later than one year after the date of the enactment of
this Act, the Secretary of Homeland Security shall design and carry out
a national border security exercise for the purposes of--
(1) involving officials from Federal, State,
territorial, local, tribal, and international governments and
representatives from the private sector;
(2) testing and evaluating the capacity of the United
States to anticipate, detect, and disrupt threats to the integrity of
United States borders; and
(3) testing and evaluating the information sharing
capability among Federal, State, territorial, local, tribal, and
international governments.
SEC. 304. BORDER SECURITY ADVISORY COMMITTEE.
(a) Establishment of Committee- Not later than one year
after the date of the enactment of this Act, the Secretary of Homeland
Security shall establish an advisory committee to be known as the
Border Security Advisory Committee (in this section referred to as the
`Committee').
(b) Duties- The Committee shall advise the Secretary on
issues relating to border security and enforcement along the
international land and maritime border of the United States.
(c) Membership- The Secretary shall appoint members to the Committee from the following:
(1) State and local government representatives from
States located along the international land and maritime borders of the
United States.
(2) Community representatives from such States.
(3) Tribal authorities in such States.
SEC. 305. PERMITTED USE OF HOMELAND SECURITY GRANT FUNDS FOR BORDER SECURITY ACTIVITIES.
(a) Reimbursement- The Secretary of Homeland Security may
allow the recipient of amounts under a covered grant to use those
amounts to reimburse itself for costs it incurs in carrying out any
terrorism prevention or deterrence activity that--
(1) relates to the enforcement of Federal laws aimed at
preventing the unlawful entry of persons or things into the United
States, including activities such as detecting or responding to such an
unlawful entry or providing support to another entity relating to
preventing such an unlawful entry;
(2) is usually a Federal duty carried out by a Federal agency; and
(3) is carried out under agreement with a Federal agency.
(b) Use of Prior Year Funds- Subsection (a) shall apply to
all covered grant funds received by a State, local government, or
Indian tribe at any time on or after October 1, 2001.
(c) Covered Grants- For purposes of subsection (a), the
term `covered grant' means grants provided by the Department of
Homeland Security to States, local governments, or Indian tribes
administered under the following programs:
(1) STATE HOMELAND SECURITY GRANT PROGRAM- The State
Homeland Security Grant Program of the Department, or any successor to
such grant program.
(2) URBAN AREA SECURITY INITIATIVE- The Urban Area
Security Initiative of the Department, or any successor to such grant
program.
(3) LAW ENFORCEMENT TERRORISM PREVENTION PROGRAM- The
Law Enforcement Terrorism Prevention Program of the Department, or any
successor to such grant program.
SEC. 306. CENTER OF EXCELLENCE FOR BORDER SECURITY.
(a) Establishment- The Secretary of Homeland Security shall
establish a university-based Center of Excellence for Border Security
following the merit-review processes and procedures and other
limitations that have been established for selecting and supporting
University Programs Centers of Excellence.
(b) Activities of the Center- The Center shall prioritize
its activities on the basis of risk to address the most significant
threats, vulnerabilities, and consequences posed by United States
borders and border control systems. The activities shall include the
conduct of research, the examination of existing and emerging border
security technology and systems, and the provision of education,
technical, and analytical assistance for the Department of Homeland
Security to effectively secure the borders.
SEC. 307. SENSE OF CONGRESS REGARDING COOPERATION WITH INDIAN NATIONS.
It is the sense of Congress that--
(1) the Department of Homeland Security should strive
to include as part of a National Strategy for Border Security
recommendations on how to enhance Department cooperation with sovereign
Indian Nations on securing our borders and preventing terrorist entry,
including, specifically, the Department should consider whether a
Tribal Smart Border working group is necessary and whether further
expansion of cultural sensitivity training, as exists in Arizona with
the Tohono O'odham Nation, should be expanded elsewhere; and
(2) as the Department of Homeland Security develops a
National Strategy for Border Security, it should take into account the
needs and missions of each agency that has a stake in border security
and strive to ensure that these agencies work together cooperatively on
issues involving Tribal lands.
SEC. 308. COMMUNICATION BETWEEN GOVERNMENT AGENCIES AND THE DEPARTMENT OF HOMELAND SECURITY.
(a) In General- Section 642 of the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1373) is
amended--
(1) by striking `Immigration and Naturalization
Service' and inserting `Department of Homeland Security' each place it
appears; and
(2) by adding at the end the following:
`(1) INELIGIBILITY FOR FEDERAL LAW ENFORCEMENT AID-
Upon a determination that any person, or any Federal, State, or local
government agency or entity, is in violation of subsection (a) or (b),
the Attorney General shall not provide to that person, agency, or
entity any grant amount pursuant to any law enforcement grant program
carried out by any element of the Department of Justice, including the
program under section 241(i) of the Immigration and Nationality Act (8
U.S.C. 241(i)), and shall ensure that no such grant amounts are
provided, directly or indirectly, to such person, agency, or entity. In
the case of grant amounts that otherwise would be provided to such
person, agency, or entity pursuant to a formula, such amounts shall be
reallocated among eligible recipients.
`(2) VIOLATIONS BY GOVERNMENT OFFICIALS- In any case in
which a Federal, State, or local government official is in violation of
subsection (a) or (b), the government agency or entity that employs
(or, at the time of the violation, employed) the official shall be
subject to the sanction under paragraph (1).
`(3) DURATION- The sanction under paragraph (1) shall
remain in effect until the Attorney General determines that the person,
agency, or entity has ceased violating subsections (a) and (b).'.
(b) Effective Date- The amendments made by subsection (a)
shall apply to grant requests pending on or after the date of the
enactment of this Act.
SEC. 309. RED ZONE DEFENSE BORDER INTELLIGENCE PILOT PROGRAM.
(a) Establishment- The Secretary of Homeland Security and
the Director of National Intelligence shall jointly establish a pilot
program to improve the coordination and management of intelligence and
homeland security information provided to or utilized by the Department
of Homeland Security relating to the southwest international land and
maritime border of the United States.
(b) Pilot Area- The Secretary of Homeland Security and the
Director of National Intelligence shall designate a geographic area
along the southwest international land and maritime border of the
United States centered on Cochise County, Arizona, to be the pilot area
for the pilot program established pursuant to subsection (a).
(c) Program- The pilot program established pursuant to subsection (a) shall--
(1) coordinate and facilitate the sharing of
intelligence and homeland security information related to border
security within the pilot area designated pursuant to subsection (b)
among Federal, State, local, and tribal governments, including relevant
intelligence and homeland security information provided to the
Department of Homeland Security by the intelligence community and
relevant intelligence and homeland security information gathered by the
Department of Homeland Security from other sources;
(2) to the maximum extent possible, provide for persistent surveillance of such pilot area;
(3) to the maximum extent possible, utilize airships,
aerostats, and existing unmanned aerial vehicles to provide for
surveillance of such pilot area;
(4) to the maximum extent possible, fully utilize the
capabilities of underutilized assets currently available to conduct
surveillance of such pilot area;
(5) where practicable, utilize the capabilities of
existing operational and analytical centers that analyze intelligence
and homeland security information relating to such pilot area from
multiple sources and improve the interoperability of such centers;
(6) consistent with applicable security requirements,
disseminate actionable intelligence and homeland security information
relating to border security within such pilot area to the appropriate
Federal, State, local, tribal, and foreign governments to support
operational activities relating to border security within such pilot
area;
(7) provide for direct transmission of such actionable
intelligence and homeland security information to operational and
analytical centers included in the pilot program;
(8) provide for a representative of the Department of
Homeland Security to be assigned to each operational and analytical
center to facilitate the immediate utilization, where practicable, of
such actionable intelligence and homeland security information; and
(9) develop metrics to assess the capability of such pilot program to improve border security.
(d) Strategy Coordination- In establishing the pilot
program under subsection (a), the Director of National Intelligence
shall coordinate the intelligence activities of the pilot program with
the relevant activities and programs of other elements of the
intelligence community.
(e) Headquarters- The Secretary of Homeland Security and
the Director of National Intelligence may establish a headquarters for
the pilot program established pursuant to subsection (a) within the
area designated as the pilot area pursuant to subsection (b).
(f) Duration- The pilot program established pursuant to subsection (a) shall last a minimum of two years.
(g) Report- Not later than one year after the establishment
of the pilot program pursuant to subsection (a), the Secretary of
Homeland Security and the Director of National Intelligence shall
submit to Congress a report containing--
(1) the lessons learned from such pilot program based on the metrics developed pursuant to subsection (c)(9);
(2) recommendations for enhancing the provision and
sharing of intelligence and homeland security information relating to
border security under the National Strategy for Border Security
submitted pursuant to section 102(b) and with other programs of the
intelligence community relating to border security; and
(3) an identification of any provisions of law that may
impede effective coordination of intelligence and homeland security
information relating to the southwest international land and maritime
border of the United States.
(h) Definitions- In this section:
(1) HOMELAND SECURITY INFORMATION- The term `homeland
security information' has the meaning given the term in section
892(f)(1) of the Homeland Security Act of 2002 (6 U.S.C. 482(f)(1)).
(2) INTELLIGENCE COMMUNITY- The term `intelligence
community' has the meaning given the term in section 3(4) of the
National Security Act of 1947 (50 U.S.C. 401a(4)).
(i) Authorization of Appropriations- There are authorized
to be appropriated such sums as may be necessary to carry out this
section.
TITLE IV--DETENTION AND REMOVAL
SEC. 401. MANDATORY DETENTION FOR ALIENS APPREHENDED AT OR BETWEEN PORTS OF ENTRY.
(a) In General- Beginning on October 1, 2008, an alien who
is attempting to illegally enter the United States and who is
apprehended at a United States port of entry or along the international
land and maritime border of the United States shall be detained until
removed or a final decision granting admission has been determined,
unless the alien--
(1) is permitted to withdraw an application for
admission under section 235(a)(4) of the Immigration and Nationality
Act (8 U.S.C. 1225(a)(4)) and immediately departs from the United
States pursuant to such section; or
(2) is paroled into the United States by the Secretary
of Homeland Security for urgent humanitarian reasons or significant
public benefit in accordance with section 212(d)(5)(A) of such Act (8
U.S.C. 1182(d)(5)(A)).
(b) Requirements During Interim Period- Beginning 60 days
after the date of the enactment of this Act and before October 1, 2008,
an alien described in subsection (a) may be released with a notice to
appear only if--
(1) the Secretary of Homeland Security determines,
after conducting all appropriate background and security checks on the
alien, that the alien does not pose a national security risk; and
(2) the alien provides a bond of not less than $5,000.
(c) Rules of Construction-
(1) ASYLUM AND REMOVAL- Nothing in this section shall
be construed as limiting the right of an alien to apply for asylum or
for relief or deferral of removal based on a fear of persecution.
(2) TREATMENT OF CERTAIN ALIENS- The mandatory
detention requirement in subsection (a) does not apply to any alien who
is a native or citizen of a country in the Western Hemisphere with
whose government the United States does not have full diplomatic
relations.
(3) DISCRETION- Nothing in this section shall be
construed as limiting the authority of the Secretary of Homeland
Security, in the Secretary's sole unreviewable discretion, to determine
whether an alien described in clause (ii) of section 235(b)(1)(B) of
the Immigration and Nationality Act shall be detained or released after
a finding of a credible fear of persecution (as defined in clause (v)
of such section).
SEC. 402. EXPANSION AND EFFECTIVE MANAGEMENT OF DETENTION FACILITIES.
Subject to the availability of appropriations, the Secretary of Homeland Security shall fully utilize--
(1) all available detention facilities operated or contracted by the Department of Homeland Security; and
(2) all possible options to cost effectively increase
available detention capacities, including the use of temporary
detention facilities, the use of State and local correctional
facilities, private space, and secure alternatives to detention.
SEC. 403. ENHANCING TRANSPORTATION CAPACITY FOR UNLAWFUL ALIENS.
(a) In General- The Secretary of Homeland Security is
authorized to enter into contracts with private entities for the
purpose of providing secure domestic transport of aliens who are
apprehended at or along the international land or maritime borders from
the custody of United States Customs and Border Protection to detention
facilities and other locations as necessary.
(b) Criteria for Selection- Notwithstanding any other
provision of law, to enter into a contract under paragraph (1), a
private entity shall submit an application to the Secretary at such
time, in such manner, and containing such information as the Secretary
may require. The Secretary shall select from such applications those
entities which offer, in the determination of the Secretary, the best
combination of service, cost, and security.
SEC. 404. DENIAL OF ADMISSION TO NATIONALS OF COUNTRY DENYING OR DELAYING ACCEPTING ALIEN.
Section 243(d) of the Immigration and Nationality Act (8 U.S.C. 1253(d)) is amended to read as follows:
`(d) Denial of Admission to Nationals of Country Denying or
Delaying Accepting Alien- Whenever the Secretary of Homeland Security
determines that the government of a foreign country has denied or
unreasonably delayed accepting an alien who is a citizen, subject,
national, or resident of that country after the alien has been ordered
removed, the Secretary, after consultation with the Secretary of State,
may deny admission to any citizen, subject, national, or resident of
that country until the country accepts the alien who was ordered
removed.'.
SEC. 405. REPORT ON FINANCIAL BURDEN OF REPATRIATION.
Not later than October 31 of each year, the Secretary of
Homeland Security shall submit to the Secretary of State and Congress a
report that details the cost to the Department of Homeland Security of
repatriation of unlawful aliens to their countries of nationality or
last habitual residence, including details relating to cost per
country. The Secretary shall include in each such report the
recommendations of the Secretary to more cost effectively repatriate
such aliens.
SEC. 406. TRAINING PROGRAM.
Not later than six months after the date of the enactment of this Act, the Secretary of Homeland Security--
(1) review and evaluate the training provided to Border
Patrol agents and port of entry inspectors regarding the inspection of
aliens to determine whether an alien is referred for an interview by an
asylum officer for a determination of credible fear;
(2) based on the review and evaluation described in
paragraph (1), take necessary and appropriate measures to ensure
consistency in referrals by Border Patrol agents and port of entry
inspectors to asylum officers for determinations of credible fear.
SEC. 407. EXPEDITED REMOVAL.
(a) In General- Section 235(b)(1)(A)(iii) of the Immigration and Nationality Act (8 U.S.C. 1225(b)(1)(A)(iii)) is amended--
(1) in subclause (I), by striking `Attorney General' and inserting `Secretary of Homeland Security' each place it appears; and
(2) by adding at the end the following new subclause:
`(III) EXCEPTION- Notwithstanding
subclauses (I) and (II), the Secretary of Homeland Security shall apply
clauses (i) and (ii) of this subparagraph to any alien (other than an
alien described in subparagraph (F)) who is not a national of a country
contiguous to the United States, who has not been admitted or paroled
into the United States, and who is apprehended within 100 miles of an
international land border of the United States and within 14 days of
entry.'.
(b) Exceptions- Section 235(b)(1)(F) of the Immigration and
Nationality Act (8 U.S.C. 1225(b)(1)(F)) is amended by striking `who
arrives by aircraft at a port of entry' and inserting `, and who
arrives by aircraft at a port of entry or who is present in the United
States and arrived in any manner at or between a port of entry'.
(c) Effective Date- The amendments made by this section
shall take effect on the date of the enactment of this Act and shall
apply to all aliens apprehended on or after such date.
SEC. 408. REPORT ON APPREHENSION AND DETENTION OF CERTAIN ALIENS.
(a) Report Required- Not later than two years after the
date of the enactment of this Act, the Secretary of Homeland Security
shall submit to Congress a report on--
(1) the number of illegal aliens from noncontiguous
countries who are apprehended at or between ports of entry since the
date of enactment of this Act;
(2) the number of such aliens who have been deported since the date of enactment of this Act; and
(3) the number of such aliens from countries the
governments of which the Secretary of State has determined, for
purposes section 6(j)(1)(A) of the Export Administration Act of 1979
(as in effect pursuant to the International Emergency Economic Powers
Act; 50 U.S.C. 1701 et seq.), section 40(d) of the Arms Export Control
Act (22 U.S.C. 2780(d)), section 620A of the Foreign Assistance Act of
1961 (22 U.S.C. 2371), or other provision of law, are governments that
have repeatedly provided support for acts of international terrorism.
(b) Sense of Congress- It is the sense of Congress that the
Secretary of Homeland Security should develop a strategy for entering
into appropriate security screening watch lists the appropriate
background information of illegal aliens from countries described in
paragraph (3) of subsection (a).
SEC. 409. LISTING OF IMMIGRATION VIOLATORS IN THE NATIONAL CRIME INFORMATION CENTER DATABASE.
(a) Provision of Information to the NCIC- Not later than
180 days after the date of the enactment of this Act, the Under
Secretary for Border and Transportation Security of the Department of
Homeland Security shall provide the National Crime Information Center
of the Department of Justice with such information as the Under
Secretary may have on any and all aliens against whom a final order of
removal has been issued, any and all aliens who have signed a voluntary
departure agreement, any and all aliens who have overstayed their
authorized period of stay, and any and all aliens whose visas have been
revoked. Such information shall be provided to the National Crime
Information Center, and the National Crime Information Center shall
enter such information into the Immigration Violators File of the
National Crime Information Center database, regardless of whether--
(1) the alien received notice of a final order of removal;
(2) the alien has already been removed; or
(3) sufficient identifying information is available on the alien.
(b) Inclusion of Information in the NCIC Database- Section 534(a) of title 28, United States Code, is amended--
(1) in paragraph (3), by striking `and' at the end;
(2) by redesignating paragraph (4) as paragraph (5); and
(3) by inserting after paragraph (3) the following:
`(4) acquire, collect, classify, and preserve records
of violations of the immigration laws of the United States, regardless
of whether the alien has received notice of the violation or whether
sufficient identifying information is available on the alien and even
if the alien has already been removed; and'.
TITLE V--EFFECTIVE ORGANIZATION OF BORDER SECURITY AGENCIES
SEC. 501. ENHANCED BORDER SECURITY COORDINATION AND MANAGEMENT.
The Secretary of Homeland Security shall ensure full
coordination of border security efforts among agencies within the
Department of Homeland Security, including United States Immigration
and Customs Enforcement, United States Customs and Border Protection,
and United States Citizenship and Immigration Services, and shall
identify and remedy any failure of coordination or integration in a
prompt and efficient manner. In particular, the Secretary of Homeland
Security shall--
(1) oversee and ensure the coordinated execution of border security operations and policy;
(2) establish a mechanism for sharing and coordinating
intelligence information and analysis at the headquarters and field
office levels pertaining to counter-terrorism, border enforcement,
customs and trade, immigration, human smuggling, human trafficking, and
other issues of concern to both United States Immigration and Customs
Enforcement and United States Customs and Border Protection;
(3) establish Department of Homeland Security task
forces (to include other Federal, State, Tribal and local law
enforcement agencies as appropriate) as necessary to better coordinate
border enforcement and the disruption and dismantling of criminal
organizations engaged in cross-border smuggling, money laundering, and
immigration violations;
(4) enhance coordination between the border security
and investigations missions within the Department by requiring that,
with respect to cases involving violations of the customs and
immigration laws of the United States, United States Customs and Border
Protection coordinate with and refer all such cases to United States
Immigration and Customs Enforcement;
(5) examine comprehensively the proper allocation of
the Department's border security related resources, and analyze budget
issues on the basis of Department-wide border enforcement goals, plans,
and processes;
(6) establish measures and metrics for determining the effectiveness of coordinated border enforcement efforts; and
(7) develop and implement a comprehensive plan to
protect the northern and southern land borders of the United States and
address the different challenges each border faces by--
(A) coordinating all Federal border security activities;
(B) improving communications and data sharing
capabilities within the Department and with other Federal, State,
local, tribal, and foreign law enforcement agencies on matters relating
to border security; and
(C) providing input to relevant bilateral
agreements to improve border functions, including ensuring security and
promoting trade and tourism.
SEC. 502. OFFICE OF AIR AND MARINE OPERATIONS.
(a) Establishment- Subtitle C of title IV of the Homeland
Security Act of 2002 (6 U.S.C. 201 et seq.) is amended by adding at the
end the following new section:
`SEC. 431. OFFICE OF AIR AND MARINE OPERATIONS.
`(a) Establishment- There is established in the Department
an Office of Air and Marine Operations (referred to in this section as
the `Office').
`(b) Assistant Secretary- The Office shall be headed by an
Assistant Secretary for Air and Marine Operations who shall be
appointed by the President, by and with the advice and consent of the
Senate, and who shall report directly to the Secretary. The Assistant
Secretary shall be responsible for all functions and operations of the
Office.
`(1) PRIMARY MISSION- The primary mission of the Office
shall be the prevention of the entry of terrorists, other unlawful
aliens, instruments of terrorism, narcotics, and other contraband into
the United States.
`(2) SECONDARY MISSION- The secondary mission of the
Office shall be to assist other agencies to prevent the entry of
terrorists, other unlawful aliens, instruments of terrorism, narcotics,
and other contraband into the United States.
`(d) Air and Marine Operations Center-
`(1) IN GENERAL- The Office shall operate and maintain
the Air and Marine Operations Center in Riverside, California, or at
such other facility of the Office as is designated by the Secretary.
`(2) DUTIES- The Center shall provide comprehensive
radar, communications, and control services to the Office and to
eligible Federal, State, or local agencies (as determined by the
Assistant Secretary for Air and Marine Operations), in order to
identify, track, and support the interdiction and apprehension of
individuals attempting to enter United States airspace or coastal
waters for the purpose of narcotics trafficking, trafficking of
persons, or other terrorist or criminal activity.
`(e) Access to Information- The Office shall ensure that
other agencies within the Department of Homeland Security, the
Department of Defense, the Department of Justice, the Department of
Transportation, and such other Federal, State, or local agencies, as
may be determined by the Secretary, shall have access to the
information gathered and analyzed by the Center.
`(f) Requirement- Beginning not later than 180 days after
the date of the enactment of this Act, the Secretary shall require that
all information concerning all aviation activities, including all
airplane, helicopter, or other aircraft flights, that are undertaken by
the either the Office, United States Immigration and Customs
Enforcement, United States Customs and Border Protection, or any
subdivisions thereof, be provided to the Air and Marine Operations
Center. Such information shall include the identifiable transponder,
radar, and electronic emissions and codes originating and resident
aboard the aircraft or similar asset used in the aviation activity.
`(g) Timing- The Secretary shall require the information
described in subsection (f) to be provided to the Air and Marine
Operations Center in advance of the aviation activity whenever
practicable for the purpose of timely coordination and conflict
resolution of air missions by the Office, United States Immigration and
Customs Enforcement, and United States Customs and Border Protection.
`(h) Rule of Construction- Nothing in this section shall be
construed to alter, impact, diminish, or in any way undermine the
authority of the Administrator of the Federal Aviation Administration
to oversee, regulate, and control the safe and efficient use of the
airspace of the United States.'.
(b) Technical and Conforming Amendments-
(1) ADDITIONAL ASSISTANT SECRETARY- Section 103(a)(9)
of the Homeland Security Act of 2002 (6 U.S.C. 113(a)(9)) is amended by
striking `12' and inserting `13'.
(2) CLERICAL AMENDMENT- The table of contents in
section 1(b) of such Act (6 U.S.C. 101) is amended by inserting after
the item relating to section 430 the following new item:
`Sec. 431. Office of Air and Marine Operations.'.
SEC. 503. SHADOW WOLVES TRANSFER.
(a) Transfer of Existing Unit- Not later that 90 days after
the date of the enactment of this Act, the Secretary of Homeland
Security shall transfer to United States Immigration and Customs
Enforcement all functions (including the personnel, assets, and
liabilities attributable to such functions) of the Customs Patrol
Officers unit operating on the Tohono O'odham Indian reservation
(commonly known as the `Shadow Wolves' unit).
(b) Establishment of New Units- The Secretary is authorized
to establish within United States Immigration and Customs Enforcement
additional units of Customs Patrol Officers in accordance with this
section, as appropriate.
(c) Duties- The Customs Patrol Officer unit transferred
pursuant to subsection (a), and additional units established pursuant
to subsection (b), shall operate on Indian lands by preventing the
entry of terrorists, other unlawful aliens, instruments of terrorism,
narcotics, and other contraband into the United States.
(d) Basic Pay for Journeyman Officers- A Customs Patrol
Officer in a unit described in this section shall receive equivalent
pay as a special agent with similar competencies within United States
Immigration and Customs Enforcement pursuant to the Department of
Homeland Security's Human Resources Management System established under
section 841 of the Homeland Security Act (6 U.S.C. 411).
(e) Supervisors- Each unit described in this section shall
be supervised by a Chief Customs Patrol Officer, who shall have the
same rank as a resident agent-in-charge of the Office of Investigations
within United States Immigration and Customs Enforcement.
TITLE VI--TERRORIST AND CRIMINAL ALIENS
SEC. 601. REMOVAL OF TERRORIST ALIENS.
(a) Expansion of Removal-
(1) Section 241(b)(3) of the Immigration and Nationality Act (8 U.S.C. 1231(b)(3)) is amended--
(A) in subparagraph (A)--
(i) by striking `Attorney General may not' and inserting `Secretary of Homeland Security may not';
(ii) by inserting `or the Secretary' after `if the Attorney General'; and
(B) in subparagraph (B)--
(i) by inserting `or the Secretary of Homeland Security' after `if the Attorney General';
(ii) by striking `or' in clause (iii);
(iii) by striking the period at the end of clause (iv) and inserting `; or';
(iv) by inserting after clause (iv) the following new clause:
`(v) the alien is described in any subclause of
section 212(a)(3)(B)(i) or section 212(a)(3)(F), unless, in the case
only of an alien described in subclause (IV) or (IX) of section
212(a)(3)(B)(i), the Secretary of Homeland Security determines, in the
Secretary's discretion, that there are not reasonable grounds for
regarding the alien as a danger to the security of the United States.';
and
(v) in the third sentence, by inserting `or the Secretary of Homeland Security' after `Attorney General'; and
(vi) by striking the last sentence and
inserting the following: `The Secretary of Homeland Security shall
waive the application of clause (v) in the case of removal of an alien
who is a native or citizen of a country in the Western Hemisphere with
whose government the United States does not have full diplomatic
relations.
