[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[S. 3932 Introduced in Senate (IS)]
111th CONGRESS
2d Session
S. 3932
To provide for comprehensive immigration reform, and for other
purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
September 29, 2010
Mr. Menendez (for himself and Mr. Leahy) introduced the following bill;
which was read twice and referred to the Committee on the Judiciary
_______________________________________________________________________
A BILL
To provide for comprehensive immigration reform, 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 ``Comprehensive
Immigration Reform Act of 2010'' or the ``CIR Act of 2010''.
(b) Table of Contents.--The table of contents for this Act is as
follows:
Sec. 1. Short title; table of contents.
Sec. 2. References to Immigration and Nationality Act.
Sec. 3. Definitions.
TITLE I--BORDER ENFORCEMENT
Subtitle A--Additional Assets and Resources
Sec. 101. Effective date triggers.
Sec. 102. Customs and border protection personnel.
Sec. 103. Secure communication; equipment; and grants for border
personnel.
Sec. 104. Infrastructure improvements and expansion of land ports of
entry.
Sec. 105. Additional authorities for port of entry construction.
Sec. 106. Additional increases in immigration enforcement personnel.
Sec. 107. Additional immigration court personnel.
Sec. 108. Improved training for border security and immigration
enforcement officers.
Sec. 109. Standards of professional conduct.
Sec. 110. Inventory of assets and personnel.
Sec. 111. Customs border patrol and border protection assets.
Sec. 112. Technological assets.
Sec. 113. Surveillance technologies programs.
Subtitle B--Enhanced Coordination and Planning for Border Security
Sec. 121. Annual report on improving North American security
information exchange.
Sec. 122. Cooperation with the Government of Mexico.
Sec. 123. Enhanced international cooperation.
Sec. 124. Expansion of commerce security programs.
Sec. 125. Northern and Southern Border Drug Prosecution Initiative.
Sec. 126. Project Gunrunner Initiative.
Sec. 127. Operation Streamline Prosecution Initiative.
Sec. 128. Border Relief Grant Program.
Sec. 129. Report on deaths and strategy study.
Sec. 130. Immigration and United States-Mexico Border Enforcement
Commission.
Sec. 131. Preemption.
Sec. 132. Inherent authority.
Sec. 133. Border protection strategy.
Sec. 134. Border communities liaison office.
Sec. 135. Authorization of appropriations.
TITLE II--INTERIOR ENFORCEMENT
Subtitle A--Prevention of Unauthorized Entries and Removal
Chapter 1--Strengthening the Visa Waiver Program To Secure America and
Enforcing Entry and Exit Requirements
Sec. 201. Enforcement of requirement to report lost or stolen
passports.
Sec. 202. Enforcement of requirement for periodic evaluations of
program countries.
Sec. 203. Arrival and departure verification.
Sec. 204. Visa overstay rates.
Sec. 205. US-VISIT system.
Chapter 2--Preventing Unauthorized Entries and Ensuring Removal
Sec. 211. Illegal entry and reentry.
Sec. 212. Deterring aliens ordered removed from remaining in the United
States unlawfully.
Sec. 213. Biometric screening.
Sec. 214. Encouraging aliens to depart voluntarily.
Sec. 215. Cancellation of visas.
Sec. 216. Mandatory address reporting requirements.
Sec. 217. Penalties relating to vessels and aircraft.
Sec. 218. Sanctions for countries that delay or prevent repatriation of
their citizens and nationals.
Sec. 219. State criminal alien assistance program.
Sec. 220. Procedures regarding aliens apprehended by State and local
law enforcement officers.
Sec. 221. Reform of passport, visa, and immigration fraud offenses.
Sec. 222. Directives related to passport and document fraud.
Sec. 223. Expanding the definition of conveyances subject to
forfeiture.
Sec. 224. Prohibition of the sale of firearms to, or the possession of
firearms by, certain aliens.
Sec. 225. Criminal forfeiture.
Sec. 226. Advance delivery of information including passenger
manifests.
Sec. 227. Unlawful flight from immigration or customs controls and
disobeyance of lawful orders.
Sec. 228. Reducing illegal immigration and alien smuggling on tribal
lands.
Sec. 229. Diplomatic security service.
Sec. 230. Increased penalties barring the admission of convicted sex
offenders failing to register and requiring
deportation of sex offenders failing to
register.
Sec. 231. Aggravated felony.
Sec. 232. Increased criminal penalties related to gang violence.
Subtitle B--Detention Reform
Sec. 241. Definitions.
Sec. 242. Protections for vulnerable populations.
Sec. 243. Apprehension procedures for immigration enforcement-related
activities relating to children.
Sec. 244. Detention of families.
Sec. 245. Access to children, local and State courts, child welfare
agencies, and consular officials.
Sec. 246. Memoranda of understanding.
Sec. 247. Mandatory training.
Sec. 248. Alternatives to detention.
Sec. 249. Detention conditions.
Sec. 250. Access to counsel.
Sec. 251. Group legal orientation presentations.
Sec. 252. Protections for refugees.
Sec. 253. Immigration and customs enforcement ombudsman.
Sec. 254. Lawful permanent resident status of refugees and asylum
seekers granted asylum.
Sec. 255. Elimination of time limits on asylum applications.
Sec. 256. Efficient asylum determination process and detention of
asylum seekers.
Sec. 257. Protection of stateless persons in the United States.
Sec. 258. Authority to designate certain groups of refugees for
consideration.
Sec. 259. Admission of refugees in the absence of the annual
presidential determination.
TITLE III--WORKSITE ENFORCEMENT
Sec. 301. Unlawful employment of aliens.
Sec. 302. Disclosure of certain taxpayer information to assist in
immigration enforcement.
Sec. 303. Compliance by department of homeland security contractors
with confidentiality safeguards.
Sec. 304. Increasing security and integrity of Social Security cards.
Sec. 305. Increasing security and integrity of immigration documents.
Sec. 306. Responsibilities of the Social Security Administration.
Sec. 307. Antidiscrimination protections.
Sec. 308. Immigration enforcement support by the internal revenue
service and the Social Security
administration.
Sec. 309. Enhanced Verification System.
Sec. 310. Authorization of appropriations.
TITLE IV--REFORMING AMERICA'S LEGAL IMMIGRATION SYSTEM
Subtitle A--New Worker Program and the Creation of a Standing
Commission
Sec. 401. Standing Commission on Immigration, Labor Markets, and the
National Interest.
Sec. 402. H-2C nonimmigrant worker program.
Sec. 403. Recruitment of United States workers.
Sec. 404. Adjustment to lawful permanent resident status.
Sec. 405. Employer compliance.
Sec. 406. Authorization of appropriations.
Subtitle B--Family and Employment Visa Reforms
Chapter 1--Family and Employment Based Immigrant Visas
Sec. 411. Recapture of immigrant visas lost to bureaucratic delay.
Sec. 412. Reclassification of spouses and minor children of legal
permanent residents as immediate relatives.
Sec. 413. Promoting family unity.
Sec. 414. Discretionary authority with respect to removal or
deportation of citizen and resident
immediate family members.
Sec. 415. Military families.
Sec. 416. Equal treatment for all stepchildren.
Sec. 417. Widows, widowers, and orphans.
Sec. 418. Fiance child status protection.
Sec. 419. Special humanitarian visas.
Sec. 420. Exemption from immigrant visa limit for certain veterans from
the Philippines.
Sec. 420A. Determinations under the Haitian Refugee Immigration
Fairness Act of 1998.
Sec. 420B. Affidavit of support.
Sec. 420C. Retaining workers subject to green card backlog.
Sec. 420D. Return of Talent Program.
Chapter 2--Uniting American Families Act
Sec. 421. Short title.
Sec. 422. Definitions.
Sec. 423. Availability of immigrant visas for permanent partners.
Sec. 423A. Procedure for granting immigrant status.
Sec. 424. Admission of refugees and asylees.
Sec. 425. Inadmissible and deportable aliens.
Sec. 426. Nonimmigrant and conditional permanent resident status.
Sec. 427. Removal, cancellation of removal, and adjustment of status.
Sec. 428. Application of criminal penalties for misrepresentation and
concealment of facts regarding permanent
partnerships.
Sec. 429. Naturalization requirements.
Sec. 430. Application of family unity provisions to other laws.
Chapter 3--Reforms to Specific Employment-Based Visa Categories
subchapter a--reforms to the eb-5 program
Sec. 431. EB-5 Regional Center Program fees.
Sec. 432. Adjustment of status.
Sec. 433. Set-aside programs.
Sec. 434. Expansion of EB-5 Program.
subchapter b--adjustments to other select visa programs
Sec. 435. Elimination of sunset provisions.
Sec. 436. Permanent authorization of the nonimmigrant nurses in health
professional shortage areas program.
Sec. 437. Incentives for physicians to practice in medically
underserved communities.
Sec. 438. Student visa reform.
Sec. 439. Temporary visas for individuals from Ireland.
Sec. 440. S visas.
Chapter 4--Protection of H-2B Nonimmigrants and Workers Recruited
Abroad
Sec. 441. Definitions.
Sec. 442. Protections for workers recruited abroad.
Sec. 443. Enforcement provisions.
Sec. 444. Transfer of forest, conservation, nursery, and logging
workers to the H-2A agricultural worker
program.
Sec. 445. H-2B nonimmigrant labor certification application fees.
Sec. 446. Labor agreement provisions.
Sec. 447. Enforcement of Federal labor laws.
Chapter 5--H-2B and L-1 Visa Reforms
subchapter a--h-1b employer application requirements
Sec. 451. Application requirements.
subchapter b--investigation and disposition of complaints against h-1b
employers
Sec. 452. Investigation procedures.
subchapter c--other protections
Sec. 453. H-1B government authority and requirements.
Sec. 454. H-1B and L-1 visa requirements.
Sec. 455. Additional department of labor employees.
subchapter d--l-1 visa fraud and abuse protections
Sec. 456. L-1 employer petition requirements.
Sec. 457. Application.
Sec. 458. Report on L-1 blanket petition process.
Chapter 6--Miscellaneous Employment Visa Reforms
Sec. 461. Providing premium processing of employment-based visa
petitions.
Sec. 462. Visa revalidation.
Sec. 463. Application fees for intending immigrants.
Sec. 464. E-1, E-2, and L-1 visas.
Sec. 465. Time limits for nonimmigrants to depart the United States.
Chapter 7--POWER Act
Sec. 471. Short title.
Sec. 472. Victims of serious labor and employment violations or crime.
Sec. 473. Labor enforcement actions.
Sec. 474. Authorization of appropriations.
Chapter 8--Agricultural Job Opportunities, Benefits, and Security
Sec. 475. Short title.
subchapter a--blue card status
Sec. 476. Requirements for blue card status.
Sec. 477. Application for blue card status.
Sec. 478. Adjustment to permanent residence.
Sec. 479. Other provisions.
Sec. 480. Correction of Social Security records.
subchapter b--reform of h-2a worker program
Sec. 481. Amendments to the Immigration and Nationality Act.
subchapter c--miscellaneous provisions
Sec. 482. Determination and use of user fees.
Sec. 483. Rulemaking.
Sec. 484. Reports to Congress.
Sec. 485. Effective date.
TITLE V--REGISTRATION OF UNDOCUMENTED INDIVIDUALS
Subtitle A--Lawful Prospective Immigrant Status
Sec. 501. Lawful Prospective Immigrant Status.
Sec. 502. Adjustment of status for Lawful Prospective Immigrants.
Sec. 503. Administrative review, removal proceedings, and judicial
review for aliens who have applied for
Lawful Prospective Immigrant status.
Sec. 504. Confidentiality of information.
Sec. 505. Aliens not subject to direct numerical limitations.
Sec. 506. Employer protections.
Sec. 507. Assignment of Social Security number.
Subtitle B--Implementation
Sec. 508. Rulemaking.
Sec. 509. Exemption from government contracting and hiring rules.
Sec. 510. Authority to acquire leaseholds.
Sec. 511. Privacy and civil liberties.
Sec. 512. Statutory construction.
Subtitle C--Miscellaneous
Sec. 513. Correction of Social Security records.
Sec. 514. Fraud prevention program.
Sec. 515. Data collection requirements.
Subtitle D--Dream Act
Sec. 520. Short title.
Sec. 521. Definitions.
Sec. 522. Restoration of State option to determine residency for
purposes of higher education benefits.
Sec. 523. Cancellation of removal and adjustment of status of certain
long-term residents who entered the United
States as children.
Sec. 524. Conditional permanent resident status.
Sec. 525. Retroactive benefits under this subtitle.
Sec. 526. Exclusive jurisdiction.
Sec. 527. Penalties for false statements in application.
Sec. 528. Confidentiality of information.
Sec. 529. Expedited processing of applications; prohibition on fees.
Sec. 530. Higher education assistance.
Sec. 531. GAO report.
Subtitle E--Funding for the Department of Homeland Security
Sec. 540. Effective funding.
TITLE VI--IMMIGRANT INTEGRATION AND OTHER REFORMS
Subtitle A--Strengthen and Unite Communities With Civics Education and
English Skills
Chapter 1--Expanding English Literacy, United States History, and
Civics Education
Sec. 601. Increased investment in English literacy, United States
history, and civics education under the
Adult Education and Family Literacy Act.
Sec. 602. Definitions of English language learner.
Sec. 603. Credits for teachers of English language learners.
Sec. 604. Research in adult education.
Chapter 2--Supporting English Language Acquisition and Adult Education
in the Workforce
Sec. 611. Credit for employer-provided adult English literacy and basic
education programs.
Sec. 612. Presidential award for business leadership in promoting
United States citizenship.
Chapter 3--Building Stronger Communities
Sec. 621. Office of Citizenship and New Americans.
Sec. 622. Grants to States.
Sec. 623. Authorized activities.
Sec. 624. Reporting and evaluation.
Sec. 625. New citizens award program.
Sec. 626. Rule of construction.
Sec. 627. Authorization of appropriations.
Chapter 4--Grants
Sec. 631. Grants to support public education and community training.
Sec. 632. Grant program to assist applicants for naturalization.
Subtitle B--Emergency Relief for Certain Populations
Sec. 641. Adjustment of status for certain Haitian orphans.
Sec. 642. Adjustment of status for certain Liberian nationals.
Subtitle C--Wartime Treatment Studies
PART I--Commission on Wartime Treatment of European Americans
Sec. 651. Findings.
Sec. 652. Definitions.
Sec. 653. Establishment of commission on wartime treatment of european
americans.
Sec. 654. Duties of the European American Commission.
Sec. 655. Powers of the European American Commission.
Sec. 656. Administrative provisions.
Sec. 657. Authorization of appropriations.
Sec. 658. Sunset.
PART II--Commission on Wartime Treatment of Jewish Refugees
Sec. 661. Establishment of Commission on Wartime Treatment of Jewish
Refugees.
Sec. 662. Duties of the Jewish Refugee Commission.
Sec. 663. Powers of the Jewish Refugee Commission.
Sec. 664. Administrative provisions.
Sec. 665. Authorization of appropriations.
Sec. 666. Sunset.
PART III--Funding Source for the Wartime Studies
Sec. 671. Funding source.
Subtitle D--State Court Interpreter Grant Program
Sec. 681. Findings.
Sec. 682. State court interpreter program.
Sec. 683. Authorization of appropriations.
Subtitle E--Other Matters
Sec. 691. Adjustment of status for certain victims of terrorism.
Sec. 692. Development of assessment and strategy addressing factors
driving migration.
Sec. 693. Sense of Congress on increased United States foreign policy
coherency in the Western Hemisphere.
SEC. 2. REFERENCES TO IMMIGRATION AND NATIONALITY ACT.
Except as otherwise expressly provided, whenever in this Act an
amendment or repeal is expressed in terms as an amendment to, or repeal
of, a section or other provision, the reference shall be considered to
be made to a section or other provision of the Immigration and
Nationality Act.
SEC. 3. DEFINITIONS.
In this Act:
(1) Department.--The term ``Department'' means the
Department of Homeland Security.
(2) Northern border.--The term ``Northern border'' means
the international land border between the United States and
Canada.
(3) Secretary.--The term ``Secretary'' means the Secretary
of Homeland Security.
(4) Southern border.--The term ``Southern border'' means
the international land border between the United States and
Mexico.
TITLE I--BORDER ENFORCEMENT
Subtitle A--Additional Assets and Resources
SEC. 101. EFFECTIVE DATE TRIGGERS.
(a) In General.--Notwithstanding any effective date provision or
any other law, an alien in lawful prospective immigrant status may not
adjust status to the status of an alien lawfully admitted for permanent
residence under section 502 until--
(1) the Secretary submits a written certification to the
President and Congress that the measures described in
subsection (b) are established, funded, and operational; and
(2) the Attorney General submits a written certification to
the President and Congress that each of the measures described
in subsection (c) are established, funded, and operational.
(b) Measures by Department of Homeland Security.--The measures
described in this subsection are established, funded, and operational
if--
(1) United States Immigration and Customs Enforcement (ICE)
has--
(A) a total force of 6,410 agents to investigate
violations of criminal law, including document and
benefit fraud and the cross-border smuggling of aliens,
firearms, narcotics, and other contraband;
(B) a total force of 185 worksite enforcement
auditors to support a worksite enforcement strategy
that prioritizes developing cases against employers
committing serious violations;
(C) created and staffed an Immigration Benefit and
Document Fraud Task Force in each field office headed
by a Special Agent in Charge;
(D) a nationwide plan with benchmarks to
dramatically increase the nationwide enrollment of an
alternatives to detention program that utilizes
community-based nonprofit organizations; and
(E) implemented civil detention standards with
which each facility detaining immigrants is required to
comply;
(2) United States Customs and Border Protection (CBP) has--
(A) a total force of 21,000 United States Border
Patrol agents who have been hired, trained, and have
reported for duty, including increased numbers of
personnel who conduct inspections for drugs,
contraband, and immigrants who are unlawfully present
at ports of entry in the United States;
(B) a total force of 21,500 officers who have been
hired, trained, and have reported for duty at the
Office of Field Operations;
(C) 7 unmanned aircraft systems deployed and
operational;
(D) remote video surveillance systems deployed and
operational at 300 sites;
(E) 200 scope trucks; and
(F) 56 mobile surveillance systems.
(3) the employment verification system established under
title III is fully operational and mandatory for all employers;
and
(4) the Secretary has received, and is processing and
adjudicating in a timely manner, applications under title 5,
including conducting all necessary background and security
checks required under such title.
(c) Measures by Department of Justice.--The measures described in
this subsection are established, funded, and operational if the
Department of Justice has--
(1) 300 Assistant United States Attorneys in place who
prosecute criminal violations at the border; and
(2) 275 Immigration Judges in place with appropriate
support staff.
SEC. 102. CUSTOMS AND BORDER PROTECTION PERSONNEL.
(a) Staff Enhancements.--
(1) Revisions to fiscal year allocations and funding.--
Title II of the Department of Homeland Security Appropriations
Act, 2010 (Public Law 111-83), is amended by inserting
``Provided further, That of the total amount provided,
$40,000,000 shall be used to pay the salaries and related
compensation for 250 additional Customs and Border Protection
officers and 25 associated support staff personnel, who shall
be devoted to new inspection lanes at new land ports of entry
on the Southwest border'' before the period at the end of the
first paragraph.
(2) New personnel.--In addition to positions authorized
before the date of the enactment of this Act and any officer
vacancies within United States Customs and Border Protection on
such date, the Secretary shall hire, train, and assign to duty,
not later than September 30, 2013--
(A) 2,500 full-time Customs and Border Protection
officers to serve on all primary, secondary, incoming,
and outgoing inspection lanes and enforcement teams at
United States land ports of entry on the Northern
border;
(B) 2,500 full-time Customs and Border Protection
officers to serve on all primary, secondary, incoming,
and outgoing inspection lanes and enforcement teams at
United States land ports of entry on the Southern
border; and
(C) 350 full-time support staff for all United
States ports of entry.
(b) Waiver of FTE Limitation.--The Secretary may waive any
limitation on the number of full-time equivalent personnel assigned to
the Department in order to fulfill the requirements under subsection
(a).
(c) Report to Congress.--
(1) Outbound inspections.--Not later than 90 days after the
date of the enactment of this Act, the Secretary shall submit a
report containing the Department's plans for ensuring the
placement of sufficient United States Customs and Border
Protection officers on outbound inspections at all Southern
border land ports of entry to--
(A) the Committee on the Judiciary of the Senate;
(B) the Committee on the Judiciary of the House of
Representatives;
(C) the Committee on Homeland Security and
Governmental Affairs of the Senate; and
(D) the Committee on Homeland Security of the House
of Representatives.
(2) Agricultural specialists.--Not later than 90 days after
the date of the enactment of this Act, the Secretary, in
consultation with the Secretary of Agriculture, shall submit a
report to the committees set forth in paragraph (1) that
contains plans for ensuring the placement of sufficient
agriculture specialists at all Southern border land ports of
entry.
(d) Retention Incentives and Salaries.--
(1) Retention payments.--During the 6-year period beginning
on October 1, 2010, the Secretary may make incentive payments
in an amount equal to between $5,000 and $10,000 to qualified
United States Customs and Border Protection port of entry
officers, to the extent necessary to retain such officers. Not
more than $55,000,000 in retention payments may be paid under
this paragraph.
(2) Special rules for incentive payments.--
(A) Retention incentives.--Each payment made under
paragraph (1)--
(i) shall be paid to each qualified
employee, in a lump sum, at the end of the
fiscal year in which the employee is selected
by the Secretary, or a delegate of the
Secretary, to receive such payment;
(ii) may not be limited solely to work
performance, but may be based on criteria such
as--
(I) comparative salaries for law
enforcement officers in other Federal
agencies;
(II) costs for replacement and
training of a new employee; and
(III) volume of work at the port of
entry;
(iii) shall be contingent upon the selected
employee signing an agreement, under penalty of
perjury, to continue serving as a United States
Customs and Border Protection officer at a land
port of entry for at least 3 additional years;
and
(iv) shall be subject to reimbursement if
the employee fails to complete the 3-year
service requirement described in clause (iii)
due to voluntary or involuntary separation from
service.
(B) Limitations.--
(i) Fiscal years 2011 through 2015.--In
each of the fiscal years 2011 through 2015, the
Secretary may not make more than 500 incentive
payments under this subsection.
(ii) Eligibility.--Any employee who
receives a retention incentive payment under
this subsection in a fiscal year shall not be
eligible to receive another such payment until
the employee completes at least 2 years of
service with the Department after receiving
such payment.
SEC. 103. SECURE COMMUNICATION; EQUIPMENT; AND GRANTS FOR BORDER
PERSONNEL.
(a) Secure Communication.--The Secretary shall ensure that each
United States Customs and Border Protection officer is equipped with a
secure 2-way communication and satellite-enabled device, supported by
system interoperability, which allows such officers to communicate--
(1) between ports of entry and inspection stations; and
(2) with other Federal, State, local, and tribal law
enforcement entities.
(b) Border Area Security Initiative Grant Program.--
(1) In general.--The Secretary shall establish a program
for awarding grants for the purchase of detection equipment at
land ports of entry and mobile, hand-held, 2-way communication
devices for State and local law enforcement officers serving on
the Southern border.
(2) Authorization of appropriations.--There is authorized
to be appropriated, for the 6-year period beginning on October
1, 2011, $30,000,000, which shall be used for grants authorized
under paragraph (1).
SEC. 104. INFRASTRUCTURE IMPROVEMENTS AND EXPANSION OF LAND PORTS OF
ENTRY.
(a) Amendments to American Recovery and Reinvestment Act of 2009.--
Title VI of the American Recovery and Reinvestment Act of 2009 (Public
Law 111-5), under the heading entitled ``Construction'' is amended--
(1) by striking ``U.S. Customs and Border Protection
owned''; and
(2) by inserting ``Provided further, That $300,000,000
shall be used for infrastructure improvements, expansion, and
new construction (or reimbursement for new construction costs
incurred during fiscal years 2007 through 2012) of high-volume
ports of entry along the Northern border and the Southern
border, regardless of port ownership'' before the period at the
end.
(b) Effective Date.--The amendments made under subsection (a) shall
take effect as if included in the American Recovery and Reinvestment
Act of 2009, as of the date of the enactment of such Act.
SEC. 105. ADDITIONAL AUTHORITIES FOR PORT OF ENTRY CONSTRUCTION.
(a) In General.--In order to aid in the enforcement of Federal
customs, immigration, and agriculture laws, the Commissioner of U.S.
Customs and Border Protection Commissioner may--
(1) design, construct, and modify land ports of entry and
other structures and facilities, including living quarters for
officers, agents, and personnel;
(2) acquire, by purchase, donation, exchange, or otherwise,
land or any interest in land determined to be necessary to
carry out the Commissioner's duties under this section; and
(3) construct additional ports of entry along the Southern
border and the Northern border.
(b) Consultation.--
(1) Locations for new ports of entry.--The Secretary shall
consult with the Secretary of the Interior, the Secretary of
Agriculture, the Secretary of State, the International Boundary
and Water Commission, the International Joint Commission, and
appropriate representatives of States, local governments,
Indian tribes (as defined in section 4 of the Indian Self-
Determination and Education Assistance Act (25 U.S.C. 450b)),
and property owners to--
(A) determine locations for new ports of entry; and
(B) minimize adverse impacts from such ports on the
environment, historic and cultural resources, commerce,
and quality of life for the communities and residents
located near such ports.
(2) Savings provision.--Nothing in this subsection may be
construed--
(A) to create any right or liability of the parties
described in paragraph (1);
(B) to affect the legality and validity of any
determination under this Act by the Secretary; or
(C) to affect any consultation requirement under
any other law.
SEC. 106. ADDITIONAL INCREASES IN IMMIGRATION ENFORCEMENT PERSONNEL.
(a) Immigration and Customs Enforcement Investigators.--Section
5203 of the Intelligence Reform and Terrorism Prevention Act of 2004
(Public Law 108-458; 118 Stat. 3734) is amended by striking ``800'' and
inserting ``1000''.
(b) Additional Personnel.--In addition to the positions authorized
under section 5203 of the Intelligence Reform and Terrorism Prevention
Act of 2004, as amended by paragraph (1), during each of the fiscal
years 2011 through 2015, the Secretary shall, subject to the
availability of appropriations, increase by not less than 50 the number
of positions for personnel within the Department assigned to
investigate alien smuggling.
(c) Authorization of Appropriations.--There are authorized to be
appropriated to the Secretary such sums as may be necessary for each of
the fiscal years 2011 through 2015 to carry out this section.
SEC. 107. ADDITIONAL IMMIGRATION COURT PERSONNEL.
(a) Department of Justice.--
(1) Litigation attorneys.--In each of fiscal years 2011
through 2015, the Attorney General shall, subject to the
availability of appropriations for such purpose, increase by
not less than 50 the number of positions for attorneys in the
Office of Immigration Litigation of the Department of Justice.
(2) Immigration judges.--In each of fiscal years 2011
through 2015, the Attorney General shall, subject to the
availability of appropriations for such purpose--
(A) increase by not less than 20 the number of
full-time immigration judges compared to the number of
such positions for which funds were made available
during the preceding fiscal year; and
(B) increase by not less than 80 the number of
positions for personnel to support the immigration
judges described in subparagraph (A) compared to the
number of such positions for which funds were made
available during the preceding fiscal year.
(3) Staff attorneys.--In each of fiscal years 2011 through
2015, the Attorney General shall, subject to the availability
of appropriations for such purpose--
(A) increase by not less than 10 the number of
positions for full-time staff attorneys in the Board of
Immigration Appeals compared to the number of such
positions for which funds were made available during
the preceding fiscal year; and
(B) increase by not less than 10 the number of
positions for personnel to support the staff attorneys
described in subparagraph (A) compared to the number of
such positions for which funds were made available
during the preceding fiscal year.
