Short title; table of contents

(a)

Short title

This Act may be cited as the Border Security and Immigration Reform Act of 2007. (b)

Table of contents

The table of contents of this Act is as follows:

Sec. 1. Short title; table of contents.

Sec. 2. Increase in immigration enforcement activities.

Sec. 3. Employment eligibility verification.

Sec. 4. Expedited removal.

Sec. 5. Nonimmigrant seasonal agricultural program.

Sec. 6. Lawful status for certain long-term resident aliens.

Increase in immigration enforcement activities

(a)

Increase in full-time, active-duty border patrol agents

In each of the fiscal years 2008 and 2009, the Secretary of Homeland Security shall, subject to the availability of appropriations for such purpose, increase by not less than 3,000 the number of positions for full-time, active-duty Border Patrol agents within the Department of Homeland Security above the number of such positions for which funds were allotted for the preceding fiscal year. (b)

Increase in personnel for workplace enforcement

In each of the fiscal years 2008 and 2009, the Secretary of Homeland Security shall, subject to the availability of appropriations for such purpose, increase by not less than 500 the number of positions for full-time personnel within the Department of Homeland Security whose duties directly relate to enforcement of the immigration laws in the workplace above the number of such positions for which funds were allotted for the preceding fiscal year. (c)

Semi-annual reports on use of enforcement authority

The Secretary of Homeland Security shall submit to the Judiciary Committees of the House of Representatives and of the Senate a report every 6 months on the Secretary’s use of authority to enforce the prohibitions against unlawful employment, including the number of cases in which fines or other penalties are sought under section 274A of the Immigration and Nationality Act (8 U.S.C. 1324a) and the number of such cases in which any such fine or other penalty was obtained.

Employment eligibility verification

(a)

Employment eligibility verification system

(1)

In general

Subsection (b) of section 274A of the Immigration and Nationality Act (8 U.S.C. 1324a) 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 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 subparagraph (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 subparagraph (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, database, 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.

(2)

Repeal of provision relating to evaluations and changes in employment verification

Subsection (d) of such section is repealed. (b)

Employment eligibility verification process

Such section is further amended— (1)in subsection (a)(3), by designating the sentence beginning with A person as a subparagraph (A) with the heading In general.— , 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 of Homeland Security by regulation, that it has verified that the individual is not an unauthorized alien— (i)by 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)by examining a document described in subparagraph (B); or (II)by 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 paragraph (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). (B)

Verification

(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).

(c)

Expansion of employment eligibility verification system to previously hired individuals and recruiting and referring

(1)

Application to recruiting and referring

Such section is further amended— (A)in subsection (a)(1)(A), by striking for a fee; (B)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).

;

(C)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 (D)in subsection (a)(3)(A), as amended by subsection (b)(1), by striking hiring, and inserting hiring, employing, each place it appears. (2)

Employment eligibility verification for previously hired individuals

Subsection (b) of such section, as amended by subsection (a)(1), 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 this paragraph and 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)

In general

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 the enactment of this paragraph. (ii)

Person or entity described

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)

Other entities

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 the enactment of this paragraph.

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 a port or 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.

Nonimmigrant seasonal agricultural program

(a)

Providing new W nonimmigrant classification for seasonal agricultural workers

Section 101(a)(15) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)) is amended— (1)by striking out “or” at the end of subparagraph (U); (2)by striking the period at the end of subparagraph (V) and inserting ; or; and (3)by adding at the end the following new subparagraph:

(W)an alien having a residence in a foreign country which the alien has no intention of abandoning who is coming to the United States for a period of not longer than 10 consecutive months to perform services or labor in agricultural employment (as defined to mean any service or activity that is considered to be agricultural under section 3(f) of the Fair Labor Standards Act of 1938 (29 U.S.C. 203(f), or agricultural labor under section 3121(g) of the Internal Revenue Code of 1986 (26 U.S.C. 3121(g)).

(b)

Establishment of nonimmigrant seasonal agricultural worker program

(1)

In general

Chapter 2 of title II of such Act is amended by adding at the end the following new section:

220.