(2) Section 208(b)(2)(A)(v) of such Act (8 U.S.C. 1158(b)(2)(A)(v)) is amended--
(A) by striking `subclause (I), (II), (III), (IV), or (VI)' and inserting `any subclause';
(B) by striking `237(a)(4)(B)' and inserting `212(a)(3)(F)'; and
(C) by inserting `or (IX)' after `subclause (IV)'.
(3) Section 240A(c)(4) of such Act (8 U.S.C. 1229b(c)(4)) is amended--
(A) by striking `inadmissible under' and inserting `described in'; and
(B) by striking `deportable under' and inserting `described in'.
(4) Section 240B(b)(1)(C) of such Act (8 U.S.C.
1229c(b)(1)(C)) is amended by striking `deportable under' and inserting
`described in'.
(5) Section 249 of such Act (8 U.S.C. 1259)) is amended--
(A) by striking `inadmissible under' and inserting `described in'; and
(B) in paragraph (d), by striking `deportable under' and inserting `described in'.
(b) Retroactive Application- The amendments made by this
section shall take effect on the date of enactment of this Act and
sections 208(b)(2)(A), 240A, 240B, 241(b)(3), and 249 of the
Immigration and Nationality Act, as so amended, shall apply to--
(1) all aliens in removal, deportation, or exclusion proceedings;
(2) all applications pending on or filed after the date of the enactment of this Act; and
(3) with respect to aliens and applications described
in paragraph (1) or (2), acts and conditions constituting a ground for
inadmissibility, excludability, deportation, or removal occurring or
existing before, on, or after the date of the enactment of this Act.
SEC. 602. DETENTION OF DANGEROUS ALIENS.
(a) In General- Section 241 of the Immigration and Nationality Act (8 U.S.C. 1231) is amended--
(1) in subsection (a), by striking `Attorney General' and inserting `Secretary of Homeland Security' each place it appears;
(2) in subsection (a)(1)(B), by adding after and below clause (iii) the following:
`If, at that time, the alien is not in the custody
of the Secretary (under the authority of this Act), the Secretary shall
take the alien into custody for removal, and the removal period shall
not begin until the alien is taken into such custody. If the Secretary
transfers custody of the alien during the removal period pursuant to
law to another Federal agency or a State or local government agency in
connection with the official duties of such agency, the removal period
shall be tolled, and shall begin anew on the date of the alien's return
to the custody of the Secretary.';
(3) by amending clause (ii) of subsection (a)(1)(B) to read as follows:
`(ii) If a court, the Board of Immigration
Appeals, or an immigration judge orders a stay of the removal of the
alien, the date the stay of removal is no longer in effect.';
(4) by amending subparagraph (C) of subsection (a)(1) to read as follows:
`(C) SUSPENSION OF PERIOD- The removal period shall
be extended beyond a period of 90 days and the alien may remain in
detention during such extended period if the alien fails or refuses to
make all reasonable efforts to comply with the removal order, or to
fully cooperate with the Secretary's efforts to establish the alien's
identity and carry out the removal order, including making timely
application in good faith for travel or other documents necessary to
the alien's departure, or conspires or acts to prevent the alien's
removal subject to an order of removal.';
(5) in subsection (a)(2), by adding at the end the
following: `If a court orders a stay of removal of an alien who is
subject to an administratively final order of removal, the Secretary in
the exercise of discretion may detain the alien during the pendency of
such stay of removal.';
(6) in subsection (a)(3), by amending subparagraph (D) to read as follows:
`(D) to obey reasonable restrictions on the alien's
conduct or activities, or perform affirmative acts, that the Secretary
prescribes for the alien, in order to prevent the alien from
absconding, or for the protection of the community, or for other
purposes related to the enforcement of the immigration laws.';
(7) in subsection (a)(6), by striking `removal period
and, if released,' and inserting `removal period, in the discretion of
the Secretary, without any limitations other than those specified in
this section, until the alien is removed. If an alien is released, the
alien';
(8) by redesignating paragraph (7) of subsection (a) as
paragraph (10) and inserting after paragraph (6) of such subsection the
following new paragraphs:
`(7) PAROLE- If an alien detained pursuant to paragraph
(6) is an applicant for admission, the Secretary, in the Secretary's
discretion, may parole the alien under section 212(d)(5) of this Act
and may provide, notwithstanding section 212(d)(5), that the alien
shall not be returned to custody unless either the alien violates the
conditions of the alien's parole or the alien's removal becomes
reasonably foreseeable, provided that in no circumstance shall such
alien be considered admitted.
`(8) APPLICATION OF ADDITIONAL RULES FOR DETENTION OR
RELEASE OF CERTAIN ALIENS WHO HAVE MADE AN ENTRY- The rules set forth
in subsection (j) shall only apply with respect to an alien who was
lawfully admitted the most recent time the alien entered the United
States or has otherwise effected an entry into the United States.
`(9) JUDICIAL REVIEW- Without regard to the place of
confinement, judicial review of any action or decision pursuant to
paragraphs (6), (7), or (8) or subsection (j) shall be available
exclusively in habeas corpus proceedings instituted in the United
States District Court for the District of Columbia, and only if the
alien has exhausted all administrative remedies (statutory and
regulatory) available to the alien as of right.'; and
(9) by adding at the end the following new subsection:
`(j) Additional Rules for Detention or Release of Certain Aliens Who Have Made an Entry-
`(1) APPLICATION- The rules set forth in this subsection apply in the case of an alien described in subsection (a)(8).
`(2) ESTABLISHMENT OF A DETENTION REVIEW PROCESS FOR ALIENS WHO FULLY COOPERATE WITH REMOVAL-
`(A) IN GENERAL- The Secretary shall establish an
administrative review process to determine whether the aliens should be
detained or released on conditions for aliens who--
`(i) have made all reasonable efforts to comply with their removal orders;
`(ii) have complied with the Secretary's
efforts to carry out the removal orders, including making timely
application in good faith for travel or other documents necessary to
the alien's departure, and
`(iii) have not conspired or acted to prevent removal.
`(B) DETERMINATION- The Secretary shall make a
determination whether to release an alien after the removal period in
accordance with paragraphs (3) and (4). The determination--
`(i) shall include consideration of any
evidence submitted by the alien and the history of the alien's efforts
to comply with the order of removal, and
`(ii) may include any information or assistance
provided by the Department of State or other Federal agency and any
other information available to the Secretary pertaining to the ability
to remove the alien.
`(3) AUTHORITY TO DETAIN BEYOND THE REMOVAL PERIOD-
`(A) INITIAL 90 DAY PERIOD- The Secretary in the
exercise of discretion, without any limitations other than those
specified in this section, may continue to detain an alien for 90 days
beyond the removal period (including any extension of the removal
period as provided in subsection (a)(1)(C)).
`(i) IN GENERAL- The Secretary in the exercise
of discretion, without any limitations other than those specified in
this section, may continue to detain an alien beyond the 90 days
authorized in subparagraph (A)--
`(I) until the alien is removed if the conditions described in subparagraph (A) or (B) of paragraph (4) apply; or
`(II) pending a determination as provided in subparagraph (C) of paragraph (4).
`(ii) RENEWAL- The Secretary may renew a
certification under paragraph (4)(B) every six months without
limitation, after providing an opportunity for the alien to request
reconsideration of the certification and to submit documents or other
evidence in support of that request. If the Secretary does not renew a
certification, the Secretary may not continue to detain the alien under
such paragraph.
`(iii) DELEGATION- Notwithstanding section 103,
the Secretary may not delegate the authority to make or renew a
certification described in clause (ii), (iii), or (v) of paragraph
(4)(B) below the level of the Assistant Secretary for Immigration and
Customs Enforcement.
`(iv) HEARING- The Secretary may request that
the Attorney General provide for a hearing to make the determination
described in clause (iv)(II) of paragraph (4)(B).
`(4) CONDITIONS FOR EXTENSION- The conditions for continuation of detention are any of the following:
`(A) The Secretary determines that there is a significant likelihood that the alien--
`(i) will be removed in the reasonably foreseeable future; or
`(ii) would be removed in the reasonably
foreseeable future, or would have been removed, but for the alien's
failure or refusal to make all reasonable efforts to comply with the
removal order, or to fully cooperate with the Secretary's efforts to
establish the alien's identity and carry out the removal order,
including making timely application in good faith for travel or other
documents necessary to the alien's departure, or conspiracies or acts
to prevent removal.
`(B) The Secretary certifies in writing any of the following:
`(i) In consultation with the Secretary of
Health and Human Services, the alien has a highly contagious disease
that poses a threat to public safety.
`(ii) After receipt of a written recommendation
from the Secretary of State, the release of the alien is likely to have
serious adverse foreign policy consequences for the United States.
`(iii) Based on information available to the
Secretary (including available information from the intelligence
community, and without regard to the grounds upon which the alien was
ordered removed), there is reason to believe that the release of the
alien would threaten the national security of the United States.
`(iv) The release of the alien will threaten
the safety of the community or any person, the conditions of release
cannot reasonably be expected to ensure the safety of the community or
any person, and--
`(I) the alien has been convicted of one or
more aggravated felonies described in section 101(a)(43)(A) or of one
or more crimes identified by the Secretary by regulation, or of one or
more attempts or conspiracies to commit any such aggravated felonies or
such crimes, for an aggregate term of imprisonment of at least five
years; or
`(II) the alien has committed one or more
crimes of violence and, because of a mental condition or personality
disorder and behavior associated with that condition or disorder, the
alien is likely to engage in acts of violence in the future.
`(v) The release of the alien will threaten the
safety of the community or any person, conditions of release cannot
reasonably be expected to ensure the safety of the community or any
person, and the alien has been convicted of at least one aggravated
felony.
`(C) Pending a determination under subparagraph
(B), so long as the Secretary has initiated the administrative review
process no later than 30 days after the expiration of the removal
period (including any extension of the removal period as provided in
subsection (a)(1)(C)).
`(5) RELEASE ON CONDITIONS- If it is determined that an
alien should be released from detention, the Secretary in the exercise
of discretion may impose conditions on release as provided in
subsection (a)(3).
`(6) REDETENTION- The Secretary in the exercise of
discretion, without any limitations other than those specified in this
section, may again detain any alien subject to a final removal order
who is released from custody if the alien fails to comply with the
conditions of release or to cooperate in the alien's removal from the
United States, or if, upon reconsideration, the Secretary determines
that the alien can be detained under paragraph (1). Paragraphs (6)
through (8) of subsection (a) shall apply to any alien returned to
custody pursuant to this paragraph, as if the removal period terminated
on the day of the redetention.
`(7) CERTAIN ALIENS WHO EFFECTED ENTRY- If an alien has
effected an entry into the United States but has neither been lawfully
admitted nor physically present in the United States continuously for
the 2-year period immediately prior to the commencement of removal
proceedings under this Act or deportation proceedings against the
alien, the Secretary in the exercise of discretion may decide not to
apply subsection (a)(8) and this subsection and may detain the alien
without any limitations except those imposed by regulation.'.
(b) Effective Date- The amendments made by subsection (a)
shall take effect upon the date of enactment of this Act, and section
241 of the Immigration and Nationality Act, as amended, shall apply to--
(1) all aliens subject to a final administrative
removal, deportation, or exclusion order that was issued before, on, or
after the date of enactment of this Act; and
(2) acts and conditions occurring or existing before, on, or after the date of enactment of this Act.
SEC. 603. INCREASE IN CRIMINAL PENALTIES.
Section 243 of the Immigration and Nationality Act (8 U.S.C. 1253) is amended--
(1) in subsection (a)(1)--
(A) in the matter before subparagraph (A), by inserting `or 212(a)' after `section 237(a)'; and
(B) by striking `imprisoned not more than four
years' and inserting `imprisoned for not less than six months or more
than five years'; and
(A) by striking `not more than $1,000' and inserting `under title 18, United States Code'; and
(B) by striking `for not more than one year' and
inserting `for not less than six months or more than five years (or 10
years if the alien is a member of any class described in paragraph
(1)(E), (2), (3), or (4) of section 237(a)'.
SEC. 604. PRECLUDING ADMISSIBILITY OF AGGRAVATED FELONS AND OTHER CRIMINALS.
(a) Exclusion Based on Fraudulent Documentation- Section
212(a)(2)(A)(i) of the Immigration and Nationality Act (8 U.S.C.
1182(a)(2)(A)(i)) is amended--
(1) in subclause (I), by striking `or' at the end;
(2) in subclause (II), by adding `or' at the end; and
(3) by inserting after subclause (II) the following new subclause:
`(III) a violation (or a conspiracy or
attempt to violate) an offense described in section 208 of the Social
Security Act or section 1028 of title 18, United States Code,'.
(b) Exclusion Based on Aggravated Felony, Unlawful
Procurement of Citizenship, and Crimes of Domestic Violence- Section
212(a)(2) of such Act (8 U.S.C. 1182(a)(2)) is amended by adding at the
end the following new subparagraphs:
`(J) AGGRAVATED FELONY- Any alien who is convicted of an aggravated felony at any time is inadmissible.
`(K) UNLAWFUL PROCUREMENT OF CITIZENSHIP- Any alien
convicted of, or who admits having committed, or who admits committing
acts which constitute the essential elements of, a violation of (or a
conspiracy or attempt to violate) subsection (a) or (b) of section 1425
of title 18, United States Code is inadmissible.
`(L) CRIMES OF DOMESTIC VIOLENCE, STALKING, OR VIOLATION OF PROTECTION ORDERS; CRIMES AGAINST CHILDREN-
`(i) DOMESTIC VIOLENCE, STALKING, OR CHILD ABUSE-
`(I) IN GENERAL- Subject to subclause (II),
any alien who at any time is convicted of, or who admits having
committed, or who admits committing acts which constitute the essential
elements of, a crime of domestic violence, a crime of stalking, or a
crime of child abuse, child neglect, or child abandonment is
inadmissible.
`(II) WAIVER FOR VICTIMS OF DOMESTIC VIOLENCE- Subclause (I) shall not apply to any alien described in section 237(a)(7)(A).
`(III) CRIME OF DOMESTIC VIOLENCE DEFINED-
For purposes of subclause (I), 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 violates the portion of a
protection order that involves protection against credible threats of
violence, repeated harassment, or bodily injury to the person or person
for whom the protection order was issued is inadmissible.
`(II) PROTECTION ORDER DEFINED- For
purposes of subclause (I), 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.'.
(c) Waiver Authority- Section 212(h) of such Act (8 U.S.C. 1182(h)) is amended--
(1) 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, in the discretion of the
Attorney General or such Secretary, waive the application of
subparagraph (A)(i)(I), (A)(i)(III), (B), (D), (E), (K), and (L) of
subsection (a)(2)';
(2) in paragraphs (1)(A) and (1)(B) and the last
sentence, by inserting `or the Secretary' after `Attorney General' each
place it appears;
(3) in paragraph (2), by striking `Attorney General, in
his discretion,' and inserting `Attorney General or the Secretary of
Homeland Security, in the discretion of the Attorney General or such
Secretary,';
(4) in paragraph (2), by striking `as he' and inserting `as the Attorney General or the Secretary';
(5) in the second sentence, by striking `criminal acts
involving torture' and inserting `criminal acts involving torture, or
an aggravated felony'; and
(6) in the third sentence, by striking `if either since
the date of such admission the alien has been convicted of an
aggravated felony or the alien' and inserting `if since the date of
such admission the alien'.
(d) Construction- The amendments made by this section shall
not be construed to create eligibility for relief from removal under
section 212(c) of the Immigration and Nationality Act, as in effect
before its repeal by section 304(b) of the Immigration Reform and
Immigrant Responsibility Act of 1996 (division C of Public Law
104-208), where such eligibility did not exist before these amendments
became effective.
(e) Effective Date- The amendments made by this section shall apply to--
(1) any act that occurred before, on, or after the date of the enactment of this Act; and
(2) to all aliens who are required to establish
admissibility on or after the such date, and in all removal,
deportation, or exclusion proceedings that are filed, pending, or
reopened, on or after such date.
SEC. 605. PRECLUDING REFUGEE OR ASYLEE ADJUSTMENT OF STATUS FOR AGGRAVATED FELONIES.
(a) In General- Section 209(c) of the Immigration and
Nationality Act (8 U.S.C. 1159(c)) is amended by adding at the end the
following: `However, an alien who is convicted of an aggravated felony
is not eligible for a waiver or for adjustment of status under this
section.'.
(b) Effective Date- The amendment made by subsection (a) shall apply--
(1) to any act that occurred before, on, or after the date of the enactment of this Act; and
(2) to all aliens who are required to establish
admissibility on or after such date, and in all removal, deportation,
or exclusion proceedings that are filed, pending, or reopened, on or
after such date.
SEC. 606. REMOVING DRUNK DRIVERS.
(a) In General- Section 236 of the Immigration and Nationality Act (8 U.S.C. 1226) is amended--
(1) in subsection (c)(1)--
(A) in subparagraph (C), by striking `or' at the end;
(B) in subparagraph (D), by inserting `or' at the end; and
(C) by inserting after subparagraph (D) the following new subparagraph:
`(E) is unlawfully present in the United States and
who is deportable on any grounds and is apprehended for any offense
described in section 237(a)(2)(F) by a State or local law enforcement
officer covered under an agreement under section 287(g),';
(2) by redesignating subsection (e) as subsection (f); and
(3) by inserting after subsection (d) the following new subsection:
`(e) Driving While Intoxicated- If a State or local law
enforcement officer apprehends an individual for an offense described
in section 237(a)(2)(F) and the officer has reasonable ground to
believe that the individual is an alien--
`(1) the officer shall verify with the databases of the
Federal Government, including the National Criminal Information Center
and the Law Enforcement Support Center, whether the individual is an
alien and whether such alien is unlawfully present in the United
States; and
`(2) if any such database--
`(A) indicates that the individual is an alien unlawfully present in the United States--
`(i) an officer covered under an agreement
under section 287(g) is authorized to issue a Federal detainer to
maintain the alien in custody in accordance with such agreement until
the alien is convicted for such offense or the alien is transferred to
Federal custody;
`(ii) the officer is authorized to transport
the alien to a location where the alien can be transferred to Federal
custody and shall be removed from the United States in accordance with
applicable law; and
`(iii) the Secretary of Homeland Security shall
reimburse the State and local law enforcement agencies involved for the
costs of transporting aliens when such transportation is not done in
the course of their normal duties; or
`(B) indicates that the individual is an alien but
is not unlawfully present in the United States, the officer shall take
the alien into custody for such offense in accordance with State law
and shall promptly notify the Secretary of Homeland Security of such
apprehension and maintain the alien in custody pending a determination
by the Secretary with respect to any action to be taken by the
Secretary against such alien.'.
(1) IN GENERAL- Section 237(a)(2) of such Act (8 U.S.C.
1227(a)(2)) is amended by adding at the end the following new
subparagraph:
`(F) DRIVING WHILE INTOXICATED AND WHILE UNLAWFULLY PRESENT IN THE UNITED STATES- An alien--
`(i) who at the time the alien is unlawfully
present in the United States and who commits the offense of driving
while intoxicated, driving under the influence, or similar violation of
State law (as determined by the Secretary of Homeland Security) and who
is convicted of such offense, or
`(ii) who is unlawfully present in the United
States and who commits an offense by refusing in violation of State law
to submit to a Breathalyzer test or other test for the purpose of
determining blood alcohol content,
is deportable and shall be deported.'.
(2) EFFECTIVE DATE- The amendment made by paragraph (1)
shall apply to violations or refusals occurring after the date of the
enactment of this Act.
(c) Sharing of Information by Motor Vehicle Administrators
Regarding DWI Convictions and Refusals- Each State motor vehicle
administrator shall--
(1) share with the Secretary of Homeland Security
information relating to any alien who has a conviction or refusal
described in section 237(a)(2)(F) of the Immigration and Nationality
Act;
(2) share such information with other State motor
vehicle administrators through the Drivers License Agreement of the
American Association of Motor Vehicle Administrators; and
(3) enter such information into the NCIC in a timely manner.
(d) Effective Date- The amendment made by subsection (a)
shall take effect on the date of the enactment of this Act and shall
apply to convictions entered before, on, or after such date.
SEC. 607. DESIGNATED COUNTY LAW ENFORCEMENT ASSISTANCE PROGRAM.
(a) Designated Counties Adjacent to the Southern Border of
the United States Defined- In this section, the term `designated
counties adjacent to the southern international border of the United
States' includes a county any part of which is within 25 miles of the
southern international border of the United States.
(1) IN GENERAL- Any Sheriff or coalition or group of
Sheriffs from designated counties adjacent to the southern
international border of the United States may transfer aliens detained
or in the custody of the Sheriff who are not lawfully present in the
United States to appropriate Federal law enforcement officials, and
shall be promptly paid for the costs of performing such transfers by
the Attorney General for any local or State funds previously expended
or proposed to be spent by that Sheriff or coalition or group of
Sheriffs.
(2) PAYMENT OF COSTS- Payment of costs under paragraph
(1) shall include payment for costs of detaining, housing, and
transporting aliens who are not lawfully present in the United States
or who have unlawfully entered the United States at a location other
than a port of entry and who are taken into custody by the Sheriff.
(3) LIMITATION TO FUTURE COSTS- In no case shall
payment be made under this section for costs incurred before the date
of the enactment of this Act.
(4) ADVANCE PAYMENT OF COSTS- The Attorney General
shall make an advance payment under this section upon a certification
of anticipated costs for which payment may be made under this section,
but in no case shall such an advance payment cover a period of costs of
longer than 3 months.
(c) Designated County Law Enforcement Account-
(1) SEPARATE ACCOUNT- Reimbursement or pre-payment
under subsection (b) shall be made promptly from funds deposited into a
separate account in the Treasury of the United States to be entitled
the `Designated County Law Enforcement Account'.
(2) AVAILABILITY OF FUNDS- All deposits into the
Designated County Law Enforcement Account shall remain available until
expended to the Attorney General to carry out the provisions of this
section.
(3) PROMPTLY DEFINED- For purposes of this section, the term `promptly' means within 60 days.
(d) Funds for the Designated County Law Enforcement
Account- Only funds designated, authorized, or appropriated by Congress
may be deposited or transferred to the Designated County Law
Enforcement Account. The Designated County Law Enforcement Account is
authorized to receive up to $100,000,000 per year.
(1) IN GENERAL- Funds provided under this section shall
be payable directly to participating Sheriff's offices and may be used
for the transfers described in subsection (b)(1), including the costs
of personnel (such as overtime pay and costs for reserve deputies),
costs of training of such personnel, equipment, and, subject to
paragraph (2), the construction, maintenance, and operation of
detention facilities to detain aliens who are unlawfully present in the
United States. For purposes of this section, an alien who is unlawfully
present in the United States shall be deemed to be a Federal prisoner
beginning upon determination by Federal law enforcement officials that
such alien is unlawfully present in the United States, and such alien
shall, upon such determination, be deemed to be in Federal custody. In
order for costs to be eligible for payment, the Sheriff making such
application shall personally certify under oath that all costs
submitted in the application for reimbursement or advance payment meet
the requirements of this section and are reasonable and necessary, and
such certification shall be subject to all State and Federal laws
governing statements made under oath, including the penalties of
perjury, removal from office, and prosecution under State and Federal
law.
(2) LIMITATION- Not more than 20 percent of the amount
of funds provided under this section may be used for the construction
or renovation of detention or similar facilities.
(f) Disposition and Delivery of Detained Aliens- All aliens
detained or taken into custody by a Sheriff under this section and with
respect to whom Federal law enforcement officials determine are
unlawfully present in the United States, shall be immediately delivered
to Federal law enforcement officials. In accordance with subsection
(e)(1), an alien who is in the custody of a Sheriff shall be deemed to
be a Federal prisoner and in Federal custody.
(g) Regulations- The Attorney General shall issue, on an
interim final basis, regulations not later than 60 days after the date
of the enactment of this Act--
(1) governing the distribution of funds under this
section for all reasonable and necessary costs and other expenses
incurred or proposed to be incurred by a Sheriff or coalition or group
of Sheriffs under this section; and
(2) providing uniform standards that all other Federal
law enforcement officials shall follow to cooperate with such Sheriffs
and to otherwise implement the requirements of this section.
(h) Effective Date- The provisions of this section shall
take effect on its enactment. The promulgation of any regulations under
subsection (g) is not a necessary precondition to the immediate
deployment or work of Sheriffs personnel or corrections officers as
authorized by this section. Any reasonable and necessary expenses or
costs authorized by this section and incurred by such Sheriffs after
the date of the enactment of this Act but prior to the date of the
promulgation of such regulations are eligible for reimbursement under
the terms and conditions of this section.
(i) Audit- All funds paid out under this section are
subject to audit by the Inspector General of the Department of Justice
and abuse or misuse of such funds shall be vigorously investigated and
prosecuted to the full extent of Federal law.
(j) Supplemental Funding- All funds paid out under this
section must supplement, and may not supplant, State or local funds
used for the same or similar purposes.