(4) Authorization of appropriations.--There are authorized
to be appropriated to the Attorney General for each of the
fiscal years 2011 through 2015 such sums as may be necessary to
carry out this subsection, including the hiring of necessary
support staff.
SEC. 108. IMPROVED TRAINING FOR BORDER SECURITY AND IMMIGRATION
ENFORCEMENT OFFICERS.
The Secretary shall ensure that Customs and Border Protection
agents, U.S. Border Patrol agents, Immigration and Customs Enforcement
agents, and Agricultural Inspectors stationed within 100 miles of any
land or marine border of the United States or at any United States port
of entry receive appropriate training, prepared in collaboration with
the Office for Civil Rights and Civil Liberties, in--
(1) identifying and detecting fraudulent travel documents;
(2) civil, constitutional, and privacy rights of
individuals;
(3) limitations on the use of force, including lethal
force, against individuals apprehended or encountered while on
duty; and
(4) screening, identifying, and addressing vulnerable
populations, including children, victims of crime and human
trafficking, and individuals fleeing persecution or torture.
SEC. 109. STANDARDS OF PROFESSIONAL CONDUCT.
(a) Establishment of Standards.--Not more than 90 days after the
date of the enactment of this Act, the Secretary shall establish clear
standards of professional conduct for interaction with the public, for
all United States Customs and Border Protection agents, United States
Border Patrol agents, United States Immigration and Customs Enforcement
agents, and Agricultural Inspectors stationed within 100 miles of any
land or marine border of the United States or at a United States port
of entry.
(b) Standards.--Agents of the Department who are stationed within
100 miles of any land or marine border of the United States or at a
United States port of entry--
(1) may not violate any law or any agency policy, rule, or
procedure;
(2) shall obey all lawful orders;
(3) may not engage in any on-duty or off-duty conduct or
activities that discredit on the agents, bring the agency into
disrepute, or impair its efficient and effective operation;
(4) shall conduct themselves toward the public in a civil
and professional manner that demonstrates a service orientation
and fosters public respect and cooperation;
(5) shall treat violators and perceived violators with
respect and courtesy;
(6) shall refrain from an officious or overbearing attitude
or language that belittles, ridicules, or intimidates
individuals;
(7) may not unnecessarily delay the performance of their
duty;
(8) shall respect the civil rights and protect the well-
being of those in their charge, while adhering to their
agency's use-of-force policy and recognizing the need to
demonstrate authority and control over suspects and detainees;
(9) may not use their authority as Federal agents to
resolve personal grievances, including those involving the
officer, family members, relatives, or friends; and
(10) shall summon other on-duty personnel and a supervisor
if the agent's personal involvement with a member of the public
would reasonably require law enforcement intervention.
(c) Oversight and Evaluation.--The Secretary shall develop and
implement an officer evaluation and supervisor evaluation plan that
applies the standards described in subsection (b), ensures agent
responsibility, and protects civil rights by--
(1) making adherence to the standards of professional
conduct a requirement for promotion from probationary to
journeyman status and as a central criterion in periodic
evaluations and further promotions of officers;
(2) holding managers and senior officers responsible for--
(A) performance according to these standards;
(B) assessments of subordinates according to these
standards; and
(C) performance of their subordinates on these
standards, with meaningful penalties to supervisors for
failures of subordinates to adhere to such standards;
(3) establishing strong penalties for failures to follow
the standards of professional conduct; and
(4) not indemnifying agents that violate the civil rights
standards to which they are required to comply.
(d) Limitation.--The standards of conduct set forth in this section
are not an exhaustive treatment of requirements, limitations, or
prohibitions on agent conduct and activities established by the
Secretary.
(e) Notice.--The standards of conduct established under this
section shall be posted at all ports of entry in locations easily
viewed by members of the public.
(f) Complaints.--Not more than 180 days after the date of the
enactment of this Act, the Secretary, in consultation with the Office
for Civil Rights and Civil Liberties, shall establish a uniform and
standardized procedure for the public regarding complaints against U.S.
Customs and Border Protection agents, U.S. Border Patrol agents, and
Agricultural Inspectors for violations of standards of professional
conduct that--
(1) requires such agents and inspectors to quickly review,
effectively investigate, and meaningfully resolve complaints;
(2) identifies patterns of abuse or malfeasance;
(3) is accessible, transparent, consistent, effective, and
fair;
(4) is uniformly applied to all Border Patrol Sectors and
Ports of Entry;
(5) specifies to whom, how, and where complaints are to be
filed;
(6) is posted in a publicly visible place at all ports of
entry and interior checkpoints and is accessible in multiple
languages;
(7) allocates a sufficient percentage of the funding
appropriated to the Department for enforcement initiatives to
provide staff and resources commensurate with the quantity of
complaints submitted;
(8) includes a publicly accessible national, standardized
database capable of tracking and analyzing complaints and their
resolution; and
(9) makes copies of complaints and their resolutions
publicly accessible and permanently preserved and available for
inspection, while maintaining the confidentiality of
complainants' identities.
(g) Complainants.--
(1) Eligible complainants.--Any interested party or legal
representative may file a complaint against the Department for
violation of standards of professional conduct through the
complaint procedure established under subsection (f).
(2) Retaliation.--Law enforcement officers may not engage
in any action against a complainant in retaliation for filing a
complaint under paragraph (1).
(3) Limitation on use of information.--A United States
employee may not--
(A) use any information received from a complaint
filed under this section to initiate removal
proceedings or removals against any person filing the
complaint or identified in the complaint; or
(B) remove any individual involved in a complaint
filed under this section while the complaint is
pending.
(4) Publication.--Information from the complaint that
relates to a specific individual involved in a complaint may
not be published if it would result in the identification of
the individual.
(5) Department assistance.--The Department shall provide
assistance to complainants seeking to file complaints under
this subsection, including language assistance, accommodations
for disabilities, and accurate and complete responses to their
questions.
(h) Annual Report.--
(1) In general.--The Secretary shall submit an annual
report to the congressional committees set forth in paragraph
(2) that describes--
(A) the number and type of complaints received in
each sector;
(B) demographic information about the complainants;
(C) the results of the investigations conducted to
determine whether the alleged violations of
professional standards occurred, including--
(i) which standards were violations of
standards;
(ii) any disciplinary actions taken; and
(iii) any complaint patterns that could be
prevented or reduced by policy or practice
changes.
(2) Congressional committees.--The congressional committees
set forth in this paragraph are--
(A) the Committee on Homeland Security and
Governmental Affairs of the Senate;
(B) the Committee on the Judiciary of the Senate;
(C) the Committee on Homeland Security of the House
of Representatives;
(D) the Committee on the Judiciary of the House of
Representatives; and
(E) the Committee on Oversight and Government
Reform of the House of Representatives.
SEC. 110. INVENTORY OF ASSETS AND PERSONNEL.
(a) Inventory.--The Secretary shall identify and inventory--
(1) the assets, equipment, supplies, and other physical
resources dedicated to border security and enforcement before
any of the increases authorized under this Act; and
(2) the personnel and other human resources dedicated to
border security and enforcement before any of the increases in
personnel and other human resources authorized under this Act.
(b) Report.--Not later than 90 days after the date of the enactment
of this Act, the Secretary shall submit the inventory required under
subsection (a) to the congressional committees set forth in section
108(h)(2).
SEC. 111. CUSTOMS BORDER PATROL AND BORDER PROTECTION ASSETS.
(a) Personal Equipment.--
(1) Body armor.--The Secretary shall ensure that each
border patrol agent--
(A) is issued high-quality body armor that is
appropriate for the climate and risks faced by the
agent;
(B) is permitted to select body armor from among a
variety of approved brands and styles;
(C) is strongly encouraged, but not required, to
wear such body armor whenever practicable; and
(D) is issued replacement body armor not less
frequently than once every 5 years.
(2) Weapons.--The Secretary shall ensure that--
(A) border patrol agents are equipped with weapons
that are reliable and effective to protect themselves,
their fellow agents, and innocent third parties from
the threats posed by armed criminals; and
(B) ensure that the policies of the Department
authorize all agents to carry weapons that are suited
to the potential threats that they face.
(3) Uniforms.--The Secretary shall ensure that all agents
are provided, at no cost to such agents--
(A) all necessary uniform items, including
outerwear suited to the climate, footwear, belts,
holsters, and personal protective equipment; and
(B) replacement uniform items as such items become
worn or unserviceable or no longer fit properly.
(b) Helicopters and Power Boats.--
(1) Helicopters.--The Secretary shall--
(A) conduct a review of the helicopters needed by
the Border Patrol;
(B) if the Secretary determines that the number of
helicopters is insufficient, increase the number of
helicopters under the control of the Border Patrol; and
(C) ensure that appropriate types of helicopters
are procured for the various missions being performed.
(2) Power boats.--The Secretary shall--
(A) conduct a review of the power boats needed by
the Border Patrol;
(B) if the Secretary determines that the number of
power boats is insufficient, increase the number of
power boats under the control of the Border Patrol; and
(C) ensure that the types of power boats that are
procured are appropriate for the waterways in which
they are used and the mission requirements.
(3) Use and training.--The Secretary shall--
(A) establish a standard policy on the use of the
helicopters and power boats procured under this
subsection; and
(B) implement training programs for the Border
Patrol agents who use such assets, including safe
operating procedures and rescue operations.
(c) Motor Vehicles.--
(1) Quantity.--The Secretary shall--
(A) conduct a review of the motor vehicles needed
by the Border Patrol;
(B) if the Secretary determines that the number of
motor vehicles is insufficient, establish a fleet of
motor vehicles appropriate for use by the Border
Patrol; and
(C) ensure that there are sufficient numbers and
types of other motor vehicles to support the mission of
the Border Patrol.
(2) Features.--All motor vehicles purchased for the Border
Patrol shall--
(A) be appropriate for the mission of the Border
Patrol; and
(B) have a panic button and a global positioning
system device that is activated solely in emergency
situations to track the location of agents in distress.
(d) Electronic Equipment.--
(1) Portable computers.--The Secretary shall ensure that
each police-type motor vehicle in the fleet of the Border
Patrol--
(A) is equipped with a portable computer with
access to all necessary law enforcement databases; and
(B) is otherwise suited to the unique operational
requirements of the Border Patrol.
(2) Radio equipment.--The Secretary shall augment the radio
communications system of the Border Patrol so that--
(A) all law enforcement personnel working in each
area where Border Patrol operations are conducted have
clear and encrypted 2-way radio communication
capabilities at all times; and
(B) each portable communications device is equipped
with a panic button and a global positioning system
device that is activated solely in emergency situations
to track the location of agents in distress.
(3) Handheld global positioning system devices.--If the
Secretary determines that a class of Border Patrol agents each
need a handheld global positioning system device to effectively
and safely carry out his or her duties, the Secretary shall
ensure that each such agent is issued a state-of-the-art
handheld global positioning system device for navigational
purposes.
(4) Night vision equipment.--The Secretary shall ensure
that sufficient quantities of state-of-the-art night vision
equipment are procured and maintained to enable each Border
Patrol agent working during the hours of darkness to be
equipped with a portable night vision device.
(e) Appropriations.--There are authorized to be appropriated to the
Secretary such sums as may be necessary for each of fiscal years 2011
through 2015 to carry out this section.
SEC. 112. TECHNOLOGICAL ASSETS.
(a) Acquisition.--Subject to the availability of appropriations for
such purpose, the Secretary shall procure additional unmanned aerial
systems, aircrafts, cameras, poles, ground sensors, and other
technologies necessary to achieve effective control of the land and
maritime borders of the United States.
(b) Unmanned Aircraft and Associated Infrastructure.--The Secretary
shall acquire and maintain unmanned aerial systems for use on the
border, including related equipment such as--
(1) additional sensors;
(2) critical spares;
(3) satellite command and control; and
(4) other necessary equipment for operational support.
(c) Privacy and Civil Liberties Assessments.--The Secretary, in
consultation with the Attorney General, shall conduct a privacy impact
assessment and a civil liberties impact assessment before the
deployment of new technologies under this section.
(d) Authorization of Appropriations.--
(1) There are authorized to be appropriated to the
Secretary such sums as may be necessary for each of the fiscal
years 2011 through 2015 to carry out subsections (a) and (b).
(2) Availability of funds.--Amounts appropriated pursuant
to paragraph (1) shall remain available until expended.
SEC. 113. SURVEILLANCE TECHNOLOGIES PROGRAMS.
(a) Aerial Surveillance Program.--
(1) In general.--In conjunction with the border
surveillance plan developed under section 5201 of the
Intelligence Reform and Terrorism Prevention Act of 2004 (8
U.S.C. 1701 note) and subject to the availability of
appropriations for such purpose, the Secretary shall continue
to fully integrate and utilize aerial surveillance
technologies, including unmanned aerial systems, that the
Secretary determines to be necessary to enhance the security of
the border between the United States and Canada and the border
between the United States and Mexico.
(2) Assessment and consultation requirements.--The
Secretary shall--
(A) consider current and proposed aerial
surveillance technologies;
(B) assess the feasibility and advisability of
utilizing such technologies to address border threats,
including an assessment of the technologies considered
best suited to address respective threats;
(C) consult with the Secretary of Defense regarding
any technologies or equipment which the Secretary may
deploy along a border of the United States;
(D) consult with the Administrator of the Federal
Aviation Administration regarding safety, airspace
coordination and regulation, and any other issues
necessary for implementation of the program;
(E) consult with the Secretary of State with
respect to any foreign policy or international law
implications relating to the implementation or conduct
of the program; and
(F) conduct a privacy impact assessment and civil
liberties impact assessment before the deployment of
the new technologies under this subsection.
(3) Evaluation of technologies.--The aerial surveillance
program authorized under this subsection shall include the use
of a variety of aerial surveillance technologies in a variety
of topographies and areas, including populated and unpopulated
areas located on or near the international border of the United
States, to evaluate, for a range of circumstances--
(A) the significance of previous experiences with
such technologies in border security or critical
infrastructure protection;
(B) the cost and effectiveness of various
technologies for border security, including varying
levels of technical complexity; and
(C) liability, safety, civil liberties, and privacy
concerns relating to the utilization of such
technologies for border security.
(4) Additional reviews.--In accordance with sections 222
and 705 of the Homeland Security Act of 2002 (6 U.S.C. 142 and
345), the Chief Privacy Officer and the Officer for Civil
Rights and Civil Liberties shall conduct additional reviews, as
necessary.
(5) Continued use of aerial surveillance technologies.--The
Secretary may continue the operation of aerial surveillance
technologies in use as of the date of the enactment of this Act
while assessing the effectiveness of the utilization of such
technologies.
(6) Authorization of appropriations.--There are authorized
to be appropriated such sums as may be necessary for each of
the fiscal years 2011 through 2015 to carry out this
subsection.
(b) Integrated and Automated Surveillance Program.--
(1) Requirement for program.--Subject to the availability
of appropriations, the Secretary shall establish a program to
procure additional unmanned aerial systems, cameras, poles,
sensors, satellites, radar coverage, and other technologies
necessary--
(A) to achieve effective control of the Northern
border and the Southern border; and
(B) to establish a security perimeter known as a
``virtual fence'' along such international borders to
provide a barrier to unauthorized immigration.
(2) Program components.--In carrying out the program under
this subsection, the Secretary, to the maximum extent feasible,
shall--
(A) utilize integrated technologies that function
cohesively in an automated fashion;
(B) use a standard process to collect, catalog, and
report intrusion and response data collected under the
program;
(C) ensure that future surveillance technology
investments and upgrades for the program can be
integrated with existing systems;
(D) develop and apply performance measures to
evaluate whether the program is providing desired
results by increasing response effectiveness in
monitoring and detecting unauthorized intrusions along
the Northern border and the Southern border;
(E) develop plans, in accordance with relevant
environmental laws, to streamline site selection, site
validation, and environmental assessment processes to
minimize delays of installing surveillance technology
infrastructure;
(F) develop standards to expand the shared use of
existing private and governmental structures to install
remote surveillance technology infrastructure to the
extent possible; and
(G) develop standards to identify and deploy the
use of nonpermanent or mobile surveillance platforms
that will increase the Secretary's mobility and ability
to identify unauthorized border intrusions.
(3) Authorization of appropriations.--There are authorized
to be appropriated such sums as may be necessary for each of
the fiscal years 2011 through 2015 to carry out this
subsection.
Subtitle B--Enhanced Coordination and Planning for Border Security
SEC. 121. ANNUAL REPORT ON IMPROVING NORTH AMERICAN SECURITY
INFORMATION EXCHANGE.
(a) Requirement for Reports.--Not later than 1 year after the date
of the enactment of this Act, and annually thereafter, the Secretary of
State, in coordination with the Secretary and the heads of other
appropriate Federal agencies, shall submit a report to Congress that
describes the progress made during the most recent 12-month period in
improving the effectiveness with which information relating to North
American security is exchanged between the Governments of the United
States, of Canada, and of Mexico.
(b) Contents.--
(1) Security clearances and document integrity.--Each
report submitted under subsection (a) shall describe the
development of common enrollment, security, technical, and
biometric standards for the issuance, authentication,
validation, and repudiation of secure documents, including--
(A) technical and biometric standards based on best
practices and consistent with international standards
for the issuance, authentication, validation, and
repudiation of travel documents, including--
(i) passports;
(ii) visas; and
(iii) permanent resident cards;
(B) the joint efforts of the United States, Canada,
and Mexico to encourage foreign governments to enact
laws that--
(i) combat alien smuggling and trafficking;
and
(ii) forbid the use and manufacture of
fraudulent travel documents; and
(C) efforts made to ensure that other countries
meet proper travel document standards and are committed
to travel document verification before the nationals of
such countries travel internationally, including travel
to the United States.
(2) Immigration and visa management.--Each report submitted
under subsection (a) shall describe the progress made in
sharing information regarding high-risk individuals who attempt
to enter Canada, Mexico, or the United States, including--
(A) implementing the Statement of Mutual
Understanding on Information Sharing, signed by Canada
and the United States in February 2003; and
(B) identifying and analyzing trends related to
immigration fraud, including asylum and document fraud.
(3) Visa policy coordination and immigration security.--
Each report submitted under subsection (a) shall describe the
progress made by Canada, Mexico, and the United States to
enhance North American security by cooperating on visa policy
and identifying best practices regarding immigration security,
including--
(A) enhancing consultation among officials who
issue visas at the consulates or embassies of Canada,
Mexico, or the United States throughout the world to
share information, trends, and best practices on visa
flows;
(B) comparing the procedures and policies of Canada
and the United States related to visitor visa
processing, including--
(i) application process;
(ii) interview policy;
(iii) general screening procedures;
(iv) visa validity;
(v) quality control measures; and
(vi) access to appeal or review;
(C) exploring methods for Canada, Mexico, and the
United States to waive visa requirements for nationals
and citizens of the same foreign countries;
(D) developing and implementing an immigration
security strategy for North America that utilizes a
common security perimeter by enhancing technical
assistance for programs and systems to support advance
automated reporting and risk targeting of international
passengers;
(E) real-time sharing of information on lost and
stolen passports among immigration or law enforcement
officials of Canada, Mexico, and the United States; and
(F) collecting 10 fingerprints from each individual
who applies for a visa.
(4) North american visitor overstay program.--Each report
submitted under subsection (a) shall describe the progress made
by Canada and the United States in implementing parallel entry-
exit tracking systems that--
(A) respect the privacy laws of both countries; and
(B) share information regarding third country
nationals who have overstayed their period of
authorized admission in Canada or the United States.
(5) Terrorist watch lists.--Each report submitted under
subsection (a) shall describe the capacity of the United States
to combat terrorism through the coordination of
counterterrorism efforts, including--
(A) developing and implementing bilateral
agreements between Canada and the United States and
between Mexico and the United States--
(i) to govern the sharing of terrorist
watch list data; and
(ii) to comprehensively enumerate the uses
of such data by the governments of each
country;
(B) establishing appropriate linkages among Canada,
Mexico, and the United States Terrorist Screening
Center;
(C) establishing a multilateral watch list
mechanism that would facilitate direct coordination
between the country that identifies individuals on a
watch list and the country that owns such list,
including procedures that satisfy security concerns,
comply with privacy laws, and are consistent with the
other laws of each participating country; and
(D) establishing transparent standards and
processes that enable innocent individuals to remove
their names from a watch list.
(6) Money laundering, currency smuggling, and alien
smuggling.--Each report submitted under subsection (a) shall
describe improvements made in information sharing and law
enforcement cooperation in combating organized crime,
including--
(A) combating currency smuggling, money laundering,
alien smuggling, and trafficking in alcohol, firearms,
and explosives;
(B) determining the feasibility of formulating a
firearms trafficking action plan between Mexico and the
United States;
(C) developing a joint threat assessment on
organized crime between Canada and the United States;
(D) determining the feasibility of formulating a
joint threat assessment on organized crime between
Mexico and the United States;
(E) developing mechanisms to exchange information
on findings, seizures, and capture of individuals
transporting undeclared currency; and
(F) developing and implementing a plan to combat
the transnational threat of illegal drug trafficking.
(7) Law enforcement cooperation.--Each report submitted
under subsection (a) shall describe enhancements in law
enforcement cooperation among Canada, Mexico, and the United
States, including--
(A) enhanced technical assistance for the
development and maintenance of a national database
built upon identified best practices to identify
suspected criminals or terrorists;
(B) the feasibility of establishing law enforcement
teams that include personnel from the United States and
Mexico; and
(C) the appropriate procedures for such
multinational teams.
SEC. 122. COOPERATION WITH THE GOVERNMENT OF MEXICO.
(a) Cooperation Regarding Border Security.--The Secretary of State,
in cooperation with the Secretary and representatives of Federal,
State, and local law enforcement agencies that are involved in border
security and immigration enforcement efforts, shall work with
appropriate officials of the Government of Mexico to improve
coordination between the United States and Mexico to--
(1) improve border security along the international border
between the United States and Mexico;
(2) reduce human trafficking and smuggling between the
United States and Mexico;
(3) reduce drug trafficking and smuggling between the
United States and Mexico;
(4) reduce gang membership in the United States and Mexico;
(5) reduce violence against women in the United States and
Mexico; and
(6) reduce other violence and criminal activity.
(b) Cooperation Regarding Education on Immigration Laws.--The
Secretary of State, in cooperation with other appropriate Federal
officials, shall work with appropriate officials of the Government of
Mexico to educate citizens and nationals of Mexico regarding their
eligibility for nonimmigrant status in the United States to ensure that
such citizens and nationals are not exploited while working in the
United States.
(c) Cooperation Regarding Circular Migration.--The Secretary of
State, in cooperation with the Secretary of Labor and other appropriate
Federal officials, shall work with appropriate officials of the
Government of Mexico to encourage circular migration of citizens and
nationals of Mexico, including assisting in the development of economic
opportunities and the provision of job training for such citizens and
nationals.
(d) Consultation Requirement.--The Secretary, in cooperation with
State and local government officials in the United States, shall
cooperate with their counterparts in Mexico to enhance border security
structures along the international border between the United States and
Mexico, as authorized by this title, by--
(1) soliciting the views of affected communities;
(2) lessening tensions; and
(3) fostering greater understanding and stronger
cooperation on border security structures and other important
security issues of mutual concern.
(e) Annual Report.--Not later than 180 days after the date of the
enactment of this Act, and annually thereafter, the Secretary of State
shall submit a report to Congress that describes the actions taken by
the United States and Mexico under this section.
SEC. 123. ENHANCED INTERNATIONAL COOPERATION.
The Attorney General, in cooperation with the Secretary of State,
shall--
(1) assign agents of the Bureau of Alcohol, Tobacco,
Firearms, and Explosives to the United States mission in Mexico
to work with Mexican law enforcement agencies in conducting
investigations relating to firearms trafficking and other
criminal enterprises;
(2) provide the equipment and technological resources
necessary to support such investigations and to trace firearms
recovered in Mexico; and
(3) support the training of Mexican law enforcement
officers in serial number restoration techniques, canine
explosive detection, and anti-trafficking tactics.
SEC. 124. EXPANSION OF COMMERCE SECURITY PROGRAMS.
(a) Customs-trade Partnership Against Terrorism.--
(1) In general.--Not later than 180 days after the date of
enactment of this Act, the Commissioner, in consultation with
the Secretary, shall develop a plan to expand the programs of
the Customs-Trade Partnership Against Terrorism established
pursuant to section 211 of the SAFE Port Act (6 U.S.C. 961),
including adding additional personnel for such programs along
the Northern border and the Southern border.
(2) C-TPAT programs.--The programs referred to in paragraph
(1) include--
(A) the Business Anti-Smuggling Coalition;
(B) the Carrier Initiative Program;
(C) the Americas Counter Smuggling Initiative;
(D) the Container Security Initiative established
pursuant to section 205 of the SAFE Port Act (6 U.S.C.
945);
(E) the Free and Secure Trade Initiative; and
(F) other industry partnership programs
administered by the Commissioner.
(b) Demonstration Programs.--Not later than 180 days after the date
of enactment of this Act, the Commissioner shall--
(1) implement, on a demonstration basis, a Customs-Trade
Partnership Against Terrorism program, which has been
successfully implemented along the Northern border and along
the Southern border; and
(2) establish a demonstration program to develop a
cooperative trade security system to improve supply chain
security.
SEC. 125. NORTHERN AND SOUTHERN BORDER DRUG PROSECUTION INITIATIVE.
(a) Reimbursement to State and Local Prosecutors for Prosecuting
Federally Initiated Drug Cases.--Subject to the availability of
appropriations, the Attorney General shall reimburse State and county
prosecutors located in States along the Northern border or the Southern
border of the United States for prosecuting federally initiated and
referred drug cases.
(b) Authorization of Appropriations.--There are authorized to be
appropriated such sums as may be necessary for each of the fiscal years
2011 through 2015 to carry out subsection (a).
SEC. 126. PROJECT GUNRUNNER INITIATIVE.
(a) In General.--The Attorney General shall dedicate and expand the
resources provided for the Project Gunrunner Initiative of the Bureau
of Alcohol, Tobacco, Firearms, and Explosives (referred to in this
section as ``ATF'') to identify, investigate, and prosecute individuals
involved in the trafficking of firearms across the Southern border.
(b) Activities.--In carrying out this section, the Attorney General
shall--
(1) assign additional ATF agents to the area of the United
States adjacent to the Southern border to support the expansion
of Project Gunrunner teams;
(2) establish not fewer than 1 Project Gunrunner team in
each State along the Southern border; and
(3) coordinate with the heads of other relevant Federal law
enforcement agencies and State and local law enforcement
agencies to address firearms trafficking in a comprehensive
manner.
(c) Additional Staff.--The Attorney General may--
(1) hire additional ATF agents for Project Gunrunner; and
(2) utilize whatever additional resources are needed to
adequately support Project Gunrunner.
(d) Authorization of Appropriations.--There are authorized to be
appropriated $15,000,000 for each of the fiscal years 2011 and 2012 to
carry out this section.
SEC. 127. OPERATION STREAMLINE PROSECUTION INITIATIVE.