Nonimmigrant seasonal agricultural worker program

(a)

Establishment of program

(1)

In general

The Secretary of Agriculture, in consultation with the Secretary of Labor, shall by regulation establish a program (in this section referred to as the program) for the admission into the United States of nonimmigrants described in section 101(a)(15)(W) (in this section referred to as a seasonal agricultural worker). (2)

Components of program

The program shall include the imposition of monthly and annual numerical limitations, established under subsection (c), on the issuance of nonimmigrant visas for seasonal agricultural worker by agricultural employment region. These visas shall be made available subject to such limitations to such workers in accordance with the preference system established under subsection (d). (3)

Freedom to be employed within agricultural employment regions

Except as provided under subsection (e), such a nonimmigrant visa shall not limit the geographical area (other than by regions established under paragraph (4)) within which an alien may be employed or limit the type of agricultural employment, within the production of agricultural commodities, the alien may perform. (4)

Designation of agricultural employment regions

For purposes of administering the program, the Secretary of Agriculture shall designate not more than 10 agricultural employment regions within the United States. (b)

Application for workers

(1)

In general

Each person who employs individuals to perform agricultural employment (including an association of such persons and a person who contracts for the performance of seasonal agricultural work) in the production of agricultural commodities may submit to the Secretary of Agriculture, at such time and in such manner as the Secretary specifies, an application for seasonal agricultural workers. (2)

Information required

The application must specify, for each month concerned and for the agricultural employment region in which the person is located— (A)the total number and qualifications of seasonal agricultural workers required in the production of agricultural commodities in each month; and (B)the type of agricultural work required to be performed by these workers. (3)

Optional information on aliens preferred

The person may also include a statement indicating a preference as to country of nationality of aliens (or names of particular aliens) desired to perform labor in any such month. (c)

Determination of quota by agricultural region and month

(1)

In general

Based upon such applications, taking into consideration the historical employment needs of agricultural employers and the availability of domestic agricultural labor, and after consultation with the Secretary of Labor, the Secretary of Agriculture shall establish a numerical limitation, by month and by agricultural employment region, on the issuance of nonimmigrant visas to seasonal agricultural workers. (2)

Application for an increase where extraordinary and unusual circumstances

(A)

In general

If an agricultural employer (or association or representative thereof) establishes that extraordinary and unusual circumstances have resulted in a significant change— (i)in the employer’s need for seasonal agricultural workers specified in the application; or (ii)in the availability of domestic workers who are able, willing, and qualified to perform seasonal agricultural employment,

the employer may apply to the Secretary of Agriculture (in such form and manner as the Secretary shall provide) for an increase in the numerical limitations otherwise established under paragraph (1) to accommodate such emergency need..

(B)

Timely determination on application

The Secretary of Agriculture shall make a determination on an application under subparagraph (A) within 72 hours of the date the application is completed. (C)

Increase in quota

To the extent the application is approved, the Secretary of Agriculture shall provide for an appropriate increase in the appropriate numerical limitation. (d)

Allocation of visas

(1)

Preference system

Seasonal agricultural workers who are subject to the numerical limitations specified in subsection (c) shall be allotted nonimmigrant visas as follows: (A)

Identified workers

Visas shall first be made available to qualified seasonal agricultural workers specifically identified in petitions submitted under subsection (b)(3). (B)

Previously employed workers

Visas shall next be made available to qualified seasonal agricultural workers who have previously been employed in seasonal agricultural employment in the United States, providing priority in consideration among such workers in the order of the length of time in which they were so employed. (C)

Order in which applied

The remaining visas shall be made available to other qualified seasonal agricultural workers strictly in the chronological order in which they qualify. Waiting lists of applicants shall be maintained in accordance with regulations prescribed by the Secretary of State. (2)

Treatment of spouse and children

A spouse or child of such a worker is not entitled to a visa or such status by virtue of such relationship, but may be provided the same status as such a worker if the spouse or child also is a qualified seasonal agricultural worker to perform seasonal agricultural employment. (e)

Standards for approval of applications

(1)