SEC. 608. RENDERING INADMISSIBLE AND DEPORTABLE ALIENS
PARTICIPATING IN CRIMINAL STREET GANGS; DETENTION; INELIGIBILITY FROM
PROTECTION FROM REMOVAL AND ASYLUM.
(a) Inadmissible- Section 212(a)(2) of the Immigration and
Nationality Act (8 U.S.C. 1182(a)(2)), as amended by section 604(b), is
further amended by adding at the end the following:
`(M) CRIMINAL STREET GANG PARTICIPATION-
`(i) IN GENERAL- Any alien is inadmissible if
the alien has been removed under section 237(a)(2)(F), or if the
consular officer or the Secretary of Homeland Security knows, or has
reasonable ground to believe that the alien--
`(I) is a member of a criminal street gang
and has committed, conspired, or threatened to commit, or seeks to
enter the United States to engage solely, principally, or incidentally
in, a gang crime or any other unlawful activity; or
`(II) is a member of a criminal street gang designated under section 219A.
`(ii) CRIMINAL STREET GANG DEFINED- For
purposes of this subparagraph, the term `criminal street gang' means a
formal or informal group or association of 3 or more individuals, who
commit 2 or more gang crimes (one of which is a crime of violence, as
defined in section 16 of title 18, United States Code) in 2 or more
separate criminal episodes in relation to the group or association.
`(iii) GANG CRIME DEFINED- For purposes of this
subparagraph, the term `gang crime' means conduct constituting any
Federal or State crime, punishable by imprisonment for one year or
more, in any of the following categories:
`(I) A crime of violence (as defined in section 16 of title 18, United States Code).
`(II) A crime involving obstruction of
justice, tampering with or retaliating against a witness, victim, or
informant, or burglary.
`(III) A crime involving the manufacturing,
importing, distributing, possessing with intent to distribute, or
otherwise dealing in a controlled substance or listed chemical (as
those terms are defined in section 102 of the Controlled Substances Act
(21 U.S.C. 802)).
`(IV) Any conduct punishable under section
844 of title 18, United States Code (relating to explosive materials),
subsection (d), (g)(1) (where the underlying conviction is a violent
felony (as defined in section 924(e)(2)(B) of such title) or is a
serious drug offense (as defined in section 924(e)(2)(A)), (i), (j),
(k), (o), (p), (q), (u), or (x) of section 922 of such title (relating
to unlawful acts), or subsection (b), (c), (g), (h), (k), (l), (m), or
(n) of section 924 of such title (relating to penalties), section 930
of such title (relating to possession of firearms and dangerous weapons
in Federal facilities), section 931 of such title (relating to
purchase, ownership, or possession of body armor by violent felons),
sections 1028 and 1029 of such title (relating to fraud and related
activity in connection with identification documents or access
devices), section 1952 of such title (relating to interstate and
foreign travel or transportation in aid of racketeering enterprises),
section 1956 of such title (relating to the laundering of monetary
instruments), section 1957 of such title (relating to engaging in
monetary transactions in property derived from specified unlawful
activity), or sections 2312 through 2315 of such title (relating to
interstate transportation of stolen motor vehicles or stolen property).
`(V) Any conduct punishable under section
274 (relating to bringing in and harboring certain aliens), section 277
(relating to aiding or assisting certain aliens to enter the United
States), or section 278 (relating to importation of alien for immoral
purpose) of this Act.'.
(b) Deportable- Section 237(a)(2) of such Act (8 U.S.C. 1227(a)(2)) is amended by adding at the end the following:
`(G) CRIMINAL STREET GANG PARTICIPATION-
`(i) IN GENERAL- Any alien is deportable who--
`(I) is a member of a criminal street gang
and is convicted of committing, or conspiring, threatening, or
attempting to commit, a gang crime; or
`(II) is determined by the Secretary of
Homeland Security to be a member of a criminal street gang designated
under section 219A.
`(ii) DEFINITIONS- For purposes of this
subparagraph, the terms `criminal street gang' and `gang crime' have
the meaning given such terms in section 212(a)(2)(M).'.
(c) Designation of Criminal Street Gangs-
(1) IN GENERAL- Chapter 2 of title II of the
Immigration and Nationality Act (8 U.S.C. 1181 et seq.) is amended by
adding at the end the following:
`DESIGNATION OF CRIMINAL STREET GANGS
`Sec. 219A. (a) Designation-
`(1) IN GENERAL- The Attorney General is authorized to
designate a group or association as a criminal street gang in
accordance with this subsection if the Attorney General finds that the
group or association meets the criteria described in section
212(a)(2)(M)(ii)(I).
`(i) TO CONGRESSIONAL LEADERS- Seven days
before making a designation under this subsection, the Attorney General
shall notify the Speaker and minority leader of the House of
Representatives and the majority leader and minority leader of the
Senate, and the members of the relevant committees of the House of
Representatives and the Senate, in writing, of the intent to designate
a group or association under this subsection, together with the
findings made under paragraph (1) with respect to that group or
association, and the factual basis therefor.
`(ii) PUBLICATION IN FEDERAL REGISTER- The
Attorney shall publish the designation in the Federal Register seven
days after providing the notification under clause (i).
`(B) EFFECT OF DESIGNATION-
`(i) A designation under this subsection shall take effect upon publication under subparagraph (A)(ii).
`(ii) Any designation under this subsection shall cease to have effect upon an Act of Congress disapproving such designation.
`(3) RECORD- In making a designation under this subsection, the Attorney General shall create an administrative record.
`(4) PERIOD OF DESIGNATION-
`(A) IN GENERAL- A designation under this
subsection shall be effective for all purposes until revoked under
paragraph (5) or (6) or set aside pursuant to subsection (b).
`(B) REVIEW OF DESIGNATION UPON PETITION-
`(i) IN GENERAL- The Attorney General shall
review the designation of a criminal street gang under the procedures
set forth in clauses (iii) and (iv) if the designated gang or
association files a petition for revocation within the petition period
described in clause (ii).
`(ii) PETITION PERIOD- For purposes of clause (i)--
`(I) if the designated gang or association
has not previously filed a petition for revocation under this
subparagraph, the petition period begins 2 years after the date on
which the designation was made; or
`(II) if the designated gang or association
has previously filed a petition for revocation under this subparagraph,
the petition period begins 2 years after the date of the determination
made under clause (iv) on that petition.
`(iii) PROCEDURES- Any criminal street gang
that submits a petition for revocation under this subparagraph must
provide evidence in that petition that the relevant circumstances
described in paragraph (1) are sufficiently different from the
circumstances that were the basis for the designation such that a
revocation with respect to the gang is warranted.
`(I) IN GENERAL- Not later than 180 days
after receiving a petition for revocation submitted under this
subparagraph, the Attorney General shall make a determination as to
such revocation.
`(II) PUBLICATION OF DETERMINATION- A
determination made by the Attorney General under this clause shall be
published in the Federal Register.
`(III) PROCEDURES- Any revocation by the Attorney General shall be made in accordance with paragraph (6).
`(C) OTHER REVIEW OF DESIGNATION-
`(i) IN GENERAL- If in a 5-year period no
review has taken place under subparagraph (B), the Attorney General
shall review the designation of the criminal street gang in order to
determine whether such designation should be revoked pursuant to
paragraph (6).
`(ii) PROCEDURES- If a review does not take
place pursuant to subparagraph (B) in response to a petition for
revocation that is filed in accordance with that subparagraph, then the
review shall be conducted pursuant to procedures established by the
Attorney General. The results of such review and the applicable
procedures shall not be reviewable in any court.
`(iii) PUBLICATION OF RESULTS OF REVIEW- The
Attorney General shall publish any determination made pursuant to this
subparagraph in the Federal Register.
`(5) REVOCATION BY ACT OF CONGRESS- The Congress, by an
Act of Congress, may block or revoke a designation made under paragraph
(1).
`(6) REVOCATION BASED ON CHANGE IN CIRCUMSTANCES-
`(A) IN GENERAL- The Attorney General may revoke a
designation made under paragraph (1) at any time, and shall revoke a
designation upon completion of a review conducted pursuant to
subparagraphs (B) and (C) of paragraph (4) if the Attorney General
finds that the circumstances that were the basis for the designation
have changed in such a manner as to warrant revocation.
`(B) PROCEDURE- The procedural requirements of
paragraphs (2) and (3) shall apply to a revocation under this
paragraph. Any revocation shall take effect on the date specified in
the revocation or upon publication in the Federal Register if no
effective date is specified.
`(7) EFFECT OF REVOCATION- The revocation of a
designation under paragraph (5) or (6) shall not affect any action or
proceeding based on conduct committed prior to the effective date of
such revocation.
`(8) USE OF DESIGNATION IN HEARING- If a designation
under this subsection has become effective under paragraph (2)(B) an
alien in a removal proceeding shall not be permitted to raise any
question concerning the validity of the issuance of such designation as
a defense or an objection at any hearing.
`(b) Judicial Review of Designation-
`(1) IN GENERAL- Not later than 30 days after
publication of the designation in the Federal Register, a group or
association designated as a criminal street gang may seek judicial
review of the designation in the United States Court of Appeals for the
District of Columbia Circuit.
`(2) BASIS OF REVIEW- Review under this subsection shall be based solely upon the administrative record.
`(3) SCOPE OF REVIEW- The Court shall hold unlawful and set aside a designation the court finds to be--
`(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
`(B) contrary to constitutional right, power, privilege, or immunity;
`(C) in excess of statutory jurisdiction, authority, or limitation, or short of statutory right;
`(D) lacking substantial support in the administrative record taken as a whole; or
`(E) not in accord with the procedures required by law.
`(4) JUDICIAL REVIEW INVOKED- The pendency of an action
for judicial review of a designation shall not affect the application
of this section, unless the court issues a final order setting aside
the designation.
`(c) Relevant Committee Defined- As used in this section,
the term `relevant committees' means the Committees on the Judiciary of
the House of Representatives and of the Senate.'.
(2) CLERICAL AMENDMENT- The table of contents of such
Act (8 U.S.C. 1101 et seq.) is amended by inserting after the item
relating to section 219 the following:
`Sec. 219A. Designation of criminal street gangs.'.
(d) Mandatory Detention of Criminal Street Gang Members-
(1) IN GENERAL- Section 236(c)(1)(D) of the Immigration and Nationality Act (8 U.S.C. 1226(c)(1)(D)) is amended--
(A) by inserting `or 212(a)(2)(M)' after `212(a)(3)(B)'; and
(B) by inserting `237(a)(2)(F) or' before `237(a)(4)(B)'.
(2) ANNUAL REPORT- Not later than March 1 of each year
(beginning 1 year after the date of the enactment of this Act), the
Secretary of Homeland Security, after consultation with the appropriate
Federal agencies, shall submit a report to the Committees on the
Judiciary of the House of Representatives and of the Senate on the
number of aliens detained under the amendments made by paragraph (1).
(3) EFFECTIVE DATE- This subsection and the amendments
made by this subsection are effective as of the date of enactment of
this Act and shall apply to aliens detained on or after such date.
(e) Ineligibility of Alien Street Gang Members From Protection From Removal and Asylum-
(1) INAPPLICABILITY OF RESTRICTION ON REMOVAL TO
CERTAIN COUNTRIES- Section 241(b)(3)(B) of the Immigration and
Nationality Act (8 U.S.C. 1251(b)(3)(B)) is amended, in the matter
preceding clause (i), by inserting `who is described in section
212(a)(2)(M)(i) or section 237(a)(2)(F)(i) or who is' after `to an
alien'.
(2) INELIGIBILITY FOR ASYLUM- Section 208(b)(2)(A) of such Act (8 U.S.C. 1158(b)(2)(A)) is amended--
(A) in clause (v), by striking `or' at the end;
(B) by redesignating clause (vi) as clause (vii); and
(C) by inserting after clause (v) the following:
`(vi) the alien is described in section
212(a)(2)(M)(i) or section 237(a)(2)(F)(i) (relating to participation
in criminal street gangs); or'.
(3) DENIAL OF REVIEW OF DETERMINATION OF INELIGIBILITY
FOR TEMPORARY PROTECTED STATUS- Section 244(c)(2) of such Act (8 U.S.C.
1254(c)(2)) is amended by adding at the end the following:
`(C) LIMITATION ON JUDICIAL REVIEW- There shall be
no judicial review of any finding under subparagraph (B) that an alien
is in described in section 208(b)(2)(A)(vi).'.
(4) EFFECTIVE DATE- The amendments made by this
subsection are effective on the date of enactment of this Act and shall
apply to all applications pending on or after such date.
(f) Effective Date- Except as otherwise provided, the
amendments made by this section are effective as of the date of
enactment and shall apply to all pending cases in which no final
administrative action has been entered.
SEC. 609. NATURALIZATION REFORM.
(a) Barring Terrorists From Naturalization- Section 316 of
the Immigration and Nationality Act (8 U.S.C. 1427) is amended by
adding at the end the following new subsection:
`(g) No person shall be naturalized who the Secretary of
Homeland Security determines, in the Secretary's discretion, to have
been at any time an alien described in section 212(a)(3) or 237(a)(4).
Such determination may be based upon any relevant information or
evidence, including classified, sensitive, or national security
information, and shall be binding upon, and unreviewable by, any court
exercising jurisdiction under the immigration laws over any application
for naturalization, regardless whether such jurisdiction to review a
decision or action of the Secretary is de novo or otherwise.'.
(b) Concurrent Naturalization and Removal Proceedings- The
last sentence of section 318 of such Act (8 U.S.C. 1429) is amended--
(1) by striking `shall be considered by the Attorney
General' and inserting `shall be considered by the Secretary of
Homeland Security or any court';
(2) by striking `pursuant to a warrant of arrest issued
under the provisions of this or any other Act:' and inserting `or other
proceeding to determine the applicant's inadmissibility or
deportability, or to determine whether the applicant's lawful permanent
resident status should be rescinded, regardless of when such proceeding
was commenced:'; and
(3) by striking `upon the Attorney General' and inserting `upon the Secretary of Homeland Security'.
(c) Pending Denaturalization or Removal Proceedings-
Section 204(b) of such Act (8 U.S.C. 1154(b)) is amended by adding at
the end the following: `No petition shall be approved pursuant to this
section if there is any administrative or judicial proceeding (whether
civil or criminal) pending against the petitioner that could (whether
directly or indirectly) result in the petitioner's denaturalization or
the loss of the petitioner's lawful permanent resident status.'.
(d) Conditional Permanent Residents- Section 216(e) and
section 216A(e) of such Act (8 U.S.C. 1186a(e), 1186b(e)) are each
amended by inserting before the period at the end the following: `, if
the alien has had the conditional basis removed under this section'.
(e) District Court Jurisdiction- Section 336(b) of such Act (8 U.S.C. 1447(b)) is amended to read as follows:
`(b) If there is a failure to render a final administrative
decision under section 335 before the end of the 180-day period after
the date on which the Secretary of Homeland Security completes all
examinations and interviews conducted under such section, as such terms
are defined by the Secretary pursuant to regulations, the applicant may
apply to the district court for the district in which the applicant
resides for a hearing on the matter. Such court shall only have
jurisdiction to review the basis for delay and remand the matter to the
Secretary for the Secretary's determination on the application.'.
(f) Conforming Amendments- Section 310(c) of such Act (8 U.S.C. 1421(c)) is amended--
(1) by inserting `, no later than the date that is 120 days after the Secretary's final determination' before `seek'; and
(2) by striking the second sentence and inserting the
following: `The burden shall be upon the petitioner to show that the
Secretary's denial of the application was not supported by facially
legitimate and bona fide reasons. Except in a proceeding under section
340, notwithstanding any other provision of law (statutory or
nonstatutory), including section 2241 of title 28, United States Code,
or any other habeas corpus provision, and sections 1361 and 1651 of
such title, no court shall have jurisdiction to determine, or to review
a determination of the Secretary made at any time regarding, for
purposes of an application for naturalization, whether an alien is a
person of good moral character, whether an alien understands and is
attached to the principles of the Constitution of the United States, or
whether an alien is well disposed to the good order and happiness of
the United States.'.
(g) Effective Date- The amendments made by this section
shall take effect on the date of the enactment of this Act, shall apply
to any act that occurred before, on, or after such date, and shall
apply to any application for naturalization or any other case or matter
under the immigration laws pending on, or filed on or after, such date.
SEC. 610. EXPEDITED REMOVAL FOR ALIENS INADMISSIBLE ON CRIMINAL OR SECURITY GROUNDS.
(a) In General- Section 238(b) of the Immigration and Nationality Act (8 U.S.C. 1228(b)) is amended-
(A) by striking `Attorney General' and inserting `Secretary of Homeland Security in the exercise of discretion'; and
(B) by striking `set forth in this subsection or'
and inserting `set forth in this subsection, in lieu of removal
proceedings under';
(2) in paragraph (3), by striking `paragraph (1) until
14 calendar days' and inserting `paragraph (1) or (3) until 7 calendar
days';
(3) by striking `Attorney General' each place it
appears in paragraphs (3) and (4) and inserting `Secretary of Homeland
Security';
(A) by striking `described in this section' and inserting `described in paragraph (1) or (2)'; and
(B) by striking `the Attorney General may grant in
the Attorney General's discretion' and inserting `the Secretary of
Homeland Security or the Attorney General may grant, in the discretion
of the Secretary or Attorney General, in any proceeding';
(5) by redesignating paragraphs (3), (4), and (5) as paragraphs (4), (5), and (6), respectively; and
(6) by inserting after paragraph (2) the following new paragraph:
`(3) The Secretary of Homeland Security in the exercise
of discretion may determine inadmissibility under section 212(a)(2)
(relating to criminal offenses) and issue an order of removal pursuant
to the procedures set forth in this subsection, in lieu of removal
proceedings under section 240, with respect to an alien who--
`(A) has not been admitted or paroled;
`(B) has not been found to have a credible fear of
persecution pursuant to the procedures set forth in section
235(b)(1)(B); and
`(C) is not eligible for a waiver of inadmissibility or relief from removal.'.
(b) Effective Date- The amendments made by subsection (a)
shall take effect on the date of the enactment of this Act but shall
not apply to aliens who are in removal proceedings under section 240 of
the Immigration and Nationality Act as of such date.
SEC. 611. TECHNICAL CORRECTION FOR EFFECTIVE DATE IN CHANGE IN INADMISSIBILITY FOR TERRORISTS UNDER REAL ID ACT.
Effective as if included in the enactment of Public Law
109-13, sections 103(d)(1) and 105(a)(2)(A) of the REAL ID Act of 2005
(division B of such Public Law) are each amended by inserting `,
deportation, and exclusion' after `removal'.
SEC. 612. BAR TO GOOD MORAL CHARACTER.
(a) In General- Section 101(f) of the Immigration and Nationality Act (8 U.S.C. 1101(f)) is amended--
(1) by inserting after paragraph (1) the following new paragraph:
`(2) one who the Secretary of Homeland Security or the
Attorney General determines, in the unreviewable discretion of the
Secretary or the Attorney General, to have been at any time an alien
described in section 212(a)(3) or section 237(a)(4), which
determination may be based upon any relevant information or evidence,
including classified, sensitive, or national security information, and
which shall be binding upon any court regardless of the applicable
standard of review;';
(2) in paragraph (8), by inserting `, regardless
whether the crime was classified as an aggravated felony at the time of
conviction' after `(as defined in subsection (a)(43))'; and
(3) by striking the sentence following paragraph (9)
and inserting the following: `The fact that any person is not within
any of the foregoing classes shall not preclude a discretionary finding
for other reasons that such a person is or was not of good moral
character. The Secretary and the Attorney General shall not be limited
to the applicant's conduct during the period for which good moral
character is required, but may take into consideration as a basis for
determination the applicant's conduct and acts at any time.'.
(b) Aggravated Felony Effective Date- Section 509(b) of the
Immigration Act of 1990 (Public Law 101-649), as amended by section
306(a)(7) of the Miscellaneous and Technical Immigration and
Naturalization Amendments of 1991 (Public Law 102-232) is amended to
read as follows:
`(b) Effective Date- The amendment made by subsection (a)
shall take effect on November 29, 1990, and shall apply to convictions
occurring before, on, or after such date.'.
(c) Technical Correction to the Intelligence Reform Act-
Effective as if included in the enactment of the Intelligence Reform
and Terrorism Prevention Act of 2004 (Public Law 108-458), section
5504(2) of such Act is amended by striking `adding at the end' and
inserting `inserting immediately after paragraph (8)'.
(d) Effective Dates- The amendments made by subsections (a)
and (b) shall take effect on the date of the enactment of this Act,
shall apply to any act that occurred before, on, or after such date,
and shall apply to any application for naturalization or any other
benefit or relief or any other case or matter under the immigration
laws pending on, or filed on or after, such date.
SEC. 613. STRENGTHENING DEFINITIONS OF `AGGRAVATED FELONY' AND `CONVICTION'.
(a) In General- Section 101(a) of the Immigration and Nationality Act (8 U.S.C. 1101(a)) is amended--
(1) by amending subparagraph (A) of paragraph (43) to read as follows:
`(A) murder, manslaughter, homicide, rape, or any
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
evidence extrinsic to the record of conviction;'; and
(2) in paragraph (48)(A), by inserting after and below clause (ii) the following:
`Any reversal, vacatur, expungement, or modification
to a conviction, sentence, or conviction record that was granted to
ameliorate the consequences of the conviction, sentence, or conviction
record, or was granted for rehabilitative purposes, or for failure to
advise the alien of the immigration consequences of a guilty plea or a
determination of guilt, shall have no effect on the immigration
consequences resulting from the original conviction. The alien shall
have the burden of demonstrating that the reversal, vacatur,
expungement, or modification was not granted to ameliorate the
consequences of the conviction, sentence, or conviction record, for
rehabilitative purposes, or for failure to advise the alien of the
immigration consequences of a guilty plea or a determination of guilt.'.
(b) Effective Date- The amendments made by subsection (a)
shall apply to any act that occurred before, on, or after the date of
the enactment of this Act and shall apply to any matter under the
immigration laws pending on, or filed on or after, such date.
SEC. 614. DEPORTABILITY FOR CRIMINAL OFFENSES.
(a) In General- Section 237(a)(3)(B) of the Immigration and Nationality Act (8 U.S.C. 1227(a)(3)(B)) is amended--
(1) in clause (ii), by striking `or' at the end;
(2) in clause (iii), by inserting `or' at the end; and
(3) by inserting after clause (iii) the following new clause:
`(iv) of a violation of, or an attempt or a
conspiracy to violate, subsection (a) or (b) of section 1425 of title
18, United States Code,'.
(b) Deportability; Criminal Offenses- Section 237(a)(2) of
such Act (8 U.S.C. 1227(a)(2)), as amended by section 608(b), is
amended by adding at the end the following new subparagraph:
`(G) SOCIAL SECURITY AND IDENTIFICATION FRAUD- Any
alien who at any time after admission is convicted of a violation of
(or a conspiracy or attempt to violate) an offense described in section
208 of the Social Security Act or section 1028 of title 18, United
States Code is deportable.'.
(c) Effective Date- The amendments made by this section
shall apply to any act that occurred before, on, or after the date of
the enactment of this Act, and to all aliens who are required to
establish admissibility on or after such date and in all removal,
deportation, or exclusion proceedings that are filed, pending, or
reopened, on or after such date.
SEC. 615. DECLARATION OF CONGRESS.
Congress condemns rapes by smugglers along the
international land border of the United States and urges in the
strongest possible terms the Government of Mexico to work in
coordination with United States Customs and Border Protection of the
Department of Homeland Security take immediate action to prevent such
rapes from occurring.
SEC. 616. REPORT ON CRIMINAL ALIEN PROSECUTION.
Not later than one year after the date of the enactment of
this Act and annually thereafter, the Attorney General shall submit to
the Committee on the Judiciary of the House of Representatives and the
Committee on the Judiciary of the Senate a report on the status of
criminal alien prosecutions, including prosecutions of human smugglers.
SEC. 617. DETERMINATION OF IMMIGRATION STATUS OF INDIVIDUALS CHARGED WITH FEDERAL OFFENSES.
(a) Responsibility of United States Attorneys- Beginning 2
years after the date of the enactment of this Act, the office of the
United States attorney that is prosecuting a criminal case in a Federal
court--
(1) shall determine, not later than 30 days after
filing the initial pleadings in the case, whether each defendant in the
case is lawfully present in the United States (subject to subsequent
legal proceedings to determine otherwise);
(2)(A) if the defendant is determined to be an alien
lawfully present in the United States, shall notify the court in
writing of the determination and the current status of the alien under
the Immigration and Nationality Act; and
(B) if the defendant is determined not to be lawfully
present in the United States, shall notify the court in writing of the
determination, the defendant's alien status, and, to the extent
possible, the country of origin or legal residence of the defendant; and
(3) ensure that the information described in paragraph
(2) is included in the case file and the criminal records system of the
office of the United States attorney.
The determination under paragraph (1) shall be made in
accordance with guidelines of the Executive Office for Immigration
Review of the Department of Justice.
(b) Responsibilities of Federal Courts-
(1) MODIFICATIONS OF RECORDS AND CASE MANAGEMENTS
SYSTEMS- Not later than 2 years after the date of the enactment of this
Act, all Federal courts that hear criminal cases, or appeals of
criminal cases, shall modify their criminal records and case management
systems, in accordance with guidelines which the Director of the
Administrative Office of the United States Courts shall establish, so
as to enable accurate reporting of information described in paragraph
(2) of subsection (a).
(2) DATA ENTRIES- Beginning 2 years after the date of
the enactment of this Act, each Federal court described in paragraph
(1) shall enter into its electronic records the information contained
in each notification to the court under subsection (a)(2).