(a) Reporting Requirement.--Not later than 180 days after the date
of the enactment of this Act, the Secretary, in coordination with the
Attorney General, shall submit a report to the congressional committees
set forth in subsection (b) that describes--
(1) the operational goals and oversight mechanisms of
Operation Streamline and similar programs;
(2) the estimated costs of seeking Federal court
prosecution and jail time for all unauthorized entrants--
(A) before their referral to immigration court
removal proceedings; and
(B) who are initially referred to immigration
courts upon apprehension;
(3) the estimated costs for Federal resources to
effectively implement Operation Streamline in each Border
Patrol sector, including--
(A) sufficient judicial resources;
(B) Federal Public Defenders;
(C) United States Marshals;
(D) detention facilities;
(E) United States Attorneys; and
(F) other costs incurred in active areas;
(4) the impact of Operation Streamline on Federal
prosecutorial initiatives focused on curbing border violence,
including enhanced use of investigations and prosecutions for
money laundering or other financial offenses to disrupt--
(A) the illicit firearms trade;
(B) human smuggling; and
(C) cross-border drug and currency trafficking;
(5) the impact of Operation Streamline on discretionary
prosecutorial decisions;
(6) during the 3-year period ending on the date of the
enactment of this Act--
(A) the costs incurred for detentions,
prosecutions, and incarcerations for immigrant offenses
under Operation Streamline;
(B) the number of Federal prosecutions for drug
trafficking, human smuggling, white-collar crimes,
civil rights violations, environmental crimes, and
other criminal cases in areas utilizing Operation
Streamline initiatives; and
(C) the length of imprisonment, names, convictions,
and locations of prisons used to incarcerate
individuals arrested under Operation Streamline;
(7) the number of Federal convictions obtained under
Operation Streamline, including the number of convictions for
nonviolent immigration offenses;
(8) the rates of Federal prosecutions and convictions in
districts along the Southern border compared to such rates in
other districts; and
(9) interviews with criminal defense attorneys who have
represented defendants charged under Operation Streamline,
including--
(A) a review of the opportunity for arrestees to
consult with immigration attorneys before they are
convicted for immigration offenses; and
(B) the ratio of defendants to defense attorneys.
(b) Congressional Committees.--The congressional committees set
forth in the subsection are--
(1) the Committee on Appropriations of the Senate;
(2) the Committee on the Judiciary of the Senate;
(3) the Committee on Homeland Security and Governmental
Affairs of the Senate;
(4) the Committee on Appropriations of the House of
Representatives;
(5) the Committee on the Judiciary of the House of
Representatives; and
(6) the Committee on Homeland Security of the House of
Representatives.
(c) Evaluation.--Not later than 180 days after the submission of
the report under subsection (a), the Secretary, in coordination with
the Attorney General, shall--
(1) evaluate the future viability of Operation Streamline;
and
(2) determine whether to continue or terminate Operation
Streamline.
SEC. 128. BORDER RELIEF GRANT PROGRAM.
(a) Grants Authorized.--
(1) In general.--The Attorney General may award grants, on
a competitive basis, to--
(A) eligible law enforcement agencies or a
coalition of such agencies, including sheriff's
offices, police departments, and tribal police
departments; and
(B) institutions of higher education that provide
assistance to law enforcement agencies in counties
described in subparagraph (A) or (B) of subsection
(e)(1) to provide the resources described in subsection
(b)(4).
(2) Priority.--In awarding grants for the uses described in
paragraphs (1) through (3) of subsection (b), the Attorney
General shall give priority to law enforcement agencies--
(A) located in a county that is within 100 miles
from the Northern border or the Southern border; and
(B) that are in compliance with Federal and State
racial profiling laws and guidelines.
(3) Duration.--Grants awarded under this section may not
exceed 2 years.
(4) Subsequent grants.--A grantee desiring continued grant
funding after the expiration of the initial grant shall reapply
for such funding.
(5) Prohibition.--The Attorney General may not award a
grant under this section to any applicant that is under
investigation for a violation of Federal or State racial
profiling laws or guidelines.
(b) Use of Funds.--Grants awarded under this section may only be
used to provide--
(1) additional resources for eligible law enforcement
agencies to address drug-related criminal activity;
(2) training and technical assistance related to--
(A) narcotics-related kidnaping negotiation and
rescue tactics;
(B) intelligence and information sharing on drug
trafficking organizations; and
(C) the interdiction of narcotics, weapons, and
illegal drug proceeds;
(3) resources to combat criminal activities along the
Northern border and the Southern border by--
(A) obtaining, upgrading, or maintaining equipment;
(B) hiring additional personnel;
(C) reimbursing operational expenditures, including
overtime and transportation costs; and
(D) providing other assistance necessary to address
drug-related criminal activity;
(4) resources to facilitate information sharing and
collaboration by--
(A) establishing, maintaining, or enhancing multi-
jurisdictional intelligence gathering and sharing
activities;
(B) facilitating regional crime prevention and
reduction efforts; and
(C) strengthening partnerships between Federal,
State, tribal, and local law enforcement agencies; and
(5) resources to enhance jails, community corrections, and
detention operations by--
(A) improving the administration and operations of
correction functions related to reducing and preventing
criminal narcotics activity;
(B) improving access to intelligence and
collaboration between law enforcement and correctional
system personnel;
(C) reducing the recidivism rates of drug
offenders; and
(D) hiring detention, probation, parole, and other
corrections personnel for implementation of the efforts
described in this paragraph.
(c) Application.--
(1) In general.--Each eligible law enforcement agency or
coalition of such agencies seeking a grant under this section
shall submit an application to the Attorney General at such
time, in such manner, and accompanied by such information as
the Attorney General may reasonably require.
(2) Contents.--Each application submitted under paragraph
(1) shall--
(A) describe the activities for which assistance
under this section is sought;
(B) disclose whether the applicant has been
investigated for, or convicted of, a violation of
Federal or State racial profiling laws; and
(C) provide such additional assurances as the
Attorney General determines to be essential to ensure
compliance with the requirements under this section.
(d) Monitoring and Oversight.--
(1) In general.--Each grantee under this section shall
submit a report to the Attorney General that documents the use
of grant funds received under this section, including an
assessment of their utility in--
(A) protecting border community safety;
(B) preventing smuggling activities; and
(C) apprehending persons involved in violence and
organized crime.
(2) Use of information.--The Attorney General shall analyze
the information contained in the reports submitted under
paragraph (1) to determine whether the grantee--
(A) used grant funds appropriately; and
(B) should be considered for a renewal grant.
(e) Definitions.--In this section:
(1) Eligible law enforcement agency.--The term ``eligible
law enforcement agency'' means a State, tribal, or local law
enforcement agency, including a community corrections agency
and any agency that employs prosecutors, probation officers, or
parole officers, which is located or performs duties in--
(A) a county that is not more than 100 miles from a
United States border with Mexico;
(B) a county that is not more than 100 miles from a
United States border with Canada; or
(C) a jurisdiction that has been designated by the
Director of the Office of Drug Control Policy as a High
Intensity Drug Trafficking Area.
(2) High intensity drug trafficking area.--The term ``High
Intensity Drug Trafficking Area'' means any jurisdiction
designated as a ``High Intensity Drug Trafficking Area'' by the
National Drug Control Program under section 707 of the Office
of National Drug Control Policy Reauthorization Act of 1998 (21
U.S.C. 1706).
(f) Assessment and Report.--The Attorney General shall submit a
biannual report to the Committee on the Judiciary of the Senate and the
Committee on the Judiciary of the House of Representatives that
assesses--
(1) the success of the Border Relief Grant Program in
combating and reducing drug-trafficking and drug-related
criminal activity;
(2) the cost-effectiveness of the Program; and
(3) the future value and viability of the Program.
(g) Authorization of Appropriations.--
(1) In general.--There are authorized to be appropriated
$100,000,000 for each of the fiscal years 2011 through 2015 to
carry out this section.
(2) Allocation of authorized funds.--Of the amounts
appropriated pursuant to paragraph (1)--
(A) not more than 33 percent may be set aside for
High Intensity Drug Trafficking Areas; and
(B) not more than 30 percent may be used for
activities described in paragraphs (2) and (5) of
subsection (b).
(3) Supplement not supplant.--Amounts appropriated for
grants pursuant to paragraph (1) shall be used to supplement
and not to supplant other State, tribal, and local public funds
obligated for the purposes described in subsection (b).
SEC. 129. REPORT ON DEATHS AND STRATEGY STUDY.
(a) In General.--The Commissioner of the United States Customs and
Border Protection shall--
(1) collect statistics relating to deaths occurring at the
border between the United States and Mexico, including--
(A) the causes of the deaths; and
(B) the total number of deaths;
(2) publish the statistics collected under paragraph (1) on
a quarterly basis; and
(3) not later than 1 year after the date of the enactment
of this Act, and annually thereafter, submit a report to the
Secretary that--
(A) analyzes trends with respect to the statistics
collected under paragraph (1) during the preceding
year; and
(B) recommends actions to reduce and prevent the
deaths described in paragraph (1)(B).
(b) Southwest Border Strategy Study and Analysis.--
(1) In general.--The Secretary shall conduct a study of
Southwest Border Enforcement operations since 1994 and its
relationship to death rates on the border between the United
States and Mexico, including--
(A) an analysis of the relationship of border
enforcement and deaths on the border;
(B) an analysis of whether physical barriers,
technology, and enforcement programs have contributed
to the rate of migrant deaths;
(C) an analysis of the effectiveness of
geographical terrain as a natural barrier for entry
into the United States in achieving Department goals
and its role in contributing to rates of migrant
deaths;
(D) consultation with nongovernmental organizations
and other community stakeholders involved in recovering
and identifying migrant deaths; and
(E) an assessment of existing protocol related to
reporting, tracking, and inter-agency communications
between United States Customs and Border Protection and
local first responders and consular services.
(2) Report.--The study conducted under paragraph (1) shall
be submitted to--
(A) the United States-Mexico Border Enforcement
Commission established under section 129;
(B) the Committee on Homeland Security and
Governmental Affairs of the Senate;
(C) the Committee on the Judiciary of the Senate;
(D) the Committee on Homeland Security of the House
of Representatives;
(E) the Committee on the Judiciary of the House of
Representatives; and
(F) the Committee on Oversight and Government
Reform of the House of Representatives.
(c) Authorization of Appropriations.--There are authorized to be
appropriated such sums as may be necessary for each of the fiscal years
2011 through 2015 to carry out this section.
SEC. 130. IMMIGRATION AND UNITED STATES-MEXICO BORDER ENFORCEMENT
COMMISSION.
(a) Establishment of Commission.--
(1) In general.--There is established an independent
commission to be known as the Immigration and United States-
Mexico Border Enforcement Commission (referred to in this
section as the ``Commission'').
(2) Purposes.--The purposes of the Commission are--
(A) to study the overall enforcement strategies,
programs, and policies of Federal agencies along the
Southern border, including the Department, the
Department of Justice, and other relevant agencies;
(B) to strengthen relations and collaboration
between communities in the border regions and the
Department, the Department of Justice, and other
Federal agencies that carry out such strategies,
programs, and policies;
(C) to ensure that the strategies, programs, and
policies of Federal agencies along the Southern border
and the agents and employees charged to implement such
strategies, programs, and policies protect the due
process, civil, and human rights of all individuals and
communities at and near the Southern border; and
(D) to make recommendations to the President and
Congress with respect to such strategies, programs, and
policies.
(3) Membership.--
(A) In general.--The Commission shall be composed
of 16 voting members and 2 nonvoting members.
(B) Appointment of voting members.--The Governors
of the States of California, New Mexico, Arizona, and
Texas shall each appoint 4 voting members to the
Commission, of whom--
(i) 1 shall be a local elected official
from the State's border region;
(ii) 1 shall be a local law enforcement
official from the State's border region; and
(iii) 2 shall be from the State's
communities of academia, religious leaders,
civic leaders or community leaders.
(C) Appointment of nonvoting members.--The
Secretary and the Attorney General shall each appoint 1
nonvoting member to the Commission.
(4) Qualifications.--
(A) In general.--Members of the Commission shall
be--
(i) individuals with expertise in
migration, border enforcement and protection,
civil and human rights, community relations,
cross-border trade and commerce, or other
pertinent qualifications or experience; and
(ii) representative of a broad cross
section of perspectives from the region along
the Southern border.
(B) Political affiliation.--Not more than 2 members
of the Commission appointed by each Governor under
paragraph (3)(B) may be members of the same political
party.
(C) Nongovernmental appointees.--An individual
appointed as a voting member to the Commission may not
be an officer or employee of the Federal Government.
(5) Deadline for appointment.--All members of the
Commission shall be appointed not later than 6 months after the
date of the enactment of this Act. If any member of the
Commission described in paragraph (3)(A) is not appointed by
such date, the Commission shall carry out its duties under this
section without the participation of such member.
(6) Term of service.--Members of the Commission shall be
appointed for 3-year terms or for the life of the Commission,
whichever is shorter.
(7) Vacancies.--Any vacancy in the Commission shall not
affect its powers, but shall be filled in the same manner in
which the original appointment was made.
(8) Meetings.--
(A) Initial meeting.--The Commission shall meet and
begin the operations of the Commission as soon as
practicable.
(B) Subsequent meetings.--After its initial
meeting, the Commission shall meet upon the call of the
Chairman or a majority of its members.
(C) Outreach.--The Commission shall formulate and
implement an effective outreach strategy to border
communities.
(9) Quorum.--Nine members of the Commission shall
constitute a quorum.
(10) Chair and vice chair.--The voting members of the
Commission shall elect a Chairman and Vice Chairman from among
its members, who shall serve in such capacities for the life of
the Commission or until removed by the majority vote of a
quorum.
(11) Structure.--The Commission shall have a Federal,
regional, and local review structure, divided into 2
subcommittees, of which--
(A) 1 shall focus on border technology, equipment,
and infrastructure; and
(B) 1 shall focus on border and immigration
enforcement policies and programs.
(b) Duties.--The Commission shall review, examine, and make
recommendations regarding immigration and border enforcement policies,
strategies, and programs, including recommendations regarding--
(1) the compliance of the Department and other immigration
and border-related agencies with existing laws and regulations;
(2) the extent to which agency policies and practices
protect the civil rights of migrants and border community
residents, including policies and practices in the contexts of
engagement, detention, apprehension, use of force, definition
and use of reasonable suspicion and probable cause, and racial
profiling;
(3) the frequency, adequacy, and effectiveness of human and
civil rights training of border enforcement personnel and
others from Federal agencies who have contact with the public
near the Southern border;
(4) the extent to which--
(A) the complaint process is transparent and
accessible to the public;
(B) investigations are opened as necessary and are
effectively pursued; and
(C) complaints are resolved in a timely and
transparent manner;
(5) the effectiveness and capacity of agency oversight,
accountability, and management, including prevention and
disciplinary policies involving use of force, abuse,
malfeasance, corruption, and illegal activity;
(6) the effect of operations, technology, and enforcement
infrastructure along the Southern border on the--
(A) environment;
(B) cross border traffic and commerce;
(C) privacy rights and other civil liberties; and
(D) the quality of life of border communities;
(7) the extent to which State and local law enforcement
engage in the enforcement of Federal immigration law;
(8) the extent of compliance with due process standards and
equal protection of the law for immigrants and other
individuals at and near the Southern border;
(9) whether border policies and agencies are accomplishing
their stated goals; and
(10) any other matters regarding immigration and border
enforcement policies, strategies, and programs that the
Commission determines to be appropriate.
(c) Powers of Commission.--
(1) In general.--
(A) Hearings and evidence.--The Commission and any
subcommittee or member of the Commission authorized by
the Commission may, for the purpose of carrying out
this title--
(i) hold hearings, sit and act, take
testimony, receive evidence, and administer
oaths; and
(ii) subject to subparagraph (B), require,
by subpoena or otherwise, the attendance and
testimony of such witnesses and the production
of such books, records, correspondence,
memoranda, papers, and documents, as the
Commission or such authorized subcommittee or
member determines to be advisable.
(B) Subpoenas.--
(i) Issuance.--A subpoena may be issued
under this subsection only--
(I) by the agreement of the
Chairman and the Vice Chairman; or
(II) by the affirmative vote of 6
members of the Commission.
(ii) Signature.--Subpoenas issued under
this subparagraph may be--
(I) issued under the signature of
the Chairman or any member designated
by a majority of the Commission; and
(II) served by any person
designated by the Chairman or by a
member designated by a majority of the
Commission.
(iii) Enforcement.--In the case of
contumacy or failure to obey a subpoena issued
under this subparagraph, the United States
district court for the judicial district in
which the subpoenaed person resides, is served,
or may be found, or where the subpoena is
returnable, may issue an order requiring such
person to appear at any designated place to
testify or to produce documentary or other
evidence. Any failure to obey the order of the
court may be punished by the court as a
contempt of that court.
(2) Recommendations.--
(A) In general.--The Commission may make
recommendations to the Secretary on the disposition of
cases and the discipline of personnel under the
Immigration and Nationality Act (8 U.S.C. 1101 et
seq.).
(B) Response.--Not later than 180 days after
receipt a report from the Commission, the Secretary
shall issue a response that describes how the
Department, the Department of Justice, and the
Department of Defense have addressed the
recommendations included in such report.
(3) Contracting.--The Commission may enter into contracts
to enable the Commission to discharge its duties under this
title.
(4) Information from federal agencies.--
(A) In general.--Upon request made by the Chairman,
the chairman of any subcommittee created by a majority
of the Commission, or any member designated by a
majority of the Commission, the Commission may secure
information, suggestions, estimates, and statistics for
the purposes of this title directly from any executive
department, bureau, agency, board, commission, office,
independent establishment, or instrumentality of the
Federal Government, which shall, to the extent
authorized by law, furnish such information,
suggestions, estimates, and statistics directly to the
Commission.
(B) Receipt, handling, storage, and
dissemination.--Information may only be received,
handled, stored, and disseminated by members of the
Commission and its staff consistent with all applicable
statutes, regulations, and Executive orders.
(5) Assistance from federal agencies.--
(A) General services administration.--The
Administrator of General Services shall provide, on a
reimbursable basis, administrative support to the
Commission and other services required for the
performance of the Commission's functions.
(B) Other departments and agencies.--In addition to
the assistance described in paragraph (1), Federal
departments and agencies may provide the Commission
with such services, funds, facilities, staff, and other
support services as may be authorized by law.
(6) Postal services.--The Commission may use the United
States mails in the same manner and under the same conditions
as departments and agencies of the United States.
(d) Compensation.--
(1) In general.--Members of the Commission shall serve
without pay.
(2) Reimbursement of expenses.--All members of the
Commission shall be reimbursed for reasonable travel expenses
and subsistence, and other reasonable and necessary expenses
incurred by them in the performance of their duties.
(e) Training.--The Commission shall establish a process and
criteria by which Commission members receive orientation and training
on human, constitutional, and civil rights.
(f) Report.--Not later than 2 years after the date of the first
meeting called pursuant to subsection (a)(8)(A), the Commission shall
submit a report to the President and Congress that contains--
(1) findings with respect to the duties of the Commission;
(2) recommendations regarding border and immigration
enforcement policies, strategies, and programs;
(3) suggestions for the implementation of the Commission's
recommendations;
(4) a recommendation as to whether the Commission should
continue to operate after the date of termination described in
subsection (h); and
(5) if continued operations are recommended under paragraph
(4), a description of the purposes and duties recommended to be
carried out by the Commission after the date of termination
described in subsection (h).
(g) Authorization of Appropriations.--There are authorized to be
appropriated such sums as may be necessary for each of the fiscal years
2011 through 2013 to carry out this section.
(h) Sunset.--Unless the Commission is authorized by Congress to
continue operations after such date, the Commission shall terminate on
the date that is 60 days after the date on which the Commission submits
the report described in subsection (f).
SEC. 131. PREEMPTION.
(a) In General.--Except as provided in subsections (b) and (c),
this Act preempts any State or local law, licensing requirement, or
other standard, requirement, action or instrument that--
(1) discriminates among persons on the basis of immigration
status; or
(2) imposes any sanction or liability--
(A) on any person based on his or her immigration
status;
(B) on any person or entity based on the
immigration status of its clients, employees, tenants,
or other associates; or
(C) based on a violation or alleged violation of
immigration law.
(b) Effect of Conviction.--Notwithstanding subsection (a)(2)(C), a
State or political subdivision of a State may take account of a Federal
conviction for an immigration-related crime in the same manner as any
other Federal criminal conviction.
(c) Limitation.--Nothing in this Act may be construed to preempt--
(1) State or local discrimination based on immigration
status if such discrimination is explicitly authorized by
Federal law; or
(2) State or local citizenship requirements for voting,
jury service, elective office, or other important governmental
positions, to the extent such requirements comply with the
Constitution of the United States.
(d) Defined Term.--In this section, the term ``immigration status''
refers to a person's present or previous visa classification, refugee
status, temporary protected status, status as an immigrant lawfully
admitted for permanent residence, lawful presence, work authorization,
or other classification or category authorized under this Act.
SEC. 132. INHERENT AUTHORITY.
Section 287(g)(10) (8 U.S.C. 1357(g)(10)) is amended to read as
follows:
``(10) Except as provided in sections 103(a)(10), 103(a)(11),
242(c), and 274(c), or an agreement under this subsection, the
authority to investigate, identify, apprehend, arrest, or detain
persons for any violation of this Act or any regulation issued pursuant
to this Act--
``(A) is restricted to immigration officers and employees
of the Department; and
``(B) is subject to the specific limitations set forth in
this Act.''.
SEC. 133. BORDER PROTECTION STRATEGY.
(a) In General.--Not later than September 30, 2011, the Secretary,
the Secretary of the Interior, the Secretary of Agriculture, the
Secretary of Defense, and the Secretary of Commerce, in consultation
with State, tribal, and local government officials, shall jointly
develop and submit to Congress a border protection strategy for the
international land borders of the United States.
(b) Elements of the Strategy.--The strategy developed under
subsection (a) shall include--
(1) a comparative analysis of the levels of operational
control, based on auditable and verifiable data, achievable
through alternative tactical infrastructure and other security
measures, including an assessment of--
(A) pedestrian fencing;
(B) vehicle barriers, especially in the vicinity of
existing or planned roads;
(C) additional Border Patrol agents;
(D) efficacy of natural barriers and open space in
response to unauthorized or unlawful border crossing;
(E) fielding of advanced remote sensing and
information integration technology, including the use
of--
(i) unmanned aerial vehicles;
(ii) other advanced technologies and
systems developed and employed, or under
development, for tactical surveillance,
multisource information integration, and
response analysis in difficult terrain and
under adverse environmental conditions;
(F) regional, urban, and rural variation in border
security methodologies, including the incorporation of
natural barriers;
(G) enhanced cooperation with, and assistance to,
intelligence, security, and law enforcement agencies in
Mexico and Canada in detecting, reporting, analyzing,
and successfully responding to unauthorized or unlawful
border crossings from or into Mexico or Canada; and
(H) removal of obstructive nonnative vegetation;
(2) a comprehensive analysis of cost and other impacts of
security measures assessed in paragraph (1), including an
assessment of--
(A) land acquisition costs, including related
litigation and other costs;
(B) construction costs, including labor and
material costs;
(C) maintenance costs for the next 25 years;
(D) contractor costs;
(E) management and overhead costs;
(F) the impacts on wildlife, wildlife habitat,
natural communities, and functioning cross-border
wildlife migration corridors and hydrology (including
water quantity, quality, and natural hydrologic flows)
on Federal, State, tribal, local government, and
private lands along the Northern border and the
Southern border; and
(G) the costs of fully mitigating the adverse
impacts to Federal, State, tribal, local, and private
lands, waters (including water quality, quantity, and
hydrological flows), wildlife, and wildlife habitats,
including, if such action is possible, the full costs
of the replacement or restoration of severed wildlife
migration corridors with protected corridors of
equivalent biological functionality, as determined by
each Secretary concerned, in consultation with
appropriate authorities of State, tribal, and local
governments and appropriate authorities of the
Government of Mexico and the Government of Canada;
(3) a comprehensive compilation of the fiscal investments
in acquiring or managing Federal, State, tribal, local, and
private lands and waters in the vicinity of, or ecologically
related to, the land borders of the United States that have
been acquired or managed in whole or in part for conservation
purposes (including the creation or management of protected
wildlife migration corridors) in--
(A) units of the National Park System;
(B) National Forest System land;
(C) land under the jurisdiction of the Bureau of
Land Management;
(D) land under the jurisdiction of the United
States Fish and Wildlife Service;
(E) other relevant land under the jurisdiction of
the Department of the Interior or the Department of
Agriculture;
(F) land under the jurisdiction of the Department
of Defense or any military department;
(G) land under the jurisdiction of the Department
of Commerce;
(H) tribal lands;
(I) State and private lands; and
(J) lands within Mexico or Canada; and
(4) recommendations for strategic border security
management based on--
(A) comparative security described in paragraph
(1);
(B) the cost-benefit analysis described in
paragraph (2); and
(C) the protection of investments in the lands
specified in paragraph (3).
(c) Training.--
(1) Required training.--The Secretary, in cooperation with
the Secretary concerned, shall provide--
(A) natural resource protection training for
Customs and Border Protection agents or other Federal
personnel assigned to plan or oversee the construction
or operation of border security tactical infrastructure
or to patrol land along or in the vicinity of a land
border of the United States; and
(B) cultural resource training for Customs and
Border Protection agents and other Federal personnel
assigned to plan or oversee the construction or
operation of border security tactical infrastructure or
to patrol tribal lands.
(2) Additional considerations.--In developing and providing
training under subparagraph (A) of paragraph (1), the Secretary
shall coordinate with the Secretary concerned and the relevant
tribal government to ensure that such training is appropriate
to the mission of the relevant agency and is focused on
achieving border security objectives while avoiding or
minimizing the adverse impact on natural and cultural resources
resulting from border security tactical infrastructure,
operations, or other activities.
(d) Defined Term.--In this section, the term ``Secretary
concerned'' means--
(1) the Secretary of Agriculture, with respect to land
under the jurisdiction of the Secretary of Agriculture;
(2) the Secretary of the Interior, with respect to land
under the jurisdiction of the Secretary of the Interior;
(3) the Secretary of Defense, with respect to land under
the jurisdiction of the Secretary of Defense or the secretary
of a military department; and
(4) the Secretary of Commerce, with respect to land under
the jurisdiction of the Secretary of Commerce.
SEC. 134. BORDER COMMUNITIES LIAISON OFFICE.
(a) Establishment.--The Secretary shall establish, in consultation
with the Office of Civil Rights and Civil Liberties, a Border
Communities Liaison Office in every Border Patrol sector on the
Southern border or the Northern border.
(b) Purpose.--The purpose of the Border Communities Liaison Office
shall be--
(1) to foster and institutionalize consultation with border
communities;
(2) to consult with border communities on agency policies,
directives, and laws;
(3) to consult with border communities on agency strategies
and strategy development;
(4) to consult with border communities on agency services
and operational issues;
(5) to receive assessments on agency performance from
border communities; and
(6) to receive complaints regarding agency performance and
agent conduct.
(c) Authorization of Appropriations.--There are authorized to be
appropriated such sums as may be necessary in each of the fiscal years
2011 through 2015 to carry out this section.
SEC. 135. AUTHORIZATION OF APPROPRIATIONS.
(a) In General.--In addition to any funds otherwise available,
there are authorized to be appropriated such sums as may be necessary
for the fiscal years 2011 through 2015 to carry out this subtitle.
(b) International Agreements.--Amounts appropriated pursuant to
subsection (a) may be used to implement projects that are authorized
under this subtitle and are described in--
(1) the Declaration on Embracing Technology and Cooperation
to Promote the Secure and Efficient Flow of People and Commerce
across our Shared Border between the United States and Mexico,
agreed to March 22, 2002, Monterrey, Mexico; or
(2) the Smart Border Declaration between the United States
and Canada, agreed to December 12, 2001, Ottawa, Canada.