In general

The Secretary of Agriculture shall approve an application submitted under subsection (b)(1) authorizing a person to employ a seasonal agricultural worker if— (A)the person is a producer, and the worker is to be employed in seasonal agricultural work; (B)the application complies with the provisions of such subsection and the application sets forth the need for such workers; (C)the person has not employed or petitioned for a nonimmigrant described in section 101(a)(15)(H)(ii)(a) at the time when an application on behalf of the person is pending or approved under this subsection, or during any previous period during which the employer had an application approved under this section; and (D)the person is not disqualified under subsection (f). (2)

Review of certain denials

Except as provided under subsection (f), a person who is determined not to be eligible under paragraph (1) (other than because of subparagraph (D) thereof) is entitled to an expedited review of the determination by the Secretary of Agriculture. (3)

Civil penalties for unlawful employment of seasonal agricultural workers

(A)

In general

It is unlawful for a person or other entity to hire, or recruit or refer, for employment in the United States a seasonal agricultural worker unless the person or entity has an application approved under paragraph (1) with respect to the hiring of the worker. (B)

Civil penalty

A person or entity that violates subparagraph (A) shall be subject to an order described in section 274A(e)(4). including the imposition of a civil money penalty, in the same manner as such section applies to a violation described in section 274A(a)(2). (f)

Obligations under program

Any person whose application to employ a seasonal agricultural worker has been approved shall provide as follows: (1)

No displacement 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 and for a period of 30 days preceding the period of employment in the occupation at the place of employment for which the employer seeks to employ nonimmigrant agricultural workers. (2)

Offers to United States workers

The employer shall offer the job to any eligible United States worker who applies and is equally or better qualified for the job for which the nonimmigrant is, or the nonimmigrants are sought, and will be available at the time and place of need. (3)

Use of housing allowance

An employer shall offer to provide housing at no cost to all workers for which the employer has applied under the program and to all other workers in the same occupation at the place of employment, whose place of residence is beyond normal commuting distance. The employer may comply with this requirement respecting the furnishing of housing for such employee by providing a reasonable housing allowance instead of offering housing. Upon the request of a worker seeking assistance in locating housing, the employer shall make a good faith effort to assist the worker in identifying and locating housing in the area of intended employment. An employer who offers a housing allowance to a worker, or assists a worker in locating housing which the worker occupies, pursuant to this clause shall not be deemed a housing provider under section 203 of the Migrant and Seasonal Agricultural worker Protection Act (29 U.S.C. 1823) solely by providing such housing allowance. No housing allowance may be used for housing which is owned or controlled by the employer. (4)

Workers’ compensation

The person shall provide (if the employment is not covered by State workers’ compensation law), at no cost to the worker, insurance covering injury and disease arising out of and in the course of the workers employment which will provide benefits at least equal to those provided under the State workers’ compensation law for comparable employment. (5)

Labor dispute

The person shall not employ a seasonal agricultural worker for a specific job opportunity for which the employer is requesting a seasonal agricultural worker because the former occupant of the job is on strike or being locked out in the course of a labor dispute. (6)

Not use for nonagricultural services

The person shall not employ a seasonal agricultural worker for services other than seasonal agricultural services. (7)

Disqualification for violations

If the Secretary of Agriculture determines, after opportunity for a hearing, that an employer has participated under the program and has violated a provision of paragraph (1) or any other provision of this Act, the employer shall be disqualified from future participation in the program for a period of not longer than three years. (g)

Entry of workers

(1)

In general

An alien may not be admitted to the United States as a seasonal agricultural worker during the five-year period beginning on the most recent date (if any) on which the alien violated a term or condition of a previous admission as such a worker or who enters the United States unlawfully after the date the program first takes effect. (2)

Monitoring

The Secretary of Agriculture, in consultation with the Secretary of Labor, shall monitor terms and conditions under which seasonal agricultural workers (and domestic workers employed by the same employers) are employed in the United States. (h)

Trust fund for program

(1)

Establishment

The Secretary of Agriculture shall establish by regulation a trust fund the purpose of which is to provide funds for the administration and enforcement of the program and to provide a monetary incentive for seasonal agricultural workers to return to their country of origin upon expiration of their visas under the program. The Secretary of Agriculture in consultation with the Secretary of the Treasury shall promulgate such other regulations as may be necessary to carry out this subsection. (2)