(c) Annual Report to Congress- The Director of the
Administrative Office of the United States Courts shall include, in the
annual report filed with the Congress under section 604 of title 28,
United States Code--
(1) statistical information on criminal trials of
aliens in the courts and criminal convictions of aliens in the lower
courts and upheld on appeal, including the type of crime in each case
and including information on the legal status of the aliens; and
(2) recommendations on whether additional court
resources are needed to accommodate the volume of criminal cases
brought against aliens in the Federal courts.
(d) Authorization of Appropriations- There are authorized
to be appropriated for each of fiscal years 2009 through 2014, such
sums as may be necessary to carry out this Act. Funds appropriated
pursuant to this subsection in any fiscal year shall remain available
until expended.
SEC. 618. INCREASED CRIMINAL PENALTIES FOR DOCUMENT FRAUD AND CRIMES OF VIOLENCE.
(a) Document Fraud- Section 1546 of title 18, United States Code, is amended--
(A) by striking `not more than 25 years' and inserting `not less than 25 years';
(B) by inserting `and if the terrorism offense
resulted in the death of any person, shall be punished by death or
imprisoned for life,' after `section 2331 of this title)),';
(C) by striking `20 years' and inserting `imprisoned not more than 40 years';
(D) by striking `10 years' and inserting `imprisoned not more than 20 years'; and
(E) by striking `15 years' and inserting `imprisoned not more than 25 years'; and
(2) in subsection (b), by striking `5 years' and inserting `10 years'.
(1) IN GENERAL- Title 18, United States Code, is amended by inserting after chapter 51 the following:
`CHAPTER 52--ILLEGAL ALIENS
`1131. Enhanced penalties for certain crimes committed by illegal aliens.
`Sec. 1131. Enhanced penalties for certain crimes committed by illegal aliens
`(a) Any alien unlawfully present in the United States, who
commits, or conspires or attempts to commit, a crime of violence or a
drug trafficking offense (as defined in section 924), shall be fined
under this title and sentenced to not less than 5 years in prison.
`(b) If an alien who violates subsection (a) was previously
ordered removed under the Immigration and Nationality Act (8 U.S.C.
1101 et seq.) on the grounds of having committed a crime, the alien
shall be sentenced to not less than 15 years in prison.
`(c) A sentence of imprisonment imposed under this section
shall run consecutively to any other sentence of imprisonment imposed
for any other crime.'.
(2) CLERICAL AMENDMENT- The table of chapters at the
beginning of part I of title 18, United States Code, is amended by
inserting after the item relating to chapter 51 the following:
1131'.
SEC. 619. LAUNDERING OF MONETARY INSTRUMENTS.
Section 1956(c)(7)(D) of title 18, United States Code, is amended--
(1) by inserting `section 1590 (relating to trafficking
with respect to peonage, slavery, involuntary serviture, or forced
labor),' after `section 1363 (relating to destruction of property
within the special maritime and territorial jurisdiction),'; and
(2) by inserting `section 274(a) of the Immigration and
Nationality Act (8 U.S.C.1324(a)) (relating to bringing in and
harboring certain aliens),' after `section 590 of the Tariff Act of
1930 (19 U.S.C. 1590) (relating to aviation smuggling),'.
TITLE VII--EMPLOYMENT ELIGIBILITY VERIFICATION
Subtitle A--Employment Eligibility Verification System
SEC. 701. EMPLOYMENT ELIGIBILITY VERIFICATION SYSTEM.
(a) In General- Section 274A(b) of the Immigration and
Nationality Act (8 U.S.C. 1324a(b)) is amended by adding at the end the
following:
`(7) EMPLOYMENT ELIGIBILITY VERIFICATION SYSTEM-
`(A) IN GENERAL- The Secretary of Homeland Security
shall establish and administer a verification system through which the
Secretary (or a designee of the Secretary, which may be a
nongovernmental entity)--
`(i) responds to inquiries made by persons at
any time through a toll-free telephone line and other toll-free
electronic media concerning an individual's identity and whether the
individual is authorized to be employed; and
`(ii) maintains records of the inquiries that
were made, of verifications provided (or not provided), and of the
codes provided to inquirers as evidence of their compliance with their
obligations under this section.
`(B) INITIAL RESPONSE- The verification system
shall provide verification or a tentative nonverification of an
individual's identity and employment eligibility within 3 working days
of the initial inquiry. If providing verification or tentative
nonverification, the verification system shall provide an appropriate
code indicating such verification or such nonverification.
`(C) SECONDARY VERIFICATION PROCESS IN CASE OF
TENTATIVE NONVERIFICATION- In cases of tentative nonverification, the
Secretary shall specify, in consultation with the Commissioner of
Social Security, an available secondary verification process to confirm
the validity of information provided and to provide a final
verification or nonverification within 10 working days after the date
of the tentative nonverification. When final verification or
nonverification is provided, the verification system shall provide an
appropriate code indicating such verification or nonverification.
`(D) DESIGN AND OPERATION OF SYSTEM- The verification system shall be designed and operated--
`(i) to maximize its reliability and ease of
use by persons and other entities consistent with insulating and
protecting the privacy and security of the underlying information;
`(ii) to respond to all inquiries made by such
persons and entities on whether individuals are authorized to be
employed and to register all times when such inquiries are not received;
`(iii) with appropriate administrative,
technical, and physical safeguards to prevent unauthorized disclosure
of personal information; and
`(iv) to have reasonable safeguards against the
system's resulting in unlawful discriminatory practices based on
national origin or citizenship status, including--
`(I) the selective or unauthorized use of the system to verify eligibility;
`(II) the use of the system prior to an offer of employment; or
`(III) the exclusion of certain individuals
from consideration for employment as a result of a perceived likelihood
that additional verification will be required, beyond what is required
for most job applicants.
`(E) RESPONSIBILITIES OF THE COMMISSIONER OF SOCIAL
SECURITY- As part of the verification system, the Commissioner of
Social Security, in consultation with the Secretary of Homeland
Security (and any designee of the Secretary selected to establish and
administer the verification system), shall establish a reliable, secure
method, which, within the time periods specified under subparagraphs
(B) and (C), compares the name and social security account number
provided in an inquiry against such information maintained by the
Commissioner in order to validate (or not validate) the information
provided regarding an individual whose identity and employment
eligibility must be confirmed, the correspondence of the name and
number, and whether the individual has presented a social security
account number that is not valid for employment. The Commissioner shall
not disclose or release social security information (other than such
verification or nonverification) except as provided for in this section
or section 205(c)(2)(I) of the Social Security Act.
`(F) RESPONSIBILITIES OF THE SECRETARY OF HOMELAND
SECURITY- (i) As part of the verification system, the Secretary of
Homeland Security (in consultation with any designee of the Secretary
selected to establish and administer the verification system), shall
establish a reliable, secure method, which, within the time periods
specified under subparagraphs (B) and (C), compares the name and alien
identification or authorization number which are provided in an inquiry
against such information maintained by the Secretary in order to
validate (or not validate) the information provided, the correspondence
of the name and number, and whether the alien is authorized to be
employed in the United States.
`(ii) When a single employer has submitted to the
verification system pursuant to paragraph (3)(A) the identical social
security account number in more than one instance, or when multiple
employers have submitted to the verification system pursuant to such
paragraph the identical social security account number, in a manner
which indicates the possible fraudulent use of that number, the
Secretary of Homeland Security shall conduct an investigation, within
the time periods specified in subparagraphs (B) and (C), in order to
ensure that no fraudulent use of a social security account number has
taken place. If the Secretary has selected a designee to establish and
administer the verification system, the designee shall notify the
Secretary when a single employer has submitted to the verification
system pursuant to paragraph (3)(A) the identical social security
account number in more than one instance, or when multiple employers
have submitted to the verification system pursuant to such paragraph
the identical social security account number, in a manner which
indicates the possible fraudulent use of that number. The designee
shall also provide the Secretary with all pertinent information,
including the name and address of the employer or employers who
submitted the relevant social security account number, the relevant
social security account number submitted by the employer or employers,
and the relevant name and date of birth of the employee submitted by
the employer or employers.
`(G) UPDATING INFORMATION- The Commissioner of
Social Security and the Secretary of Homeland Security shall update
their information in a manner that promotes the maximum accuracy and
shall provide a process for the prompt correction of erroneous
information, including instances in which it is brought to their
attention in the secondary verification process described in
subparagraph (C).
`(H) LIMITATION ON USE OF THE VERIFICATION SYSTEM AND ANY RELATED SYSTEMS-
`(i) IN GENERAL- Notwithstanding any other
provision of law, nothing in this paragraph shall be construed to
permit or allow any department, bureau, or other agency of the United
States Government to utilize any information, data base, or other
records assembled under this paragraph for any other purpose other than
as provided for.
`(ii) NO NATIONAL IDENTIFICATION CARD- Nothing
in this paragraph shall be construed to authorize, directly or
indirectly, the issuance or use of national identification cards or the
establishment of a national identification card.
`(I) FEDERAL TORT CLAIMS ACT- If an individual
alleges that the individual would not have been dismissed from a job
but for an error of the verification mechanism, the individual may seek
compensation only through the mechanism of the Federal Tort Claims Act,
and injunctive relief to correct such error. No class action may be
brought under this subparagraph.
`(J) PROTECTION FROM LIABILITY FOR ACTIONS TAKEN ON
THE BASIS OF INFORMATION- No person or entity shall be civilly or
criminally liable for any action taken in good faith reliance on
information provided through the employment eligibility verification
mechanism established under this paragraph.'.
(b) Repeal of Provision Relating to Evaluations and Changes
in Employment Verification- Section 274A(d) (8 U.S.C. 1324a(d)) is
repealed.
SEC. 702. EMPLOYMENT ELIGIBILITY VERIFICATION PROCESS.
Section 274A of the Immigration and Nationality Act (8 U.S.C. 1324a) is amended--
(1) in subsection (a)(3), by inserting `(A)' after `DEFENSE- ', and by adding at the end the following:
`(B) FAILURE TO SEEK AND OBTAIN VERIFICATION- In the
case of a person or entity in the United States that hires, or
continues to employ, an individual, or recruits or refers an individual
for employment, the following requirements apply:
`(i) FAILURE TO SEEK VERIFICATION-
`(I) IN GENERAL- If the person or entity
has not made an inquiry, under the mechanism established under
subsection (b)(7), seeking verification of the identity and work
eligibility of the individual, by not later than the end of 3 working
days (as specified by the Secretary of Homeland Security) after the
date of the hiring, the date specified in subsection (b)(8)(B) for
previously hired individuals, or before the recruiting or referring
commences, the defense under subparagraph (A) shall not be considered
to apply with respect to any employment, except as provided in
subclause (II).
`(II) SPECIAL RULE FOR FAILURE OF
VERIFICATION MECHANISM- If such a person or entity in good faith
attempts to make an inquiry in order to qualify for the defense under
subparagraph (A) and the verification mechanism has registered that not
all inquiries were responded to during the relevant time, the person or
entity can make an inquiry until the end of the first subsequent
working day in which the verification mechanism registers no
nonresponses and qualify for such defense.
`(ii) FAILURE TO OBTAIN VERIFICATION- If the
person or entity has made the inquiry described in clause (i)(I) but
has not received an appropriate verification of such identity and work
eligibility under such mechanism within the time period specified under
subsection (b)(7)(B) after the time the verification inquiry was
received, the defense under subparagraph (A) shall not be considered to
apply with respect to any employment after the end of such time
period.';
(2) by amending subparagraph (A) of subsection (b)(1) to read as follows:
`(A) IN GENERAL- The person or entity must attest,
under penalty of perjury and on a form designated or established by the
Secretary by regulation, that it has verified that the individual is
not an unauthorized alien by--
`(i) obtaining from the individual the
individual's social security account number and recording the number on
the form (if the individual claims to have been issued such a number),
and, if the individual does not attest to United States citizenship
under paragraph (2), obtaining such identification or authorization
number established by the Department of Homeland Security for the alien
as the Secretary of Homeland Security may specify, and recording such
number on the form; and
`(ii)(I) examining a document described in
subparagraph (B); or (II) examining a document described in
subparagraph (C) and a document described in subparagraph (D).
A person or entity has complied with the requirement
of this paragraph with respect to examination of a document if the
document reasonably appears on its face to be genuine, reasonably
appears to pertain to the individual whose identity and work
eligibility is being verified, and, if the document bears an expiration
date, that expiration date has not elapsed. If an individual provides a
document (or combination of documents) that reasonably appears on its
face to be genuine, reasonably appears to pertain to the individual
whose identity and work eligibility is being verified, and is
sufficient to meet the first sentence of this paragraph, nothing in
this paragraph shall be construed as requiring the person or entity to
solicit the production of any other document or as requiring the
individual to produce another document.';
(3) in subsection (b)(1)(D)--
(A) in clause (i), by striking `or such other
personal identification information relating to the individual as the
Attorney General finds, by regulation, sufficient for purposes of this
section'; and
(B) in clause (ii), by inserting before the period `and that contains a photograph of the individual';
(4) in subsection (b)(2), by adding at the end the
following: `The individual must also provide that individual's social
security account number (if the individual claims to have been issued
such a number), and, if the individual does not attest to United States
citizenship under this paragraph, such identification or authorization
number established by the Department of Homeland Security for the alien
as the Secretary may specify.'; and
(5) by amending paragraph (3) of subsection (b) to read as follows:
`(3) RETENTION OF VERIFICATION FORM AND VERIFICATION-
`(A) IN GENERAL- After completion of such form in accordance with paragraphs (1) and (2), the person or entity must--
`(i) retain a paper, microfiche, microfilm, or
electronic version of the form and make it available for inspection by
officers of the Department of Homeland Security, the Special Counsel
for Immigration-Related Unfair Employment Practices, or the Department
of Labor during a period beginning on the date of the hiring,
recruiting, or referral of the individual or the date of the completion
of verification of a previously hired individual and ending--
`(I) in the case of the recruiting or referral of an individual, three years after the date of the recruiting or referral;
`(II) in the case of the hiring of an individual, the later of--
`(aa) three years after the date of such hiring; or
`(bb) one year after the date the individual's employment is terminated; and
`(III) in the case of the verification of a previously hired individual, the later of--
`(aa) three years after the date of the completion of verification; or
`(bb) one year after the date the individual's employment is terminated;
`(ii) make an inquiry, as provided in
paragraph (7), using the verification system to seek verification of
the identity and employment eligibility of an individual, by not later
than the end of 3 working days (as specified by the Secretary of
Homeland Security) after the date of the hiring or in the case of
previously hired individuals, the date specified in subsection
(b)(8)(B), or before the recruiting or referring commences; and
`(iii) may not commence recruitment or referral
of the individual until the person or entity receives verification
under subparagraph (B)(i) or (B)(iii).
`(i) VERIFICATION RECEIVED- If the person or
other entity receives an appropriate verification of an individual's
identity and work eligibility under the verification system within the
time period specified, the person or entity shall record on the form an
appropriate code that is provided under the system and that indicates a
final verification of such identity and work eligibility of the
individual.
`(ii) TENTATIVE NONVERIFICATION RECEIVED- If
the person or other entity receives a tentative nonverification of an
individual's identity or work eligibility under the verification system
within the time period specified, the person or entity shall so inform
the individual for whom the verification is sought. If the individual
does not contest the nonverification within the time period specified,
the nonverification shall be considered final. The person or entity
shall then record on the form an appropriate code which has been
provided under the system to indicate a tentative nonverification. If
the individual does contest the nonverification, the individual shall
utilize the process for secondary verification provided under paragraph
(7). The nonverification will remain tentative until a final
verification or nonverification is provided by the verification system
within the time period specified. In no case shall an employer
terminate employment of an individual because of a failure of the
individual to have identity and work eligibility confirmed under this
section until a nonverification becomes final. Nothing in this clause
shall apply to a termination of employment for any reason other than
because of such a failure.
`(iii) FINAL VERIFICATION OR NONVERIFICATION
RECEIVED- If a final verification or nonverification is provided by the
verification system regarding an individual, the person or entity shall
record on the form an appropriate code that is provided under the
system and that indicates a verification or nonverification of identity
and work eligibility of the individual.
`(iv) EXTENSION OF TIME- If the person or other
entity in good faith attempts to make an inquiry during the time period
specified and the verification system has registered that not all
inquiries were received during such time, the person or entity may make
an inquiry in the first subsequent working day in which the
verification system registers that it has received all inquiries. If
the verification system cannot receive inquiries at all times during a
day, the person or entity merely has to assert that the entity
attempted to make the inquiry on that day for the previous sentence to
apply to such an inquiry, and does not have to provide any additional
proof concerning such inquiry.
`(v) CONSEQUENCES OF NONVERIFICATION-
`(I) TERMINATION OR NOTIFICATION OF
CONTINUED EMPLOYMENT- If the person or other entity has received a
final nonverification regarding an individual, the person or entity may
terminate employment of the individual (or decline to recruit or refer
the individual). If the person or entity does not terminate employment
of the individual or proceeds to recruit or refer the individual, the
person or entity shall notify the Secretary of Homeland Security of
such fact through the verification system or in such other manner as
the Secretary may specify.
`(II) FAILURE TO NOTIFY- If the person or
entity fails to provide notice with respect to an individual as
required under subclause (I), the failure is deemed to constitute a
violation of subsection (a)(1)(A) with respect to that individual.
`(vi) CONTINUED EMPLOYMENT AFTER FINAL
NONVERIFICATION- If the person or other entity continues to employ (or
to recruit or refer) an individual after receiving final
nonverification, a rebuttable presumption is created that the person or
entity has violated subsection (a)(1)(A).'.
SEC. 703. EXPANSION OF EMPLOYMENT ELIGIBILITY VERIFICATION SYSTEM TO PREVIOUSLY HIRED INDIVIDUALS AND RECRUITING AND REFERRING.
(a) Application to Recruiting and Referring- Section 274A of the Immigration and Nationality Act (8 U.S.C. 1324a) is amended--
(1) in subsection (a)(1)(A), by striking `for a fee';
(2) in subsection (a)(1), by amending subparagraph (B) to read as follows:
`(B) to hire, continue to employ, or to recruit or
refer for employment in the United States an individual without
complying with the requirements of subsection (b).';
(3) in subsection (a)(2) by striking `after hiring an
alien for employment in accordance with paragraph (1),' and inserting
`after complying with paragraph (1),'; and
(4) in subsection (a)(3), as amended by section 702, is
further amended by striking `hiring,' and inserting `hiring,
employing,' each place it appears.
(b) Employment Eligibility Verification for Previously
Hired Individuals- Section 274A(b) of such Act (8 U.S.C. 1324a(b)), as
amended by section 701(a), is amended by adding at the end the
following new paragraph:
`(8) USE OF EMPLOYMENT ELIGIBILITY VERIFICATION SYSTEM FOR PREVIOUSLY HIRED INDIVIDUALS-
`(A) ON A VOLUNTARY BASIS- Beginning on the date
that is 2 years after the date of the enactment of the Border
Enforcement, Employment Verification, and Illegal Immigration Control
Actand until the date specified in subparagraph (B)(iii), a person or
entity may make an inquiry, as provided in paragraph (7), using the
verification system to seek verification of the identity and employment
eligibility of any individual employed by the person or entity, as long
as it is done on a nondiscriminatory basis.
`(B) ON A MANDATORY BASIS-
`(i) A person or entity described in clause
(ii) must make an inquiry as provided in paragraph (7), using the
verification system to seek verification of the identity and employment
eligibility of all individuals employed by the person or entity who
have not been previously subject to an inquiry by the person or entity
by the date three years after the date of enactment of the Border
Enforcement, Employment Verification, and Illegal Immigration Control
Act.
`(ii) A person or entity is described in this
clause if it is a Federal, State, or local governmental body (including
the Armed Forces of the United States), or if it employs individuals
working in a location that is a Federal, State, or local government
building, a military base, a nuclear energy site, a weapon site, an
airport, or that contains critical infrastructure (as defined in
section 1016(e) of the Critical Infrastructure Protection Act of 2001
(42 U.S.C. 5195c(e))), but only to the extent of such individuals.
`(iii) All persons and entities other than
those described in clause (ii) must make an inquiry, as provided in
paragraph (7), using the verification system to seek verification of
the identity and employment eligibility of all individuals employed by
the person or entity who have not been previously subject to an inquiry
by the person or entity by the date six years after the date of
enactment of the Border Enforcement, Employment Verification, and
Illegal Immigration Control Act.'.
SEC. 704. BASIC PILOT PROGRAM.
Section 401(b) of the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (8 U.S.C. 1324a note) is amended
by striking `at the end of the 11-year period beginning on the first
day the pilot program is in effect' and inserting `two years after the
enactment of the Border Enforcement, Employment Verification, and
Illegal Immigration Control Act'.
SEC. 705. HIRING HALLS.
Section 274A(h) of the Immigration and Nationality Act (8
U.S.C. 1324a(h)) is amended by adding at the end the following new
paragraph:
`(4) RECRUITMENT AND REFERRAL- As used in this section,
the term `refer' means the act of sending or directing a person or
transmitting documentation or information to another, directly or
indirectly, with the intent of obtaining employment in the United
States for such person. Generally, only persons or entities referring
for remuneration (whether on a retainer or contingency basis) are
included in the definition. However, labor service agencies, whether
public, private, for-profit, or nonprofit, that refer, dispatch, or
otherwise facilitate the hiring of workers for any period of time by a
third party are included in the definition whether or not they receive
remuneration. As used in this section the term `recruit' means the act
of soliciting a person, directly or indirectly, and referring the
person to another with the intent of obtaining employment for that
person. Generally, only persons or entities recruiting for
remunerations (whether on a retainer or contingency basis) are included
in the definition. However, labor service agencies, whether public,
private, for-profit, or nonprofit that refer, dispatch, or otherwise
facilitate the hiring of workers for any period of time by a third
party are included in the definition whether or not they receive
remuneration.'.
SEC. 706. PENALTIES.
Section 274A of the Immigration and Nationality Act (8 U.S.C. 1324a) is amended--
(1) in subsection (e)(4)--
(A) in subparagraph (A), in the matter before
clause (i), by inserting `, subject to paragraphs (10) through (12),'
after `in an amount';
(B) in subparagraph (A)(i), by striking `not less
than $250 and not more than $2,000' and inserting `not less than $5,000
and not more than $7,500';
(C) in subparagraph (A)(ii), by striking `not less
than $2,000 and not more than $5,000' and inserting `not less than
$10,000 and not more than $15,000';
(D) in subparagraph (A)(iii), by striking `not less
than $3,000 and not more than $10,000' and inserting `not less than
$25,000 and not more than $40,000'; and
(E) by amending subparagraph (B) to read as follows:
`(B) may require the person or entity to take such other remedial action as is appropriate.';
(2) in subsection (e)(5)--
(A) by inserting `, subject to paragraphs (10) through (12),' after `in an amount';
(B) by striking `$100' and inserting `$1,000';
(C) by striking `$1,000' and inserting `$25,000';
(D) by striking `the size of the business of the
employer being charged, the good faith of the employer' and inserting
`the good faith of the employer being charged'; and
(E) by adding at the end the following sentence:
`Failure by a person or entity to utilize the employment eligibility
verification system as required by law, or providing information to the
system that the person or entity knows or reasonably believes to be
false, shall be treated as a violation of subsection (a)(1)(A).';
(3) by adding at the end of subsection (e) the following new paragraphs:
`(10) MITIGATION OF CIVIL MONEY PENALTIES FOR SMALLER
EMPLOYERS- In the case of imposition of a civil penalty under paragraph
(4)(A) with respect to a violation of subsection (a)(1)(A) or (a)(2)
for hiring or continuation of employment by an employer and in the case
of imposition of a civil penalty under paragraph (5) for a violation of
subsection (a)(1)(B) for hiring by an employer, the dollar amounts
otherwise specified in the respective paragraph shall be reduced as
follows:
`(A) In the case of an employer with an average of
fewer than 26 full-time equivalent employees (as defined by the
Secretary of Homeland Security), the amounts shall be reduced by 60
percent.
`(B) In the case of an employer with an average of
at least 26, but fewer than 101, full-time equivalent employees (as so
defined), the amounts shall be reduced by 40 percent.
`(C) In the case of an employer with an average of
at least 101, but fewer than 251, full-time equivalent employees (as so
defined), the amounts shall be reduced by 20 percent.
The last sentence of paragraph (4) shall apply under this paragraph in the same manner as it applies under such paragraph.
`(11) EXEMPTION FROM PENALTY FOR INITIAL GOOD FAITH
VIOLATION- In the case of imposition of a civil penalty under paragraph
(4)(A) with respect to a violation of subsection (a)(1)(A) or (a)(2)
for hiring or continuation of employment or recruitment or referral by
person or entity and in the case of imposition of a civil penalty under
paragraph (5) for a violation of subsection (a)(1)(B) for hiring or
recruitment or referral by a person or entity, the penalty otherwise
imposed shall be waived if the violator establishes that it was the
first such violation of such provision by the violator and the violator
acted in good faith.
`(12) SAFE HARBOR FOR CONTRACTORS- A person or other
entity shall not be liable for a penalty under paragraph (4)(A) with
respect to the violation of subsection (a)(1)(A), (a)(1)(B), or (a)(2)
with respect to the hiring or continuation of employment of an
unauthorized alien by a subcontractor of that person or entity unless
the person or entity knew that the subcontractor hired or continued to
employ such alien in violation of such subsection.'.