TITLE II--INTERIOR ENFORCEMENT
Subtitle A--Prevention of Unauthorized Entries and Removal
CHAPTER 1--STRENGTHENING THE VISA WAIVER PROGRAM TO SECURE AMERICA AND
ENFORCING ENTRY AND EXIT REQUIREMENTS
SEC. 201. ENFORCEMENT OF REQUIREMENT TO REPORT LOST OR STOLEN
PASSPORTS.
If any country designated as a Visa Waiver Program under paragraph
(1) of section 217(c) of the Immigration and Nationality Act (8 U.S.C.
1187(c)) does not have in effect an agreement with the United States in
compliance with paragraph (2)(C) of such section on or after the date
that is 180 days after the date of the enactment of this Act, the
Secretary, in consultation with the Secretary of State, shall
immediately suspend such country's participation in the Visa Waiver
Program until the country is in compliance with such paragraph.
SEC. 202. ENFORCEMENT OF REQUIREMENT FOR PERIODIC EVALUATIONS OF
PROGRAM COUNTRIES.
(a) Reevaluations.--The Secretary, in consultation with the
Secretary of State, shall reevaluate all countries designated as Visa
Waiver Program before November 17, 2008 to determine--
(1) whether such countries are in compliance with the
requirements set forth in section 217(c) of the Immigration and
Nationality Act (8 U.S.C. 1187(c)); and
(2) the current number of overstays in the United States
for each country.
(b) Report.--Not later than 1 year after the date of the enactment
of this Act, the Secretary shall submit a report to the appropriate
congressional committees that contains the results of the reevaluation
conducted under subsection (a).
SEC. 203. ARRIVAL AND DEPARTURE VERIFICATION.
(a) In General.--The Secretary shall compare foreign national
arrival data to available immigration and law enforcement records and
databases and exit data to determine whether these foreign nationals
are still in the United States.
(b) Effect of Failure to Track.--If, 6 months after the date of the
enactment of this Act, the Secretary is not tracking at least 97
percent of the foreign nationals exiting the United States, the
Secretary may not designate any new countries as Visa Waiver Program
countries.
(c) Audit.--The Secretary shall conduct an audit of the data
collected by the electronic travel system, including--
(1) the number of individuals in each country that the
system has discovered to have overstayed their visas;
(2) any implementation problems encountered during the
early stages to better identify the high-risk travelers and
their countries of origin.
(d) Report.--Not later than 6 months after the date of the
enactment of this Act, the Secretary shall submit a report to Congress
that contains--
(1) the visa overstay rates of each country; and
(2) an explanation of the implementation problems
identified pursuant to subsection (c)(2).
SEC. 204. VISA OVERSTAY RATES.
(a) Maximum Visa Overstay Rate.--Section 217(c)(8)(C) (8 U.S.C.
1187(c)(8)(C)) is amended--
(1) by redesignating clauses (ii) and (iii) as clauses
(iii) and (iv), respectively; and
(2) by striking clause (i) and inserting the following:
``(i) Establishment.--The maximum visa
overstay rate for countries participating in
the program shall be 2 percent.
``(ii) Effect of failure to comply.--If the
visa overstay rate of a country is more than 2
percent, the Secretary shall temporarily
suspend such country's participation in the
Visa Waiver Program until the country can
demonstrate that the overstay rate for that
country is below 2 percent.''.
(b) Data Sharing.--If, 3 months after the date of the enactment of
this Act, a country designated as a Visa Waiver Program under section
217(c) of the Immigration and Nationality Act (8 U.S.C. 1187(c)) has
not entered into a data sharing agreement in accordance with paragraph
(2)(F) of such section, the Secretary shall temporarily suspend such
country's participation in the Visa Waiver Program until the country is
in compliance with such paragraph.
SEC. 205. US-VISIT SYSTEM.
(a) In General.--Not later than 6 months after the date of the
enactment of this Act, the Secretary, in consultation with the heads of
other appropriate Federal agencies, shall submit to Congress a schedule
for--
(1) equipping all ports of entry of the United States with
the United States-Visitor and Immigrant Status Indicator
Technology system (referred to in this section as ``US-VISIT'')
implemented under section 110 of the Illegal Immigration Reform
and Immigrant Responsibility Act of 1996 (8 U.S.C. 1365a),
including all necessary changes to infrastructure at the ports
of entry to fully deploy US-VISIT;
(2) developing and deploying the exit component of US-VISIT
at such ports of entry; and
(3) making interoperable all immigration screening systems
operated by the Secretary.
(b) Visa Exit Tracking System.--Not later than 18 months after the
date of the enactment of this Act, the Secretary shall establish and
deploy a system capable of recording the departure of aliens admitted
on temporary nonimmigrant visas under the Immigration and Nationality
Act (8 U.S.C. 1101 et seq.)--
(1) at designated ports of entry; and
(2) in coordination with the Secretary of State, at
designated United States consulates.
CHAPTER 2--PREVENTING UNAUTHORIZED ENTRIES AND ENSURING REMOVAL
SEC. 211. ILLEGAL ENTRY AND REENTRY.
(a) Illegal Entry.--Section 275(b) (8 U.S.C. 1325(b)) is amended to
read as follows:
``(b) Improper Time or Place; Civil Penalties.--Any alien older
than 18 years of age who is apprehended while entering or attempting to
enter, or knowingly crossing or attempting to cross the border to, the
United States at a time or place that has not been designated as a
lawful entry by immigration officers shall be subject to a civil
penalty, in addition to any criminal or other civil penalties that may
be imposed under any other provision of law, in an amount equal to--
``(1) not less than $250 or more than $500 for each such
entry or attempted entry; or
``(2) twice the amount specified in paragraph (1), if the
alien had previously been subject to a civil penalty under this
subsection.''.
(b) Illegal Reentry.--Section 276 (8 U.S.C. 1326) is amended to
read as follows:
``SEC. 276. REENTRY OF REMOVED ALIENS.
``(a) Reentry After Removal.--Any alien who has been denied
admission, excluded, deported, or removed, or who has departed the
United States while an order of exclusion, deportation, or removal is
outstanding, and subsequently enters, attempts to enter, crosses the
border to, attempts to cross the border to, or is at any time found in
the United States, shall be fined under title 18, United States Code,
imprisoned not more than 2 years, or both.
``(b) Reentry of Criminal Offenders.--In addition to the penalty
provided in subsection (a), any alien described in that subsection--
``(1) whose removal was subsequent to a conviction for 3 or
more misdemeanors involving drugs or crimes against the person,
or a felony for which the alien was sentenced to a term of
imprisonment of more than 12 months before such removal or
departure, shall be fined under title 18, United States Code,
imprisoned not more than 10 years, or both;
``(2) whose removal was subsequent to a conviction for a
felony involving drugs or crimes against the person before such
removal or departure for which the alien was sentenced to a
term of imprisonment of not less than 30 months, shall be fined
under such title 18, imprisoned not more than 10 years, or
both;
``(3) who has been excluded from the United States pursuant
to section 235(c) because the alien was excludable under
section 212(a)(3)(B) or has been removed from the United States
pursuant to title V of the CIR Act of 2010, and who thereafter,
without the permission of the Attorney General, enters the
United States, or attempts to do so, shall be fined under title
18, United States Code, and imprisoned for a period of 10
years, which sentence shall not run concurrently with any other
sentence;
``(4) who was removed from the United States pursuant to
section 241(a)(4)(B) and who thereafter, without the permission
of the Attorney General, enters, attempts to enter, or is at
any time found in, the United States (unless the Attorney
General has expressly consented to such alien's reentry) shall
be fined under title 18, United States Code, imprisoned for not
more than 10 years, or both;
``(5) whose removal was subsequent to a conviction for an
aggravated felony before such removal or departure for which
the alien was sentenced to a term of imprisonment of not less
than 60 months, shall be fined under such title 18, imprisoned
not more than 20 years, or both; or
``(6) was convicted for 3 felonies before such removal or
departure, shall be fined under such title 18, imprisoned not
more than 25 years, or both.
``(c) Proof of Prior Convictions.--The prior convictions described
in subsection (b) are elements of the crimes described in that
subsection, and the penalties set forth in subsection (b) shall apply
only in cases in which the conviction or convictions that form the
basis for the additional penalty are--
``(1) alleged in the indictment or information; and
``(2) proven beyond a reasonable doubt at trial or admitted
by the defendant.
``(d) Affirmative Defenses.--It shall be an affirmative defense to
a violation of this section if--
``(1) the alien sought and received the express consent of
the Secretary of Homeland Security to reapply for admission
into the United States before the alleged violation occurred;
``(2) with respect to an alien previously denied admission
and removed, the alien--
``(A) was not required to obtain such advance
consent under this Act or any prior Act; and
``(B) had complied with all other laws and
regulations governing the alien's admission into the
United States; or
``(3) the prior order of removal was based on charges filed
against the alien before the alien reached 18 years of age.
``(e) Limitation on Collateral Attack on Underlying Removal
Order.--In a criminal proceeding under this section, an alien may not
challenge the validity of the order described in subsection (a)(1) or
(b) unless the alien demonstrates that--
``(1) the alien exhausted any administrative remedies that
may have been available to seek relief against the order;
``(2) the removal proceedings at which the order was issued
improperly deprived the alien of the opportunity for judicial
review; and
``(3) the entry of the order was fundamentally unfair.
``(f) Reentry of Alien Removed Prior to Completion of Term of
Imprisonment.--Any alien removed pursuant to section 241(a)(4) who
enters, attempts to enter, crosses the border to, attempts to cross the
border to, or is at any time found in, the United States--
``(1) shall be incarcerated for the remainder of the
sentence of imprisonment which was pending at the time of
deportation without any reduction for parole or supervised
release unless the alien affirmatively demonstrates that the
Secretary of Homeland Security has expressly consented to the
alien's reentry or the alien is prima facie eligible for
protection from removal; and
``(2) shall be subject to such other penalties relating to
the reentry of removed aliens as may be available under this
section or any other provision of law.
``(g) Limitation.--An individual, acting without compensation or
the expectation of compensation, is not aiding and abetting a violation
of this section by--
``(1) providing, or attempting to provide, an alien with
humanitarian assistance, including emergency medical care or
food; or
``(2) transporting the alien to a location where such
humanitarian assistance can be rendered without compensation or
the expectation of compensation.''.
SEC. 212. DETERRING ALIENS ORDERED REMOVED FROM REMAINING IN THE UNITED
STATES UNLAWFULLY.
Section 212(a)(9)(A) (8 U.S.C. 1182(a)(9)(A)) is amended--
(1) in clause (i), by striking ``seeks admission within 5
years of the date of such removal (or within 20 years'' and
inserting ``seeks admission not later than 5 years after the
date of the alien's removal (or not later than 20 years after
the alien's removal''; and
(2) in clause (ii), by striking ``seeks admission within 10
years of the date of such alien's departure or removal (or
within 20 years of'' and inserting ``seeks admission not later
than 10 years after the date of the alien's departure or
removal (or not later than 20 years after''.
SEC. 213. BIOMETRIC SCREENING.
Section 212 (8 U.S.C. 1182) is amended--
(1) in subsection (a)(7), by adding at the end the
following:
``(C) Withholding information.--Except as provided
in subsection (d)(2), any alien who, through his or her
own fault, fails or has failed to comply with a lawful
request for biometric information is inadmissible.'';
and
(2) in subsection (d), by inserting after paragraph (1) the
following:
``(2) The Secretary may waive the application of subsection
(a)(7)(C) for an individual alien or a class of aliens. A decision by
the Secretary to grant or deny a waiver under this paragraph shall not
be subject to review.''.
SEC. 214. ENCOURAGING ALIENS TO DEPART VOLUNTARILY.
(a) In General.--Section 240B (8 U.S.C. 1229c) is amended--
(1) in subsection (a)--
(A) by amending paragraph (1) to read as follows:
``(1) In general.--If an alien is not removable under
paragraph (2)(A)(iii) or (4) of section 237(a)--
``(A) the Secretary of Homeland Security may permit
the alien to voluntarily depart the United States at
the alien's own expense under this subsection instead
of being subject to proceedings under section 240; or
``(B) the Attorney General may permit the alien to
voluntarily depart the United States at the alien's own
expense under this subsection after the initiation of
removal proceedings under section 240 and before the
conclusion of such proceedings before an immigration
judge.'';
(B) in paragraph (2), by amending subparagraph (A)
to read as follows:
``(A) In general.--
``(i) Instead of removal.--Subject to
subparagraph (B), the Secretary of Homeland
Security--
``(I) may not grant an alien
permission to voluntarily depart under
paragraph (1)(A) for a period longer
than 180 days; and
``(II) may require such alien to
post a voluntary departure bond, which
will be surrendered upon proof that the
alien has departed the United States
within the time specified in such bond.
``(ii) Before the conclusion of removal
proceedings.--
``(I) Limitation.--The Attorney
General--
``(aa) may not grant an
alien permission to voluntarily
depart under paragraph (1)(B)
for a period longer than 90
days; and
``(bb) may only grant such
permission after determining
that the alien has the means to
depart the United States and
intends to do so.
``(II) Voluntary departure bond.--
An immigration judge may--
``(aa) require an alien
permitted to voluntarily depart
under paragraph (1)(B) to post
a voluntary departure bond, in
an amount necessary to ensure
that the alien will depart,
which will be surrendered upon
proof that the alien has
departed the United States
within the time specified in
such bond; and
``(bb) may waive the
requirement to post a voluntary
departure bond in individual
cases after determining that
the alien has presented
compelling evidence that the
posting of a bond will pose a
serious financial hardship and
the alien has presented
credible evidence that such a
bond is unnecessary to
guarantee timely departure.'';
(C) by striking paragraph (3); and
(D) by redesignating paragraph (4) as paragraph
(3);
(2) by amending subsection (c) to read as follows:
``(c) Conditions on Voluntary Departure.--
``(1) Voluntary departure agreement.--Voluntary departure
under this section may only be granted as part of an
affirmative agreement by the alien.
``(2) Concessions by the secretary.--In connection with the
alien's agreement to depart voluntarily under paragraph (1)(A),
the Secretary of Homeland Security may reduce the period of
inadmissibility under subparagraph (A) or (B)(i) of section
212(a)(9).
``(3) Advisals.--Agreements relating to voluntary departure
granted during removal proceedings under section 240, or at the
conclusion of such proceedings, shall be presented on the
record before the immigration judge, who shall advise the alien
of the consequences of a voluntary departure agreement,
including the consequences of failing to comply with the
agreement, before accepting such agreement.
``(4) Failure to comply with agreement.--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 failure to timely post any required bond),
unless such noncompliance is through no fault of the alien, the
alien is--
``(A) ineligible for the benefits of the agreement;
``(B) subject to the penalties described in
subsection (d); and
``(C) subject to an alternate order of removal if
voluntary departure was granted under subsection
(a)(1)(B) or (b).
``(5) Voluntary departure period not affected.--Except as
expressly agreed to by the Secretary of Homeland Security in
writing 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.'';
(3) by amending subsection (d) to read as follows:
``(d) Penalties for Failure to Depart.--
``(1) Civil penalty.--An alien who is permitted to
voluntarily depart under this section and fails to leave the
United States during the period specified in the voluntary
departure agreement or otherwise violates the terms of such
agreement shall be liable for a civil penalty of $1,000. The
voluntary departure order shall specify the amount of the
penalty, which shall be acknowledged by the alien on the
record.
``(2) Collection of penalty.--If the Secretary of Homeland
Security establishes, by clear and convincing evidence, that
the alien failed to leave the United States during the period
specified in the voluntary departure agreement--
``(A) no further procedure will be necessary to
establish the amount of the penalty;
``(B) the Secretary may collect the civil penalty
at any time thereafter and by whatever means provided
by law; and
``(C) the alien shall be ineligible for any
benefits under this chapter until this civil penalty is
paid.''; and
(4) by amending subsection (e) to read as follows:
``(e) Eligibility.--
``(1) Prior grant of voluntary departure.--An alien may not
be permitted to voluntarily depart under this section if the
Secretary of Homeland Security or the Attorney General
previously permitted the alien to depart voluntarily under this
section on or after the date of enactment of the CIR Act of
2010.
``(2) Rulemaking.--The Secretary may promulgate regulations
to limit eligibility or impose additional conditions for
voluntary departure under subsection (a)(1)(A) for any class of
aliens.''.
(b) Effective Date.--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.
SEC. 215. CANCELLATION OF VISAS.
Section 222(g) (8 U.S.C. 1202(g)) is amended--
(1) in paragraph (1), by striking ``Attorney General, such
visa'' and inserting ``Secretary of Homeland Security, such
visa and any other nonimmigrant visa issued by the United
States that is in the possession of the alien''; and
(2) in paragraph (2)(A), by striking ``(other than the visa
described in paragraph (1)) issued in a consular office located
in the country of the alien's nationality'' and inserting
``(other than a visa described in paragraph (1)) issued in a
consular office located in the country of the alien's
nationality or foreign residence''.
SEC. 216. MANDATORY ADDRESS REPORTING REQUIREMENTS.
(a) Clarifying Address Reporting Requirements.--Section 265 (8
U.S.C. 1305) is amended--
(1) in subsection (a)--
(A) by striking ``notify the Attorney General in
writing'' and inserting ``submit written or electronic
notification to the Secretary of Homeland Security, in
a manner approved by the Secretary,'';
(B) by striking ``the Attorney General may
require'' and inserting ``the Secretary may require'';
and
(C) by adding at the end the following: ``If the
alien is involved in proceedings before an immigration
judge or in an administrative appeal of such
proceedings, the alien shall provide the Attorney
General with the alien's current address and a
telephone number, if any, at which the alien may be
contacted.'';
(2) in subsection (b)--
(A) by striking ``Attorney General'' the first
place such term appears and inserting ``Secretary of
Homeland Security''; and
(B) by striking ``Attorney General'' each
additional place such term appears and inserting
``Secretary'';
(3) in subsection (c), by striking ``given to such parent''
and inserting ``provided by such parent''; and
(4) by adding at the end the following:
``(d) Address to Be Provided.--
``(1) In general.--Except as otherwise provided by the
Secretary under paragraph (2), an address provided by an alien
under this section--
``(A) shall be the mailing address of the alien's
residence at the time such address is provided; and
``(B) may not be--
``(i) a post office box;
``(ii) another nonresidential mailing
address; or
``(iii) the address of an attorney,
representative, labor organization, or
employer.
``(2) Specific requirements.--The Secretary of Homeland
Security may provide specific requirements with respect to--
``(A) designated classes of aliens and special
circumstances, including aliens who are employed at a
remote location; and
``(B) the reporting of address information by
aliens who are incarcerated in a Federal, State, or
local correctional facility.
``(3) Detention.--An alien who is being detained by the
Secretary under this Act--
``(A) is not required to report the alien's current
address under this section during the time the alien
remains in detention; and
``(B) shall notify the Secretary of the alien's
address under this section at the time of the alien's
release from such detention.
``(e) Use of Most Recent Address Provided by the Alien.--
``(1) In general.--Notwithstanding any other provision of
law, the Secretary of Homeland Security may provide for the
appropriate coordination and cross referencing of address
information provided by an alien under this section with other
information relating to the alien's address under other Federal
programs, including--
``(A) any information pertaining to the alien,
which was submitted in any application, petition, or
motion filed under this Act with the Secretary of
Homeland Security, the Secretary of State, or the
Secretary of Labor;
``(B) any information available to the Attorney
General with respect to an alien in a proceeding before
an immigration judge or an administrative appeal or
judicial review of such proceeding;
``(C) any information collected with respect to
nonimmigrant foreign students or exchange program
participants under section 641 of the Illegal
Immigration Reform and Immigrant Responsibility Act of
1996 (8 U.S.C. 1372); and
``(D) any information collected from State or local
correctional agencies pursuant to the State Criminal
Alien Assistance Program.
``(2) Reliance.--The Secretary may rely on the most recent
address provided by the alien under this section or under
section 264 to send the alien any notice, form, document, or
other matter pertaining to Federal immigration laws, including
service of a notice to appear. The Attorney General and the
Secretary may rely on the most recent address provided by the
alien under section 239(a)(1)(F) to contact the alien about
pending removal proceedings.
``(3) Obligation.--The alien's provision of an address for
any other purpose under this Act shall not excuse the alien's
obligation to submit timely notice of the alien's address to
the Secretary under this section (or to the Attorney General
under section 239(a)(1)(F) with respect to an alien in a
proceeding before an immigration judge or an administrative
appeal of such proceeding).
``(f) Requirement for Database.--The Secretary of Homeland Security
shall establish an electronic database to timely record and preserve
addresses provided under this section.''.
(b) Conforming Changes With Respect to Registration Requirements.--
Chapter 7 of title II (8 U.S.C. 1301 et seq.) is amended--
(1) in section 262(c), by striking ``Attorney General'' and
inserting ``Secretary of Homeland Security'';
(2) in section 263(a), by striking ``Attorney General'' and
inserting ``Secretary of Homeland Security''; and
(3) in section 264--
(A) in subsections (a), (b), (c), and (d), by
striking ``Attorney General'' each place it appears and
inserting ``Secretary of Homeland Security''; and
(B) in subsection (f)--
(i) by striking ``Attorney General is
authorized'' and inserting ``Secretary of
Homeland Security and the Attorney General are
authorized''; and
(ii) by striking ``Attorney General or the
Service'' and inserting ``Secretary or the
Attorney General''.
(c) Effect on Eligibility for Immigration Benefits.--If an alien
fails to comply with any provision under section 262, 263, or 265 of
the Immigration and Nationality Act (8 U.S.C. 1302, 1303, and 1305) or
section 264.1 of title 8, Code of Federal Regulations, or removal
orders or voluntary departure agreements based on any such section for
acts committed before the date of the enactment of this Act, such
noncompliance shall not affect the eligibility of the alien to apply
for a benefit under the Immigration and Nationality Act (8 U.S.C. 1101
et seq.).
(d) Technical Amendments.--Section 266 (8 U.S.C. 1306 ) is
amended--
(1) by striking ``Attorney General'' the first place such
term appears and inserting ``Secretary of Homeland Security'';
and
(2) by striking ``Attorney General'' each additional place
such term appears and inserting ``Secretary''.
SEC. 217. PENALTIES RELATING TO VESSELS AND AIRCRAFT.
Section 243(c) (8 U.S.C. 1253(c)) is amended--
(1) by striking ``Attorney General'' each place such term
appears and inserting ``Secretary of Homeland Security''; and
(2) by striking ``Commissioner'' each place such term
appears and inserting ``Secretary''; and
(3) in paragraph (1)--
(A) in subparagraph (A), by striking ``$2,000'' and
inserting ``$5,000'';
(B) in subparagraph (B), by striking ``$5,000'' and
inserting ``$10,000''; and
(C) by amending paragraph (1)(C) to read as
follows:
``(C) Compromise.--The Secretary of Homeland
Security, in the Secretary's unreviewable discretion
and upon the receipt of a written request, may mitigate
the monetary penalties required under this subsection
for each alien stowaway to an amount equal to not less
than $500, upon such terms that the Secretary
determines to be appropriate.''.
SEC. 218. SANCTIONS FOR COUNTRIES THAT DELAY OR PREVENT REPATRIATION OF
THEIR CITIZENS AND NATIONALS.
Sec. 243(d) (8 U.S.C. 1253(d)) is amended--
(1) by striking ``Attorney General'' each place such term
appears and inserting ``Secretary of Homeland Security'' ;
(2) by inserting ``or subsets of such visas'' after
``both,''; and
(3) by inserting ``of State'' after ``Secretary'' the last
place such term appears.
SEC. 219. STATE CRIMINAL ALIEN ASSISTANCE PROGRAM.
(a) Authorization of Appropriations.--Section 241(i)(5)(C) (8
U.S.C. 1231(i)(5)(C)) is amended by striking ``to carry out this
subsection'' and all that follows and inserting ``$950,000,000 for each
of the fiscal years 2011 through 2015 to carry out this subsection.''.
(b) Reimbursement of States for Indirect Costs Relating to the
Incarceration of Unauthorized Aliens.--Section 501 of the Immigration
Reform and Control Act of 1986 (8 U.S.C. 1365) is amended--
(1) by amending subsection (a) to read as follows:
``(a) Reimbursement of States.--Subject to the amounts provided in
advance in appropriation Acts, the Attorney General shall reimburse a
State for--
``(1) the costs incurred by the State for the imprisonment
of all unauthorized aliens convicted of a felony by such State;
and
``(2) the indirect costs related to the imprisonments
described in paragraph (1).''; and
(2) by amending subsections (c) through (e) to read as
follows:
``(c) Allocation of Reimbursements.--Reimbursements under this
section shall be allocated in a manner that gives special consideration
for any State that shares a border with Mexico or with Canada.
``(d) Definitions.--In this section:
``(1) Indirect costs.--The term `indirect costs' includes--
``(A) court costs, county attorney costs, detention
costs, and criminal proceedings expenditures that do
not involve going to trial;
``(B) indigent defense costs; and
``(C) unsupervised probation costs.
``(2) State.--The term `State' has the meaning given such
term in section 101(a)(36) of the Immigration and Nationality
Act (8 U.S.C. 1101(a)(36)).
``(e) Authorization of Appropriations.--There are authorized to be
appropriated $200,000,000 for each of the fiscal years 2008 through
2012 to carry out subsection (a)(2).''.
SEC. 220. PROCEDURES REGARDING ALIENS APPREHENDED BY STATE AND LOCAL
LAW ENFORCEMENT OFFICERS.
(a) Issuance of Detainers.--Section 287(d) (8 U.S.C. 1357(d)) is
amended to read as follows:
(b)(1) An authorized officer or employee of the Department of
Homeland Security shall promptly determine whether or not to issue a
detainer to detain an alien who is arrested by a Federal, State, or
local law enforcement official for a violation of any law relating to
controlled substances if the law enforcement official--
(A) has reason to believe that the alien has not been
lawfully admitted to the United States or is otherwise not
lawfully present in the United States;
(B) expeditiously informs such officer or employee of the
arrest and of facts concerning the status of the alien; and
(C) requests the Department of Homeland Security to
determine whether or not to issue such detainer.
(2) If a detainer is issued pursuant to paragraph (1) and the alien
is not otherwise detained by Federal, State, or local officials, the
Secretary shall effectively and expeditiously take custody of the
alien.
(3) The Secretary of Homeland Security shall collect data regarding
detainers issued under this subsection, including--
(4) the criminal charge for which the individual was
arrested or convicted;
(5) the date on which the detainer was issued;
(6) the basis for the issuance of the detainer;
(7) the date on which the detainer was lifted;
(8) the date on which a Federal or State criminal court or
other government entity ordered the release of the individual;
(9) the date on which the Department of Homeland Security
took custody of the individual;
(10) the race, ethnicity, and country of origin of the
individual against whom the detainer was issued;
(11) the disposition of criminal case against the
individual;
(12) the ultimate disposition of immigration case,
including whether the individual was determined to be a United
States citizen;
(13) the grounds of removal, if applicable, and any charges
brought by the Secretary; and
(14) the number of individuals removed after the Secretary
took custody while any criminal matter was pending.
(c) Rulemaking.--The Secretary shall issue regulations that require
officers and employees of the Department of Homeland Security to
confirm, before issuing a detainer--
(1) the alienage of the individual to be made subject to
such detainer through lawfully obtained information,
including--
(A) the name of the individual;
(B) the date of birth of the individual; or
(C) the fingerprints of the individual and
(2) whether the individual is removable from the United
States.