Payment of fica and futa amounts into trust fund

In the case of employment of a seasonal agricultural worker— (A)the employer shall provide for payment into the trust fund established under this subsection of the sum of— (i)an amount equivalent to the amount of excise taxes which the employer would pay under the Federal Insurance Contributions Act with respect to such employment if it were considered employment for the purpose of such Act; and (ii)an amount equivalent to (and in lieu of) the amount of excise taxes which the employer would otherwise pay under the Federal Unemployment Tax Act with respect to such employment; and (B)there shall be deducted from the wages of the worker and paid into such trust fund an amount equivalent to the amount of excise taxes that the employee would pay under the Federal Insurance Contributions Act with respect to such employment if it were considered employment for the purposes of such Act. (3)

Expenditures from trust fund

(A)

Use of employer contributions for administration

Amounts described in paragraph (2)(A) paid into the trust fund shall be used for the purpose of administering and enforcing the program. (B)

Repayment of employee contributions upon return to country of origin

Amounts described in paragraph (2)(B) paid into the trust fund with respect to a seasonal agricultural worker shall, upon application by the worker at the United States consulate nearest the worker’s residence in the country of origin, be paid to the worker if the worker demonstrates the compliance of the worker with the terms and conditions of the program. (i)

Semiannual reports to Congress

The Secretary of Agriculture in consultation with the Secretary of Labor, shall report to Congress semiannually regarding the program. Each such report shall include a statement of the number of nonimmigrant visas issued under the program, an evaluation of the effectiveness of the program, a description of any problems related to the enforcement of the program, and any recommendations for legislation relating to the program. (j)

Miscellaneous provisions

(1)

Disqualification of seasonal agricultural workers from financial assistance

An alien admitted as a seasonal agricultural worker is not eligible for any program of financial assistance under Federal law (whether through grant, loan, guarantee, or otherwise) on the basis of financial need, as such programs are identified by the Secretary of Agriculture in consultation with other appropriate heads of the various departments and agencies of Government. (2)

Expansion of consulates

The Secretary of State is authorized to take such steps as may be necessary in order to expand and establish consulates in foreign countries in which aliens are likely to apply to become seasonal agricultural workers under the program. (3)

Preemption

The provisions of this section preempt any State or local law on the same subject.

(2)

Clerical amendment

The table of contents of such Act is amended by inserting after the item relating to section 219 the following new item:

Sec. 220. Nonimmigrant seasonal agricultural program.

(c)

Sense of Congress concerning bilateral advisory commissions

It is the sense of Congress that the President should negotiate with representatives of the governments of labor source countries to establish bilateral advisory commissions in order to consult with and advise the Secretary of Agriculture and the Secretary of State regarding— (1)the regulations to be promulgated; (2)the monthly and annual numerical limitations to be established (3)the entry, and preference, and visa issuance systems to be established; and (4)problems arising under the program established;

under section 220 of the Immigration and Nationality Act, as added by subsection (a).

(d)

Immigration amendments prohibiting adjustment of status of seasonal agricultural workers

(1)The first sentence of section 204(a)(1)(F) of the Immigration and Nationality Act (8 U.S.C. 1154(a)(1)(F)) is amended by inserting before the period the following: , except that no petition for a preference immigrant under section 203(b) may be filed respecting an alien who is a nonimmigrant described in section 101(a)(15)(W). (2)Section 237(a)(1)(C) of such Act (8 U.S.C. 1227(a)(1)(C)) is amended by adding at the end the following new clause:

(iii)

Seasonal agricultural workers

An alien who is admitted as a nonimmigrant under section 101(a)(15)(W) who fails to be continuously employed or actively seeking employment in agricultural labor or services in accordance with the usual customary employment patterns and practices is deportable.

(3)

Prohibition of adjustment or change of status

(A)

Immigrant status

Section 245(b)(5) of such Act (8 U.S.C. 1255(b)(5)) is amended by inserting or section 101(a)(15)(W) after section 101(a)(15)(S). (B)

Nonimmigrant status

Section 248(1) of such Act (8 U.S.C. 1258(1)) is amended by striking or (S) and inserting (S), or (W). (4)

Prohibition of counting of period of time as a seasonal agricultural worker for purposes of cancellation of removal

Section 240A(d) of such Act (8 U.S.C. 1229b(d)) is amended by adding at the end the following new paragraph:

(4)

Treatment of seasonal agricultural workers

No period of time in which an alien is residing or present in the United States as a seasonal agricultural worker under section 101(a)(15)(W) shall be taken into account for purposes of this section.