(4) by amending paragraph (1) of subsection (f) to read as follows:
`(1) CRIMINAL PENALTY- Any person or entity which
engages in a pattern or practice of violations of subsection (a)(1) or
(2) shall be fined not more than $50,000 for each unauthorized alien
with respect to which such a violation occurs, imprisoned for not less
than one year, or both, notwithstanding the provisions of any other
Federal law relating to fine levels.'; and
(5) in subsection (f)(2), by striking `Attorney General' each place it appears and inserting `Secretary of Homeland Security'.
SEC. 707. REPORT ON SOCIAL SECURITY CARD-BASED EMPLOYMENT ELIGIBILITY VERIFICATION.
(1) IN GENERAL- Not later than 9 months after the date
of the enactment of this Act, the Commissioner of Social Security, in
consultation with the Secretary of Treasury, the Secretary of Homeland
Security, and the Attorney General, shall submit a report to Congress
that includes an evaluation of the following requirements and changes:
(A) A requirement that social security cards that
are made of a durable plastic or similar material and that include an
encrypted, machine-readable electronic identification strip and a
digital photograph of the individual to whom the card is issued, be
issued to each individual (whether or not a United States citizen) who--
(i) is authorized to be employed in the United States;
(ii) is seeking employment in the United States; and
(iii) files an application for such card,
whether as a replacement of an existing social security card or as a
card issued in connection with the issuance of a new social security
account number.
(B) The creation of a unified database to be
maintained by the Department of Homeland Security and comprised of data
from the Social Security Administration and the Department of Homeland
Security specifying the work authorization of individuals (including
both United States citizens and noncitizens) for the purpose of
conducting employment eligibility verification.
(C) A requirement that all employers verify the
employment eligibility of all new hires using the social security cards
described in subparagraph (A) and a phone, electronic card-reading, or
other mechanism to seek verification of employment eligibility through
the use of the unified database described in subparagraph (B).
(2) ITEMS INCLUDED IN REPORT- The report under paragraph (1) shall include an evaluation of each of the following:
(A) Projected cost, including the cost to the Federal Government, State and local governments, and the private sector.
(C) Potential effects on--
(ii) employees, including employees who are United States citizens as well as those that are not citizens;
(D) The extent to which employer and employee compliance with immigration laws would be expected to improve.
(E) Any other relevant information.
(3) ALTERNATIVES- The report under paragraph (1) also
shall examine any alternatives to achieve the same goals as the
requirements and changes described in paragraph (1) but that involve
lesser cost, lesser burden on those affected, or greater ease of
administration.
(b) Inspector General Review- Not later than 3 months after
the report is submitted under subsection (a), the Inspector General of
the Social Security Administration, in consultation with the Inspectors
General of the Department of Treasury, the Department of Homeland
Security, and the Department of Justice, shall send to the Congress an
evaluation of the such report.
SEC. 708. EXTENSION OF PREEMPTION TO REQUIRED CONSTRUCTION OF DAY LABORER SHELTERS.
Paragraph 274A(h)(2) of the Immigration and Nationality Act (8 U.S.C. 1324a(h)(2)) is amended--
(1) by striking `imposing', and inserting a dash and `(A) imposing';
(2) by striking the period at the end and inserting `; and'; and
(3) by adding at the end the following:
`(B) Requiring as a condition of conducting, continuing, or expanding a business that a business entity--
`(i) provide, build, fund, or maintain a
shelter, structure, or designated area for use by day laborers at or
near its place of business; or
`(ii) take other steps that facilitate the employment of day laborers by others.'
SEC. 709. EFFECTIVE DATE.
This title and the amendments made by this title shall take
effect on the date of enactment of this Act, except that the
requirements of persons and entities to comply with the employment
eligibility verification process takes effect on the date that is two
years after such date.
SEC. 710. LIMITATION ON VERIFICATION RESPONSIBILITIES OF COMMISSIONER OF SOCIAL SECURITY.
The Commissioner of Social Security is authorized to
perform activities with respect to carrying out the Commissioner's
responsibilities in this title or the amendments made by this title,
but only to the extent (except for the purpose of carrying out section
707) the Secretary of Homeland Security has provided, in advance, funds
to cover the Commissioner's full costs in carrying out such
responsibilities. In no case shall funds from the Federal Old-Age and
Survivors Insurance Trust Fund or the Federal Disability Insurance
Trust Fund be used to carry out such responsibilities.
SEC. 711. REPORT ON EMPLOYMENT ELIGIBILITY VERIFICATION SYSTEM.
Not later than one year after the implementation of the
employment eligibility verification system and one year thereafter, the
Secretary of Homeland Security shall submit to Congress a report on the
progress and problems associated with implementation of the system,
including information relating to the most efficient use of the system
by small businesses.
Subtitle B--Employment Eligibility Verification and Anti-Identity Theft Act
SEC. 721. SHORT TITLE.
This subtitle may be cited as the `Employment Eligibility Verification and Anti-Identity Theft Act'.
SEC. 722. REQUIRING AGENCIES TO SEND `NO-MATCH' LETTERS.
(a) Social Security Administration- The Commissioner of the
Social Security Administration shall send a written notice to a person
or entity each time that the combination of name and Social Security
account number submitted by the person or entity for an individual does
not match Social Security Administration records.
(b) Department of Homeland Security- The Secretary of
Homeland Security shall send a written notice to a person or entity
each time that such Secretary determines that an immigration status
document or employment authorization document presented or referenced
by an individual during the process of completing the attestations
required by the person or entity for employment eligibility
verification was assigned to another person, or that there is no agency
record that the document was assigned to any person.
SEC. 723. REQUIRING EMPLOYERS TO TAKE ACTION UPON RECEIPT OF A `NO-MATCH' LETTER.
Beginning on the date that is 6 months after the date of
the enactment of this Act, a person or entity that has received a
written notice under section 312 shall, within 3 business days of
receiving such notice, verify the individual's employment authorization
and identity through the verification system established under section
314.
SEC. 724. VERIFICATION SYSTEM.
Not later than 6 months after the date of enactment of this
Act, the Secretary of Homeland Security, in consultation with the
Commissioner of the Social Security Administration, as appropriate,
shall establish and administer a verification system through which
persons or entities that have received written notice under section 312
shall verify an individual's employment authorization and identity.
SEC. 725. DESIGN AND OPERATION OF SYSTEM.
The verification system established under section 314 shall be designed and operated--
(1) to maximize its reliability and ease of use,
consistent with insulating and protecting the privacy and security of
the underlying information;
(2) to respond to all required inquiries under this
subtitle regarding whether individuals are authorized to be employed
and to register all times when such inquiries are not received;
(3) with appropriate administrative, technical, and
physical safeguards to prevent unauthorized disclosure of personal
information; and
(4) to have reasonable safeguards against the system's
resulting in unlawful discriminatory practices based on national origin
or citizenship status, including--
(A) the selective or unauthorized use of the system to verify eligibility;
(B) the use of the system prior to an offer of employment; or
(C) the exclusion of certain individuals from
consideration for employment as a result of a perceived likelihood that
additional verification will be required, beyond what is required for
most job applicants.
SEC. 726. EXTENSION OF TIME.
If a person or entity in good faith attempts to make an
inquiry during the time period specified and the verification system
established under section 314 has registered that not all inquiries
were received during such time, the person or entity may make an
inquiry on the first subsequent working day in which the verification
system registers that it has received all inquiries. If the
verification system cannot receive inquiries at all times during a day,
the person or entity merely has to assert that the entity attempted to
make the inquiry on that day for the previous sentence to apply to such
an inquiry, and does not have to provide any additional proof
concerning such inquiry.
SEC. 727. RETENTION OF PROOF OF VERIFICATION COMPLETION.
After completion of the verification process established
under section 314, a person or entity shall retain a paper, microfiche,
microfilm, or electronic version of the form received through the
verification process (or, in the case of a telephonic verification, a
paper, microfiche, microfilm, or electronic record of the telephonic
verification code number) and make it available for inspection by
officers of the Department of Homeland Security, the Special Counsel
for Immigration-Related Unfair Employment Practices, or the Department
of Labor for 3 years after the date on which the form or telephonic
verification code number was received.
SEC. 728. TERMINATION OF EMPLOYMENT.
(a) Burden on Individual To Resolve Errors- If a person or
entity has received an initial nonverification regarding an individual
from the verification system established under section 315, the person
or entity shall notify the individual in writing within 1 business day
of such receipt. In such notice, the person or entity shall advise the
individual that the burden is on the individual to resolve any error in
the verification mechanism not later than 30 days after the date on
which the notice is issued. Such notice shall also state that the
person or entity shall be required to verify once again the
individual's employment authorization and identity through the
verification system established under section 315, and to terminate any
employment in the United States, and any recruitment, hiring, or
referral for employment in the United States, of the individual, if a
final nonverification is received.
(b) Additional Verification- A person or entity that has
issued a notice under subsection (a) shall, within 33 business days of
such issuance, verify once again the individual's employment
authorization and identity through the verification system established
under section 314. Sections 316 and 317 shall apply to such final
verification in the same manner as such sections applied to the initial
verification.
SEC. 729. FINAL VERIFICATION.
(a) Within 7 days of receiving final nonverification for an
individual, the person or entity issued a notice under section 312(a)
of this Act shall provide the Commissioner of Social Security with a
copy of such individual's verification form as described in section
274A(b)(3) of the Immigration and Nationality Act (8 U.S.C.
1324a(b)(3)) in addition to any other information regarding the last
known name, address, and location of such individual.
(b) Within 3 business days of receiving such notification,
the Commissioner of Social Security shall provide such information to
the Secretary of Homeland Security.
SEC. 730. EMPLOYER VIOLATIONS.
A person or entity shall be considered to have violated
section 274A(a)(1)(A) of the Immigration and Nationality Act (8 U.S.C.
1324a(a)(1)(A)) if the person or entity--
(1) continues to employ in the United States, or
recruits, hires, or refers for employment in the United States, an
individual after receiving a final nonverification regarding an
individual from the verification system established under section 314;
or
(2) otherwise fails to take an action required under this subtitle.
SEC. 731. LIMITATION ON USE.
(a) In General- Notwithstanding any other provision of law,
nothing in this subtitle shall be construed to permit or allow any
department, bureau, or other agency of the United States Government to
utilize any information, data base, or other records assembled under
this subtitle for any other purpose other than as provided for under
this subtitle.
(b) No National Identification Card- Nothing in this
subtitle shall be construed to authorize, directly or indirectly, the
issuance or use of national identification cards or the establishment
of a national identification card.
SEC. 732. FEDERAL TORT CLAIMS ACT REMEDY.
If an individual alleges that the individual would not have
been dismissed from a job but for an error of the verification
mechanism, the individual may seek compensation only through the
mechanism of chapter 171 of title 28, United States Code (popularly
known as the Federal Tort Claims Act), and injunctive relief to correct
such error. No class action may be brought under this subtitle.
SEC. 733. PROTECTION FROM LIABILITY FOR ACTIONS TAKEN ON THE BASIS OF INFORMATION.
No person or entity shall be civilly or criminally liable
for any action taken in good faith reliance on information provided
through the employment eligibility verification mechanism established
under this subtitle.
Subtitle C--Improved Security for Birth Certificates
SEC. 741. DEFINITIONS.
(a) Applicability of Definitions- Except as otherwise
specifically provided, the definitions contained in section 201 of the
REAL ID Act of 2005 (division B of Public Law 109-13) apply to this
subtitle.
(b) Other Definitions- In this subtitle, the following definitions apply:
(1) BIRTH CERTIFICATE- The term `birth certificate' means a certificate of birth--
(A) for an individual (regardless of where born)--
(i) who is a citizen or national of the United States at birth; and
(ii) whose birth is registered in the United States; and
(i) is issued by a Federal, State, or local
government agency or authorized custodian of record and produced from
birth records maintained by such agency or custodian of record; or
(ii) is an authenticated copy, issued by a
Federal, State, or local government agency or authorized custodian of
record, of an original certificate of birth issued by such agency or
custodian of record.
(2) FULL LEGAL NAME- The term `full legal name' means
the complete name of the person, including the birth name as recorded
in the state and or nation of birth, as applicable, and any suffixes or
names appended through lawful action through marriage, adoption or
lawful name change.
(3) REGISTRANT- The term `registrant' means, with
respect to a birth certificate, the person whose birth is registered on
the certificate.
(4) STATE- The term `State' has the the meaning given
such term in section 201 of the REAL ID Act of 2005 (division B of
Public Law 109-13), except that New York City shall be treated as a
State separate from New York.
SEC. 742. APPLICABILITY OF MINIMUM STANDARDS TO LOCAL GOVERNMENTS.
The minimum standards in this subtitle applicable to birth
certificates issued by a State shall also apply to birth certificates
issued by a local government in the State. It shall be the
responsibility of the State to ensure that local governments in the
State comply with the minimum standards.
SEC. 743. MINIMUM STANDARDS FOR FEDERAL RECOGNITION.
(a) Minimum Standards for Federal Use-
(1) IN GENERAL- Beginning 3 years after the date of the
enactment of this Act, a Federal agency may not accept, for any
official purpose, a birth certificate issued by a State to any person
unless the State is meeting the requirements of this section.
(2) STATE CERTIFICATIONS- The Secretary shall determine
whether a State is meeting the requirements of this section based on
certifications made by the State to the Secretary. Such certifications
shall be made at such times and in such manner as the Secretary, in
consultation with the Secretary of Health and Human Services, may
prescribe by regulation.
(b) Minimum Document Standards- To meet the requirements of
this section, a State shall include, on each birth certificate issued
to a person by the State, the use of safety paper, the seal of the
issuing custodian of record, and such other features as the Secretary
may determine necessary to prevent tampering, counterfeiting, and
otherwise duplicating the birth certificate for fraudulent purposes.
The Secretary may not require a single design to which birth
certificates issued by all States must conform. However, the Secretary
shall require a minimum standard set of security features incorporated
into birth certificates issued by all States, such as digital
watermarks, so that validation of such security features can be
affordably made be law enforcement officials, by motor vehicle
administrators, and State and Federal officials.
(c) Minimum Issuance Standards-
(1) IN GENERAL- To meet the requirements of this
section, a State shall require and verify the following information
from the requestor before issuing an authenticated copy of a birth
certificate:
(A) The name on the birth certificate.
(B) The date and location of the birth.
(C) The mother's maiden name.
(D) Substantial proof of the requestor's identity.
(E) Where available, authentication of identity through comparison with a biometric identifier.
(2) ISSUANCE TO PERSONS NOT NAMED ON BIRTH CERTIFICATE-
To meet the requirements of this section, in the case of a request by a
person who is not named on the birth certificate, a State must require
the presentation of legal authorization to request the birth
certificate before issuance.
(3) ISSUANCE TO FAMILY MEMBERS- Not later than one year
after the date of the enactment of this Act, the Secretary, in
consultation with the Secretary of Health and Human Services and the
States, shall establish minimum standards for issuance of a birth
certificate to specific family members, their authorized
representatives, and others who demonstrate that the certificate is
needed for the protection of the requestor's personal or property
rights.
(4) WAIVERS- A State may waive the requirements set
forth in subparagraphs (A) through (C) of subsection (c)(1) in
exceptional circumstances, such as the incapacitation of the registrant.
(5) APPLICATIONS BY ELECTRONIC MEANS- To meet the
requirements of this section, for applications by electronic means,
through the mail or by phone or fax, a State shall employ third party
verification, or equivalent verification, of the identity of the
requestor.
(6) VERIFICATION OF DOCUMENTS- To meet the requirements
of this section, a State shall verify the documents used to provide
proof of identity of the requestor.
(d) Other Requirements- To meet the requirements of this
section, a State shall adopt, at a minimum, the following practices in
the issuance and administration of birth certificates:
(1) Establish and implement minimum building security standards for State and local vital record offices.
(2) Restrict public access to birth certificates and
information gathered in the issuance process to ensure that access is
restricted to entities with which the State has a binding privacy
protection agreement.
(3) Subject all persons with access to vital records to appropriate security clearance requirements.
(4) Establish fraudulent document recognition training programs for appropriate employees engaged in the issuance process.
(5) Establish and implement internal operating system standards for paper and for electronic systems.
(6) Establish a central electronic database that--
(A) is maintained in a physically secure environment so that unauthorized access can be prevented;
(B) is linked through the Electronic Verification
of Vital Event System (EVVES) established under section 345 or an
equivalent system to provide interoperative data exchange with other
States and with Federal agencies, subject to privacy restrictions and
confirmation of the authority and identity of the requestor; and
(C) incorporates within its records, to ensure
process integrity, the full legal name of any authorized requestor, the
date of the request, and the relationship to the person whose birth is
recorded on the birth certificate.
(7) Ensure that birth and death records are matched in
a comprehensive and timely manner, and that all electronic birth
records and paper birth certificates of decedents are marked `deceased'.
(8) Cooperate with the Secretary in the implementation of electronic verification of vital events under section 345.
SEC. 744. ESTABLISHMENT OF ELECTRONIC BIRTH AND DEATH REGISTRATION SYSTEMS.
In consultation with the Secretary of Health and Human
Services and the Commissioner of Social Security, the Secretary shall
take the following actions:
(1) Work with the States to establish a common data set
and common data exchange protocol for electronic birth registration
systems and death registration systems.
(2) Coordinate requirements for such systems to align with a national model.
(3) Ensure that fraud prevention is built into the
design of electronic vital registration systems in the collection of
vital event data, the issuance of birth certificates, and the exchange
of data among government agencies.
(4) Ensure that electronic systems for issuing birth
certificates, in the form of printed abstracts of birth records or
digitized images, employ a common format of the certified copy, so that
those requiring such documents can quickly confirm their validity.
(5) Establish uniform field requirements for State birth registries.
(6) Not later than 1 year after the date of the
enactment of this Act, establish a process with the Department of
Defense that will result in the sharing of data, with the States and
the Social Security Administration, regarding deaths of United States
military personnel and the birth and death of their dependents.
(7) Not later than 1 year after the date of the
enactment of this Act, establish a process with the Department of State
to improve registration, notification, and the sharing of data with the
States and the Social Security Administration, regarding births and
deaths of United States citizens abroad.
(8) Not later than 3 years after the date of
establishment of databases provided for under this section, require
States to record and retain electronic records of pertinent
identification information collected from requestors who are not the
registrants.
(9) Not later than 6 months after the date of the
enactment of this Act, submit to Congress, a report on whether there is
a need for Federal laws to address penalties for fraud and misuse of
vital records and whether violations are sufficiently enforced.
SEC. 745. ELECTRONIC VERIFICATION OF VITAL EVENTS.
(a) Lead Agency- The Secretary shall lead the
implementation of the Electronic Verification of Vital Events System
for the purpose of verifying a person's birth and death.
(b) Regulations- In carrying out subsection (a), the
Secretary shall issue regulations to establish a means by which
authorized Federal and State agency users with a single interface will
be able to generate an electronic query to any participating vital
records jurisdiction throughout the Nation to verify the contents of a
paper birth certificate. Pursuant to the regulations, an electronic
response from the participating vital records jurisdiction as to
whether there is a birth record in their database that matches the
paper birth certificate will be returned to the user, along with an
indication if the matching birth record has been flagged `deceased'.
The regulations shall take effect not later than 5 years after the date
of the enactment of this Act.
SEC. 746. GRANTS TO STATES.
(a) In General- The Secretary is authorized to award grants
to States to modernize State birth and death certificate records and
otherwise to satisfy the requirements of this subtitle. On an expedited
basis, the Secretary shall award grants or contracts for the purpose of
improving the accuracy and electronic availability of States' records
of births, deaths, and of other records necessary for implementation of
the Electronic Verification of Vital Events System established in
section 345, and as otherwise necessary to advance the purposes of this
subtitle.
(b) Regulation Compliance- A State that does fails to
certify the State's intent to comply with the regulations issued to
implement this subtitle not later than December 31, 2013, or that does
not submit a compliance plan acceptable to the Secretary is not
eligible for a grant under subsection (a).
(c) Duration- Grants may be awarded under this section during fiscal years 2009 through 2017.
(d) Eligible Recipients- If the Secretary of Homeland
Security determines that compliance with this subtitle can best be
achieved by awarding grants or contracts to a State, a group of States,
a government agency, a chartered nonprofit organization, or a private
entity, the Secretary may utilize funds under this section to award
such grants or contracts.
(e) Authorization of Appropriations- There are authorized
to be appropriated to the Secretary for each of the fiscal years 2009
through 2013 such sums as may be necessary to carry out this chapter.
SEC. 747. AUTHORITY.
(a) Participation With Federal Agencies and States- All
authority to issue regulations, certify standards, and issue grants
under this chapter shall be carried out by the Secretary, with the
concurrence of the Secretary of Health and Human Services and in
consultation with State vital statistics offices and appropriate
Federal agencies.
(b) Extensions of Deadlines- The Secretary may grant to a
State an extension of time to meet the requirements of section
329(a)(1) if the State provides adequate justification for
noncompliance.
SEC. 748. REPEAL.
Section 7211 of Public Law 108-458 is repealed.
Subtitle D--Stop the Misuse of ITINs Act of 2007
SEC. 751. SHORT TITLE.
This subtitle may be cited as the `Stop the Misuse of ITINs Act of 2007'.
SEC. 752. NOTIFICATION OF EMPLOYMENT STATUS OF INDIVIDUALS NOT AUTHORIZED TO WORK IN THE UNITED STATES.
(a) In General- Subsection (i) of section 6103 of the
Internal Revenue Code of 1986 (relating to confidentiality and
disclosure of returns and return information) is amended by adding at
the end the following new paragraph:
`(9) DISCLOSURE TO SECRETARY OF HOMELAND SECURITY OF
EMPLOYMENT INFORMATION OF EMPLOYEES NOT AUTHORIZED TO BE EMPLOYED IN
UNITED STATES-
`(i) the Secretary receives a return from any
person or entity (hereafter in this paragraph referred to as the
`employer') showing wages (as defined in section 3121(a)) paid to any
employee, and
`(ii) the TIN of such employee, as shown on
such return, indicates that such employee is not authorized to be
employed in the United States,
the Secretary shall provide electronically to the
Secretary of Homeland Security the following information as shown on
such return: the name, address, and TIN of such employee and the name,
address, and employer identification number of the employer.
`(B) NOTICE TO EMPLOYER AND EMPLOYEE- Whenever the
Secretary sends a notice under subparagraph (A) with respect to any
employer and employee, the Secretary also shall notify the employer and
the employee in writing that such employee is not authorized to be
employed in the United States and that the employee's employment with
the employer should be terminated not later than the 30th day after the
date of the notice. Such notice shall also describe--
`(i) the employer's obligations under this paragraph,
`(ii) the employee's right under this paragraph
to contest the determination that the employee is not authorized to be
employed in the United States, and
`(iii) the procedure under this paragraph for contesting such determination.
`(C) Employee's RIGHT TO CONTEST-
`(i) NOTICE TO EMPLOYEE- If any employer
receives such a notice from the Secretary with respect to an employee,
the employer shall, within 3 business days after the date the employer
received such notice, provide a copy of such notice to the employee.
`(ii) RIGHT TO CONTEST- An employee may contest
the accuracy of such notice during the 30-day period beginning on the
date that the employer provided the notice under clause (i) to the
employee.
`(iii) CONTEST PROCEDURE- If, during such
30-day period, the employee provides the employer with information
substantiating such employee's claimed authorization to be employed in
the United States, the employer shall, in such form and manner as the
Secretary shall prescribe, provide to the Secretary--
`(I) the employee's name, address, and taxpayer identification number,
`(II) the employer's name, address, telephone number, and employer identification number, and
`(III) the information provided by the
employee to the employer substantiating such employee's authorization
to be employed in the United States.
`(D) VERIFICATION FROM DEPARTMENT OF HOMELAND SECURITY-
`(i) TRANSMITTAL OF INQUIRY- Within 3 business
days after receiving the information described in subparagraph
(C)(iii), the Secretary shall provide such information electronically
to the Secretary of Homeland Security.
`(ii) RESPONSE- Within 7 business days after
receiving such information, the Secretary of Homeland Security shall
electronically notify the Secretary, and shall notify the employer and
employee in writing, as to whether the employee is authorized to be
employed in the United States.
`(E) SUSPENSION OF OBLIGATION TO TERMINATE EMPLOYMENT UNTIL RESPONSE RECEIVED-
`(i) IN GENERAL- Except as provided in clause
(ii), if the employee meets the requirement of subparagraph (C)(iii),
the employer's obligation to terminate the employment of such employee
shall be suspended until the employer receives the notice described in
subparagraph (D)(ii).
`(ii) TIMELY RESPONSE NOT RECEIVED- If the
employer does not receive such notice before the 30th day after the
close such 30-day period, the employer shall so notify the Secretary.
`(F) REBUTTABLE PRESUMPTION OF VIOLATION OF THE IMMIGRATION AND NATIONALITY ACT-
`(i) IN GENERAL- A rebuttable presumption is
created that the employer has violated section 274A(a)(1)(A) of the
Immigration and Nationality Act if--
`(I) the employer employs an individual
with respect to whom a notice is received under subparagraph (B) after
the 30 days described in such subparagraph,
`(II) the employer fails to notify the Secretary as required by subparagraph (E)(ii) and employs such individual, or
`(III) the employer refers the individual
for employment after receiving a notice under subparagraph (B) with
respect to such individual.
`(I) SUSPENSION PERIOD- Clause (i)(I) shall not apply during the suspension period described in subparagraph (E)(i).
`(II) NOTICE FROM SECRETARY OF HOMELAND
SECURITY- Clause (i) shall cease to apply with respect to an individual
after the date that the employer is notified by the Secretary of
Homeland Security that such individual is authorized to be employed in
the United States.