SEC. 221. REFORM OF PASSPORT, VISA, AND IMMIGRATION FRAUD OFFENSES.
(a) Trafficking in Passports.--Section 1541 of title 18, United
States Code, is amended to read as follows:
``Sec. 1541. Trafficking in passports
``(a) Multiple Passports.--Any person who, during any period of 3
years or less, knowingly--
``(1) and without lawful authority produces, issues, or
transfers 10 or more passports;
``(2) forges, counterfeits, alters, or falsely makes 10 or
more passports;
``(3) secures, possesses, uses, receives, buys, sells, or
distributes 10 or more passports, knowing the passports to be
forged, counterfeited, altered, falsely made, stolen, procured
by fraud, or produced or issued without lawful authority; or
``(4) completes, mails, prepares, presents, signs, or
submits 10 or more applications for a United States passport,
knowing the applications to contain any false statement or
representation,
shall be fined under this title, imprisoned not more than 20 years, or
both.
``(b) Passport Materials.--Any person who knowingly and without
lawful authority produces, buys, sells, possesses, or uses any official
material (or counterfeit of any official material) used to make a
passport, including any distinctive paper, seal, hologram, image, text,
symbol, stamp, engraving, or plate, shall be fined under this title,
imprisoned not more than 20 years, or both.''.
(b) False Statement in an Application for a Passport.--Section 1542
of title 18, United States Code, is amended to read as follows:
``Sec. 1542. False statement in an application for a passport
``(a) In General.--Any person who knowingly--
``(1) makes any false statement or representation in an
application for a United States passport; or
``(2) mails, prepares, presents, or signs an application
for a United States passport knowing the application to contain
any false statement or representation,
shall be fined under this title, imprisoned not more than 15 years, or
both.
``(b) Venue.--
``(1) In general.--An offense under subsection (a) may be
prosecuted in any district--
``(A) in which the false statement or
representation was made or the application for a United
States passport was prepared or signed; or
``(B) in which or to which the application was
mailed or presented.
``(2) Acts occurring outside the united states.--An offense
under subsection (a) involving an application for a United
States passport prepared and adjudicated outside the United
States may be prosecuted in the district in which the resultant
passport was or would have been produced.
``(c) Savings Clause.--Nothing in this section may be construed to
limit the venue otherwise available under sections 3237 and 3238 of
this title.''.
(c) Forgery and Unlawful Production of a Passport.--Section 1543 of
title 18, United States Code, is amended to read as follows:
``Sec. 1543. Forgery and unlawful production of a passport
``(a) Forgery.--Any person who knowingly--
``(1) forges, counterfeits, alters, or falsely makes any
passport; or
``(2) 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) Unlawful Production.--Any person who 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;
``(2) produces, issues, authorizes, or verifies a United
States passport for or to any person knowing or in reckless
disregard of the fact that such person is not entitled to
receive a passport; or
``(3) transfers or furnishes a passport to any person for
use by any person other than the person for whom the passport
was issued or designed,
shall be fined under this title, imprisoned not more than 15 years, or
both.''.
(d) Misuse of a Passport.--Section 1544 of title 18, United States
Code, is amended to read as follows:
``Sec. 1544. Misuse of a passport
``Any person who knowingly--
``(1) uses any passport issued or designed for the use of
another person;
``(2) uses any passport in violation of the conditions or
restrictions contained in the passport, or in violation of the
laws, regulations, or rules governing the issuance and use of
the passport;
``(3) secures, possesses, uses, receives, buys, sells, or
distributes any passport knowing it to be forged,
counterfeited, altered, falsely made, procured by fraud, or
produced or issued without lawful authority; or
``(4) 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.''.
(e) Schemes to Defraud Aliens.--Section 1545 of title 18, United
States Code, is amended to read as follows:
``SEC. 1545. SCHEMES TO DEFRAUD ALIENS.
``(a) In General.--Any person who knowingly executes a scheme or
artifice, in connection with any matter that is authorized by or arises
under any Federal immigration law or any matter the offender claims or
represents is authorized by or arises under any Federal immigration
law, to--
``(1) defraud any person; or
``(2) obtain or receive money or anything else of value
from any person by means of false or fraudulent pretenses,
representations, or promises,
shall be fined under this title, imprisoned not more than 15 years, or
both.
``(b) Misrepresentation.--Any person who knowingly and falsely
represents that such person is an attorney or an accredited
representative (as that term is defined in section 1292.1 of title 8,
Code of Federal Regulations (or any successor regulation)) in any
matter arising under any Federal immigration law shall be fined under
this title, imprisoned not more than 15 years, or both.''.
(f) Immigration and Visa Fraud.--Section 1546 of title 18, United
States Code, is amended--
(1) by amending the section heading to read as follows:
``Sec. 1546. Immigration and visa fraud'';
(2) by striking subsections (b) and (c) and inserting the
following:
``(b) Trafficking.--Any person who, during any period of 3 years or
less, knowingly--
``(1) and without lawful authority produces, issues, or
transfers 10 or more immigration documents;
``(2) forges, counterfeits, alters, or falsely makes 10 or
more immigration documents;
``(3) secures, possesses, uses, buys, sells, or distributes
10 or more immigration documents, knowing the immigration
documents to be forged, counterfeited, altered, stolen, falsely
made, procured by fraud, or produced or issued without lawful
authority; or
``(4) completes, mails, prepares, presents, signs, or
submits 10 or more immigration documents knowing the documents
to contain any materially false statement or representation,
shall be fined under this title, imprisoned not more than 20 years, or
both.
``(c) Immigration Document Materials.--Any person who knowingly and
without lawful authority produces, buys, sells, possesses, or uses any
official material (or counterfeit of any official material) used to
make immigration documents, including any distinctive paper, seal,
hologram, image, text, symbol, stamp, engraving, or plate, shall be
fined under this title, imprisoned not more than 20 years, or both.
``(d) Employment Documents.--Any person who uses--
``(1) an identification document, knowing or having reason
to know that the document is false or was not issued lawfully
for the use of the possessor; or
``(2) a false attestation, for the purpose of satisfying a
requirement under section 274A(b) of the Immigration and
Nationality Act (8 U.S.C. 1324a(b)), shall be fined under this
title, imprisoned not more than 1 year, or both.''.
(g) Alternative Imprisonment Maximum for Certain Offenses.--Section
1547 of title 18, United States Code, is amended--
(1) in the matter preceding paragraph (1), by striking
``(other than an offense under section 1545)'';
(2) in paragraph (1), by striking ``15'' and inserting
``20''; and
(3) in paragraph (2), by striking ``20'' and inserting
``25''.
(h) Attempts, Conspiracies, Jurisdiction, and Definitions.--Chapter
75 of title 18, United States Code, is amended by adding after section
1547 the following:
``Sec. 1548. Attempts and conspiracies
``Any person who attempts or conspires to violate any section of
this chapter shall be punished in the same manner as a person who
completed a violation of such section.
``Sec. 1549. Additional jurisdiction
``(a) In General.--Any person who commits an offense under this
chapter within the special maritime and territorial jurisdiction of the
United States shall be punished as provided under this chapter.
``(b) Extraterritorial Jurisdiction.--Any person who commits an
offense under this chapter outside the United States shall be punished
as provided under this chapter if--
``(1) the offense involves a United States passport or
immigration document (or any document purporting to be such a
document) or any matter, right, or benefit arising under or
authorized by any Federal immigration law;
``(2) the offense is in or affects foreign commerce;
``(3) the offense affects, jeopardizes, or poses a
significant risk to the lawful administration of Federal
immigration laws, or the national security of the United
States;
``(4) the offense is committed to facilitate an act of
international terrorism (as defined in section 2331) or a drug
trafficking crime (as defined in section 929(a)(2)) that
affects or would affect the national security of the United
States;
``(5) the offender is a national of the United States or an
alien lawfully admitted for permanent residence (as those terms
are defined in section 101(a) of the Immigration and
Nationality Act (8 U.S.C. 1101(a))); or
``(6) the offender is a stateless person whose habitual
residence is in the United States.
``Sec. 1550. Authorized law enforcement activities
``Nothing in this chapter may be construed to prohibit--
``(1) any lawfully authorized investigative, protective, or
intelligence activity of a law enforcement agency of the United
States, a State, or a political subdivision of a State, or an
intelligence agency of the United States; or
``(2) any activity authorized under title V of the
Organized Crime Control Act of 1970 (Public Law 91-452; 84
Stat. 933).''.
(i) Clerical Amendment.--The table of sections for chapter 75 of
title 18, United States Code, is amended to read as follows:
``Sec.
``1541. Trafficking in passports.
``1542. False statement in an application for a passport.
``1543. Forgery and unlawful production of a passport.
``1544. Misuse of a passport.
``1545. Schemes to defraud aliens.
``1546. Immigration and visa fraud.
``1547. Alternative imprisonment maximum for certain offenses.
``1548. Attempts and conspiracies.
``1549. Additional jurisdiction.
``1550. Authorized law enforcement activities.''.
(j) Uniform Statute of Limitations for Certain Immigration,
Naturalization, and Peonage Offenses.--
(1) In general.--Section 3291 of title 18, United States
Code, is amended to read as follows:
``Sec. 3291. Immigration, naturalization, and peonage offenses
``A person may not be prosecuted, tried, or punished for any
violation under chapter 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), for
an attempt or conspiracy to commit such a violation, for a violation of
any criminal provision under section 243, 266, 274, 275, 276, 277, or
278 of the Immigration and Nationality Act (8 U.S.C. 1253, 1306, 1324,
1325, 1326, 1327, and 1328), or for an attempt or conspiracy to commit
any such violation, unless the indictment is returned or the
information filed not later than 10 years after the commission of the
offense.''.
(2) Clerical amendment.--The table of sections for chapter
213 of title 18, United States Code, is amended by striking the
item relating to section 3291 and inserting the following:
``3291. Immigration, naturalization, and peonage offenses.''.
SEC. 222. DIRECTIVES RELATED TO PASSPORT AND DOCUMENT FRAUD.
(a) Directive to the United States Sentencing Commission.--
(1) In general.--Pursuant to the authority under section
994 of title 28, United States Code, the United States
Sentencing Commission shall promulgate or amend the sentencing
guidelines, policy statements, and official commentaries
related to passport fraud offenses, including the offenses
described in chapter 75 of title 18, United States Code, as
amended by section 209, to reflect the serious nature of such
offenses.
(2) Report.--Not later than 1 year after the date of the
enactment of this Act, the United States Sentencing Commission
shall submit a report on the implementation of this subsection
to--
(A) the Committee on the Judiciary of the Senate;
and
(B) the Committee on the Judiciary of the House of
Representatives.
(b) Protection for Legitimate Refugees and Asylum Seekers.--
(1) In general.--
(A) Requirement for guidelines.--The Attorney
General, in consultation with the Secretary, shall
develop binding prosecution guidelines for Federal
prosecutors to ensure that each prosecution of an alien
seeking entry into the United States by fraud is
consistent with the United States treaty obligations
under Article 31(1) of the Convention Relating to the
Status of Refugees, done at Geneva July 28, 1951 (as
made applicable by the Protocol Relating to the Status
of Refugees, done at New York January 31, 1967 (19 UST
6223)).
(B) No private right of action.--The guidelines
developed pursuant to subparagraph (A), and any
internal office procedures related to such guidelines--
(i) are intended solely for the guidance of
attorneys of the United States; and
(ii) are not intended to, do not, and may
not be relied upon to, create any right or
benefit, substantive or procedural, enforceable
at law by any party in any administrative,
civil, or criminal matter.
(2) Protection of vulnerable persons.--A person described
in paragraph (3) may not be prosecuted under chapter 75 of
title 18, United States Code, or under section 275 or 276 of
the Immigration and Nationality Act (8 U.S.C. 1325 and 1326),
in connection with the person's entry or attempted entry into
the United States until after the date on which the person's
application for such protection, classification, or status has
been adjudicated and denied in accordance with the Immigration
and Nationality Act (8 U.S.C. 1101 et seq.).
(3) Persons seeking protection, classification, or
status.--A person described in this paragraph is a person who--
(A) is seeking protection, classification, or
status; and
(B)(i) has filed an application for asylum under
section 208 of the Immigration and Nationality Act (8
U.S.C. 1158), withholding of removal under section
241(b)(3) of such Act (8 U.S.C. 1231), or relief under
the Convention against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment, done at New York,
December 10, 1994, pursuant to title 8, Code of Federal
Regulations;
(ii) indicates immediately after apprehension, that
he or she intends to apply for such asylum, withholding
of removal, or relief and promptly files the
appropriate application;
(iii) has been referred for a credible fear
interview, a reasonable fear interview, or an asylum-
only hearing under section 235 of the Immigration and
Nationality Act (8 U.S.C. 1225) or title 8, Code of
Federal Regulations; or
(iv) has filed an application for classification or
status under--
(I) paragraph (15)(T), (15) (U), (27)(J),
or (51) of section 101(a) of the Immigration
and Nationality Act (8 U.S.C. 1101(a)); or
(II) section 216(c)(4)(C), 240A(b)(2), or
244(a)(3) of such Act (8 U.S.C. 1186a(c)(4)(C),
1229b(b)(2), and 1254a(a)(3)).
SEC. 223. EXPANDING THE DEFINITION OF CONVEYANCES SUBJECT TO
FORFEITURE.
(a) In General.--Section 1703 of title 19, United States Code, is
amended--
(1) by amending the section heading to read as follows:
``Sec. 1703. Seizure and forfeiture of vessels, vehicles, other
conveyances, and instruments of international traffic'';
(2) in subsection (a), by amending the subsection heading
to read as follows:
``(a) Vessels, Vehicles, Other Conveyances, and Instruments of
International Traffic Subject to Seizure and Forfeiture.--'';
(3) in subsection (b), by amending the subsection heading
to read as follows:
``(b) Vessels, Vehicles, Other Conveyances, and Instruments of
International Traffic Defined.--'';
(4) in subsections (a) and (b), by inserting ``, vehicle,
other conveyance, or instrument of international traffic''
after ``vessel'' each place such term appears; and
(5) by amending subsection (c) to read as follows:
``(c) Acts Constituting Prima Facie Evidence of Smuggling.--For
purposes of this section, prima facie evidence that a conveyance is
being, has been, or is attempting to be employed in smuggling or to
defraud the revenue of the United States shall be--
``(1) in the case of a vessel, the vessel--
``(A) has become subject to pursuit, as described
in section 1581;
``(B) is a hovering vessel; or
``(C) fails, at any place within the customs waters
of the United States or within a customs-enforcement
area, to display lights as required by law;
``(2) in the case of a vehicle, other conveyance, or
instrument of international traffic, the vehicle, other
conveyance, or instrument of international traffic has any
compartment or equipment that is built or fitted out for
smuggling.''.
(b) Clerical Amendment.--The table of sections for chapter 5 of
title 19, United States Code, is amended by striking the item relating
to section 1703 and inserting the following:
``1703. Seizure and forfeiture of vessels, vehicles, other conveyances,
or instruments of international traffic.''.
SEC. 224. PROHIBITION OF THE SALE OF FIREARMS TO, OR THE POSSESSION OF
FIREARMS BY, CERTAIN ALIENS.
Section 922 of title 18, United States Code, is amended--
(1) in subsection (d)(5), by amending subparagraph (B) to
read as follows:
``(B) except as provided in subsection (y), is in
the United States and has not been lawfully admitted
for permanent residence;'';
(2) in subsection (g)(5), by amending subparagraph (B) to
read as follows:
``(B) except as provided in subsection (y), is in
the United States and has not been lawfully admitted
for permanent residence;''; and
(3) in subsection (y)--
(A) in the subsection heading, by striking
``Admitted Under Nonimmigrant Visas'' and inserting
``Not Lawfully Admitted for Permanent Residence'';
(B) by amending paragraph (1)(B) to read as
follows:
``(B) the term `lawfully admitted for permanent
residence' has the same meaning as in section
101(a)(20) of the Immigration and Nationality Act (8
U.S.C. 1101(a)(20)).'';
(C) in paragraph (2), by striking ``under a
nonimmigrant visa'' and inserting ``and has not been
lawfully admitted for permanent residence''; and
(D) in paragraph (3)(A), by striking ``admitted to
the United States under a nonimmigrant visa'' and
inserting ``lawfully admitted to the United States and
has not been lawfully admitted for permanent
residence''.
SEC. 225. CRIMINAL FORFEITURE.
Section 982 of title 18, United States Code, is amended--
(1) in subsection (a)(2)(B) by inserting ``1028A'' between
``1028'' and ``1029;''
(2) in subsection (a)(6)(A)--
(A) by striking `` or 274A(a)(2)'' and inserting
``274A(a)(2) or 274A(i)''; and
(B) by inserting ``and 1028A'' after ``1028'' and
(3) in subsection (a)(8) by inserting ``and 1028A'' after
``1028''.
SEC. 226. ADVANCE DELIVERY OF INFORMATION INCLUDING PASSENGER
MANIFESTS.
(a) In General.--Section 231 (8 U.S.C. 1221) is amended as follows:
(1) by striking ``commercial vessel or aircraft'' each
place it appears and inserting ``commercial vessel, commercial
vehicle, or aircraft'';
(2) in subsection (a), by striking ``such vessel or
aircraft'' and inserting ``such vessel, vehicle, or aircraft'';
(3) in subsection (g), by striking ``$1,000'' and inserting
``$5,000'';
(4) in subsection (j), by striking ``The Attorney General''
and inserting the following:
``(j) Information to Be Recorded.--The Secretary of Homeland
Security''; and
(5) by inserting at the end the following:
``(k) Sharing of Manifest and Passenger Name Record Information
With Other Government Agencies.--The Secretary of Homeland Security may
provide information contained in passenger and crew manifests and
passenger name record information received under this section to other
Federal, State, tribal, local, and foreign government authorities in
order to protect the national security of the United States or as
otherwise authorized by law.
``(l) Savings Provision.--Nothing in this section may be construed
to abrogate, diminish, or weaken the provisions of any Federal law that
prevents or protects against unauthorized collection or release of
personal records.''.
(b) Assessments.--Not later than 1 year after the date of the
enactment of this Act, the Secretary shall assess the privacy and civil
liberties impacts of the amendments made by subsection (a).
SEC. 227. UNLAWFUL FLIGHT FROM IMMIGRATION OR CUSTOMS CONTROLS AND
DISOBEYANCE OF LAWFUL ORDERS.
Section 758 of title 18, United States Code, is amended to read as
follows:
``Sec. 758. Unlawful flight from Federal checkpoints and disobeyance of
lawful orders
``(a) Evading a Checkpoint.--Any person who, while operating a
motor vehicle or vessel--
``(1) knowingly flees or evades a checkpoint operated by
the Department of Homeland Security or any other Federal law
enforcement agency; and
``(2) knowingly or recklessly disregards or disobeys the
lawful command of a Federal law enforcement officer engaged in
the enforcement of Federal law, or the lawful command of any
law enforcement officer assisting such Federal officer,
shall be fined under this title, imprisoned not more than 5 years, or
both.
``(b) Failure to Stop.--Any person who, while operating a motor
vehicle, aircraft, or vessel, knowingly or recklessly disregards or
disobeys the lawful command of a Federal law enforcement officer
engaged in the enforcement of Federal law, or the lawful command of any
law enforcement officer assisting such Federal officer, shall be fined
under this title, imprisoned not more than 2 years, or both.''.
SEC. 228. REDUCING ILLEGAL IMMIGRATION AND ALIEN SMUGGLING ON TRIBAL
LANDS.
(a) Grants Authorized.--The Secretary may award grants to any
Indian tribe that--
(1) owns land that is adjacent to an international border
of the United States; and
(2) has been adversely affected by illegal immigration.
(b) Use of Funds.--Grants awarded under subsection (a) may be used
for--
(1) law enforcement activities;
(2) health care services;
(3) environmental restoration; and
(4) the preservation of cultural resources.
(c) Report.--Not later than 180 days after the date of the
enactment of this Act, the Secretary shall submit a report to the
Committee on the Judiciary of the Senate and the Committee on the
Judiciary of the House of Representatives that--
(1) describes the level of access that Border Patrol agents
have on tribal lands;
(2) describes the extent to which the enforcement of
Federal immigration laws and rescue operations by Border Patrol
officers may be improved by enhanced access to tribal lands;
(3) contains a strategy for improving access to tribal
lands through increased cooperation with tribal authorities;
and
(4) identifies grants provided by the Department to Indian
tribes, either directly or through grants provided to State or
local governments, for border security expenses.
(d) Authorization of Appropriations.--There are authorized to be
appropriated such sums as may be necessary for each of the fiscal years
2011 through 2015 to carry out this section.
SEC. 229. DIPLOMATIC SECURITY SERVICE.
(a) Section 37(a)(1) of the State Department Basic Authorities Act
of 1956 (22 U.S.C. 2709(a)(1)) is amended to read as follows:
``(1) conduct investigations concerning--
``(A) illegal passport or visa issuance or use;
``(B) identity theft or document fraud affecting or
relating to the programs, functions, or authorities of
the Department of State;
``(C) violations of chapter 77 of title 18, United
States Code; and
``(D) Federal offenses committed within the special
maritime and territorial jurisdiction defined in
section 7(9) of title 18, United States Code, except as
that jurisdiction relates to the premises of United
States military missions and related residences;''.
(b) Rule of Construction.--Nothing in this section may be construed
to limit the investigative authority of any Federal department or
agency.
SEC. 230. INCREASED PENALTIES BARRING THE ADMISSION OF CONVICTED SEX
OFFENDERS FAILING TO REGISTER AND REQUIRING DEPORTATION
OF SEX OFFENDERS FAILING TO REGISTER.
(a) Inadmissibility.--Section 212(a)(2)(A)(i) (8 U.S.C.
1182(a)(2)(A)(i)) is amended--
(1) in subclause (I), by striking ``or'' at the end;
(2) in subclause (II), by striking the comma at the end and
inserting a semicolon; and
(3) by inserting after subclause (II) the following:
``(III) a conviction under section
2250 of title 18, United States Code
(relating to failure to register as a
sex offender),''.
(b) Deportability.--Section 237(a)(2)(A)(i) (8 U.S.C.
1227(a)(2)(A)(i)) is amended--
(1) in subclause (I), by striking ``, and'' and inserting a
semicolon;
(2) in subclause (II), by striking the comma at the end and
inserting ``; or''; and
(3) by inserting after subclause (II) the following:
``(III) a conviction under section
2250 of title 18, United States Code
(relating to failure to register as a
sex offender),''.
SEC. 231. AGGRAVATED FELONY.
(a) Definition of Aggravated Felony.--Section 101(a)(43) (8 U.S.C.
1101(a)(43)) is amended--
(1) in the matter preceding subparagraph (A), by striking
``The term `aggravated felony' means--'' and inserting
``Notwithstanding any other provision of law, the term
`aggravated felony' applies to any offense which is a felony
described in this paragraph, whether in violation of Federal or
State law, for which the individual served at least 1 year of
imprisonment and to such a felony offense in violation of the
law of a foreign country, for which the term of imprisonment
was completed during the previous 15 years, regardless of
whether the conviction was entered before, on, or after
September 30, 1996, and means--'';
(2) in subparagraph (N), by striking ``paragraph (1)(A) or
(2) of'' and inserting ``paragraph (1)(A), (2), or (4) of'';
and
(3) by striking the undesignated matter following
subparagraph (U).
(b) Effective Date and Application.--
(1) In general.--The amendments made by subsection (a)
shall--
(A) take effect on the date of the enactment of
this Act; and
(B) apply to any act that occurred on or after such
date.
(2) Application of amendments.--The amendments to section
101(a)(43) of the Immigration and Nationality Act made by
section 321 of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (division C of Public Law 104-208;
110 Stat. 3009-627) shall continue to apply to actions taken on
or after September 30, 1996, regardless of when the conviction
for such actions occurred.
SEC. 232. INCREASED CRIMINAL PENALTIES RELATED TO GANG VIOLENCE.
(a) Criminal Street Gangs.--
(1) Inadmissibility.--Section 212(a)(2) (8 U.S.C.
1182(a)(2)) is amended by adding at the end the following:
``(J) Members of criminal street gangs.--Unless the
Secretary of Homeland Security or the Attorney General
waives the application of this subparagraph, any alien
who has been convicted of a crime under section 521 of
title 18, United States Code, is inadmissible.''.
(2) Deportability.--Section 237(a)(2) (8 U.S.C. 1227(a)(2))
is amended by adding at the end the following:
``(F) Members of criminal street gangs.--Unless the
Secretary of Homeland Security or the Attorney General
waives the application of this subparagraph, any alien
who has been convicted of a crime under section 521 of
title 18, United States Code, is deportable.''.
(3) Temporary protected status.--Section 244 (8 U.S.C.
1254a) is amended--
(A) by striking ``Attorney General'' each place it
appears and inserting ``Secretary of Homeland
Security'';
(B) in subsection (c)(2)(B)--
(i) in clause (i), by striking ``, or'' at
the end and inserting a semicolon;
(ii) in clause (ii), by striking the period
at the end and inserting ``; or''; and
(iii) by adding at the end the following:
``(iii) the alien has been convicted of a
crime under section 521 of title 18, United
States Code.''.
(C) in subsection (d)--
(i) by striking paragraph (3);
(ii) by redesignating paragraph (4) as
paragraph (3); and
(iii) in paragraph (3), as redesignated, by
adding at the end the following: ``The
Secretary of Homeland Security shall detain an
alien provided temporary protected status under
this section if the alien has been found by an
immigration judge to be subject to detention
under section 236(c)(1).''.
(b) Penalties Related to Removal.--Section 243 (8 U.S.C. 1253) is
amended--
(1) in subsection (a)(1), in the matter following
subparagraph (D)--
(A) by striking ``or imprisoned not more than four
years'' and inserting ``and imprisoned for not more
than 5 years''; and
(B) by striking ``, or both''; and
(2) in subsection (b), by striking ``not more than $1,000
or imprisoned for not more than one year, or both'' and
inserting ``under title 18, United States Code, and imprisoned
for not more than 3 years (or for not more than 10 years if the
alien is removable under paragraph (1)(E), (2), or (4) of
section 237(a)).''.
Subtitle B--Detention Reform
SEC. 241. DEFINITIONS.
In this subtitle:
(1) Apprehension.--The term ``apprehension'' means the
detention, arrest, or custody, or any significant deprivation
of an individual's freedom of action by government officials or
entities acting under agreement with the Department for
suspicion of violations under the Immigration and Nationality
Act (8 U.S.C. 1101 et seq.).
(2) Child.--The term ``child'' has the meaning given to the
term in section 101(b)(1) of the Immigration and Nationality
Act (8 U.S.C. 1101(b)(1)).
(3) Child welfare agency.--The term ``child welfare
agency'' means the State or local agency responsible for child
welfare services under subtitles B and E of title IV of the
Social Security Act (42 U.S.C. 601 et seq.).
(4) Cooperating entity.--The term ``cooperating entity''
means a State or local entity acting under agreement with, or
at the request of, the Department.
(5) Detainee.--The term ``detainee'' means an individual
who is subject to detention under the Immigration and
Nationality Act.
(6) Detention.--The term ``detention'' means government
custody or any other deprivation of an individual's freedom of
movement by government agents.
(7) Detention facility.--The term ``detention facility''
means a Federal, State, or local government facility, or a
privately owned and operated facility, that is used to hold
individuals suspected or found to be in violation of the
Immigration and Nationality Act (8 U.S.C. 1101 et seq.) for
more than 72 hours.
(8) Families with children.--The term ``family with
children'' means any parent or legal guardian who is
apprehended with 1 or more of their children.