Lawful status for certain long-term resident aliens

(a)

In general

Chapter 5 of title II of the Immigration and Nationality Act is amended by inserting after section 245A the following new section:

245B.

Lawful status for certain long-term resident aliens

(a)

Lawful status

The Secretary of Homeland Security shall adjust the status of an alien to that of an alien lawfully admitted to the United States if the alien meets the following requirements: (1)

Timely application

(A)

During application period

Except as provided in subparagraph (B), the alien must apply for such adjustment during the 12-month period beginning on a date (not later than 180 days after the date of enactment of this section) designated by the Secretary. (B)

Application within 30 days of notice to appear

An alien who, at any time during the first 11 months of the 12-month period described in subparagraph (A), is the subject of a notice to appear issued under section 239, must make application under this section not later than the end of the 30-day period beginning either on the first day of such 12-month period or on the date of the issuance of such notice, whichever day is later. (C)

Information included in application

Each application under this subsection shall contain such information as the Secretary of Homeland Security may require. (2)

Continuous unlawful residence since January 1, 2002

(A)

In general

The alien must establish that the alien entered the United States before January 1, 2002, and that he has resided continuously in the United States in an unlawful status since such date and through the date the application is filed under this subsection. (B)

Nonimmigrants

In the case of an alien who entered the United States as a nonimmigrant before January 1, 2002, the alien must establish that the alien's period of authorized stay as a nonimmigrant expired before such date through the passage of time or the alien's unlawful status was known to the Government as of such date. (C)

Exchange visitors

If the alien was at any time a nonimmigrant exchange alien (as defined in section 101(a)(15)(J)), the alien must establish that the alien was not subject to the two-year foreign residence requirement of section 212(e) or has fulfilled that requirement or received a waiver thereof. (3)

Continuous physical presence since enactment

(A)

In general

The alien must establish that the alien has been continuously physically present in the United States since the date of the enactment of this section. (B)

Treatment of brief, casual, and innocent absences

An alien shall not be considered to have failed to maintained continuous physical presence in the United States for purposes of subparagraph (A) by virtue of brief, casual, and innocent absences from the United States. (C)

Admissions

Nothing in this section shall be construed as authorizing an alien to apply for admission to, or to be admitted to, the United States in order to apply for adjustment of status under this subsection. (4)

Admissible as immigrant

The alien must establish that the alien— (A)is admissible to the United States as an immigrant, except as otherwise provided under subsection (d), (B)has not been convicted of any felony or of two or more misdemeanors committed in the United States, and (C)has not assisted in the persecution of any person or persons on account of race, religion, nationality, membership in a particular social group, or political opinion. (5)

Basic citizenship skills

(A)

In general

The alien must demonstrate that the alien either— (i)meets the requirements of section 312(a) (relating to minimal understanding of ordinary English and a knowledge and understanding of the history and government of the United States), or (ii)is satisfactorily pursuing a course of study (recognized by the Secretary of Homeland Security) to achieve such an understanding of English and such a knowledge and understanding of the history and government of the United States. (B)

Exception for elderly or developmentally disabled individuals

The Secretary of Homeland Security may, in his discretion, waive all or part of the requirements of subparagraph (A) in the case of an alien who is 65 years of age or older or who is developmentally disabled. (6)

Payment of fine

The alien must pay to the Secretary of Homeland Security a fine in the amount of $1,000. (b)

Nature of Lawful Status

(1)

Not lawful permanent resident status and ineligible to adjust under section 245, but eligible to see LPR status otherwise

An alien provided lawful status under subsection (a)— (A)shall not be considered to be an alien lawfully admitted for permanent residence; (B)is not eligible to adjust status under section 245; and (C)may seek to obtain lawful permanent resident status under other provisions of law, such as by qualifying for an immigrant visa through a consular office abroad under the regular immigration process. (2)