`(G) REFUNDS DENIED- No refund of any tax imposed
by this shall be made to any individual for any taxable year during any
portion of which such individual is employed in the United States
without being authorized to be so employed.
`(i) PROTECTION FROM LIABILITY- No employer
shall be civilly or criminally liable under any law for any action
taken in good faith reliance on information provided by the Secretary
or the Secretary of Homeland Security with respect to any individual's
eligibility to be employed in the United States.
`(ii) TIMELY MAILING TREATED AS TIMELY NOTICE-
Rules similar to the rules of section 7502 shall apply for purposes of
this section.
`(iii) LAST KNOWN ADDRESS OF EMPLOYEE- Any
notice required to be provided to an employee under this section shall
be sufficient if mailed to the employee at the last known address of
the employee.'.
(b) Conforming Amendment- Paragraph (4) of section 6103(p)
of such Code is amended by striking `(5) or (7)' each place it appears
and inserting `(5), (7), or (9)'.
(c) Effective Date- The amendments made by this section
shall apply to returns received more than 180 days after the date of
the enactment of this Act.
Subtitle E--Miscellaneous
SEC. 761. SHARING OF SOCIAL SECURITY DATA FOR IMMIGRATION ENFORCEMENT PURPOSES.
(a) Social Security Account Numbers- Section 264(f) of the
Immigration and Nationality Act (8 U.S.C. 1304(f)) is amended to read
as follows:
`(f) Notwithstanding any other provision of law (including
section 6103 of the Internal Revenue Code of 1986), the Secretary of
Homeland Security, the Secretary of Labor, and the Attorney General are
authorized to require an individual to provide the individual's social
security account number for purposes of inclusion in any record of the
individual maintained by either such Secretary or the Attorney General,
or of inclusion in any application, document, or form provided under or
required by the immigration laws.'.
(b) Exchange of Information- Section 290(c) of the
Immigration and Nationality Act (8 U.S.C. 1360(c)) is amended by
striking paragraph (2) and inserting the following new paragraphs:
`(2)(A) Notwithstanding any other provision of law
(including section 6103 of the Internal Revenue Code of 1986), if
earnings are reported on or after January 1, 1997, to the Social
Security Administration on a social security account number issued to
an alien not authorized to work in the United States, the Commissioner
of Social Security shall provide the Secretary of Homeland Security
with information regarding the name, date of birth, and address of the
alien, the name and address of the person reporting the earnings, and
the amount of the earnings.
`(B) The information described in subparagraph (A)
shall be provided in an electronic form agreed upon by the Commissioner
and the Secretary.
`(3)(A) Notwithstanding any other provision of law
(including section 6103 of the Internal Revenue Code of 1986), if a
social security account number was used with multiple names, the
Commissioner of Social Security shall provide the Secretary of Homeland
Security with information regarding the name, date of birth, and
address of each individual who used that social security account
number, and the name and address of the person reporting the earnings
for each individual who used that social security account number.
`(B) The information described in subparagraph (A)
shall be provided in an electronic form agreed upon by the Commissioner
and the Secretary for the sole purpose of enforcing the immigration
laws.
`(C) The Secretary, in consultation with the
Commissioner, may limit or modify the requirements of this paragraph,
as appropriate, to identify the cases posing the highest possibility of
fraudulent use of social security account numbers related to violation
of the immigration laws.
`(4)(A) Notwithstanding any other provision of law
(including section 6103 of the Internal Revenue Code of 1986), if more
than one person reports earnings for an individual during a single tax
year, the Commissioner of Social Security shall provide the Secretary
of Homeland Security information regarding the name, date of birth, and
address of the individual, and the name and address of the each person
reporting earnings for that individual.
`(B) The information described in subparagraph (A)
shall be provided in an electronic form agreed upon by the Commissioner
and the Secretary for the sole purpose of enforcing the immigration
laws.
`(C) The Secretary, in consultation with the
Commissioner, may limit or modify the requirements of this paragraph,
as appropriate, to identify the cases posing the highest possibility of
fraudulent use of social security account numbers related to violation
of the immigration laws.
`(5)(A) The Commissioner of Social Security shall
perform, at the request of the Secretary of Homeland Security, a search
or manipulation of records held by the Commissioner if the Secretary
certifies that the purpose of the search or manipulation is to obtain
information that is likely to assist in identifying individuals (and
their employers) who are using false names or social security account
numbers, who are sharing a single valid name and social security
account number among multiple individuals, who are using the social
security account number of a person who is deceased, too young to work,
or not authorized to work, or who are otherwise engaged in a violation
of the immigration laws. The Commissioner shall provide the results of
such search or manipulation to the Secretary, notwithstanding any other
provision law (including section 6103 of the Internal Revenue Code of
1986).
`(B) The Secretary shall transfer to the Commissioner
the funds necessary to cover the costs directly incurred by the
Commissioner in carrying out each search or manipulation requested by
the Secretary under subparagraph (A).'.
(c) False Claims of Citizenship by Nationals of the United
States- Section 212(a)(6)(C)(ii)(I) of the Immigration and Nationality
Act (8 U.S.C. 1182(a)(6)(C)(ii)(I)) is amended by inserting `or
national' after `citizen'.
SEC. 762. ADDITIONAL WORKSITE ENFORCEMENT AND FRAUD DETECTION AGENTS.
(a) Worksite Enforcement- The Secretary of Homeland
Security shall, subject to the availability of appropriations for such
purpose, annually increase, by not fewer than 2,000, the number of
positions dedicated to enforcing compliance with sections 274 and 274A
of the Immigration and Nationality Act (8 U.S.C. 1324 and 1324a) during
the five year period beginning on October 1, 2008.
(b) Fraud Detection- The Secretary of Homeland Security
shall, subject to the availability of appropriations for such purpose,
increase by not fewer than 1,000 the number of positions for
Immigration Enforcement Agents dedicated to immigration fraud detection
during the five year period beginning on October 1, 2008.
(c) Authorization of Appropriations- There are authorized
to be appropriated to the Secretary of Homeland Security for each of
fiscal years 2008 through 2012 such sums as may be necessary to carry
out this section.
TITLE VIII--IMMIGRATION LITIGATION ABUSE REDUCTION
SEC. 801. BOARD OF IMMIGRATION APPEALS REMOVAL ORDER AUTHORITY.
(a) In General- Section 101(a)(47) of the Immigration and
Nationality Act (8 U.S.C. 1101(a)(47)) is amended to read as follows:
`(47)(A) The term `order of removal' means the order of the
immigration judge, the Board of Immigration Appeals, or other
administrative officer to whom the Attorney General or the Secretary of
Homeland Security has delegated the responsibility for determining
whether an alien is removable, concluding that the alien is removable
or ordering removal.
`(B) The order described under subparagraph (A) shall become final upon the earliest of--
`(i) a determination by the Board of Immigration Appeals affirming such order;
`(ii) the entry by the Board of Immigration Appeals of such order;
`(iii) the expiration of the period in which
any party is permitted to seek review of such order by the Board of
Immigration Appeals;
`(iv) the entry by an immigration judge of such order, if appeal is waived by all parties; or
`(v) the entry by another administrative
officer of such order, at the conclusion of a process as authorized by
law other than under section 240.'.
(b) Effective Date- The amendment made by subsection (a)
shall take effect on the date of the enactment of this Act and shall
apply to ordered entered before, on, or after such date.
SEC. 802. JUDICIAL REVIEW OF VISA REVOCATION.
(a) In General- Section 221(i) of the Immigration and
Nationality Act (8 U.S.C. 1201(i)) is amended by amending the last
sentence to read as follows: `Notwithstanding any other provision of
law (statutory or nonstatutory), including section 2241 of title 28,
United States Code, or any other habeas corpus provision, and sections
1361 and 1651 of such title, a revocation under this subsection may not
be reviewed by any court, and no court shall have jurisdiction to hear
any claim arising from, or any challenge to, such a revocation.'.
(b) Effective Date- The amendment made by subsection (a)
shall take effect on the date of the enactment of this Act and shall
apply to visa revocations effected before, on, or after such date.
SEC. 803. REINSTATEMENT.
(a) In General- Section 241(a)(5) of the Immigration and Nationality Act (8 U.S.C. 1231(a)(5)) is amended to read as follows:
`(5) REINSTATEMENT OF REMOVAL ORDERS AGAINST ALIENS
ILLEGALLY REENTERING- If the Secretary of Homeland Security finds that
an alien has entered the United States illegally after having been
removed or having departed voluntarily, under an order of removal,
deportation, or exclusion, regardless of the date of the original order
or the date of the illegal entry--
`(A) the order of removal, deportation, or
exclusion is reinstated from its original date and is not subject to
being reopened or reviewed;
`(B) the alien is not eligible and may not apply
for any relief under this Act, regardless of the date that an
application for such relief may have been filed; and
`(C) the alien shall be removed under the order of removal, deportation, or exclusion at any time after the illegal entry.
Reinstatement under this paragraph shall not require proceedings before an immigration judge under section 240 or otherwise.'.
(b) Judicial Review- Section 242 of the Immigration and
Nationality Act (8 U.S.C. 1252) is amended by adding at the end the
following new subsection:
`(h) Judicial Review of Reinstatement Under Section 241(a)(5)-
`(1) IN GENERAL- Notwithstanding any other provision of
law (statutory or nonstatutory), including section 2241 of title 28,
United States Code, or any other habeas corpus provision, sections 1361
and 1651 of such title, or subsection (a)(2)(D) of this section, no
court shall have jurisdiction to review any cause or claim arising from
or relating to any reinstatement under section 241(a)(5) (including any
challenge to the reinstated order), except as provided in paragraph (2)
or (3).
`(2) CHALLENGES IN COURT OF APPEALS FOR DISTRICT OF
COLUMBIA TO VALIDITY OF THE SYSTEM, ITS IMPLEMENTATION, AND RELATED
INDIVIDUAL DETERMINATIONS-
`(A) IN GENERAL- Judicial review of determinations
under section 241(a)(5) and its implementation is available in an
action instituted in the United States Court of Appeals for the
District of Columbia Circuit, but shall be limited, except as provided
in subparagraph (B), to the following determinations:
`(i) Whether such section, or any regulation issued to implement such section, is constitutional.
`(ii) Whether such a regulation, or a written
policy directive, written policy guideline, or written procedure issued
by or under the authority of the Attorney General or the Secretary of
Homeland Security to implement such section, is not consistent with
applicable provisions of this Act or is otherwise in violation of a
statute or the Constitution.
`(B) RELATED INDIVIDUAL DETERMINATIONS- If a person
raises an action under subparagraph (A), the person may also raise in
the same action the following issues:
`(i) Whether the petitioner is an alien.
`(ii) Whether the petitioner was previously ordered removed or deported, or excluded.
`(iii) Whether the petitioner has since illegally entered the United States.
`(C) DEADLINES FOR BRINGING ACTIONS- Any action
instituted under this paragraph must be filed no later than 60 days
after the date the challenged section, regulation, directive,
guideline, or procedure described in clause (i) or (ii) of subparagraph
(A) is first implemented.
`(3) INDIVIDUAL DETERMINATIONS UNDER SECTION 242(a)-
Judicial review of determinations under section 241(a)(5) is available
in an action under subsection (a) of this section, but shall be limited
to determinations of--
`(A) whether the petitioner is an alien;
`(B) whether the petitioner was previously ordered removed, deported, or excluded; and
`(C) whether the petitioner has since illegally entered the United States.
`(4) SINGLE ACTION- A person who files an action under
paragraph (2) may not file a separate action under paragraph (3). A
person who files an action under paragraph (3) may not file an action
under paragraph (2).'.
(c) Effective Date- The amendments made by subsections (a)
and (b) shall take effect as if enacted on April 1, 1997, and shall
apply to all orders reinstated on or after that date by the Secretary
of Homeland Security (or by the Attorney General prior to March 1,
2003), regardless of the date of the original order.
SEC. 804. WITHHOLDING OF REMOVAL.
(a) In General- Section 241(b)(3) of the Immigration and Nationality Act (8 U.S.C 1231(b)(3)) is amended--
(1) in subparagraph (A), by adding at the end the
following: `The burden of proof is on the alien to establish that the
alien's life or freedom would be threatened in that country, and that
race, religion, nationality, membership in a particular social group,
or political opinion would be at least one central reason for such
threat.'; and
(2) in subparagraph (C), by striking `In determining
whether an alien has demonstrated that the alien's life or freedom
would be threatened for a reason described in subparagraph (A)' and
inserting `For purposes of this paragraph'.
(b) Effective Date- The amendments made by subsection (a)
shall take effect as if included in the enactment of section 101(c) of
the REAL ID Act of 2005 (division B of Public Law 109-13).
SEC. 805. CERTIFICATE OF REVIEWABILITY.
(a) Alien's Brief- Section 242(b)(3)(C) of the Immigration
and Nationality Act (8 U.S.C. 1252(b)(3)(C)) is amended to read as
follows:
`(C) Alien's BRIEF- The alien 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. The court may not extend this deadline except upon motion
for good cause shown. If an alien fails to file a brief within the time
provided in this paragraph, the court shall dismiss the appeal unless a
manifest injustice would result.'.
(b) Certificate of Reviewability- Section 242(b)(3) of such
Act (8 U.S.C. 1252 (b)(3)) is amended by adding at the end the
following new subparagraphs:
`(i) After the alien has filed the alien's
brief, the petition for review shall be assigned to a single court of
appeals judge.
`(ii) Unless that court of appeals judge or a
circuit justice issues a certificate of reviewability, the petition for
review shall be denied and the government shall not file a brief.
`(iii) A certificate of reviewability may issue
under clause (ii) only if the alien has made a substantial showing that
the petition for review is likely to be granted.
`(iv) The court of appeals judge or circuit
justice shall complete all action on such certificate, including
rendering judgment, not later than 60 days after the date on which the
judge or circuit justice was assigned the petition for review, unless
an extension is granted under clause (v).
`(v) The judge or circuit justice may grant, on
the judge's or justice's own motion or on the motion of a party, an
extension of the 60-day period described in clause (iv) if--
`(I) all parties to the proceeding agree to such extension; or
`(II) such extension is for good cause
shown or in the interests of justice, and the judge or circuit justice
states the grounds for the extension with specificity.
`(vi) If no certificate of reviewability is
issued before the end of the period described in clause (iv), including
any extension under clause (v), the petition for review shall be deemed
denied, any stay or injunction on petitioner's removal shall be
dissolved without further action by the court or the government, and
the alien may be removed.
`(vii) If a certificate of reviewability is
issued under clause (ii), the Government shall be afforded an
opportunity to file a brief in response to the alien's brief. The alien
may serve and file a reply brief not later than 14 days after service
of the Government's brief, and the court may not extend this deadline
except upon motion for good cause shown.
`(E) NO FURTHER REVIEW OF THE COURT OF APPEALS
JUDGE'S DECISION NOT TO ISSUE A CERTIFICATE OF REVIEWABILITY- The
single court of appeals judge's decision not to issue a certificate of
reviewability, or the denial of a petition under subparagraph (D)(vi),
shall be the final decision for the court of appeals and shall not be
reconsidered, reviewed, or reversed by the court of appeals through any
mechanism or procedure.'.
(c) Effective Date- The amendments made by this section
shall apply to petitions filed on or after the date that is 60 days
after the date of the enactment of this Act.
SEC. 806. WAIVER OF RIGHTS IN NONIMMIGRANT VISA ISSUANCE.
(a) In General- Section 221(a) of the Immigration and
Nationality Act (8 U.S.C. 1201(a)) is amended by adding at the end the
following new paragraph:
`(3) An alien may not be issued a nonimmigrant visa unless the alien has waived any right--
`(A) to review or appeal under this Act of an
immigration officer's determination as to the inadmissibility of the
alien at the port of entry into the United States; or
`(B) to contest, other than on the basis of an application for asylum, any action for removal of the alien.'.
(b) Effective Date- The amendment made by subsection (a)
shall apply to visas issued on or after the date that is 90 days after
the date of the enactment of this Act.
SEC. 807. CLARIFICATION OF JURISDICTION ON REVIEW.
(a) Review of Discretionary Determinations- Section
242(a)(2)(B) of the Immigration and Nationality Act (8 U.S.C.
1252(a)(2)(B)) is amended--
(1) by inserting before `no court' the following: `and
regardless of whether the individual determination, decision, or action
is made in removal proceedings,';
(2) in clause (i), by striking `any judgment' and inserting `any individual determination'; and
(A) by inserting `discretionary' after `any other';
(B) by striking `the authority for which is
specified under this title to be in the discretion of the Attorney
General or the Secretary of Homeland Security,' and inserting `under
this title or the regulations promulgated hereunder,'; and
(C) by striking the period at the end and inserting
the following: `, irrespective of whether such decision or action is
guided or informed by standards, regulatory or otherwise.'.
(b) Review of Orders Against Criminal Aliens- Section
242(a)(2)(C) of the Immigration and Nationality Act (8 U.S.C.
1252(a)(2)(C)) is amended by inserting after `of removal' the
following: `(irrespective of whether relief or protection was denied on
the basis of the alien's having committed a criminal offense)'.
(c) Effective Date- The amendments made by this section
shall apply to petitions for review that are pending on or after the
date of the enactment of this Act.
SEC. 808. FEES AND EXPENSES IN JUDICIAL PROCEEDINGS.
(a) In General- Section 242 of the Immigration and
Nationality Act (8 U.S.C. 1252) is amended by adding at the end the
following new subsection:
`(i) Notwithstanding any other provision of law, a court
shall not award fees or other expenses to an alien based upon the
alien's status as a prevailing party in any proceedings relating to an
order of removal issued under this Act, unless the court of appeals
concludes that the Attorney General's determination that the alien was
removable under section 212 or 237 was not substantially justified.'.
(b) Effective Date- The amendment made by subsection (a)
shall apply to fees or other expenses awarded on or after the date of
the enactment of this Act.
TITLE IX--PRESCREENING OF AIR PASSENGERS
SEC. 901. IMMEDIATE INTERNATIONAL PASSENGER PRESCREENING PILOT PROGRAM.
(a) Pilot Program- Not later than 90 days after the date of
enactment of this Act, the Secretary of Homeland Security shall
initiate a pilot program to evaluate the use of automated systems for
the immediate prescreening of passengers on flights in foreign air
transportation, as defined by section 40102 of title 49, United States
Code, that are bound for the United States.
(b) Requirements- At a minimum, with respect to a passenger
on a flight described in subsection (a) operated by an air carrier or
foreign air carrier, the automated systems evaluated under the pilot
program shall--
(1) compare the passenger's information against the
integrated and consolidated terrorist watchlist maintained by the
Federal Government and provide the results of the comparison to the air
carrier or foreign air carrier before the passenger is permitted to
board the flight;
(2) provide functions similar to the advanced passenger
information system established under section 431 of the Tariff Act of
1930 (19 U.S.C. 1431); and
(3) make use of machine-readable data elements on
passports and other travel and entry documents in a manner consistent
with international standards.
(c) Operation- The pilot program shall be conducted--
(1) in not fewer than 2 foreign airports; and
(2) in collaboration with not fewer than one air carrier at each airport participating in the pilot program.
(d) Evaluation of Automated Systems- In conducting the
pilot program, the Secretary shall evaluate not more than 3 automated
systems. One or more of such systems shall be commercially available
and currently in use to prescreen passengers.
(e) Privacy Protection- The Secretary shall ensure that the
passenger data is collected under the pilot program in a manner
consistent with the standards established under section 552a of title
5, United States Code.
(f) Duration- The Secretary shall conduct the pilot program for not fewer than 90 days.
(g) Passenger Defined- In this section, the term `passenger' includes members of the flight crew.
(h) Report- Not later than 30 days after the date of
completion of the pilot program, the Secretary shall submit to the
Committee on Homeland Security of the House of Representatives and the
Committee on Commerce, Science, and Transportation of the Senate a
report containing the following:
(1) An assessment of the technical performance of each
of the tested systems, including the system's accuracy, scalability,
and effectiveness with respect to measurable factors, including, at a
minimum, passenger throughput, the rate of flight diversions, and the
rate of false negatives and positives.
(2) A description of the provisions of each tested
system to protect the civil liberties and privacy rights of passengers,
as well as a description of the adequacy of an immediate redress or
appeals process for passengers denied authorization to travel.
(3) Cost projections for implementation of each tested system, including--
(A) projected costs to the Department of Homeland Security; and
(B) projected costs of compliance to air carriers operating flights described in subsection (a).
(4) A determination as to which tested system is the
best-performing and most efficient system to ensure immediate
prescreening of international passengers. Such determination shall be
made after consultation with individuals in the private sector having
expertise in airline industry, travel, tourism, privacy, national
security, and computer security issues.
(5) A plan to fully deploy the best-performing and most efficient system tested by not later than January 1, 2009.
TITLE X--SECURITY AND FAIRNESS ENHANCEMENT
SEC. 1001. SHORT TITLE.
This title may be cited as--
(1) the `Security and Fairness Enhancement for America Act of 2007'; or
(2) the `SAFE for America Act'.
SEC. 1002. ELIMINATION OF DIVERSITY IMMIGRANT PROGRAM.
(a) Worldwide Level of Diversity Immigrants- Section 201 of the Immigration and Nationality Act (8 U.S.C. 1151) is amended--
(A) by inserting `and' at the end of paragraph (1);
(B) by striking `; and' at the end of paragraph (2) and inserting a period; and
(C) by striking paragraph (3); and
(2) by striking subsection (e).
(b) Allocation of Diversity Immigrant Visas- Section 203 of such Act (8 U.S.C. 1153) is amended--
(1) by striking subsection (c);
(2) in subsection (d), by striking `(a), (b), or (c),' and inserting `(a) or (b),';
(3) in subsection (e), by striking paragraph (2) and redesignating paragraph (3) as paragraph (2);
(4) in subsection (f), by striking `(a), (b), or (c)' and inserting `(a) or (b)'; and
(5) in subsection (g), by striking `(a), (b), and (c)' and inserting `(a) and (b)'.
(c) Procedure for Granting Immigrant Status- Section 204 of such Act (8 U.S.C. 1154) is amended--
(1) by striking subsection (a)(1)(I); and
(2) in subsection (e), by striking `(a), (b), or (c)' and inserting `(a) or (b)'.
(d) Effective Date- The amendments made by this section shall take effect on October 1, 2008.
TITLE XI--OATH OF RENUNCIATION AND ALLEGIANCE
SEC. 1101. OATH OF RENUNCIATION AND ALLEGIANCE.
(a) In General- Section 337(a) of the Immigration and
Nationality Act (8 U.S.C. 1448(a)) is amended by inserting after the
fourth sentence the following: `The oath referred to in this section
shall be the oath provided for in paragraph (a) or (b) of section 337.1
of title 8, Code of Federal Regulations, as in effect on April 1,
2005.'.
(b) Notice to Foreign Embassies- Upon the naturalization of
a new citizen, the Secretary of Homeland Security, in cooperation with
the Secretary of State, shall notify the embassy of the country of
which the new citizen was a citizen or subject that such citizen has--
(1) renounced allegiance to that foreign country; and
(2) sworn allegiance to the United States.
(c) Effective Date- The amendment made by subsection (a)
shall take effect on the date that is 6 months after the date of the
enactment of this Act.
TITLE XII--ELIMINATION OF CORRUPTION AND PREVENTION OF ACQUISITION OF IMMIGRATION BENEFITS THROUGH FRAUD
SEC. 1201. SHORT TITLE.
This title may be cited as the `Taking Action to Keep
Employees Accountable in Immigration Matters Act of 2007' or the `TAKE
AIM Act of 2007'.
SEC. 1202. FINDINGS.
Congress finds the following:
(1) The mission of United States Citizenship and
Immigration Services (USCIS) is to faithfully execute the immigration
laws enacted by Congress and to ensure that only those aliens who are
eligible under such laws and who do not pose a risk to the United
States or its citizens or lawful residents are able to obtain
permission to remain in the United States.
(2) Only United States citizens have an absolute right
to be in the United States; for all others, permission to enter and
reside here, either as nonimmigrants or immigrants, is a privilege that
is conditioned on following the rules of one's admission and stay.
(3) It is important that United States Citizenship and
Immigration Services, like all other Federal agencies that come into
close contact with the public their customers.
(4) Immigration benefits fraud has become endemic. It
undermines the rule of law and threatens national security, and so must
be addressed aggressively and consistently.
(5) Internal corruption also threatens national
security and erodes the integrity of the immigration system. In order
to restore integrity and credibility to the system, the backlog of
complaints against United States Citizenship and Immigration Services
employees must be cleared by experienced investigators as expeditiously
as possible without compromising the quality of investigations.
(6) In separating customs and border protection and
immigration and customs enforcement from United States Citizenship and
Immigration Services, Congress did not intend to wholly eliminate all
law enforcement functions within the latter, nor is it possible for
United States citizenship and immigration services to achieve its
mission without a law enforcement function. the attempt to do so has
produced the current abysmal results. Thus, it is imperative that
United States Citizenship and Immigration Services embrace the critical
law enforcement function especially the internal audit function.
SEC. 1203. STRUCTURE OF THE OFFICE OF SECURITY AND INVESTIGATIONS.
The Director of the Office of Security and Investigations
shall report directly to the Director of United States Citizenship and
Immigration Services.
SEC. 1204. AUTHORITY OF THE OFFICE OF SECURITY AND INVESTIGATIONS TO INVESTIGATE INTERNAL CORRUPTION.