(9) Group legal orientation presentations.--The term
``group legal orientation presentations'' means live group
presentations, supplemented by individual orientations, pro se
workshops, and pro bono referrals, that--
(A) are carried out by private nongovernmental
organizations;
(B) are presented to detainees;
(C) inform detainees about Federal immigration law
and procedures; and
(D) enable detainees to determine their eligibility
for relief.
(10) Immigration enforcement action.--The term
``immigration enforcement action'' means the apprehension of,
detention of, or request for or issuance of a detainer for, 1
or more individuals for suspected or confirmed violations of
the Immigration and Nationality Act (8 U.S.C. 1101 et seq.) by
the Department or cooperating entities.
(11) Local education agency.--The term ``local education
agency'' has the meaning given to the term in section 9101 of
the Elementary and Secondary Education Act of 1965 (20 U.S.C.
7801).
(12) NGO.--The term ``NGO'' means a nongovernmental
organization that provides social services or humanitarian
assistance to the immigrant community.
(13) Secure alternatives.--The term ``secure alternatives''
means custodial or noncustodial programs under which aliens are
screened and provided with appearance assistance services or
placed in supervision programs as needed to ensure they appear
at all immigration interviews, appointments and hearings.
(14) Short-term detention facility.--The term ``detention
facility'' means a Federal, State, or local government
facility, or a privately owned and operated facility, that is
used to hold individuals suspected or found to be in violation
of the Immigration and Nationality Act (8 U.S.C. 1101 et seq.)
for 72 hours or less.
(15) Unaccompanied alien children.--The term
``unaccompanied alien children'' has the meaning given the term
in section 462(g) of the Homeland Security Act of 2002 (6
U.S.C. 279(g)).
SEC. 242. PROTECTIONS FOR VULNERABLE POPULATIONS.
(a) Protection of Vulnerable Populations.--
(1) In general.--Not later than 72 hours after the
commencement of an immigration-related enforcement activity,
the Department shall screen each detainee to determine if the
individual is a member of a vulnerable population.
(2) Eligibility for release.--An individual is a member of
a vulnerable population and eligible for release under
paragraph (3) if the Department determines that he or she--
(A) has a nonfrivolous claim to United States
citizenship;
(B) has been deemed by a medically trained
professional to have medical or mental health needs, or
a disability;
(C) is pregnant or nursing;
(D) is being detained with 1 or more of his or her
children, or is 1 of such children;
(E) provides financial, physical, and other direct
support to his or her minor children, parents, or other
dependents;
(F) is older than 65 years of age;
(G) is a child (as defined in section 101(b) of the
Immigration and Nationality Act (8 U.S.C. 1101(b));
(H) is a victim of abuse, violence, crime, or human
trafficking;
(I) has been referred for a credible fear
interview, a reasonable fear interview, or an asylum
hearing, or is a stateless individual;
(J) has applied or intends to apply for asylum,
withholding of removal, or protection under the
Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, done at New York
December 10, 1984;
(K) is prima facie eligible for relief under any
provision of the Immigration and Nationality Act (8
U.S.C. 1101 et seq.) including returning lawful
permanent residents; or
(L) is a member of any other group that has been
designated as a vulnerable population in regulations or
guidance promulgated by the Secretary.
(b) Options Regarding Detention Decisions for Vulnerable
Populations.--Section 236 (8 U.S.C. 1226), as amended by this Act, is
further amended--
(1) in subsection (a)--
(A) in the matter preceding paragraph (1) by
striking ``(c)'' and inserting ``(g)''; and
(B) in paragraph (2)--
(i) in subparagraph (A), by striking ``or''
at the end;
(ii) in subparagraph (B), by striking
``but'' at the end; and
(iii) by inserting after subparagraph (B)
the following:
``(C) the alien's own recognizance;''; and.
(C) by redesignating paragraph (3) as paragraph
(4); and
(D) by inserting after paragraph (2) the following:
``(3) may enroll the alien in a secure alternatives
program; and'';
(2) by inserting after subsection (a) the following:
``(b) Custody Decisions.--
``(1) Criteria to be considered.--For any alien who is not
charged with inadmissibility or removability under a ground
specified in subsection (g) or section 236A, the criteria that
the Secretary of Homeland Security or the Attorney General
shall use to demonstrate that detention is necessary are--
``(A) whether the alien poses a risk to public
safety, including a risk to national security; and
``(B) whether alien poses a flight risk and there
are no conditions of release that will reasonably
ensure that the alien will appear for immigration
proceedings, including bond or other conditions that
reduce the risk of flight.
``(2) Exception.--A decision to detain an alien shall not
be subject to the criteria under paragraph (1) if the Secretary
demonstrates, by a preponderance of the evidence, that the
alien falls is described in subsection (g)(1).
``(3) Review.--Decisions by the Secretary or the Attorney
General under this section shall be subject to review.
``(c) Custody Decisions for Vulnerable Populations.--
``(1) In general.--Not later than 72 hours after an
individual is detained under this section (unless the 72-hour
requirement is waived in writing by the individual), an
individual who is a member of a vulnerable population (as
defined by subsection (a)) shall be released from the custody
of the Department of Homeland Security and shall not be subject
to electronic monitoring unless the Department demonstrates by
a preponderance of evidence that the individual--
``(A) is subject to mandatory detention under
subsection (g) or section 236A;
``(B) poses a risk to public safety, including a
risk to national security; or
``(C) is a flight risk and the risk cannot be
mitigated through other conditions of release, such as
bond or secure alternatives, which will reasonably
ensure the alien will appear for immigration
proceedings.
``(2) Release.--An individual shall be released from
custody under this subsection--
``(A) on the individual's own recognizance;
``(B) by posting a minimum bond under subsection
(a)(2)(a);
``(C) on parole, in accordance with section
212(d)(5)(A); or
``(D) into a noncustodial secure alternatives
program.
``(d) Decision to Remove or Release an Alien.--
``(1) In general.--All decisions to detain an individual
under this Act--
``(A) shall be made in writing by the Department of
Homeland Security or the Attorney General;
``(B) shall specify the reasons for such decision
if the decision is made to continue detention without
bond, parole, release on recognizance, or release into
a noncustodial secure alternatives program; and
``(C) shall be served upon the individual in the
language spoken by the individual--
``(i) not later than 72 hours after the
commencement of the alien's detention; or
``(ii) in the case of an alien subject to
section 235 or 241(a)(5) who must establish a
credible fear of persecution or torture, not
later than 72 hours after a positive credible
fear of persecution or reasonable fear of
persecution or torture determination.
``(2) Redetermination.--
``(A) In general.--Any alien detained by the
Department of Homeland Security under this Act may, at
any time after being served with the Secretary's
decision under paragraph (1), request a redetermination
of that decision by an immigration judge.
``(B) Other decisions.--The Attorney General may
review and conduct custody redeterminations for any
custody decision by the Secretary.
``(C) Savings provision.--Nothing in this
subparagraph may be construed to prevent an individual
from requesting a bond redetermination.
``(e) Timely Notice Upon Apprehension and Service of Charging
Documents.--
``(1) Notice.--The Secretary, for each individual detained
by the Department under this section, shall file the notice to
appear or other relevant charging document with the closest
immigration court to where the individual was apprehended and
serve such notice on the individual not later than 48 hours
after the commencement of the individual's detention.
``(2) Custody determination.--Any individual who is
detained under this section for more than 48 hours shall be
brought before an immigration judge for a custody determination
not later than 72 hours after the commencement of such
detention unless the individual waives such right in accordance
with paragraph (3).
``(3) Waiver.--The requirements under this subsection may
be waived for 7 days if the individual--
``(A) enters into a written agreement with the
Department of Homeland Security to waive such
requirement; and
``(B) is eligible for immigration benefits or
demonstrates eligibility for a defense against removal.
``(4) Applicability of other law.--Nothing in this section
may be construed to repeal section 236A.'';
(3) in subsection (e)(2), as redesignated, by inserting
``or for humanitarian reasons,'' after ``such an
investigation,''; and
(4) by redesignating subsections (b), (c), and (d), as
subsections (f), (g), and (h), respectively.
SEC. 243. APPREHENSION PROCEDURES FOR IMMIGRATION ENFORCEMENT-RELATED
ACTIVITIES RELATING TO CHILDREN.
(a) Notification.--
(1) Advance notification.--Subject to paragraph (2), when
conducting any immigration enforcement action, the Department
and cooperating entities shall notify the Governor of the
State, the local child welfare agency, and relevant State and
local law enforcement before commencing the action, or, if
advance notification is not possible, immediately after
commencing such action, of--
(A) the approximate number of individuals to be
targeted in the immigration enforcement action; and
(B) the primary language or languages believed to
be spoken by individuals at the targeted site.
(2) Hours of notification.--To the extent possible, advance
notification should occur during business hours and allow the
notified entities sufficient time to identify resources to
conduct the interviews described in subsection (b)(1).
(3) Other notification.--When conducting any immigration
action, the Department and cooperating entities shall notify
the relevant local education agency and local NGOs of the
information described in paragraph (1) immediately after
commencing the action.
(b) Apprehension Procedures.--In any immigration enforcement
action, the Department and cooperating entities shall--
(1) as soon as possible and not later than 6 hours after an
immigration enforcement action, provide licensed social workers
or case managers employed or contracted by the child welfare
agency or local NGOs with confidential access to screen and
interview individuals apprehended in such immigration
enforcement action to assist the Department or cooperating
entity in determining if such individuals are parents, legal
guardians, or primary caregivers of a child in the United
States;
(2) as soon as possible and not later than 8 hours after an
immigration enforcement action, provide any apprehended
individual believed to be a parent, legal guardian, or primary
caregiver of a child in the United States with--
(A) free, confidential telephone calls, including
calls to child welfare agencies, attorneys, and legal
services providers, to arrange for the care of children
or wards, unless the Department has reasonable grounds
to believe that providing confidential phone calls to
the individual would endanger public safety or national
security; and
(B) contact information for--
(i) child welfare agencies in all 50
States, the District of Columbia, all United
States territories, counties, and local
jurisdictions; and
(ii) attorneys and legal service providers
capable of providing free legal advice or free
legal representation regarding child welfare,
child custody determinations, and immigration
matters;
(3) ensure that personnel of the Department and cooperating
entities do not--
(A) interview individuals in the immediate presence
of children; or
(B) compel or request children to translate for
interviews of other individuals who are encountered as
part of an immigration enforcement action; and
(4) ensure that any parent, legal guardian, or primary
caregiver of a child in the United States--
(A) receives due consideration of the best
interests of his or her children or wards in any
decision or action relating to his or her detention,
release, or transfer between detention facilities; and
(B) is not transferred from his or her initial
detention facility or to the custody of the Department
until the individual--
(i) has made arrangements for the care of
his or her children or wards; or
(ii) if such arrangements are impossible,
is informed of the care arrangements made for
the children and of a means to maintain
communication with the children.
(c) Nondisclosure and Retention of Information About Apprehended
Individuals and Their Children.--
(1) In general.--Information collected by child welfare
agencies and NGOs in the course of the screenings and
interviews described in subsection (b)(1) about an individual
apprehended in an immigration enforcement action may not be
disclosed to Federal, State, or local government entities or to
any person, except pursuant to written authorization from the
individual or his or her legal counsel.
(2) Child welfare agency or ngo recommendation.--
Notwithstanding paragraph (1), a child welfare agency or NGO
may--
(A) submit a recommendation to the Department of
Homeland Security or cooperating entities regarding
whether an apprehended individual is a parent, legal
guardian, or primary caregiver who is eligible for the
protections provided under this Act; and
(B) disclose information that is necessary to
protect the safety of the child, to allow for the
application of subsection (b)(4)(A), or to prevent
reasonably certain death or substantial bodily harm.
SEC. 244. DETENTION OF FAMILIES.
(a) Placement in Removal Proceedings.--Any family with children
sought to be removed by the Department shall be placed in removal
proceedings under section 240 of the Immigration and Nationality Act (8
U.S.C. 1229a).
(b) Custody of Families With Children.--
(1) Separation.--Families with children shall not be
separated or taken into custody except when justified by
exceptional circumstances, or when required by law.
(2) Exceptional circumstances.--In exceptional
circumstances, if release or a secure alternatives program is
not an option for families with children, the Secretary shall
ensure that--
(A) special nonpenal, residential, home-like
facilities that enable families to live as a family
unit are designed to house families with children,
taking into account the particular needs and
vulnerabilities of the children;
(B) procedures and conditions of custody are
appropriate for families with children;
(C) entities with demonstrated experience and
expertise in child welfare staff and are responsible
for the management of facilities housing families with
children;
(D) unless such restrictions are necessary to
prevent flight or to ensure the safety of residents,
families with children are are not subject
restrictions--
(i) on freedom of movement;
(ii) involving access to visitations,
telephones, internet, a library, and a law
library;
(iii) regarding possession of personal
property, including personal clothing;
(iv) on the availability of age appropriate
education; or
(v) religious practices;
(E) individualized reviews by an immigration judge
of each family's well being, custody status and the
need for continued detention are conducted every 30
days for any family held in such a facility for more
than 3 weeks;
(F) all families are notified in writing of the
decisions resulting from such reviews and of the
individualized reasons for the decision; and
(G) parents retain fundamental parental rights and
responsibilities, including the discipline of children,
in accordance with applicable State laws.
(c) Discretionary Waiver Authority for Families With Children.--
Section 235(b)(1)(B)(iii) (8 U.S.C. 1225(b)(1)(B)(iii)) is amended--
(1) in subclause (IV), by striking ``Any alien'' and
inserting ``Except as provided in subclause (V), any alien'';
and
(2) by adding at the end the following:
``(V) Discretionary waiver
authority for families with children.--
The Secretary of Homeland Security may
decide for humanitarian reasons or
significant public benefit not to
detain families with children who are
otherwise subject to mandatory
detention under subclause (IV).''.
SEC. 245. ACCESS TO CHILDREN, LOCAL AND STATE COURTS, CHILD WELFARE
AGENCIES, AND CONSULAR OFFICIALS.
(a) In General.--The Secretary shall ensure that all detention
facilities operated by or under agreement with the Department implement
procedures to ensure that the best interest of the child, including the
best outcome for the family of the child, is considered in any decision
or action relating to the custody of children whose parent, legal
guardian, or primary caregiver is detained as the result of an
immigration enforcement action.
(b) Access to Children, State and Local Courts, Child Welfare
Agencies, and Consular Officials.--At all detention facilities operated
by, or under agreement with, the Department, the Secretary shall--
(1) ensure that individuals who are detained by reason of
their immigration status may receive the screenings and
interviews described in section 243(b)(1) not later than 6
hours after their arrival at the detention facility;
(2) ensure that individuals who are detained by reason of
their immigration status and are believed to be parents, legal
guardians, or primary caregivers of children in the United
States are--
(A) permitted daily phone calls and regular contact
visits with their children or wards;
(B) able to participate fully, and to the extent
possible in-person, in all family court proceedings and
any other proceeding impacting upon custody of their
children or wards;
(C) able to fully comply with all family court or
child welfare agency orders impacting upon custody of
their children or wards;
(D) provided with contact information for family
courts in all 50 States, the District of Columbia, all
United States territories, counties, and local
jurisdictions;
(E) granted free and confidential telephone calls
to child welfare agencies and family courts;
(F) granted free and confidential telephone calls
and confidential in-person visits with attorneys, legal
representatives, and consular officials;
(G) provided United States passport applications
for the purpose of obtaining travel documents for their
children or wards;
(H) granted adequate time before removal to obtain
passports and other necessary travel documents on
behalf of their children or wards if such children or
wards will accompany them on their return to their
country of origin or join them in their country of
origin; and
(I) provided with the access necessary to obtain
birth records or other documents required to obtain
passports for their children or wards; and
(3) facilitate the ability of detained parents, legal
guardians, and primary caregivers to share information
regarding travel arrangements with their children or wards,
child welfare agencies, or other caregivers well in advance of
the detained individual's departure from the United States.
SEC. 246. MEMORANDA OF UNDERSTANDING.
The Secretary shall develop and implement memoranda of
understanding or protocols with child welfare agencies and NGOs
regarding the best ways to cooperate and facilitate ongoing
communication between all relevant entities in cases involving a child
whose parent, legal guardian, or primary caregiver has been apprehended
or detained in an immigration enforcement action to protect the best
interests of the child and the best outcome for the family of the
child.
SEC. 247. MANDATORY TRAINING.
The Secretary, in consultation with the Secretary of Health and
Human Services and independent child welfare experts, shall require and
provide in-person training on the protections required to all personnel
of the Department and of States and local entities acting under
agreement with the Department who regularly come into contact with
children or parents in the course of conducting immigration enforcement
actions.
SEC. 248. ALTERNATIVES TO DETENTION.
(a) Secure Alternatives.--The Secretary shall establish secure
alternatives programs to ensure public safety and appearances at
immigration proceedings. The Secretary shall contract with
nongovernmental organizations to conduct screening of detainees,
provide appearance assistance services, and operate community-based
supervision programs. If an individual is not eligible for release from
custody, the Secretary shall consider the alien for placement in secure
alternatives that maintain custody over the alien, including but not
limited to the use of electronic ankle devices. When deciding whether
to use custodial secure alternatives, the Secretary shall make an
individualized determination and review each case on a monthly basis.
The Secretary may use secure alternatives programs to maintain custody
over any alien detained under the Immigration and Nationality Act,
except aliens detained under section 236A of such Act (8 U.S.C. 1226a).
SEC. 249. DETENTION CONDITIONS.
(a) Detention Requirements.--The Secretary shall ensure that all
persons detained pursuant to the Immigration and Nationality Act are
treated humanely and granted the protections set forth in this section.
The Secretary shall comply with and enforce the following minimum
requirements:
(1) Quality of medical care.--Each detainee has the right
to prompt and adequate medical care, designed to ensure
continuity of care, at no cost to the detainee, including care
to address medical needs that existed prior to detention. Such
care shall include primary care, emergency care, chronic care,
reproductive health care, prenatal care, dental care, eye care,
mental health care, medical dietary needs, and other medically
necessary specialized care. The Secretary shall cease use of
any short term facility or detention facility that fails to
maintain accreditation for more than 1 year.
(A) Each detainee shall receive a comprehensive
medical, dental, and mental health intake screening by
a licensed health care professional upon arrival at the
detention facility and each detainee shall receive a
comprehensive medical and mental health examination by
a licensed health care professional not later than 14
days after arrival.
(B) All prescribed medications and medically
necessary treatment shall be provided to detainees on
schedule and without interruption. Medically necessary
treatment shall include prenatal care, prenatal
vitamins, and hormonal therapies including birth
control. Female detainees shall be provided with
adequate access to sanitary products. Each detainee
taking prescribed medications prior to detention shall
be allowed to continue taking such medications, on
schedule and without interruption, until and unless a
licensed health care professional examines the
immigration detainee and decides upon an alternative
course of treatment. Detainees who arrive at a
detention facility with prescription medications shall
be permitted to continue taking their medications, on
schedule and without interruption, until such time as a
qualified health care professional examines the
detainee and decides upon an alternative course of
treatment. Detainees who arrive at a detention facility
without prescription medications but who report being
on such medications shall be evaluated by a qualified
health care professional as soon as possible, but not
later than 24 hours after arrival. All decisions to
discontinue or modify a detainee's reported
prescription medication regimen shall be conveyed to
the detainee in a language that the detainee
understands and shall be recorded in writing in the
detainee's medical records.
(C) Involuntary psychotropic medication may be used
only if allowed by applicable law and then only in
emergency situations when a physician has determined,
after personally examining the patient, that a detainee
is imminently dangerous to self or others due to a
mental illness and that involuntary psychotropic
medication is medically appropriate to treat the mental
illness and necessary to prevent harm. Medication shall
not be forcibly administered to a detainee to
facilitate transport, removal or otherwise to control
the detainee's behavior.
(D) On-Site Medical Providers. Detention
facilities, in conjunction with the Department, shall
provide for an administrative process for handling
appeals of denials of medical or mental health
treatment or care. Any decision regarding requested
medical care for a detainee shall be made in writing by
an on-site licensed health care professional within 72
hours. The decision of the on-site provider shall be
communicated without delay to the detainee.
(E) Administrative Appeals Process. Detention
facilities, in conjunction with the Department, shall
ensure that detainees, medical providers, and legally-
appointed advocates have the opportunity to appeal a
denial of requested health care services by an on-site
provider to an independent appeals board. The appeals
board shall include health care professionals in the
fields relevant to the request for medical or mental
health care. Any such appeal shall be resolved in
writing within 7 days by the appeals board or earlier
if medically necessary.
(F) Review of on-site medical provider requests.
The Secretary shall respond within 72 hours to any
request by an on-site medical provider for
authorization to provide medical or mental health care
to an immigration detainee. In each case in which the
Secretary denies or fails to grant such a request by
the onsite medical provider, a written explanation of
the reasons for the decision shall be conveyed without
delay to the on-site medical provider and the
immigration detainee. The on-site medical provider and
immigration detainee (or legally appointed advocate)
shall be permitted to appeal the denial of or failure
to grant the requested health care service. Such appeal
shall be resolved in writing within 7 days by an
impartial appeals board or earlier if medically
necessary and communicated without delay to the on-site
medical provider and the immigration detainee.
(G) Any detainee deemed by a licensed health care
professional to have a medical or mental health care
condition shall be considered for release on parole, on
bond, or into a secure alternatives program, with
periodic reevaluations for such detainees not initially
released.
(H) Upon removal or release, all detainees with
medical or mental health conditions and women who are
pregnant, post-natal, and nursing mothers shall receive
discharge planning to ensure continuity of care for a
reasonable period of time.
(I) The Department shall maintain complete,
confidential medical records for every detainee, which
shall be made available within 72 hours upon request to
a detainee or individuals authorized by the detainee.
Immediately upon an immigration detainee's transfer
from one detention facility to another, the immigration
detainee's complete medical records, including any
transfer summary, shall be provided to the receiving
facility.
(2) Transfers of detainees.--
(A) Notice.--Absent exigent circumstances, such as
a natural disaster or comparable emergency, the
Secretary shall provide not less than 72 hours written
notice to any detainee before such detainee is
transferred to another detention facility. Not later
than 24 hours after transfer, the Secretary shall
notify by telephone and in writing the detainee's legal
representative or other person designated by the
detainee of the transfer.
(B) Procedures.--Absent exigent circumstances, such
as a natural disaster or comparable emergency, the
Secretary shall not transfer a detainee to another
detention facility if such transfer would impair an
existing attorney-client relationship; prejudice the
rights of the detainee in any legal proceeding,
including any federal, state or administrative
proceeding; or negatively affect the detainee's health
including by interrupting the continuity of medical
care or provision of prescription medication.
(C) Transportation.--The Secretary shall ensure the
safe transport and deportation of each individual
detained under the Immigration and Nationality Act,
including appropriate use of safety harnesses and
occupancy limitations of vehicles.
(3) Access to telephones.--Detention facilities shall
provide detainees with reasonable access to telephones not
later than 6 hours after the commencement of a detention of an
individual that shall include at a minimum one working phone
for every 25 detainees. Each detainee has the right to contact,
free of charge, legal representatives, designated
nongovernmental organizations, consular officials, Federal and
State courts where the detainee is or may become involved in a
legal proceeding, and all government immigration agencies and
adjudicatory bodies including the DHS Office of the Inspector
General and the DHS Office for Civil Rights and Civil Liberties
through confidential toll-free numbers. Confidential calls at
no charge shall be provided to detainees who are subject to
expedited removal or who are experiencing personal or family
emergencies, including the need to arrange care for dependents.
Each detainee has the right to privacy of telephone
conversations made for the purpose of obtaining legal
representation or related to legal matters. The Secretary shall
ensure that rates charged in detention facilities for telephone
calls are reasonable and do not significantly impair the
detainee's right to access telephones.
(4) Physical and sexual abuse.--No detainee, whether in a
detention facility or short term detention facility, shall be
subject to degrading or inhumane treatment such as physical
abuse, sexual abuse or harassment, or arbitrary punishment.
Detention facilities shall take all necessary measures to
prevent sexual abuse and sexual assaults of detainees, to
provide medical and mental health treatment to victims of
sexual abuse and sexual assaults and shall comply fully with
the standards under the Prison Rape Elimination Act of 2003 (42
U.S.C. 15601 et seq.)
(5) Limitations on solitary confinement and strip
searches.--The use of solitary confinement, shackling, and
strip searches of detainees shall be limited to situations
where the use of such techniques is necessitated by
extraordinary circumstances when the safety of other persons is
at imminent risk. These techniques shall in no event be used
for the purpose of humiliating detainees either within or
outside the detention facility. Detention facilities shall
adopt written policies pertaining to the use of force and the
use of restraints and shall train all staff on the proper use
of such devices. Solitary confinement, shackling and strip
searches shall not be used on pregnant women, nursing mothers,
women in labor or delivery or children who are younger than 18
years of age. Strip searches shall not be conducted in front of
children who are younger than 21 years of age.
(6) Location of detention facilities.--All new detention
facilities used by the Department shall be located within 50
miles of a city or municipality in which there is a
demonstrated capacity to provide free or low-cost legal
representation by non-profit legal aid organizations or pro
bono attorneys with expertise in asylum or immigration law. By
January 1, 2012, all detention facilities used by the
Department shall meet this requirement, and if the Secretary is
unable to comply, the Secretary shall submit a report to
Congress on that date and annually each year thereafter,
explaining the reasons for the failure and the specific plans
to meet the requirement.
(7) Translation capabilities.--Detention facilities and
short term detention facilities shall employ facility staff who
are professionally qualified in any language spoken by more
than 10 percent of its immigration detainee population. All
short term detention facilities and detention facilities shall
provide alternative translation services in the exceptional
circumstances when trained bilingual staff members are
unavailable to translate. All such facilities shall provide
notices and written materials to detainees translated in any
language spoken by more than 5 percent of its immigration
detainee population.
(8) Legal access.--Detainees in detention facilities have
the right to access legal information, including an on-site law
library with up-to-date legal materials and law databases. Each
detainee has the right to access free of charge the necessary
equipment and materials for legal research and correspondence,
such as computers, printers, copiers, and typewriters. The
Secretary shall ensure each detainee is provided with
information regarding the availability of legal information and
services to assist those with limited English proficiency or
disabilities. Detention facilities shall also provide access
for each detainee to meet confidentially with legal counsel and
shall provide services to send confidential legal documents to
legal counsel, government offices and legal organizations.
(9) Visitations.--Detainees in detention facilities have
the right to meet privately with his or her current or
prospective legal representative, interpreters, and other legal
support staff a minimum of 8 hours per day on regular business
days and 4 hours per day on weekends and holidays, subject to
appropriate security procedures. Legal visits shall not be
restricted absent narrowly defined exceptional circumstances,
such as a natural disaster or comparable emergency. Detention
facilities shall prominently post official lists, updated semi-
annually by the Secretary of Homeland Security, of pro bono
legal organizations and their contact information in detainee
housing units and other appropriate areas. Each detainee has
the right to reasonable access to religious or other qualified
individuals to address religious, cultural, or spiritual
considerations. Detainees have the right to regular, private
contact visits with children who are younger 18 years of age.
(10) Recreational programs and activities.--Detainees in
detention facilities shall be afforded access to at least one
hour each day of indoor and outdoor recreational programs and
activities for detainees.
(11) Training of personnel.--All personnel in detention
facilities and short term detention facilities shall be given a
comprehensive specialized training and regular, periodic
updates that shall include at a minimum an overview of
immigration detention and all detention standards; the
characteristics of the non-citizen detainee population
including special characteristics of vulnerable groups; and the
due process and grievance procedures to protect the rights of
detainees.