Termination of lawful status

The Secretary of Homeland Security shall provide for termination of lawful status granted an alien under subsection (a)— (A)if it appears to the Secretary of Homeland Security that the alien was in fact not eligible for such status; (B)if the alien commits an act that (i) makes the alien inadmissible to the United States as an immigrant, except as otherwise provided under subsection (d)(2), or (ii) is convicted of any felony or two or more misdemeanors committed in the United States; or (C)if and when such alien obtains lawful permanent resident status under law. (3)

Authorized travel and employment during lawful status

During the period an alien is in lawful status granted under subsection (a)— (A)

Authorization of travel abroad

The Secretary of Homeland Security shall, in accordance with regulations, permit the alien to return to the United States after such brief and casual trips abroad as reflect an intention on the part of the alien not to relinquish lawful status and after brief temporary trips abroad occasioned by a family obligation involving an occurrence such as the illness or death of a close relative or other family need. (B)

Authorization of employment

The Secretary of Homeland Security shall grant the alien authorization to engage in employment in the United States and provide to that alien an employment authorized endorsement or other appropriate work permit. (4)

No derivative treatment of relatives

A spouse, child, or other relative of an alien who obtains lawful status under subsection (a) is not entitled to such status by virtue of such relationship, but may be provided the same status as such an alien if the spouse, child, or other relative also qualifies under such subsection for such lawful status. (c)

Applications for Adjustment to Lawful Status

(1)

To whom may be made

The Secretary of Homeland Security shall provide that applications for adjustment of status under subsection (a) shall be filed with the Secretary. (2)

Confidentiality of information

(A)

In general

Except as provided in this paragraph, neither the Secretary of Homeland Security, nor any other official or employee of the Department of Justice, or bureau or agency thereof, may— (i)use the information furnished by the applicant pursuant to an application filed under this section for any purpose other than to make a determination on the application or for enforcement of paragraph (3); (ii)make any publication whereby the information furnished by any particular applicant can be identified; or (iii)permit anyone other than the sworn officers and employees of the Department or bureau or agency or, with respect to applications filed with a designated entity, that designated entity, to examine individual applications. (B)

Required disclosures

The Secretary of Homeland Security shall provide the information furnished under this section, and any other information derived from such furnished information, to a duly recognized law enforcement entity in connection with a criminal investigation or prosecution, when such information is requested in writing by such entity, or to an official coroner for purposes of affirmatively identifying a deceased individual (whether or not such individual is deceased as a result of a crime). (C)

Authorized disclosures

The Secretary of Homeland Security may provide, in the Secretary of Homeland Security's discretion, for the furnishing of information furnished under this section in the same manner and circumstances as census information may be disclosed by the Secretary of Commerce under section 8 of title 13, United States Code. (D)

Construction

(i)

In general

Nothing in this paragraph shall be construed to limit the use, or release, for immigration enforcement purposes or law enforcement purposes of information contained in files or records of the Department of Homeland Security pertaining to an application filed under this section, other than information furnished by an applicant pursuant to the application, or any other information derived from the application, that is not available from any other source. (ii)

Criminal convictions

Information concerning whether the applicant has at any time been convicted of a crime may be used or released for immigration enforcement or law enforcement purposes. (E)

Crime

Whoever knowingly uses, publishes, or permits information to be examined in violation of this paragraph shall be fined not more than $10,000. (3)

Penalties for false statements in applications

Whoever files an application for adjustment of status under this section and knowingly and willfully falsifies, misrepresents, conceals, or covers up a material fact or makes any false, fictitious, or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious, or fraudulent statement or entry, shall be ineligible for adjustment of status under this section and shall be fined in accordance with title 18, United States Code, or imprisoned not more than five years, or both. (4)

Application fees

(A)

Fee schedule

The Secretary of Homeland Security shall provide for a schedule of fees to be charged for the filing of applications for adjustment under subsection (a). (B)

Use of fees

The Secretary of Homeland Security shall deposit payments received under this paragraph in a separate account and amounts in such account shall be available, without fiscal year limitation, to cover administrative and other expenses incurred in connection with the review of applications filed under this section. (d)