(a) Authority- In addition to the authority otherwise
provided by this title, the Director of the Office of Security and
Investigations, in carrying out the duties of the Office, has sole
authority--
(1) to receive, process, dispose of administratively,
and investigate any criminal or noncriminal violations of the
Immigration and Nationality Act or title 18, United States Code, that
are alleged to have been committed by any officer, agent, employee, or
contract worker of United States Citizenship and Immigration Services,
and that are referred to United States Citizenship and Immigration
Services by the Office of the Inspector General of the Department of
Homeland Security;
(2) to ensure that all complaints alleging such
violations are handled and stored in the same manner as sensitive but
unclassified materials;
(3) to have access to all records, reports, audits,
reviews, documents, papers, recommendations, or other material
available to United States Citizenship and Immigration Services which
relate to programs and operations with respect to which the Director
has responsibilities under this title;
(4) to request such information or assistance as may be
necessary for carrying out the duties and responsibilities of the
Office from any Federal, State, or local governmental agency or unit
thereof;
(5) to require by subpoena the production of all
information, documents, reports, answers, records, accounts, papers,
and other data and documentary evidence necessary in the performance of
the functions assigned to the Office of Security and Investigations,
which subpoena, in the case of contumacy or refusal to obey, shall be
enforceable by order of any appropriate United States district court
(except that procedures other than subpoenas shall be used by the
Director to obtain documents and information from Federal agencies);
(6) to administer to or take from any person an oath,
affirmation, or affidavit, whenever necessary in the performance of the
functions assigned to the Office of Security and Investigations, which
oath, affirmation, or affidavit when administered or taken by or before
an agent of the Office of Security and Investigations designated by the
Director shall have the same force and effect as if administered or
taken by or before an officer having a seal;
(7) to have direct and prompt access to the head of
United States Citizenship and Immigration Services when necessary for
any purpose pertaining to the performance of functions and
responsibilities of the Office of Security and Investigations;
(8) to select, appoint, and employ such officers and
employees as may be necessary for carrying out the functions, powers,
and duties of the Office of Security and Investigations subject to the
provisions of title 5, United States Code, governing appointments in
the competitive service, and the provisions of chapter 51 and
subchapter III of chapter 53 of such title relating to classification
and General Schedule pay rates;
(9) to obtain services as authorized by section 3109 of
title 5, United States Code, at daily rates not to exceed the
equivalent rate prescribed for grade GS-15 of the General Schedule by
section 5332 of title 5, United States Code; and
(10) to the extent and in such amounts as may be
provided in advance by immigration fee accounts or appropriations Acts,
to enter into contracts and other arrangements for audits, studies,
analyses, and other services with public agencies and with private
persons, and to make such payments as may be necessary to carry out the
provisions of this title.
(b)(1) Upon request of the Director for information or
assistance under subsection (a)(4), the head of any Federal agency
involved shall, insofar as is practicable and not in contravention of
any existing statutory restriction or regulation of the Federal agency
from which the information is requested, furnish to such Director, or
to an authorized designee, such information or assistance.
(2) Whenever information or assistance requested under
subsection (a)(3) or (a)(4) is, in the judgment of the Director,
unreasonably refused or not provided, the Director shall report the
circumstances to the Director of United States Citizenship and
Immigration Services without delay.
(c) The Director of United States Citizenship and
Immigration Services shall provide the Office of Security and
Investigations with appropriate and adequate office space at central
and field office locations of United States Citizenship and Immigration
Services, together with such equipment, office supplies, and
communications facilities and services as may be necessary for the
operation of such offices, and shall provide necessary maintenance
services for such offices and the equipment and facilities located
therein.
(d)(1) In addition to the authority otherwise provided by
this title, the Director, the Deputy Director, the Assistant Director
of Security Operations, the Assistant Director of Special
Investigations, all 1811-series criminal investigators, certain
1801-series investigative management specialists, and security
specialists supervised by such assistant directors may be authorized by
the Secretary of Homeland Security to--
(A) carry a firearm while engaged in official duties as
authorized under this title or other statute, or as expressly
authorized by the Secretary;
(B) make an arrest without a warrant while engaged in
official duties as authorized under this title or other statute, or as
expressly authorized by the Secretary, for any offense against the
United States committed in the presence of such Director, Assistant
Director, or designee, or for any felony cognizable under the laws of
the United States if such Director, Assistant Director, or designee has
reasonable grounds to believe that the person to be arrested has
committed or is committing such felony; and
(C) seek and execute warrants for arrest, search of a
premises, or seizure of evidence issued under the authority of the
United States upon probable cause to believe that a violation has been
committed.
(2) The Secretary shall promulgate, and revise as
appropriate, guidelines which shall govern the exercise of the law
enforcement powers established under paragraph (1).
(3)(A) Powers authorized for the Director under paragraph
(1) may be rescinded or suspended upon a determination by the Secretary
that the exercise of authorized powers by that Director has not
complied with the guidelines promulgated by the Secretary under
paragraph (2).
(B) Powers authorized to be exercised by any individual
under paragraph (1) may be rescinded or suspended with respect to that
individual upon a determination by the Secretary that such individual
has not complied with guidelines promulgated by the Secretary under
paragraph (2).
(4) A determination by the Secretary under paragraph (3) shall not be reviewable in or by any court.
(5) No provision of this subsection shall limit the
exercise of law enforcement powers established under any other
statutory authority.
SEC. 1205. AUTHORITY OF THE OFFICE OF SECURITY AND INVESTIGATIONS TO DETECT AND INVESTIGATE IMMIGRATION BENEFITS FRAUD.
The Office of Security and Investigations of United States Citizenship and Immigration Services shall have authority--
(1) to conduct fraud detection operations, including data mining and analysis;
(2) to investigate any criminal or noncriminal
allegations of violations of the Immigration and Nationality Act or
title 18, United States Code, that Immigration and Customs Enforcement
declines to investigate;
(3) to turn over to a United States Attorney for prosecution evidence that tends to establish such violations; and
(4) to engage in information sharing, partnerships, and other collaborative efforts with any--
(A) Federal, State, or local law enforcement entity;
(C) entity within the intelligence community (as
defined in section 3(4) of the National Security Act of 1947 (50 U.S.C.
401a(4)).
SEC. 1206. INCREASE IN FULL-TIME OFFICE OF SECURITY AND INVESTIGATIONS PERSONNEL.
(a) Increase in GS-1811 Series Criminal Investigators- (1)
In each of fiscal years 2009 through 2012, the Director of the Office
of Security and Investigations shall, subject to the availability of
security fees described in section 910 of this title, increase by not
less than 100 the number of full-time, active-duty GS-1811 series
criminal Discussion draft 10 investigators, along with support
personnel and equipment, within the Office of Security and
Investigations above the number of such positions for which funds were
made available during the preceding fiscal year.
(A) INTERNAL AFFAIRS- No fewer than one-third of
the criminal investigators, and support personnel, hired under
paragraph (1) shall be assigned to investigate allegations described in
paragraph (1) of section 904(a) of this title;
(B) BENEFITS FRAUD- The remaining criminal
investigators, and support personnel, hired under paragraph (1) shall
be assigned to investigate allegations described in section 905 of this
title.
(b) Increase in GS-1801 Series Investigation and Compliance
Officers- (1) Subject to the availability of security fees described in
section 910 of this title, the Director of the Office of Security and
Investigations shall by fiscal year 2008 increase by not less than 150
the number of full-time, active-duty GS-1801 series investigation and
compliance officers, along with support personnel and equipment, within
the Office of Security and Investigations above the number of such
positions for which funds were made available during fiscal year 2006.
(A) INTERNAL AFFAIRS- No fewer than one-third of
the investigation and compliance officers, and support personnel, hired
under paragraph (1) shall be assigned to investigate allegations
described in paragraph (1) of section 904(a) of this title;
(B) BENEFITS FRAUD- The remaining investigation and
compliance officers, and support personnel, hired under paragraph (1)
shall be assigned to investigate allegations described in section 905
of this title.
(c) Increase in GS-0132 Series Intelligence Research
Specialists- (1) Subject to the availability of security fees described
in section 910 of this title, the Director of the Office of Security
and Investigations shall by fiscal year 2010 increase by not less than
150 the number of full-time, active-duty GS-0132 series intelligence
research specialists, along with support personnel and equipment,
within the Office of Security and Investigations above the number of
such positions for which funds were made available during fiscal year
2006.
(A) INTERNAL AFFAIRS- No fewer than one-third of
the investigation and compliance officers, and support personnel, hired
under paragraph (1) shall be assigned to investigate allegations
described in paragraph (1) of section 904(a) of this title;
(B) BENEFITS FRAUD- The remaining investigation and
compliance officers, and support personnel, hired under paragraph (1)
shall be assigned to investigate allegations described in section 905
of this title.
SEC. 1207. ANNUAL REPORT.
The Director of the Office of Security and Investigations
shall annually submit to Congress a report detailing the activities of
the Office. The report shall include data on the following:
(1) The number of investigations the Office of Security
and Investigations began, completed, and turned over to a United States
Attorney for prosecution during the past 12 months.
(2) The types of allegations investigated by the Office
of Security and Investigations during the past 12 months, including
both the allegations of misconduct by employees of United States
Citizenship and Immigration Services and allegations of immigration
benefits fraud.
(3) The disposition of all investigations conducted by the Office of Security and Investigations during the past 12 months.
(4) The number, if any, of allegations pending at the
end of the 12-month period according to the type of allegation, the
grade level of the employee, if applicable, along with an assessment of
the resources the Office of Security and Investigations would need, if
any, to remain current with new allegations received.
SEC. 1208. INVESTIGATIONS OF FRAUD TO PRECEDE IMMIGRATION BENEFITS GRANT.
Section 103 of the Immigration and Nationality Act (8 U.S.C. 1103) is amended by adding at the end the following:
`(j) Notwithstanding any other provision of law, the
Secretary of Homeland Security, the Attorney General, or any court may
not--
`(1) grant or order the grant of adjustment of status to that of an alien lawfully admitted for permanent residence,
`(2) grant or order the grant of any other status,
relief, protection from removal, or other benefit under the immigration
laws, or
`(3) issue any documentation evidencing or related to
such grant by the Attorney General, the Secretary, or any court, until
any suspected or alleged fraud relating to the benefit application has
been fully investigated and found to be unsubstantiated.'.
SEC. 1209. ELIMINATION OF THE FRAUD DETECTION AND NATIONAL SECURITY OFFICE.
Not later than 30 days following the date of enactment of
this title, the Secretary of Homeland Security shall eliminate the
Fraud Detection and National Security Office of United States
Citizenship and Immigration Services and transfer all authority of such
office to the Office of Security and Investigations.
SEC. 1210. SECURITY FEE.
Section 286(d) of the Immigration and Nationality Act (8
U.S.C. 1356(d)) is amended by inserting `(1)' before `monies' and
adding at the end the following:
`(2) In addition to any other fee authorized by law, the
Secretary of Homeland Security shall charge each alien who files an
application for adjustment of status or an extension of stay a security
fee of $10, which shall be made available to the Office of Security and
Investigations to conduct investigations into allegations of internal
corruption and benefits fraud.
`(3) In addition to any other fee authorized by law, the
Secretary of State shall charge each alien who files an application for
an immigrant or nonimmigrant visa a security fee of $10, which shall be
made available to the Office of Security and Investigations to conduct
investigations into allegations of internal corruption and benefits
fraud.
`(4) Any fees collected under paragraphs (2) and (3) that
are in excess of the operating budget of the Office of Security and
Investigations shall be made available to Immigration and Customs
Enforcement for the sole purpose of investigating immigration benefits
fraud referred to it by United States Citizenship and Immigration
Services.'.
TITLE XIII--TEMPORARY AGRICULTURAL WORKER PROGRAM
SEC. 1301. ADMISSION OF TEMPORARY H-2A WORKERS.
(a) Procedure for Admission- Section 218 of the Immigration and Nationality Act (8 U.S.C. 1188) is amended to read as follows:
`ADMISSION OF TEMPORARY H-2A WORKERS
`Sec. 218. (a) Definitions- In this section:
`(1) AREA OF EMPLOYMENT- The term `area of employment'
means the area within normal commuting distance of the worksite or
physical location where the work of the H-2A worker is or will be
performed. If such work site or location is within a Metropolitan
Statistical Area, any place within such area shall be considered to be
within the area of employment.
`(2) DISPLACE- The term `displace' means to lay off a
worker from a job that is essentially equivalent to the job for which
an H-2A worker is sought. A job shall not be considered to be
`essentially equivalent' to another job unless the job--
`(A) involves essentially the same responsibilities as such other job;
`(B) was held by a United States worker with substantially equivalent qualifications and experience; and
`(C) is located in the same area of employment as the other job.
`(3) ELIGIBLE INDIVIDUAL- The term `eligible
individual' means an individual who is not an unauthorized alien (as
defined in section 274A(h)(3)) with respect to the employment of the
individual.
`(4) EMPLOYER- The term `employer' means an employer who hires workers to perform agricultural employment.
`(5) H-2A WORKER- The term `H-2A worker' means a nonimmigrant described in section 101(a)(15)(H)(ii)(a).
`(A) IN GENERAL- The term `lay off'--
`(i) means to cause a worker's loss of
employment, other than through a discharge for inadequate performance,
violation of workplace rules, cause, voluntary departure, voluntary
retirement, or the expiration of a grant or contract (other than a
temporary employment contract entered into in order to evade a
condition described in paragraph (3) or (7) of subsection (b)); and
`(ii) does not include any situation in which
the worker is offered, as an alternative to such loss of employment, a
similar employment opportunity with the same employer (or, in the case
of a placement of a worker with another employer under subsection
(h)(2), with either employer described in such subsection) at
equivalent or higher compensation and benefits than the position from
which the employee was discharged, regardless of whether or not the
employee accepts the offer.
`(B) CONSTRUCTION- Nothing in this paragraph is
intended to limit an employee's rights under a collective bargaining
agreement or other employment contract.
`(7) PREVAILING WAGE- The term `prevailing wage' means
the wage rate that includes the 51st percentile of employees with
similar experience and qualifications in the agricultural occupation in
the area of intended employment, calculated using the same methodology
used by the Department of Labor to determine prevailing wage for the
purpose of the program described in section 101(a)(15)(H)(ii)(b) during
2007, and expressed in terms of the prevailing method of pay for the
occupation in the area of intended employment.
`(8) UNITED STATES WORKER- The term `United States worker' means any worker who is--
`(A) a national of the United States; or
`(B) a person admitted for permanent resident status under section 245 of the Immigration and Nationality Act (8 U.S.C. 1255).
`(b) Petition- An alien may not be admitted as an H-2A
worker unless an employer has filed with the Secretary of Homeland
Security a petition attesting to the following:
`(1) TEMPORARY WORK OR SERVICES-
`(A) IN GENERAL- The employer is seeking to employ
a specific number of agricultural workers on a temporary basis and will
provide compensation to such workers at a specified wage rate and under
specified conditions.
`(B) DEFINITION- For purposes of this paragraph, a
worker is employed on a temporary basis if the employer intends to
employ the worker for no longer than 10 months during any contract
period.
`(2) BENEFITS, WAGES, AND WORKING CONDITIONS- The
employer will provide, at a minimum, the benefits, wages, and working
conditions required by subsection (j) to all workers employed in the
jobs for which the H-2A worker is sought and to all other temporary
workers in the same occupation at the place of employment.
`(3) NONDISPLACEMENT OF UNITED STATES WORKERS- The
employer did not displace and will not displace a United States worker
employed by the employer during the period of employment of the H-2A
worker and during the 30-day period immediately preceding such period
of employment in the occupation at the place of employment for which
the employer seeks approval to employ H-2A workers.
`(A) IN GENERAL- The employer--
`(i) conducted adequate recruitment in the area of intended employment before filing the attestation; and
`(ii) was unsuccessful in locating a qualified
United States worker for the job opportunity for which the H-2A worker
is sought.
`(B) OTHER REQUIREMENTS- The recruitment requirement under subparagraph (A) is satisfied if the employer places--
`(i) a local job order with the State workforce
agency serving the local area where the work will be performed, except
that nothing in this clause shall require the employer to file an
interstate job order under section 653 of title 20, Code of Federal
Regulations; and
`(ii) a Sunday advertisement in a newspaper of general circulation in the area of intended employment.
`(C) ADVERTISEMENT REQUIREMENT- The advertisement requirement under subparagraph (B)(ii) is satisfied if the advertisement--
`(ii) directs applicants to contact the employer;
`(iii) provides a description of the vacancy
that is specific enough to apprise United States workers of the job
opportunity for which certification is sought;
`(iv) describes the geographic area with enough
specificity to apprise applicants of any travel requirements and where
applicants will likely have to reside to perform the job; and
`(v) states the rate of pay, which shall not be less than the wage paid for the occupation in the area of intended employment.
`(D) END OF RECRUITMENT REQUIREMENT- The
requirement to recruit United States workers shall terminate on the
first day of the contract period that work begins.
`(5) OFFERS TO UNITED STATES WORKERS- The employer has
offered or will offer the job for which the H-2A worker is sought to
any eligible United States worker who--
`(B) is qualified for the job; and
`(C) will be available at the time and place of need.
`(6) PROVISION OF INSURANCE- If the job for which the
H-2A worker is sought is not covered by State workers' compensation
law, the employer will provide, at no cost to the worker, insurance
covering injury and disease arising out of, and in the course of, the
worker's employment, which will provide benefits at least equal to
those provided under the State workers' compensation law for comparable
employment.
`(7) REQUIREMENTS FOR PLACEMENT OF H-2A WORKERS WITH
OTHER EMPLOYERS- A nonimmigrant who is admitted into the United States
as an H-2A worker may be transferred to another employer that has
certified to the Secretary of Homeland Security that it has filed a
petition under this subsection and is in compliance with this section.
The Secretary of Homeland Security shall establish a process for the
approval and reissuance of visas for such transferred H-2A workers as
necessary.
`(8) STRIKE OR LOCKOUT- There is not a strike or
lockout in the course of a labor dispute which, under regulations
promulgated by the Secretary of Labor, precludes the hiring of H-2A
workers.
`(9) PREVIOUS VIOLATIONS- The employer has not, during
the previous two-year period, employed H-2A workers and knowingly
violated a material term or condition of approval with respect to the
employment of domestic or nonimmigrant workers, as determined by the
Secretary of Labor after notice and opportunity for a hearing.
`(c) Public Examination- Not later than 1 working day after
the date on which a petition under this section is filed, the employer
shall make a copy of each such petition available for public
examination, at the employer's principal place of business or worksite.
`(1) IN GENERAL- The Secretary of Homeland Security
shall maintain a list of the petitions filed under subsection (b),
which shall--
`(A) be sorted by employer; and
`(B) include the number of H-2A workers sought, the
wage rate, the period of intended employment, and the date of need for
each alien.
`(2) AVAILABILITY- The Secretary of Homeland Security
shall, at least monthly, submit a copy of the list described in
paragraph (1) to the Secretary of Labor, who shall make the list
available for public examination.
`(e) Petitioning for Admission-
`(1) IN GENERAL- An employer, or an association acting
as an agent or joint employer for its members, that seeks the admission
into the United States of an H-2A worker shall file with the Secretary
of Homeland Security a petition that includes the attestations
described in subsection (b).
`(2) CONSIDERATION OF PETITIONS- For each petition filed and considered under this subsection--
`(A) the Secretary of Homeland Security may not
require such petition to be filed more than 28 days before the first
date the employer requires the labor or services of the H-2A worker; and
`(B) unless the Secretary of Homeland Security
determines that the petition is incomplete or obviously inaccurate, the
Secretary, not later than 7 days after the date on which such petition
was filed, shall either approve or reject the petition.
`(3) EXPEDITED ADJUDICATION- The Secretary of Homeland Security shall--
`(A) establish a procedure for expedited adjudication of petitions filed under this subsection; and
`(B) not later than 7 working days after such
filing, transmit, by fax, cable, or other means assuring expedited
delivery, a copy of notice of action on the petition--
`(i) in the case of approved petitions, to the
petitioner, the Secretary of Labor, and to the appropriate immigration
officer at the port of entry or United States consulate where the
petitioner has indicated that the alien beneficiary or beneficiaries
will apply for a visa or admission to the United States; and
`(ii) in the case of denied petitions, to the
petitioner, including reasons for the denial and instructions on how to
appeal such denial.
`(4) PETITION AGREEMENTS- By filing an H-2A petition, a
petitioner and each employer consents to allow access to the site where
the labor is being performed to the Department of Labor, the Department
of Homeland Security, or a State agency for the purpose of
investigations to determine compliance with H-2A requirements.
`(f) Roles of Agricultural Associations-
`(1) PERMITTING FILING BY AGRICULTURAL ASSOCIATIONS- A
petition to hire an alien as a temporary agricultural worker may be
filed by an association of agricultural employers which use
agricultural services.
`(2) TREATMENT OF ASSOCIATIONS ACTING AS EMPLOYERS- If
an association is a joint or sole employer of temporary agricultural
workers, such workers may be transferred among its members to perform
agricultural services of a temporary nature for which the petition was
approved.
`(3) TREATMENT OF VIOLATIONS-
`(A) INDIVIDUAL MEMBER- If an individual member of
a joint employer association violates any condition for approval with
respect to the member's petition, the Secretary of Homeland Security
shall deny such petition only with respect to that member of the
association unless the Secretary of Labor determines that the
association or other member participated in, had knowledge of, or had
reason to know of the violation.
`(B) ASSOCIATION OF AGRICULTURAL EMPLOYERS-
`(i) JOINT EMPLOYER- If an association
representing agricultural employers as a joint employer violates any
condition for approval with respect to the association's petition, the
Secretary of Homeland Security shall deny such petition only with
respect to the association and may not apply the denial to any
individual member of the association, unless the Secretary of Labor
determines that the member participated in, had knowledge of, or had
reason to know of the violation.
`(ii) SOLE EMPLOYER- If an association of
agricultural employers approved as a sole employer violates any
condition for approval with respect to the association's petition, no
individual member of such association may be the beneficiary of the
services of temporary alien agricultural workers admitted under this
section in the occupation in which such aliens were employed by the
association which was denied approval during the period such denial is
in force, unless such member employs such aliens in the occupation in
question directly or through an association which is a joint employer
of such workers with the member.
`(g) Expedited Administrative Appeals- The Secretary of
Homeland Security shall promulgate regulations to provide for an
expedited procedure--
`(1) for the review of a denial of a petition under this section by the Secretary; or
`(2) at the petitioner's request, for a de novo administrative hearing respecting the denial.
`(h) Miscellaneous Provisions-
`(1) ENDORSEMENT OF DOCUMENTS- The Secretary of
Homeland Security shall provide for the endorsement of entry and exit
documents of H-2A workers as may be necessary to carry out this section
and to provide notice for purposes of section 274A.
`(2) PREEMPTION OF STATE LAWS- The provisions of
subsections (a) and (c) of section 214 and the provisions of this
section preempt any State or local law regulating admissibility of
nonimmigrant workers.
`(A) IN GENERAL- The Secretary of Homeland Security
may require, as a condition of approving the petition, the payment of a
fee, in accordance with subparagraph (B), to recover the reasonable
cost of processing petitions.
`(B) FEE BY TYPE OF EMPLOYEE-
`(i) SINGLE EMPLOYER- An employer whose
petition for temporary alien agricultural workers is approved shall,
for each approved petition, pay a fee that--
`(I) subject to subclause (II), is equal to $100 plus $10 for each approved H-2A worker; and
`(II) does not exceed $1,000.
`(ii) ASSOCIATION- Each employer-member of a
joint employer association whose petition for H-2A workers is approved
shall, for each such approved petition, pay a fee that--
`(I) subject to subclause (II), is equal to $100 plus $10 for each approved H-2A worker; and
`(II) does not exceed $1,000.
`(iii) LIMITATION ON ASSOCIATION FEES- A joint employer association under clause (ii) shall not be charged a separate fee.
`(C) METHOD OF PAYMENT- The fees collected under
this paragraph shall be paid by check or money order to the Department
of Homeland Security. In the case of employers of H-2A workers that are
members of a joint employer association petitioning applying on their
behalf, the aggregate fees for all employers of H-2A workers under the
petition may be paid by 1 check or money order.
`(4) EMPLOYMENT VERIFICATION PROGRAM-
`(A) IN GENERAL- Not later than 12 months after the
date of enactment of this paragraph, the Secretary of Homeland Security
shall establish a mandatory employment verification program for all
employers of H-2A workers to verify the eligibility of all individuals
hired by each such employer, including those who present an H-2A visa
to work in the United States.
`(B) EMPLOYER COMPLIANCE- Each employer of an H-2A
worker shall comply with the requirements promulgated by the Secretary
of Homeland Security to verify the identity and employment eligibility
of all individuals hired.
`(C) REGULATIONS- In carrying out the program under
this paragraph, the Secretary of Homeland Security shall promulgate
regulations to require each employer to verify the employment
eligibility of each employee hired through--
`(i) a secure Internet site;
`(ii) a machine capable of reading the H-2A
visa, which shall serve as the identification and employment
eligibility document for each H-2A alien; or
`(iii) a toll-free telephone number to check the accuracy of any social security number presented to the employer.
`(1) INVESTIGATIONS AND AUDITS- The Secretary of Labor
shall be responsible for conducting investigations and random audits of
employer work sites to ensure compliance with the requirements of the
H-2A program and all other requirements under this Act. All monetary
fines levied against violating employers shall be paid to the
Department of Labor and used to enhance the Department of Labor's
investigatory and auditing power.