(12) Specific detention requirements for short term
detention facilities.--All detainees in short term detention
facilities shall receive potable water; food if detained for
more than 5 hours; basic toiletries, diapers, sanitary products
and blankets; and access to bathroom facilities and telephones.
The Secretary or his designates shall provide consular
officials with access to detainees held at such facilities.
Detainees shall be afforded reasonable access to a licensed
health care professional. The Secretary shall ensure that
nursing mothers in such facilities have access to their
children. Any property the Department confiscates from
detainees shall be returned upon repatriation or transfer.
(A) Protections for children in short-term
facilities.--For purposes of this section, the
Secretaryshall provide adequately trained and qualified
staff resources at each major port of entry (as defined
by the U.S. Customs and Border Protection station
assigned to that port having in its custody over the
past two fiscal years an average per year of 50 or more
unaccompanied alien children (as defined in section 462
of the Homeland Security Act of 2002 (6 U.S.C. 279))),
including U.S. Customs and Border Protection agents
charged primarily with the safe, swift, and humane
transportation of unaccompanied alien children to
Office of Refugee Resettlement custody and independent
licensed social workers dedicated to ensuring the
proper temporary care for the children while in
Department custody prior to their transfer to the
Office of Refugee Resettlement, who will ensure that
each child--
(i) receives emergency medical care;
(ii) receives mental health care in case of
trauma and has access to psychosocial health
services;
(iii) is provided with a pillow, linens,
and sufficient blankets to rest at a
comfortable temperature, a bed, and a mattress
placed in an area specifically designated for
residential use;
(iv) receives adequate nutrition;
(v) enjoys a safe and sanitary living
environment;
(vi) receives educational materials; and
(vii) has access to at least three hours
per day of indoor and outdoor recreational
programs and activities.
(B) Confidentiality.--The Secretary of Health and
Human Services shall maintain the privacy and
confidentiality of all information gathered in the
course of providing care, custody, placement and
follow-up services to unaccompanied alien children,
consistent with the best interest of the unaccompanied
alien child, by not disclosing such information to
other government agencies or nonparental third parties.
The Secretary may share information when authorized to
do so by the child and when consistent with the child's
best interest. The Secretary may provide information to
a duly recognized law enforcement entity, if such
disclosure would prevent imminent and serious harm to
another individual. All disclosures shall be duly
recorded in writing and placed in the child's files.
(13) Vulnerable populations.--Detention facility conditions
and minimum requirements for detention facilities shall
recognize and accommodate the unique needs of vulnerable
populations as defined by this Act.
(14) Children.--The Secretary shall ensure that
unaccompanied alien children (as defined in section 462 of the
Homeland Security Act of 2002 (6 U.S.C. 279)) are physically
separated from any adult who is not an immediate family member
and are separated by sight and sound from immigration detainees
and inmates with criminal convictions, pretrial inmates facing
criminal prosecution, children who have been adjudicated
delinquents or convicted of adult offenses or are pending
delinquency or criminal proceedings, and those inmates
exhibiting violent behavior while in detention as is consistent
with the Juvenile Justice and Delinquency Prevention Act of
1974 (42 U.S.C. 5601 et seq.)
(b) Rulemaking and Enforcement.--
(1) In general.--
(A) Notice of proposed rulemaking.--Not later than
60 days after the date of the enactment of this Act,
the Secretary shall issue a notice of proposed
rulemaking regarding the enforcement of this section.
(B) Final regulations.--Not later than 180 days
after the date of the enactment of this Act, the
Secretary shall promulgate regulations, binding upon
all short term detention facilities and detention
facilities, to ensure that the detention requirements
under subsection (a) are fully implemented and
enforced, and that all facilities comply with the
regulations.
(2) Enforcement.--The Secretary shall enforce all
regulations promulgated under paragraph (1). Not later than 180
days after the date of the enactment of this Act, the Secretary
shall issue guidance for ensuring compliance with all detention
requirements, and all regulations and standards promulgated
under paragraph (1), by short term detention facilities and
detention facilities. Such mechanisms may include the
imposition of financial penalties upon noncompliant facilities
and, in cases of persistent noncompliance, may include the
termination of facilities contract with the Department.
(A) Such procedures shall include mechanisms for
review by the Secretary of any evidence of non-
compliance with the provisions of this section.
Evidence pertaining to violations of these provisions,
including detainee complaints, shall be investigated
and determined by the Secretary within 30 days and, if
a violation is found, such violations shall be remedied
within an additional 30 days. A decision by the
Secretary not to pursue such an enforcement action
shall constitute final agency action.
(B) Each detainee has the right to file grievances
with the staff of short term detention facilities,
detention facilities, and the Department and shall be
protected from retaliation.
(C) Each short term detention facility and
detention facility shall designate an officer to ensure
compliance with the provisions of this section. Such
officer shall investigate all evidence pertaining to a
violation of this section and, if a violation is
identified, shall remedy the violation within 30 days.
A detainee may not seek review in district court until
after the passage of the afore-described 30-day period.
(D) Nothing in the Act may be construed to preclude
review of noncompliance with this section under section
1983 of title 42, United States Code.
(E) No individual shall seek remedy in district
court without first having complied with the procedures
promulgated under paragraph 1 or paragraph 2 of this
subsection. No individual may seek punitive damages for
violations under this section.
(c) Detention Commission.--
(1) Appointment.--The Secretary shall appoint and convene a
detention commission comprised of experts from U.S. Immigration
and Customs Enforcement, U.S. Customs and Border Protection,
the Office of Refugee Resettlement, and Division of Immigration
Health Services in the Department of Health and Human Services,
and an equal number of independent experts from nongovernmental
organizations and intergovernmental organizations with
expertise in working on behalf of aliens detained under
immigration laws and vulnerable populations.
(2) Duties.--The commission shall conduct independent
investigations, evaluate, and report on the compliance of short
term detention facilities, detention facilities and the
Department with the requirements set forth in this Act.
(3) Report.--Not later than 60 days after the first
September 30 after the date of the enactment of this Act, and
biennially thereafter, the commission shall submit a report on
the duties set forth in paragraph (2) to--
(A) the Committee on the Judiciary of the Senate;
(B) the Committee on Homeland Security and
Governmental Affairs of the Senate;
(C) the Committee on the Judiciary of the House of
Representatives; and
(D) the Committee on Homeland Security of the House
of Representatives.
(d) Death in Custody Reporting Requirement.--
(1) In general.--If an individual dies while in the custody
of the Department or en route to or from custody, the
supervising official at a short term detention facility or
detention facility shall immediately report such death to the
Secretary. Not later than 48 hours after receiving the report
of such death, the Secretary shall report the death to the
Office of the Inspector General of the Department and the
Department of Justice.
(2) Investigations.--The Department shall complete an
investigation of each detainee death that shall be conducted
consistent with established medical practice for morbidity and
mortality reviews and examine both individual and systemic
contributors to the death. The investigation shall be conducted
by a panel of physicians with experience in morbidity and
mortality reviews and shall include the medical staff of the
facility or facilities that cared for the deceased detainee,
physicians from within the Department, and independent
physicians not affiliated with the Department or facility. The
panel shall complete a report and corrective action plan in
each case.
(3) Reports.--
(A) In general.--Not later than 60 days after the
end of each fiscal year, the Secretary shall submit to
the Committee on the Judiciary and the Committee on
Homeland Security and Governmental Affairs of the
Senate and the Committee on the Judiciary and the
Committee on Homeland Security of the House of
Representatives a report containing detailed
information regarding all such deaths during the
preceding fiscal year, including each mortality and
morbidity report, corrective action plan, and
corrective actions taken.
(B) Contents.--The reports to the Office of the
Inspector General and to Congress referenced in
paragraph (1) shall, at a minimum, include the name,
gender, race, ethnicity, and age of the deceased; the
date, time, and location of death; the law enforcement
agency that detained, arrested, or was in the process
of arresting the deceased; a description of the
circumstances surrounding the death; the status and
results of any investigation that has been conducted
into the circumstances surrounding the death; and all
medical records of the deceased.
SEC. 250. ACCESS TO COUNSEL.
Section 240(b)(4) (8 U.S.C. 1229a(b)(4)) is amended--
(1) in the matter preceding subparagraph (A), by striking
``In proceedings under this section, under regulations of the
Attorney General'' and inserting ``The Attorney General shall
promulgate regulations for proceedings under this section,
under which--''
(2) in subparagraph (B), by striking ``, and'' at the end
and inserting a semicolon;
(3) by redesignating subparagraph (C) as subparagraph (D);
and
(4) by inserting after subparagraph (B) the following:
``(C) the Attorney General, or the designee of the
Attorney General, may appoint counsel to represent an
alien if the fair resolution or effective adjudication
of the proceedings would be served by appointment of
counsel; and''.
SEC. 251. GROUP LEGAL ORIENTATION PRESENTATIONS.
(a) Establishment of a National Legal Orientation Support and
Training Center.--The Attorney General, in consultation with the
Secretary, shall establish a National Legal Orientation Support and
Training Center (referred to in this section as the ``Center'') to
ensure quality and consistent implementation of group legal orientation
programs nationwide.
(b) Duties.--The Center shall--
(1) offer training to nonprofit agencies that will offer
group legal orientation programs;
(2) consult with nonprofit agencies offering group legal
orientation programs regarding program development and
substantive legal issues;
(3) develop standards for group legal orientation programs;
and
(4) ensure that all detained aliens in immigration and
asylum proceedings under sections 235, 238, 240, and 241(b)(5)
of the Immigration and Nationality Act (8 U.S.C. 1225, 1228,
1229a, and 1231(b)(5)) receive group legal orientation
programs.
(c) Procedures.--The Secretary shall establish procedures for
regularly scheduled, group legal orientation presentations.
(d) Grants Authorized.--The Attorney General shall establish a
program to award grants to nongovernmental agencies to develop,
implement, or expand legal orientation programs for all detainees at a
detention facility that offers such programs.
SEC. 252. PROTECTIONS FOR REFUGEES.
(a) Protection of Refugees Prior to Adjustment.--Section 209 (8
U.S.C. 1159) is amended--
(1) in subsection (a)(1), by striking ``return or be
returned to the custody of the Department of Homeland Security
for inspection and examination for admission to the United
States as an immigrant in accordance with the provisions of
sections 235, 240, and 241'' and inserting ``be eligible for
adjustment of status as an immigrant to the United States'';
(2) in subsection (a)(2), by striking ``upon inspection and
examination''; and
(3) in subsection (c), by adding at the end the following:
``An application for adjustment under this section may be filed
up to 3 months before the date the applicant would first
otherwise be eligible for adjustment under this section.''.
(b) Procedures for Ensuring Accuracy and Verifiability of Sworn
Statements Taken Pursuant to Expedited Removal Authority.--
(1) In general.--The Secretary shall establish quality
assurance procedures to ensure the accuracy and verifiability
of signed or sworn statements taken by employees of the
Department exercising expedited removal authority under section
235(b) of the Immigration and Nationality Act (8 U.S.C.
1225(b)).
(2) Recording of interviews.--Any sworn or signed written
statement taken of an alien as part of the record of a
proceeding under section 235(b)(1)(A) of the Immigration and
Nationality Act (8 U.S.C. 1225(b)(1)(A) shall be accompanied by
a recording of the interview which served as the basis for that
sworn statement.
(3) Recordings.--
(A) In general.--The recording of the interview
shall include the written statement, in its entirety,
being read back to the alien in a language that the
alien claims to understand, and the alien affirming the
accuracy of the statement or making any corrections
thereto.
(B) Format.--The recording shall be made in video,
audio, or other equally reliable format.
(4) Exemption authority.--
(A) Subsections (b) and (c) shall not apply to
interviews that occur at facilities exempted by the
Secretary pursuant to this subsection.
(B) The Secretary or the Secretary's designee may
exempt any facility based on a determination by the
Secretary or the Secretary's designee that compliance
with subsections (b) and (c) at that facility would
impair operations or impose undue burdens or costs.
(C) The Secretary or the Secretary's designee shall
report annually to Congress on the facilities that have
been exempted pursuant to this subsection.
(D) The exercise of the exemption authority shall
not give rise to a private cause of action.
(c) Interpreters.--The Secretary shall ensure that a professional
fluent interpreter is used when the interviewing officer does not speak
a language understood by the alien and there is no other Federal, State
or local government employee available who is able to interpret
effectively, accurately and impartially.
(d) Recordings in Immigration Proceedings.--Recordings of
interviews of aliens described in section (b) shall be included in the
record of a proceeding and may be considered as evidence in any further
proceedings involving the alien.
(e) Study on the Effect of Expedited Removal Provisions, Practices
and Procedures on Asylum Claims.--
(1) In general.--The United States Commission on
International Religious Freedom (referred to in this section as
the ``Commission'') is authorized to conduct a study to
determine whether immigration officers described in paragraph
(2) are engaging in conduct described in paragraph (3).
(2) Immigration officers described.--An immigration officer
described in this paragraph is an immigration officer
performing duties under section 235(b) of the Immigration and
Nationality Act (8 U.S.C. 1225(b)) with respect to aliens who
are apprehended after entering the United States and who may be
eligible to apply for asylum under such section or section 208
of such Act (8 U.S.C. 1158).
(3) Conduct described.--Conduct described in this paragraph
is the following:
(A) Improperly encouraging an alien referred to in
paragraph (2) to withdraw or retract claims for asylum.
(B) Incorrectly failing to refer such an alien for
an interview by an asylum officer for a determination
of whether the alien has a credible fear of persecution
(within the meaning of section 235(b)(1)(B)(v) of the
Immigration and Nationality Act (8 U.S.C.
1225(b)(1)(B)(v))).
(C) Incorrectly removing such an alien to a country
where the alien may be persecuted.
(D) Detaining such an alien improperly or in
inappropriate conditions.
(f) Report.--Not later than 24 months after the date on which the
Commission initiates the study conducted under subsection (a), the
Commission shall submit a report containing the results of the study
to--
(1) the Committee on Homeland Security and Governmental
Affairs of the Senate;
(2) the Committee on the Judiciary of the Senate;
(3) the Committee on Foreign Relations of the Senate;
(4) the Committee on Homeland Security of the House of
Representatives;
(5) the Committee on the Judiciary of the House of
Representatives; and
(6) the Committee on Foreign Affairs of the House of
Representatives.
(g) Staff.--
(1) From other agencies.--At the request of the Commission,
the Secretary, the Attorney General, and the Comptroller
General of the United States shall authorize staff designated
by the Commission who are recognized for their expertise and
knowledge of refugee and asylum issues to assist the Commission
in conducting the study under subsection (a).
(2) Hiring of staff.--The Commission may hire additional
staff and consultants to conduct the study under subsection
(a).
(3) Access to proceedings.--
(A) In general.--Except as provided in subparagraph
(B), the Secretary and the Attorney General shall
permit staff designated under paragraph (1) or hired
under paragraph (2) to have unrestricted access to all
stages of all proceedings conducted under section
235(b) of the Immigration and Nationality Act (8 U.S.C.
1225(b)).
(B) Exceptions.--The Secretary and the Attorney
General shall not permit unrestricted access pursuant
to subparagraph (A) in any case in which--
(i) an alien that is subject to a
proceeding conducted under section 235(b) of
the Immigration and Nationality Act objects to
such access; or
(ii) the Secretary or Attorney General
determines that the security of a particular
proceeding would be threatened by such access.
SEC. 253. IMMIGRATION AND CUSTOMS ENFORCEMENT OMBUDSMAN.
(a) Establishment.--Subtitle D of title III of the Homeland
Security Act of 2002 (6 U.S.C. 251 et seq.) is amended by adding at the
end the following:
``SEC. 447. IMMIGRATION AND CUSTOMS ENFORCEMENT OMBUDSMAN.
``(a) In General.--There established in the Department of Homeland
Security a position of Immigration and Customs Enforcement Ombudsman
(referred to in this section as the `Ombudsman').
``(b) Requirements.--The Ombudsman shall--
``(1) report directly to the Assistant Secretary for
Immigration and Customs Enforcement (referred to in this
section as the `Assistant Secretary'); and
``(2) have a background in immigration law.
``(c) Functions.--The Ombudsman shall--
``(1) undertake regular and unannounced inspections of
detention facilities and local offices of United States
Immigration and Customs Enforcement to determine whether the
facilities and offices comply with relevant policies,
procedures, standards, laws, and regulations;
``(2) report all findings of compliance or noncompliance of
the facilities and local offices described in paragraph (1) to
the Secretary and the Assistant Secretary;
``(3) develop procedures for detainees or their
representatives to submit confidential written complaints
directly to the Ombudsman;
``(4) investigate and resolve all complaints, including
confidential and anonymous complaints, related to decisions,
recommendations, acts, or omissions made by the Assistant
Secretary or the Commissioner of United States Customs and
Border Protection in the course of custody and detention
operations;
``(5) initiate investigations into allegations of systemic
problems at detention facilities;
``(6) conduct any review or audit relating to detention, as
directed by the Secretary or Assistant Secretary;
``(7) refer matters, as appropriate, to the Office of
Inspector General of the Department of Justice, the Office of
Civil Rights and Civil Liberties of the Department, or any
other relevant office or agency;
``(8) propose changes in the policies or practices of
United States Immigration and Customs Enforcement to improve
the treatment of United States citizens and residents,
immigrants, detainees, and others subject to immigration-
related enforcement operations;
``(9) establish a public advisory group consisting of
nongovernmental organization representatives and Federal,
State, and local government officials with expertise in
detention and vulnerable populations to provide the Ombudsman
with input on--
``(A) the priorities of the Ombudsman; and
``(B) current practices of United States
Immigration and Customs Enforcement; and
``(10) recommend to the Assistant Secretary personnel
action based on any finding of noncompliance.
``(d) Annual Report.--
``(1) Objectives.--Not later than June 30 of each year, the
Ombudsman shall prepare and submit a report to the Committee on
the Judiciary of the Senate and the Committee on the Judiciary
of the House of Representatives on the objectives of the Office
of the Ombudsman for the next fiscal year.
``(2) Contents.--Each report submitted under paragraph (1)
shall include--
``(A) full and substantive analysis of the
objectives of the Office of the Ombudsman;
``(B) statistical information regarding such
objectives;
``(C) a description of each detention facility
found to be in noncompliance with the detention
standards of the Department of Homeland Security or
other applicable regulations;
``(D) a description of the actions taken by the
Department of Homeland Security to remedy any findings
of noncompliance or other identified problems;
``(E) information regarding whether the actions
described in subparagraph (D) resulted in compliance
with detention standards;
``(F) a summary of the most pervasive and serious
problems encountered by individuals subject to the
enforcement operations of the Department of Homeland
Security, including a description of the nature of such
problems; and
``(G) such other information as the Ombudsman may
consider advisable.''.
(b) Amendment.--The table of contents in section 1(b) of the
Homeland Security Act of 2002 (6 U.S.C. 101 et seq.) is amended by
inserting after the item relating to section 446 the following:
``Sec. 447. Immigration and Customs Enforcement Ombudsman.''
SEC. 254. LAWFUL PERMANENT RESIDENT STATUS OF REFUGEES AND ASYLUM
SEEKERS GRANTED ASYLUM.
(a) Admission of Emergency Situation Refugees.--Section 207(c) (8
U.S.C. 1157(c)) is amended--
(1) in paragraph (1)--
(A) by striking ``Attorney General the first time
it appears and inserting `Secretary of Homeland
Security'';
(B) by striking ``Attorney General'' each
additional place it appears and inserting
``Secretary''; and
(C) by striking ``(except as otherwise provided
under paragraph (3)) as an immigrant under this Act.''
and inserting ``(except as provided under subsection
(b) and (c) of section 209) as an immigrant under this
Act. Notwithstanding any numerical limitations
specified in this Act, any alien admitted under this
paragraph shall be regarded as lawfully admitted to the
United States for permanent residence as of the date of
such alien's admission to the United States.'';
(2) in paragraph (2)(A)--
(A) by striking ``(except as otherwise provided
under paragraph (3))'' and inserting ``(except as
provided under subsection (b) and (c) of section
209)''; and
(B) by striking the last sentence and inserting the
following: ``An alien admitted to the United States as
a refugee may petition for his or her spouse or child
to follow to join him or her in the United States at
any time after such alien's admission, notwithstanding
his or her treatment as a lawful permanent resident as
of the date of his or her admission to the United
States.'';
(3) by striking paragraph (3);
(4) by redesignating paragraph (4) as paragraph (3); and
(5) in paragraph (3), as redesignated--
(A) by striking ``Attorney General'' the first time
it appears and inserting ``Secretary of Homeland
Security''; and
(B) by striking ``Attorney General'' each
additional place it appears and inserting
``Secretary''.
(b) Treatment of Spouse and Children.--Section 208(b)(3) (8 U.S.C.
1158(b)(3)) is amended--
(1) by redesignating subparagraph (B) as subparagraph (E);
and
(2) by inserting after subparagraph (A) the following:
``(B) Petition.--An alien granted asylum under this
subsection may petition for the same status to be
conferred on his or her spouse or child at any time
after such alien is granted asylum whether or not such
alien has applied for, or been granted, adjustment to
permanent resident status under section 209.
``(C) Permanent resident status.--Notwithstanding
any numerical limitations specified in this Act, a
spouse or child admitted to the United States as an
asylee following to join a spouse or parent previously
granted asylum shall be regarded as lawfully admitted
to the United States for permanent residence as of the
date of such spouse's or child's admission to the
United States.
``(D) Application for adjustment of status.--A
spouse or child who was not admitted to the United
States pursuant to a grant of asylum, but who was
granted asylum under this subparagraph after his or her
arrival as the spouse or child of an alien granted
asylum under section 208, may apply for adjustment of
status to that of lawful permanent resident under
section 209 at any time after being granted asylum.''.
(c) Refugees.--
(1) In general.--Section 209 (8 U.S.C. 1159) is amended to
read as follows:
``SEC. 209. TREATMENT OF ALIENS ADMITTED AS REFUGEES AND OF ALIENS
GRANTED ASYLUM.
``(a) In General.--
``(1) Treatment of refugees.--Notwithstanding any numerical
limitations specified in this Act, any alien who has been
admitted to the United States under section 207 shall be
regarded as lawfully admitted to the United States for
permanent residence as of the date of such admission.
``(2) Treatment of spouse and children.--Notwithstanding
any numerical limitations specified in this Act, any alien
admitted to the United States under section 208(b)(3) as the
spouse or child of an alien granted asylum under section
208(b)(1) shall be regarded as lawfully admitted to the United
States for permanent residence as of the date of such
admission.
``(3) Adjustment of status.--The Secretary of Homeland
Security or the Attorney General, in the discretion of the
Secretary or the Attorney General, and under such regulations
as the Secretary or the Attorney General may prescribe, may
adjust, to the status of an alien lawfully admitted to the
United States for permanent residence, the status of any alien
who, while in the United States--
``(A) is granted--
``(i) asylum under section 208(b) (as a
principal alien or as the spouse or child of an
alien granted asylum); or
``(ii) refugee status under section 207 as
the spouse or child of a refugee;
``(B) applies for such adjustment of status at any
time after being granted asylum or refugee status;
``(C) is not firmly resettled in any foreign
country; and
``(D) is admissible (except as otherwise provided
under subsections (b) and (c)) as an immigrant under
this Act at the time of examination for adjustment of
such alien.
``(4) Record.--Upon approval of an application under this
subsection, the Secretary of Homeland Security or the Attorney
General shall establish a record of the alien's admission for
lawful permanent residence as of the date such alien was
granted asylum or refugee status.
``(5) Document issuance.--An alien who has been admitted to
the United States under section 207 or 208 or who adjusts to
the status of a lawful permanent resident as a refugee or
asylee under this section shall be issued documentation
indicating that such alien is a lawful permanent resident
pursuant to a grant of refugee or asylum status.
``(b) Inapplicability of Certain Inadmissibility Grounds to
Refugees, Aliens Granted Asylum, and Such Aliens Seeking Adjustment of
Status to Lawful Permanent Resident.--Paragraphs (4), (5), and (7)(A)
of section 212(a) shall not apply to--
``(1) any refugee under section 207;
``(2) any alien granted asylum under section 208; or
``(3) any alien seeking admission as a lawful permanent
resident pursuant to a grant of refugee or asylum status.
``(c) Waiver of Inadmissibility or Deportability for Refugees,
Aliens Granted Asylum, and Such Aliens Seeking Adjustment of Status to
Lawful Permanent Resident.--
``(1) In general.--Except as provided in paragraph (2), the
Secretary of Homeland Security or the Attorney General may
waive any ground of inadmissibility under section 212 or any
ground of deportability under section 237 for a refugee
admitted under section 207, an alien granted asylum under
section 208, or an alien seeking admission as a lawful
permanent resident pursuant to a grant of refugee or asylum
status if the Secretary or the Attorney General determines that
such waiver is justified by humanitarian purposes, to ensure
family unity, or is otherwise in the public interest.
``(2) Ineligibility.--A refugee under section 207, an alien
granted asylum under section 208, or an alien seeking admission
as a lawful permanent resident pursuant to a grant of refugee
or asylum status shall be ineligible for a waiver under
paragraph (1) if it has been established that the alien is--
``(A) inadmissible under section 212(a)(2)(C) or
subparagraph (A), (B), (C), or (E) of section
212(a)(3);
``(B) deportable under section 237(a)(2)(A)(iii)
for an offense described in section 101(a)(43)(B); or
``(C) deportable under subparagraph (A), (B), (C),
or (D) of section 237(a)(4).''.
(d) Technical Amendments.--
(1) Aliens not subject to direct numerical limitations.--
Section 201(b)(1)(B) (8 U.S.C. 1151(b)(1)(B)) is amended to
read as follows:
``(B) Aliens who are admitted to the United States
as permanent residents under section 207 or 208 or
whose status is adjusted under section 209.''.
(2) Training.--Section 207(f)(1) (8 U.S.C. 1157(f)(1)) is
amended by striking ``Attorney General'' and inserting
``Secretary of Homeland Security''.
(3) Table of contents.--The table of contents is amended by
striking the item relating to section 209 and inserting the
following:
``Sec. 209. Treatment of aliens admitted as refugees and of aliens
granted asylum.''.
(e) Savings Provisions.--
(1) In general.--Nothing in the amendments made by this
section may be construed to limit access to the benefits
described at chapter 2 of title IV of the Immigration and
Nationality Act (8 U.S.C. 1521 et seq.).
(2) Clarification.--Aliens admitted for lawful permanent
residence under section 207 or 208 of the Immigration and
Nationality Act (8 U.S.C. 1157 and 1158) or who adjust status
to lawful permanent resident under section 209 of such Act (8
U.S.C. 1159) shall be considered to be refugees and aliens
granted asylum in accordance with sections 402, 403, 412, and
431 of the Personal Responsibility and Work Opportunity
Reconciliation Act of 1996 (8 U.S.C. 1612, 1613, 1622, and
1641).
(f) Effective Date.--This section, and the amendments made by this
section, shall become effective on the earlier of--
(1) the date that is 180 days after the date of the
enactment of this Act; or
(2) the date on which a final rule is promulgated to
implement this section.
SEC. 255. ELIMINATION OF TIME LIMITS ON ASYLUM APPLICATIONS.