Waiver of Certain Grounds for Exclusion

In the determination of an alien's admissibility under subsection (a)(4)(A), the provisions of paragraphs (5), (6)(A), and (7)(A) of section 212(a) shall not apply. (e)

Temporary Stay of Deportation and Work Authorization for Certain Applicants

(1)

Before application period

The Secretary of Homeland Security shall provide that in the case of an alien who is apprehended before the beginning of the application period described in subsection (a)(1)(A) and who can establish a prima facie case of eligibility to have his status adjusted under subsection (a) (but for the fact that he may not apply for such adjustment until the beginning of such period), until the alien has had the opportunity during the first 30 days of the application period to complete the filing of an application for adjustment, the alien— (A)may not be deported, and (B)shall be granted authorization to engage in employment in the United States and be provided an employment authorized endorsement or other appropriate work permit. (2)

During application period

The Secretary of Homeland Security shall provide that in the case of an alien who presents a prima facie application for adjustment of status under subsection (a) during the application period, and until a final determination on the application has been made in accordance with this section, the alien— (A)may not be deported, and (B)shall be granted authorization to engage in employment in the United States and be provided an employment authorized endorsement or other appropriate work permit. (f)

Administrative and Judicial Review

(1)

Administrative and judicial review

There shall be no administrative or judicial review of a determination respecting an application for adjustment of status under this section except in accordance with this subsection. (2)

No review for late filings

No denial of adjustment of status under this section based on a late filing of an application for such adjustment may be reviewed by a court of the United States or of any State or reviewed in any administrative proceeding of the United States Government. (3)

Administrative review

(A)

Single level of administrative appellate review

The Secretary of Homeland Security shall establish an appellate authority to provide for a single level of administrative appellate review of a determination described in paragraph (1). (B)

Standard for review

Such administrative appellate review shall be based solely upon the administrative record established at the time of the determination on the application and upon such additional or newly discovered evidence as may not have been available at the time of the determination. (g)

Implementation of Section

(1)

Regulations

The Secretary of Homeland Security may issue such regulations as may be necessary to carry out this section. (2)

Considerations

In prescribing regulations described in paragraph (1)— (A)

Periods of continuous residence

The Secretary of Homeland Security shall specify individual periods, and aggregate periods, of absence from the United States which will be considered to break a period of continuous residence in the United States and shall take into account absences due merely to brief and casual trips abroad. (B)

Absences caused by deportation or advanced parole

The Secretary of Homeland Security shall provide that— (i)an alien shall not be considered to have resided continuously in the United States, if, during any period for which continuous residence is required, the alien was outside the United States as a result of a departure under an order of deportation, and (ii)any period of time during which an alien is outside the United States pursuant to the advance parole procedures of the Department of Homeland Security shall not be considered as part of the period of time during which an alien is outside the United States for purposes of this section. (C)

Waivers of certain absences

The Secretary of Homeland Security may provide for a waiver, in the discretion of the Secretary of Homeland Security, of the periods specified under subparagraph (A) in the case of an absence from the United States due merely to a brief temporary trip abroad required by emergency or extenuating circumstances outside the control of the alien. (D)

Use of certain documentation

The Secretary of Homeland Security shall require that— (i)continuous residence and physical presence in the United States must be established through documents, together with independent corroboration of the information contained in such documents, and (ii)the documents provided under clause (i) must be employment-related if employment-related documents with respect to the alien are available to the applicant. (3)

Interim final regulations

Regulations prescribed under this section may be prescribed to take effect on an interim final basis if the Secretary of Homeland Security determines that this is necessary in order to implement this section in a timely manner. (h)

Dissemination of information on legalization program

Beginning not later than the date designated by the Secretary of Homeland Security under subsection (a)(1)(A), the Secretary of Homeland Security shall broadly disseminate information respecting the benefits which aliens may receive under this section and the requirements to obtain such benefits.

(b)

Conforming amendments

(1)Section 245(c) of such Act (8 U.S.C. 1255(c)) is amended by striking or before (8) and by inserting before the period at the end the following: or (9) any alien who has lawful status under section 245B. (2)The table of contents of such Act is amended by inserting after the item relating to section 245A the following new item:

Sec. 245B. Lawful status for certain long-term residents.