`(2) FAILURE TO MEET CONDITIONS- If the Secretary of
Labor finds, after notice and opportunity for a hearing, a failure to
meet a condition of subsection (a), or a material misrepresentation of
fact in a petition under subsection (a)--
`(A) the Secretary of Labor--
`(i) shall notify the Secretary of Homeland Security of such finding; and
`(ii) 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
`(B) the Secretary of Homeland Security may
disqualify the employer from the employment of H-2A workers for a
period of 1 year.
`(3) PENALTIES FOR WILLFUL FAILURE- If the Secretary of
Labor finds, after notice and opportunity for a hearing, a willful
failure to meet a material condition of subsection (a), or a willful
misrepresentation of a material fact in a petition under subsection
(a)--
`(A) the Secretary of Labor--
`(i) shall notify the Secretary of Homeland Security of such finding; and
`(ii) 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;
`(B) the Secretary of Homeland Security may--
`(i) disqualify the employer from the employment of H-2A workers for a period of 2 years;
`(ii) for a second violation, the Secretary of
Homeland Security may disqualify the employer from the employment of
H-2A workers for a period of 5 years; and
`(iii) for a third violation, the Secretary of
Homeland Security may permanently disqualify the employer from the
employment of H-2A workers.
`(4) PENALTIES FOR DISPLACEMENT OF UNITED STATES
WORKERS- If the Secretary of Labor finds, after notice and opportunity
for a hearing, a willful failure to meet a material condition of
subsection (a) or a willful misrepresentation of a material fact in a
petition under subsection (a), 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 (a) or during the period of 30
days preceding such period of employment--
`(A) the Secretary of Labor--
`(i) shall notify the Secretary of Homeland Security of such finding; and
`(ii) 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
`(B) the Secretary of Homeland Security may--
`(i) disqualify the employer from the employment of H-2A workers for a period of 5 years; and
`(ii) for a second violation, permanently disqualify the employer from the employment of H-2A workers.
`(5) LIMITATIONS ON CIVIL MONEY PENALTIES- The
Secretary of Labor may not impose total civil money penalties with
respect to a petition under subsection (b) in excess of $90,000.
`(j) Failure To Pay Wages or Required Benefits-
`(1) ASSESSMENT- If the Secretary of Labor finds, after
notice and opportunity for a hearing, that the employer has failed to
pay the wages, transportation, subsistence reimbursement, or guarantee
of employment attested by the employer under subsection (b)(2), the
Secretary of Labor shall assess payment of back wages, or other
required benefits, due any United States worker or H-2A worker employed
by the employer in the specific employment in question.
`(2) AMOUNT- The back wages or other required benefits described in paragraph (1)--
`(A) shall be equal to the difference between the
amount that should have been paid and the amount that was paid to such
worker; and
`(B) shall be distributed to the worker to whom such wages are due.
`(k) Minimum Wages, Benefits, and Working Conditions-
`(1) PREFERENTIAL TREATMENT OF ALIENS PROHIBITED-
`(A) IN GENERAL- Each employer seeking to hire
United States workers shall offer such workers not less than the same
benefits, wages, and working conditions that the employer is offering,
intends to offer, or will provide to H-2A workers. No job offer may
impose on United States workers any restrictions or obligations which
will not be imposed on the employer's H-2A workers.
`(B) INTERPRETATION- Every interpretation and
determination made under this section or under any other law,
regulation, or interpretative provision regarding the nature, scope,
and timing of the provision of these and any other benefits, wages, and
other terms and conditions of employment shall be made so that--
`(i) the services of workers to their employers
and the employment opportunities afforded to workers by the employers,
including those employment opportunities that require United States
workers or H-2A workers to travel or relocate in order to accept or
perform employment--
`(I) mutually benefit such workers, as well as their families, and employers; and
`(II) principally benefit neither employer nor employee; and
`(ii) employment opportunities within the United States benefit the United States economy.
`(A) IN GENERAL- Each employer petitioning for workers under subsection (b) shall pay not less than the greater of--
`(i) the prevailing wage to all workers in the occupation for which the employer has petitioned for workers; or
`(ii) the applicable State minimum wage.
`(B) DETERMINATION OF WAGES- An employer seeking to comply with subparagraph (A) may--
`(i) request and obtain a prevailing wage determination from the State employment agency; or
`(ii) rely on other wage information, including
a survey of the prevailing wages of workers in the occupation in the
area of employment that has been conducted or funded by the employer or
a group of employers, using the methodology used by the Secretary of
Labor to establish Occupational Employment and Wage estimate, or
another methodology approved by the Secretary of Labor for the purpose
of determining H-2A wages.
`(C) COMPLIANCE- An employer shall be considered to
have complied with the requirement under subparagraph (A) if the
employer--
`(i)(I) obtains a prevailing wage determination under subparagraph (C)(i); or
`(II) relies on a qualifying survey of prevailing wages; and
`(ii) pays such prevailing wage.
`(3) REIMBURSEMENT OF TRANSPORTATION COSTS-
`(A) REQUIREMENT FOR REIMBURSEMENT- An H-2A worker
who completes 50 percent of the period of employment of the job for
which the worker was hired, beginning on the first day of such
employment, shall be reimbursed by the employer for the cost of the
worker's transportation and subsistence from--
`(i) the place from which the H-2A worker was
approved to enter the United States to the location at which the work
for the employer is performed; or
`(ii) if the H-2A worker traveled from a place
in the United States at which the H-2A worker was last employed, from
such place of last employment to the location at which the work for the
employer is performed.
`(B) TIMING OF REIMBURSEMENT- Reimbursement to the
worker of expenses for the cost of the worker's transportation and
subsistence to the place of employment under subparagraph (A) shall be
considered timely if such reimbursement is made not later than the
worker's first regular payday after a worker completes 50 percent of
the period of employment of the job opportunity as provided under this
paragraph.
`(C) ADDITIONAL REIMBURSEMENT- A worker who
completes the period of employment for the job opportunity involved
shall be reimbursed by the employer for the cost of the worker's
transportation and subsistence from the work site to the place where
the worker was approved to enter the United States to work for the
employer. If the worker has contracted with a subsequent employer, the
previous and subsequent employer shall share the cost of the worker's
transportation and subsistence from work site to work site.
`(i) AMOUNT OF REIMBURSEMENT- The amount of
reimbursement provided to a worker or alien under this paragraph shall
be equal to the lesser of--
`(I) the actual cost to the worker or alien of the transportation and subsistence involved; or
`(II) the most economical and reasonable
common carrier transportation charges and subsistence costs for the
distance involved.
`(ii) DISTANCE TRAVELED- No reimbursement under
subparagraph (A) or (B) shall be required if the distance traveled is
100 miles or less.
`(E) REIMBURSEMENT FOR LAID OFF WORKERS- If the
worker is laid off or employment is terminated for contract
impossibility (as described in paragraph (5)(D)) before the anticipated
ending date of employment, the employer shall provide--
`(i) the transportation and subsistence required under subparagraph (C); and
`(ii) notwithstanding whether the worker has
completed 50 percent of the period of employment, the transportation
reimbursement required under subparagraph (A).
`(F) CONSTRUCTION- Nothing in this paragraph shall
be construed to require an employer to reimburse visa, passport,
consular, or international bordercrossing fees or any other fees
associated with the H-2A worker's lawful admission into the United
States to perform employment that may be incurred by the worker.
`(4) EMPLOYMENT GUARANTEE-
`(i) REQUIREMENT- Each employer petitioning for
workers under subsection (b) shall guarantee to offer the worker
employment for the hourly equivalent of not less than 75 percent of the
work hours during the total anticipated 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.
`(ii) FAILURE TO MEET GUARANTEE- If the
employer affords the United States worker or the H-2A worker less
employment than that required under this subparagraph, the employer
shall pay such worker the amount which the worker would have earned if
the worker had worked for the guaranteed number of hours.
`(iii) PERIOD OF EMPLOYMENT- For purposes of
this subparagraph, the term `period of employment' means the total
number of anticipated work hours and workdays described in the job
offer and shall exclude the worker's Sabbath and Federal holidays.
`(B) CALCULATION OF HOURS- 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.
`(C) LIMITATION- If the worker voluntarily abandons
employment before the end of the contract period, or is terminated for
cause, the worker is not entitled to the 75 percent guarantee described
in subparagraph (A).
`(D) TERMINATION OF EMPLOYMENT-
`(i) IN GENERAL- If, before the expiration of
the period of employment specified in the job offer, the services of
the worker are no longer required due to any form of natural disaster,
including flood, hurricane, freeze, earthquake, fire, drought, plant or
animal disease, pest infestation, regulatory action, or any other
reason beyond the control of the employer before the employment
guarantee in subparagraph (A) is fulfilled, the employer may terminate
the worker's employment.
`(ii) REQUIREMENTS- If a worker's employment is terminated under clause (i), the employer shall--
`(I) fulfill the employment guarantee in
subparagraph (A) for the work days that have elapsed during the period
beginning on the first work day after the arrival of the worker and
ending on the date on which such employment is terminated; and
`(II) make efforts to transfer the United States worker to other comparable employment acceptable to the worker.
`(l) Expedited Adjudication by the Secretary- The Secretary of Homeland Security--
`(1) shall establish a procedure for expedited adjudication of petitions filed under subsection (e); and
`(2) not later than 7 working days after such filing
shall, by fax, cable, or other means assuring expedited delivery
transmit a copy of notice of action on the petition--
`(A) to the petitioner; and
`(B) in the case of approved petitions, to the
appropriate immigration officer at the port of entry or United States
consulate (as the case may be) where the petitioner has indicated that
the alien beneficiary (or beneficiaries) will apply for a visa or
admission to the United States.
`(m) Period of Admission-
`(1) IN GENERAL- An H-2A worker shall be admitted for a period of employment, not to exceed 10 months, that includes--
`(A) a period of not more than 7 days prior to the
beginning of the period of employment for the purpose of travel to the
work site; and
`(B) a period of not more than 14 days following
the period of employment for the purpose of departure or extension
based on a subsequent offer of employment.
`(2) EMPLOYMENT LIMITATION- An alien may not be
employed during the 14-day period described in paragraph (1)(B) except
in the employment for which the alien was previously authorized.
`(3) CONSTRUCTION- Nothing in this subsection shall
limit the authority of the Secretary of Homeland Security to extend the
stay of an alien under any other provision of this Act.
`(n) Abandonment of Employment-
`(1) IN GENERAL- An alien admitted or provided status
under section 101(a)(15)(H)(ii)(a) who abandons the employment which
was the basis for such admission or status--
`(A) shall have failed to maintain nonimmigrant status as an H-2A worker; and
`(B) shall depart the United States or be subject to removal under section 237(a)(1)(C)(i).
`(2) REPORT BY EMPLOYER- Not later than 24 hours after
the abandonment of employment by an H-2A worker, the employer or
association acting as an agent for the employer, shall notify the
Secretary of Homeland Security of such abandonment.
`(3) REMOVAL- The Secretary of Homeland Security shall
promptly remove from the United States any H-2A worker who violates any
term or condition of the worker's nonimmigrant status.
`(4) VOLUNTARY TERMINATION- Notwithstanding paragraph
(1), an alien may voluntarily terminate the alien's employment if the
alien promptly departs the United States upon termination of such
employment.
`(o) Replacement of Alien-
`(1) IN GENERAL- Upon notification under subsection (p)(2)--
`(A) the Secretary of State shall promptly issue a
visa to, and the Secretary of Homeland Security shall admit into the
United States, an eligible alien designated by the employer to replace
an H-2A worker who abandons or prematurely terminates employment; and
`(B) the Secretary of Homeland Security shall admit such alien into the United States.
`(2) CONSTRUCTION- Nothing in this subsection shall
limit any preference for which United States workers are eligible under
this Act.
`(p) Identification Document-
`(1) IN GENERAL- The Secretary of Homeland Security
shall provide each authorized H-2A worker with a single
machine-readable, tamper-resistant, and counterfeit-resistant document
that--
`(A) authorizes the alien's entry into the United States;
`(B) serves, for the appropriate period, as an employment eligibility document; and
`(C) verifies the identity of the alien.
`(A) The document shall be--
`(i) in a form that is resistant to counterfeiting and to tampering; and
`(I) other databases of the Secretary of
Homeland Security for the purpose of excluding an alien from benefits
for which an alien is not eligible and determining whether the alien is
unlawfully present in the United States; and
`(II) law enforcement databases for the purpose of determining if an alien has been convicted of criminal offenses.
`(B) As soon as practicable, the document shall
include a biometric identifier. The determination of a biometric
identifier to be used for such purposes shall take into account factors
such as efficiency, accuracy, the technology available, economic
considerations, and storage requirements.
`(q) Extension of Stay of H-2A Workers in the United States-
`(1) EXTENSION OF STAY- If an employer seeks approval
to employ an H-2A worker who is lawfully present in the United States,
the petition filed by the employer or an association pursuant to
subsection (p) shall request an extension of the alien's stay and, if
applicable, a change in the alien's employment.
`(2) LIMITATION ON FILING PETITION FOR EXTENSION OF
STAY- A petition may not be filed for an extension of an alien's stay
for a period of more than 10 months.
`(3) WORK AUTHORIZATION UPON FILING PETITION FOR EXTENSION OF STAY-
`(A) IN GENERAL- An alien who is lawfully present
in the United States on the date of the filing of a petition to extend
the stay of the alien may commence or continue the employment described
in a petition under paragraph (1). The employer shall provide a copy of
the employer's petition for extension of stay to the alien. The alien
shall keep the petition with the alien's identification and employment
eligibility document, as evidence that the petition has been filed and
that the alien is authorized to work in the United States.
`(B) EMPLOYMENT ELIGIBILITY DOCUMENT- Upon approval
of a petition for an extension of stay or change in the alien's
authorized employment, the Secretary of Homeland Security shall provide
a new or updated employment eligibility document to the alien
indicating the new validity date, after which the alien is not required
to retain a copy of the petition.
`(C) FILE DEFINED- In this paragraph, the term
`file' means sending the petition by certified mail via the United
States Postal Service, return receipt requested, or delivering by
guaranteed commercial delivery which will provide the employer with a
documented acknowledgment of the date of receipt of the petition for an
extension of stay.
`(4) LIMITATION ON AN INDIVIDUAL'S STAY IN STATUS-
`(A) MAXIMUM PERIOD- The maximum continuous period
of authorized status as an H-2A worker (including any extensions) is 20
months.
`(B) REQUIREMENT TO REMAINS OUTSIDE THE UNITED STATES-
`(i) IN GENERAL- Subject to clause (ii), in the
case of an alien outside the United States whose period of authorized
status as an H-2A worker (including any extensions) has expired, the
alien may not again apply for admission to the United Stats as an H-2A
worker unless the alien has remained outside the United States for a
continuous period equal to at least 1/5 the duration of the alien's
previous period of authorized status as an H-2A worker (including any
extensions).
`(ii) EXCEPTION- Clause (i) shall not apply in
the case of an alien if the alien's period of authorized status as an
H-2A worker (including any extensions) was for a period of not more
than 10 months and such alien has been outside the United States for at
least 2 months during the 12 months preceding the date the alien again
is applying for admission to the United States as an H-2A worker.
`(r) Trust Fund To Assure Worker Return-
`(1) ESTABLISHMENT- There is established in the
Treasury of the United States a trust fund (in this section referred to
as the `Trust Fund') for the purpose of providing a monetary incentive
for H-2A nonimmigrants to return to their country of origin upon
expiration of their visas.
`(2) WITHHOLDING OF WAGES; PAYMENT INTO THE TRUST FUND-
Employers of H-2A nonimmigrants shall withhold from the wages of
workers an amount equivalent to 25 percent of the wages of each worker
and pay such withheld amount into the Trust Fund in accordance with
paragraph (3). Amounts withheld under the preceding sentence shall be
maintained in such interest bearing account with such a financial
institution as the Secretary of Homeland Security shall specify.
`(3) DISTRIBUTION OF FUNDS- Amounts paid into the Trust
Fund on behalf of an H-2A nonimmigrant, and held pursuant to paragraph
(2)(A)(i) and interest earned thereon, shall be paid by the Secretary
of State to the worker if--
`(A) the worker applies to the Secretary of State
(or the designee of such Secretary) for payment within 30 days of the
expiration of the alien's last authorized stay in the United States as
an H-2A nonimmigrant at a United States embassy or consulate in the
worker's home country;
`(B) in such application the worker establishes
that the worker has complied with the terms and conditions of the H-2A
program; and
`(C) in connection with the application, the worker
tenders the identification and employment authorization card issued to
the worker pursuant to subsection (p) and establishes that the worker
is identified as the person to whom the card was issued based on the
biometric identification information contained on the card.
`(4) ADMINISTRATIVE EXPENSES- The amounts paid into the
Trust Fund and held pursuant to paragraph (2)(A)(ii), and interest
earned thereon, shall be paid to the Secretary of State, the Secretary
of Labor, and the Secretary of Homeland Security in amounts equivalent
to the expenses incurred by such officials in the administration of the
H-2A program.
`(s) Investment of Trust Fund-
`(1) IN GENERAL- It shall be the duty of the Secretary
of the Treasury to invest such portion of the Trust Fund as is not, in
the Secretary's judgment, required to meet current withdrawals. Such
investments may be made only in interest-bearing obligations of the
United States or in obligations guaranteed as to both principal and
interest by the United States. For such purpose, such obligations may
be acquired--
`(A) on original issue at the price; or
`(B) by purchase of outstanding obligations at the market price.
The purposes for which obligations of the United States
may be issued under chapter 31 of title 31, United States Code, are
hereby extended to authorize the issuance at par of special obligations
exclusively to the Trust Fund. Such special obligations shall bear
interest at a rate equal to the average rate of interest, computed as
to the end of the calendar month next preceding the date of such issue,
borne by all marketable interest-bearing obligations of the United
States then forming a part of the public debt, except that where such
average rate is not a multiple of one-eighth of 1 percent next lower
than such average rate. Such special obligations shall be issued only
if the Secretary of the Treasury determines that the purchase of other
interest-bearing obligations of the United States, or of obligations
guaranteed as to both principal and interest by the United States on
original issue or at the market price, is not in the public interest.
`(2) SALE OF OBLIGATION- Any obligation acquired by the
Trust Fund (except special obligations issued exclusively to the Trust
Fund) may be sold by the Secretary of the Treasury at the market price,
and such special obligations may be redeemed at par plus accrued
interest.
`(3) CREDITS TO TRUST FUND- The interest on, and the
proceeds from the sale or redemption of, any obligations held in the
Trust Fund shall be credited to and form a part of the Trust Fund.
`(4) REPORT TO CONGRESS- It shall be the duty of the
Secretary of the Treasury to hold the Trust Fund, and (after
consultation with the Secretary of Homeland Security) to report to the
Congress each year on the financial condition and the results of the
operations of the Trust Fund during the preceding fiscal year and on
its expected condition and operations during the next fiscal year. Such
report shall be printed as both a House and a Senate document of the
session of the Congress to which the report is made.
`(t) Special Rule for Aliens Employed as Sheepherders,
Goatherders, or Dairy Workers- Notwithstanding any other provision of
this section, an alien admitted under section 101(a)(15)(H)(ii)(a) for
employment as a sheepherder, goatherder, or dairy worker--
`(1) may be admitted for a period of 12 months; and
`(2) shall not be subject to the requirements of subsection (r)(4)(B).'.
(b) Prohibition on Family Members- Section 101(a)(15)(H) of
the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(H)) is
amended by striking `him;' at the end and inserting `him, except that
no spouse or child may be admitted under clause (ii)(a);'.
(c) Regulations- Not later than 180 days after the date of
the enactment of this Act, the Secretary of Homeland Security shall
promulgate regulations, in accordance with the notice and comment
provisions of section 553 of title 5, United States Code, to provide
for the uniform procedures for the issuance of visas to nonimmigrants
described in section 101(a)(15)(H)(ii)(a) of the Immigration and
Nationality Act (8 U.S.C. 1101(a)(15)(H)(ii)(a)) by visa-issuing United
States consulates and consular officers.
(d) Conforming Amendment- Section 101(a)(15)(H)(ii)(a) of
the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(H)(ii)(a)) is
amended by striking `of a temporary or seasonal nature' and inserting
`and with respect to whom the intending employer or association has
filed with the Secretary a petition under section 218(a)'.
SEC. 1302. LEGAL ASSISTANCE PROVIDED BY THE LEGAL SERVICES CORPORATION.
(a) In General- Section 305 of the Immigrant Reform and Control Act of 1986 (8 U.S.C. 1101 note) is amended--
(1) by striking `A nonimmigrant' and inserting `(a) In General- A nonimmigrant'; and
(2) by adding at the end the following:
`(b) Legal Assistance- The Legal Services Corporation may
not provide legal assistance for or on behalf of any alien, and may not
provide financial assistance to any person or entity that provides
legal assistance for or on behalf of any alien, unless the alien--
`(1) is present in the United States at the time the legal assistance is provided; and
`(2) is an alien to whom subsection (a) applies.'.
(b) Mediation- Section 305 of the Immigrant Reform and
Control Act of 1986 (8 U.S.C. 1101 note), as amended by subsection (a),
is further amended by adding at the end the following:
`(c) Required Mediation- The Legal Services Corporation may
not bring a civil action for damages on behalf of a nonimmigrant
described in section 101(a)(15)(H)(ii)(a) of the Immigration and
Nationality Act (8 U.S.C. 1101(a)(15)(H)(ii)(a)), unless at least 90
days prior to bringing the action a request has been made to the
Federal Mediation and Conciliation Service to assist the parties in
reaching a satisfactory resolution of all issues involving all parties
to the dispute and mediation has been attempted.'.
(c) Condition for Entry Onto Property for Legal Services
Corporation Representation- Section 305 of the Immigrant Reform and
Control Act of 1986 (8 U.S.C. 1101 note), as amended by subsection (b),
is further amended by adding at the end the following:
`(d) Condition for Entry Onto Employer's Property for Legal
Services Corporation Representation- No employer of a nonimmigrant
having status under section 101(a)(15)(H)(ii)(a) of the Immigration and
Nationality Act (8 U.S.C. 1101(a)(15)(H)(ii)(a)) shall be required to
permit any recipient of a grant or contract under section 1007 of the
Legal Services Corporation Act (42 U.S.C. 2996f), or any employee of
such a recipient, to enter upon the employer's property, unless such
recipient or employee has a pre-arranged appointment with a specific
nonimmigrant having such status.'.
SEC. 1303. EFFECTIVE DATE.
The amendments made by this title shall take effect on the
date that is 180 days after the date of the enactment of this Act and
shall apply to petitions approved after such date.
TITLE XIV--MISCELLANEOUS
SEC. 1401. PREVENTION OF CONGRESSIONAL REAPPORTIONMENT DISTORTIONS.
(a) Findings- Congress finds that--
(1) in recent years, millions of aliens have entered
the United States in violation of immigration laws and are now residing
illegally in the United States and are subject to deportation;
(2) the established policy of the Bureau of the Census
is to make a concerted effort to count the foreign born population
within the United States without making a separate computation for
illegal aliens; and
(3) by including the millions of illegal aliens in the
reapportionment base for the House of Representatives, many States will
lose congressional representation which such States would not have
otherwise lost, thereby violating the constitutional principle of `one
man, one vote'.
(b) Adjustments To Prevent Distortions- Section 141 of title 13, United States Code, is amended--
(1) by redesignating subsection (g) as subsection (h); and
(2) by inserting after subsection (f) the following:
`(g) The Secretary shall make such adjustments in total
population figures as may be necessary, using such methods and
procedures as the Secretary determines feasible and appropriate, in
order that aliens who are in the United States in violation of the
immigration laws of the United States are not counted in tabulating
total population by States under subsection (a) for purposes of
apportionment of Representatives in Congress among the several States.
Nothing in this subsection shall be construed to supersede section
195.'.
(c) Conforming Amendment- Section 22(a) of the Act entitled
`An Act to provide for the fifteenth and subsequent decennial censuses
and to provide for apportionment of Representatives in Congress',
approved June 18, 1929 (2 U.S.C. 2a(a)) is amended by striking `as
ascertained under the seventeenth and each subsequent decennial census
of the population' and inserting `as ascertained and reported under
section 141 of title 13, United States Code, for each decennial census
of population'.
SEC. 1402. INCREASE IN H-1B VISA NUMBERS.
(a) Increase- Section 214(g)(1)(A) of the Immigration and
Nationality Act (8 U.S.C. 1184(g)(1)(A)) is amended to read as follows:
`(A) under section 101(a)(15)(H)(i)(b), may not exceed--
`(i) 65,000 in each fiscal year before fiscal year 1999;
`(ii) 115,000 in fiscal years 1999 and 2000;
`(iii) 195,000 in fiscal years 2001 through 2003;
`(iv) 65,000 in fiscal years 2004 through 2007; and
`(v) 130,000 in each succeeding fiscal year, except as provided in paragraph (7)(B); and'.
(b) Recapture of Unused H-1B Nonimmigrant Visas- Section 214(g)(7) of such Act (8 U.S.C. 1184(g)(7)) is amended--
(1) by striking `(7)' and inserting `(7)(A)'; and
(2) by adding at the end the following:
`(B) Beginning in fiscal year 2009, the number of aliens
who may be issued visas or otherwise provided nonimmigrant status under
section 101(a)(15)(H)(i)(b) during any fiscal year shall be increased
by the difference between 130,000 and the number of aliens who actually
were provided such status during the preceding fiscal year. The
preceding sentence shall not cause the number of aliens who may be
issued visas or otherwise provided nonimmigrant status under section
101(a)(15)(H)(i)(b) during any fiscal year to exceed 195,000, but any
recaptured unused numbers that are not available by reason of this
limitation during any fiscal year shall be available for use in future
years.'.
END