Section 208(a)(2) (8 U.S.C. 1158(a)(2)) is amended--
(1) in subparagraph (A), by striking ``Attorney General''
each place it appears and inserting ``Attorney General or the
Secretary of Homeland Security'';
(2) by striking subparagraph (B);
(3) by redesignating subparagraphs (C) and (D) as
subparagraphs (B) and (C), respectively;
(4) in subparagraph (B), as redesignated, by striking
``subparagraph (D)'' and inserting ``subparagraphs (C) and
(D)''; and
(5) by striking subparagraph (C), as redesignated, and
inserting the following:
``(C) Changed circumstances.--Notwithstanding
subparagraph (B), an application for asylum of an alien
may be considered if the alien demonstrates, to the
satisfaction of the Attorney General or the Secretary
of Homeland Security, the existence of changed
circumstances that materially affect the applicant's
eligibility for asylum.
``(D) Motion to reopen denied asylum claim.--
Notwithstanding subparagraph (B) or section 240(c)(7),
an alien may file a motion to reopen an asylum claim
during the 2-year period beginning on the date of
enactment of this subparagraph if the alien--
``(i) was denied asylum based solely upon a
failure to meet the 1-year application filing
deadline in effect on the date on which the
application was filed;
``(ii) was granted withholding of removal
to the alien's country of nationality (or, if
stateless, to the country of last habitual
residence under section 241(b)(3));
``(iii) has not obtained lawful permanent
residence in the United States pursuant to any
other provision of law;
``(iv) is not subject to the safe third
country exception in section 208(a)(2)(A) or a
bar to asylum under section 208(b)(2) and
should not be denied asylum as a matter of
discretion; and
``(v) is physically present in the United
States when the motion is filed.''; and
(6) in subparagraph (E), by striking ``subparagraphs (A)
and (B)'' and inserting ``subparagraph (A).''
SEC. 256. EFFICIENT ASYLUM DETERMINATION PROCESS AND DETENTION OF
ASYLUM SEEKERS.
Section 235(b)(1)(B) (8 U.S.C. 1225(b)(1)(B)) is amended--
(1) in clause (ii), by striking ``shall be detained for
further consideration of the application for asylum'' and
inserting ``may, in the Secretary's discretion, be detained for
further consideration of the application for asylum by an
asylum officer designated by the Director of United States
Citizenship and Immigration Services. The asylum officer, after
conducting a nonadversarial asylum interview, may grant asylum
to the alien under section 208 or refer the case to a designee
of the Attorney General, for a de novo asylum determination,
for relief under the Convention Against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment, done at
New York December 10, 1984, or for withholding of removal under
section 241(b)(3).''; and
(2) in clause (iii)(IV)--
(A) by amending the subclause heading to read as
follows:
``(IV) Detention.--''; and
(B) by striking ``shall'' and inserting ``may, in
the Secretary's discretion,''.
SEC. 257. PROTECTION OF STATELESS PERSONS IN THE UNITED STATES.
(a) In General.--Chapter 1 of title II (8 U.S.C. 1151 et seq.) is
amended by adding at the end the following:
``SEC. 210A. PROTECTION OF STATELESS PERSONS IN THE UNITED STATES.
``(a) Defined Term.--
``(1) In general.--In this section, the term `de jure
stateless person' means an individual who is not considered a
national under the laws of any country. Individuals who have
lost their nationality as a result of their voluntary action or
knowing inaction after arrival in the United States shall not
be considered de jure stateless persons.
``(2) Designation of specific de jure groups.--The
Secretary of Homeland Security, in consultation with the
Secretary of State, may, in the discretion of the Secretary,
designate specific groups of individuals who are considered de
jure stateless persons, for purposes of this section.
``(b) Mechanisms for Regularizing the Status of Stateless
Persons.--
``(1) Relief for individuals determined to be de jure
stateless persons.--The Secretary of Homeland Security or the
Attorney General may, in his or her discretion, provide
conditional lawful status to an alien who is otherwise
inadmissible or deportable from the United States if the
alien--
``(A) is a de jure stateless person;
``(B) applies for such relief;
``(C) is not inadmissible under paragraph (2) or
(3) of section 212(a); and
``(D) is not described in section 241(b)(3)(B)(i).
``(2) Waivers.--The provisions of paragraphs (4), (5),
(6)(A), (7)(A), and (9) of section 212(a) shall not be
applicable to any alien seeking relief under paragraph (1), and
the Secretary of Homeland Security or the Attorney General may
waive any other provision of such section (other than paragraph
(2)(C) or subparagraph (A), (B), (C), or (E) of paragraph (3))
with respect to such an alien for humanitarian purposes, to
assure family unity, or when it is otherwise in the public
interest.
``(3) Submission of passport or travel document.--Any alien
who seeks benefits under this section must submit to the
Secretary or the Attorney General--
``(A) any passport or travel document issued at any
time to the alien (whether or not the passport or
document has expired or been cancelled, rescinded, or
revoked); or
``(B) an affidavit sworn under penalty of perjury
stating that the alien has never been issued a passport
or travel document, or identifying with particularity
any such passport or travel document and explaining why
the alien cannot submit it.
``(4) Work authorization.--The Secretary may--
``(A) authorize an alien who has applied for relief
under paragraph (1) to engage in employment in the
United States while such application is being
considered; and
``(B) provide such applicant with an employment
authorized endorsement or other appropriate document
signifying authorization of employment.
``(5) Treatment of spouses and children.--The spouse or
child of an alien who has been granted conditional lawful
status under paragraph (1) shall, if not otherwise eligible for
admission under paragraph (1), be granted conditional lawful
status under this section if accompanying, or following to
join, such alien, provided that the spouse or child is
admissible (except as otherwise provided in paragraph (2)), and
provided further that the qualifying relationship to the
principal beneficiary existed on the date on which such alien
was granted conditional lawful status.
``(c) Adjustment of Status.--
``(1) Inspection and examination.--At the end of the 5-year
period beginning on the date on which an alien has been granted
conditional lawful status under subsection (b), the alien may
apply for lawful permanent residence in the United States if--
``(A) the alien has been physically present in the
United States for at least 5 years;
``(B) the alien's conditional lawful status has not
been terminated by the Secretary of Homeland Security
or the Attorney General, pursuant to such regulations
as the Secretary or the Attorney General may prescribe;
and
``(C) the alien has not otherwise acquired
permanent resident status.
``(2) Requirements for adjustment.--The Secretary or the
Attorney General, under such regulations as the Secretary or
the Attorney General may prescribe, may adjust the status of an
alien granted conditional lawful status under subsection (b) to
that of an alien lawfully admitted for permanent residence if
such alien--
``(A) is a de jure stateless person;
``(B) properly applies for such adjustment of
status;
``(C) has been physically present in the United
States for at least 5 years after being granted
conditional lawful status under subsection (b);
``(D) is not firmly resettled in any foreign
country; and
``(E) is admissible (except as otherwise provided
under subsection (b)(2)) as an immigrant under this
chapter at the time of examination of such alien for
adjustment of status.
``(3) Record.--Upon approval of an application under this
subsection, the Secretary or the Attorney General shall
establish a record of the alien's admission for lawful
permanent residence as of the date that is 5 years before the
date of such approval.
``(d) Proving the Claim.--In determining an alien's eligibility for
lawful conditional status or adjustment of status under this
subsection, the Secretary or the Attorney General shall consider any
credible evidence relevant to the application. The determination of
what evidence is credible and the weight to be given that evidence
shall be within the sole discretion of the Secretary or the Attorney
General.
``(e) Review.--
``(1) Administrative review.--No appeal shall lie from the
denial of an application by the Secretary, but such denial will
be without prejudice to the alien's right to renew the
application in proceedings under section 240 of this title.
``(2) Motions to reopen.--Notwithstanding any limitation
imposed by law on motions to reopen removal, deportation, or
exclusion proceedings, any individual who is eligible for
relief under this section may file 1 motion to reopen removal
or deportation proceedings in order to apply for relief under
this section, except that any such motion must be filed within
one year of the date of enactment of this section, or within 90
days of the date of entry of a final administrative order of
removal, deportation, or exclusion, whichever is later.
``(f) Limitation.--The provisions of this section shall apply only
to aliens present in the United States. Nothing in this section shall
be construed to authorize or require (i) the admission of any alien to
the United States, (ii) the parole of any alien into the United States,
or (iii) the grant of any motion to reopen or reconsider filed by an
alien after departure or removal from the United States.''.
(b) Judicial Review.--Section 242(a)(2)(B)(ii) of the Immigration
and Nationality Act (8 U.S.C. 1252(a)(2)(B)(ii)) is amended by
inserting ``or 210A'' after ``208(a)''.
(c) Clerical Amendment.--The table of contents for the Immigration
and Nationality Act is amended by inserting after the item relating to
section 210 the following:
``210A. Protection of stateless persons in the United States.''.
SEC. 258. AUTHORITY TO DESIGNATE CERTAIN GROUPS OF REFUGEES FOR
CONSIDERATION.
(a) In General.--Section 207(c)(1) (8 U.S.C. 1157(c)(1)) is
amended--
(1) by inserting ``(A)'' before ``Subject to the numerical
limitations''; and
(2) by adding at the end the following:
``(B)(i) The President, upon a recommendation of the
Secretary of State made in consultation with the Secretary of
Homeland Security, and after appropriate consultation (as
defined in paragraph (e)), may designate specifically defined
groups of aliens whose resettlement in the United States is
justified by humanitarian concerns or is otherwise in the
national interest and who share common characteristics that
identify them as targets of persecution on account of race,
religion, nationality, membership in a particular social group,
or political opinion or of other serious harm, or who, having
been identified as targets of persecution on account of race,
religion, nationality, membership in a particular social group,
or political opinion or of other serious harm, share a common
need for resettlement due to a specific vulnerability.
``(ii) An alien who establishes membership in a group
designated under clause (i) to the satisfaction of the
Secretary of Homeland Security shall be considered a refugee
for purposes of admission as a refugee under this section,
unless the Secretary determines that such alien ordered,
incited, assisted or otherwise participated in the persecution
of any person on account of race, religion, nationality,
membership in a particular social group, or political opinion.
``(iii) A designation under clause (i)--
``(I) may be revoked by the President at any time
after notification to Congress; `(II) if not revoked,
shall expire at the end of each fiscal year; and
``(II) may be renewed by the President after
appropriate consultation (as defined in paragraph (e)).
``(iv) Categories of aliens established under section 599D
of title V of Public Law 101-167 (8 U.S.C. 1157 note) shall be
designated under clause (i) until the end of the first fiscal
year commencing after the date of enactment of this
subparagraph, and thereafter shall be eligible for designation
at the discretion of the President.
``(v) An alien's admission under this subparagraph shall
count against the refugee admissions goal under subsection (a).
``(vi) A designation under clause (i) shall not influence
decisions to grant, to any alien, asylum under section 208,
protection under section 241(b)(3), or protection under Article
3 of the Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, done at New York December
10, 1984.''.
(b) Written Reasons for Denials of Refugee Status.--Each decision
to deny an application for refugee status of an alien who is within a
category established under this section shall be in writing and shall
state, to the maximum extent feasible, the reason for the denial.
(c) Effective Date.--The amendments made by subsection (a) shall
take effect on the first day of the first fiscal year that begins after
the date of the enactment of this Act.
SEC. 259. ADMISSION OF REFUGEES IN THE ABSENCE OF THE ANNUAL
PRESIDENTIAL DETERMINATION.
Section 207(a) (8 U.S.C. 1157(a)) is amended--
(1) by striking paragraph (1);
(2) by redesignating paragraphs (2), (3), (4), and (5) as
paragraphs (1), (2), (3), and (4), respectively;
(3) in paragraph (1), as redesignated--
(A) by striking ``after fiscal year 1982''; and
(B) by adding at the end the following: ``If the
President does not issue a determination under this
paragraph before the beginning of a fiscal year, the
number of refugees that may be admitted under this
section in each quarter before the issuance of such
determination shall be 25 percent of the number of
refugees admissible under this section during the
previous fiscal year.''; and
(4) in paragraph (3), as redesignated, by striking
``(beginning with fiscal year 1992)''.
TITLE III--WORKSITE ENFORCEMENT
SEC. 301. UNLAWFUL EMPLOYMENT OF ALIENS.
(a) Section 274A of the Immigration and Nationality Act (8 U.S.C.
1324a) is amended to read as follows:
``SEC. 274A. UNLAWFUL EMPLOYMENT OF UNAUTHORIZED ALIENS.
``(a) In General.--
``(1) In general.--It is unlawful for an employer--
``(A) to hire an alien for employment in the United
States knowing or with reckless disregard that the
alien is an unauthorized alien (as defined in
subsection (b)(1)) with respect to such employment; or
``(B) to hire for employment in the United States
an individual without complying with the requirements
of subsections (c) and (d).
``(2) Continuing employment.--It is unlawful for an
employer, after hiring an alien for employment, to continue to
employ the alien in the United States knowing or with reckless
disregard that the alien is (or has become) an unauthorized
alien with respect to such employment. Nothing in this section
shall prohibit or require employment of an authorized employee
who was previously unauthorized.
``(3) Use of labor through contract.--For purposes of this
section, any person or entity who uses a contract, subcontract,
or exchange to obtain the labor of an alien in the United
States knowing or with reckless disregard that the alien is an
unauthorized alien (as defined in subsection (b)(1)) with
respect to performing such labor, shall be considered to have
hired the alien for employment in the United States in
violation of subparagraph (a)(1)(A).
``(A) For purposes of ensuring compliance with the
immigration laws, the Secretary may require by
regulation that a person or entity include in a written
contract or subcontract an effective and enforceable
requirement that the contractor or subcontractor adhere
to the immigration laws, including the use of an
employment verification system (referred to in this
section as the `System').
``(B) The Secretary may establish procedures by
which a person or entity may obtain confirmation from
the Secretary that the contractor or subcontractor has
registered with the System and is utilizing the System
to verify its employees.
``(C) The Secretary may establish such other
requirements for persons or entities using contractors
or subcontractors, including procedures adapted to
different employment sectors, as the Secretary deems
necessary to prevent knowing violations of this
paragraph.
``(4) Defense.--An employer that establishes that it has
complied in good faith with the requirements of subsections
(c)(1) through (c)(4), pertaining to document verification
requirements, and subsection (d), pertaining to the use of the
System, has established an affirmative defense that the
employer has not violated subsection (a)(1)(A) with respect to
such hiring; provided that--
``(A) until such time as the Secretary has required
an employer to participate in the System, or that
employer is participating on a voluntary basis pursuant
to subsection (d), a defense is established without a
showing of compliance with subsection (d); and
``(B) to establish a defense, the employer must
also be in compliance with any additional requirements
that the Secretary may promulgate by regulation
pursuant to subsections (c) and (d).
``(5) Presumption.--An employer is presumed to have acted
with knowledge or reckless disregard if the employer fails to
comply with written standards, procedures, or instructions
issued by the Secretary.
``(b) Definitions.--In this section:
``(1) Employer.--The term `employer'--
``(A) means any person or entity hiring an
individual for employment in the United States,
including--
``(i) any person or entity who is an agent
acting on behalf of an employer; and
``(ii) entities in any branch of the
Federal Government; and
``(B) does not include a person or entity with
fewer than 5 full- or part-time employees, for purposes
of any requirement to participate in the System under
subsection (d), except as it relates to subsection
(d)(2)(H).
``(2) Unauthorized alien.--The term `unauthorized alien'
means, with respect to the employment of an alien at a
particular time, that the alien is not--
``(A) an alien lawfully admitted for permanent
residence; or
``(B) authorized to be so employed by this Act or
by the Secretary.
``(c) Document Verification Requirements.--Any employer hiring an
individual for employment in the United States shall take the following
steps, and those provided in subsection (d), to verify that the
individual is authorized to work in the United States:
``(1) Attestation after examination of documentation.--
``(A) In general.--The employer must attest, under
penalty of perjury and on a form prescribed by the
Secretary, that it has verified the identity and
employment authorization status of the individual by
examining--
``(i) a document described in subparagraph
(B); or
``(ii) a document described in subparagraph
(C) and a document described in subparagraph
(D).
The form prescribed by the Secretary may be electronic
or on paper, and may be integrated electronically with
the requirements under subsection (d), if the Secretary
determines that combining the requirements in (c) and
(d) would improve efficiency of the verification
requirements. Such attestation may be manifested by
either a handwritten or digital signature. An employer
has complied with the requirements of this paragraph
with respect to examination of documentation if the
employer has followed applicable regulations and any
written procedures or instructions provided by the
Secretary, and if a reasonable person would conclude
that the documentation is genuine and relates to the
individual presenting it, taking into account any
information provided to the employer by the Secretary,
including photographs and other biometric information.
``(B) Documents establishing both employment
authorization and identity.--A document described in
this subparagraph is an individual's--
``(i) United States passport or passport
card issued pursuant to the Secretary of
State's authority under section 211a of title
22, United States Code;
``(ii) permanent resident card or other
document issued to aliens authorized to work in
the United States, as designated by the
Secretary, if the document--
``(I) contains a photograph of the
individual, other biometric data such
as fingerprints, or such other personal
identifying information relating to the
individual as the Secretary finds, by
regulation, sufficient for the purposes
of this subsection;
``(II) is evidence of authorization
for employment in the United States;
and
``(III) contains security features
to make it resistant to tampering,
counterfeiting, and fraudulent use;
``(iii) enhanced driver's license, enhanced
identification card, or enhanced tribal card
issued to a citizen of the United States,
provided that the Secretary has certified by
notice published in the Federal Register that
such enhanced document is suitable for use
under this subparagraph based upon the accuracy
and security of the issuance process, security
features on the document, and such other
factors as the Secretary may determine; or
``(iv) a passport issued by the Federated
States of Micronesia (FSM) or the Republic of
the Marshall Islands (RMI) with evidence of
nonimmigrant admission to the United States
under the Compact of Free Association between
the United States and the FSM or the RMI.
``(C) Documents establishing identity of
individual.--A document described in this subparagraph
includes--
``(i) an individual's driver's license or
identity card issued by a State or an outlying
possession of the United States, a Federally
recognized Indian tribe, or an agency
(including military) of the Federal government
if the driver's license or identity card
includes, at a minimum,--
``(I) the individual's photograph,
name, date of birth, gender, and
driver's license or identification card
number, and
``(II) security features to make it
resistant to tampering, counterfeiting,
and fraudulent use, or
``(ii) for individuals under 18 years of
age who are unable to present a document listed
in clause (i), documentation of personal
identity of such other type as the Secretary
finds provides a reliable means of
identification, which may include an
attestation as to the individual's identity by
a person 21 years of age or older under penalty
of perjury.
``(D) Documents evidencing employment
authorization.--All documents must be unexpired. The
following documents may be accepted as evidence of
employment authorization--
``(i) a Social Security account number card
issued by the Commissioner of Social Security
(referred to in this section as the
`Commissioner') other than a card which
specifies on its face that the card is not
valid for employment in the United States or
has other similar words of limitation. The
Secretary, in consultation with the
Commissioner, may require by publication of a
notice in the Federal Register that only a
social security account number card described
in section 304 of the CIR Act of 2010 be
accepted for this purpose; or
``(ii) any other documentation evidencing
authorization of employment in the United
States which the Secretary determines, by
notice published in the Federal Register, to be
acceptable for purposes of this section,
provided that the document, including any
electronic security measures linked to the
document, contains security features to make it
resistant to tampering, counterfeiting, and
fraudulent use.
``(E) Authority to prohibit use of certain
documents.--If the Secretary finds that any document or
class of documents described in subparagraph (B), (C),
or (D) does not reliably establish employment
authorization or identity or is being used fraudulently
to an unacceptable degree, the Secretary may prohibit
or restrict the use of that document or class of
documents for purposes of this subsection.
``(2) Individual attestation of employment authorization.--
The individual must attest, under penalty of perjury in the
form prescribed by the Secretary, that the individual is a
citizen or national of the United States, an alien lawfully
admitted for permanent residence, or an alien who is authorized
under this Act or by the Secretary to be hired for such
employment. Such attestation may be manifested by either a
hand-written or digital signature. The individual must also
provide any Social Security Account Number issued to the
individual on such form.
``(3) Retention of verification record.--After completion
of such form in accordance with paragraphs (1) and (2), the
employer must retain a paper, microfiche, microfilm, or
electronic version of the form, according to such standards as
the Secretary may provide, and make it available for inspection
by officers or employees of the Department of Homeland Security
(or persons designated by the Secretary), the Special Counsel
for Immigration-Related Unfair Employment Practices, or the
Department of Labor during a period beginning on the date of
the hiring of the individual and ending 7 years after such date
of hiring, or 2 years after the date the individual's
employment is terminated, whichever is later.
``(4) Copying of documentation and recordkeeping
required.--
``(A) Notwithstanding any other provision of law,
the employer shall copy all documents presented by an
individual pursuant to this subsection and shall retain
a paper, microfiche, microfilm, or electronic copy, but
only (except as otherwise permitted under law) for the
purposes of complying with the requirements of this
section and section 274B. Such copies may be required
to reflect the signatures of the employer and the
employee, as well as the date of receipt. The Secretary
may authorize or require an alternative method of
storing and authenticating the employee's documentation
information if the Secretary determines that such
alternative method is more secure or efficient.
``(B) The employer shall maintain records of all
actions and copies of any correspondence or action
taken by the employer to clarify or resolve any issue
as to the validity of the individual's identity or
employment authorization.
``(C) The employer shall maintain the records
described in this paragraph for any employee for the
period of time required by paragraph (3) for retention
of that employee's verification form. The Secretary may
prescribe the manner of recordkeeping and may require
that additional records be kept or that additional
documents be copied and maintained. The Secretary in
furtherance of an investigation based on reasonable
suspicion of a violation of this act, may require that
these documents be transmitted electronically for
purposes of authorized inspections or other enforcement
actions, and may develop automated capabilities to
request such documents.
``(D) An employer shall safeguard any information
retained under this paragraph and paragraph (3) and
protect any means of access to such information to
ensure that such information is not used for any
purpose other than as authorized in this paragraph or
paragraph (3) or to determine the identity and
employment eligibility of the individual, and to
protect the confidentiality of such information,
including ensuring that such information is not
provided to any person other than a person who carries
out the employer's responsibilities under this
subsection, except as provided in paragraph (3).
``(5) Penalties.--An employer that fails to comply with any
requirement of this subsection shall be penalized under
subsection (e)(4)(B).
``(6) Protection of civil rights.--
``(A) Nothing in this section shall be construed to
prohibit any reasonable accommodation necessary to
protect the religious freedom of any individual, or to
ensure access to employment opportunities of any
disabled individual.
``(B) The employer shall use the procedures for
document verification set forth in this paragraph for
all employees without regard to race, sex, national
origin, or, unless specifically permitted in this
section, to citizenship status.
``(7) Receipts.--The Secretary must provide for the use of
receipts for replacement documents, and temporary evidence of
employment authorization by an individual to meet a
documentation requirement of this subsection on a temporary
basis not to exceed 1 year, pending satisfaction by the
individual of such requirement.
``(d) The Employment Verification System.--
``(1) In general.--
``(A) The Secretary, in consultation with the
Commissioner, shall implement and specify the
procedures for the System. The participating employers
shall timely register with the System and shall use the
System as described in subsection (d)(5).
``(B) The Secretary shall create the necessary
processes to monitor the functioning of the System,
including the volume of the workflow, the speed of
processing of queries, the speed and accuracy of
responses, misuse of the System, fraud or identity
theft, whether use of the System results in wrongful
adverse actions or discrimination based upon a
prohibited factor against U.S. citizens or employment
authorized aliens, and the security, integrity and
privacy of the program.
``(2) Implementation schedule.--
``(A) Federal government.--All employers within the
Executive, Legislative, or Judicial Branches of the
Federal Government shall participate in the System on
or after the date of enactment of this subsection as
follows--
``(i) as of the date of enactment, to the
extent required by section 402(e)(1) of the
Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 as already
implemented by each Branch; or
``(ii) on or after the date that is 60 days
after the date of enactment of this subsection;
whichever is earlier, with respect to all newly hired
employees and employees with expiring employment
authorization.
``(B) Federal contractors.--Federal contractors
shall participate in the System as provided in the
final rule published at 73 Federal Register 67,651
(Nov. 14, 2008), or any subsequent amendments to such
rule, for which purpose references to E-Verify in the
final rule shall be construed to apply to the System.
``(C) Critical infrastructure.--As of the date that
is 1 year after the date of enactment of this
subsection, the Secretary, in the Secretary's
discretion, with notice to the public provided in the
Federal Register, may require any employer or industry
which the Secretary determines to be part of the
critical infrastructure or directly related to the
national security or homeland security of the United
States to participate in the System with respect to all
newly hired employees and employees with expiring
employment authorization. The Secretary shall notify
employers subject to this subparagraph no less than 60
days prior to such required participation.
``(D) Employers with more than 1,000 employees.--
Not later than 2 years after the date of enactment of
this subsection, all employers with more than 1,000
employees shall participate in the System with respect
to all newly hired employees and employees with
expiring employment authorization.
``(E) Employers with more than 500 employees.--Not
later than 3 years after the date of enactment of this
subsection, all employers with more than 500 employees
shall participate in the System with respect to all
newly hired employees and employees with expiring
employment authorization.
``(F) Employers with more than 100 employees.--Not
later than 4 years after the date of enactment of this
subsection, all employers with more than 100 employees
shall participate in the System with respect to all
newly hired employees and employees with expiring
employment authorization.
``(G) All employers.--Not later than 5 years after
the date of enactment of this subsection, all employers
shall participate in the System with respect to all
newly hired employees and employees with expiring
employment authorization.
``(H) Immigration law violators.--An order finding
any employer to have violated section 274A, 274B, or
274C shall require the employer to participate in the
System with respect to newly hired employees and
employees with expiring employment authorization, if
such employer is not otherwise required to participate
in the System by this section. The Secretary shall
monitor such employer's compliance with System
procedures.
``(3) Participation in the system.--The Secretary may--
``(A) permit any employer that is not required
under this section to participate in the System to do
so on a voluntary basis; and
``(B) require any employer that is required to
participate in the System with respect to its newly
hired employees also to do so with respect to its
current workforce if the employer is determined by the
Secretary or other appropriate authority to have
engaged in any violation of the immigration laws.
``(4) Consequence of failure to participate.--If an
employer is required under this subsection to participate in
the System and fails to comply with the requirements of such
program with respect to an individual--
``(A) such failure shall be treated as a violation
of subsection (a)(1)(B) of this section with respect to
that individual, and
``(B) a rebuttable presumption is created that the
employer has violated subsection (a)(1)(A) or (a)(2) of
this section, except in the case of any criminal
prosecution.
``(5) Procedures for participants in the system.--
``(A) In general.--An employer participating in the
System must register such participation with the
Secretary and conform to the following procedures in
the event of hiring any individual for employment in
the United States--
``(i) Registration of employers.--The
Secretary, through notice in the Federal
Register, shall prescribe procedures that
employers must follow to register with the
System. In prescribing these procedures, the
Secretary shall have authority to require
employers to provide--
``(I) employer's name;
``(II) employer's Employment
Identification Number (EIN) and such
other employer identification
information as the Secretary may
designate;
``(III) company address;
``(IV) name, date of birth, and
position of the employer's employees
accessing the System;
``(V) the information described in
subclauses (I) through (IV) of this
clause with respect to any agent,
contractor, or other service provider
accessing the System on the employer's
behalf; and
``(VI) such other information as
the Secretary deems necessary to ensure
proper use and security of the System.
``(ii) Updating information.--The employer
is responsible for providing notice of any
change to the information required under
subclauses (I) through (V) of clause (i) before
conducting any further inquiries within the
System, or on such other schedule as the
Secretary may provide.
``(iii) Training.--The Secretary shall
require employers to undergo such training to
ensure proper use, protection of civil rights
and civil liberties, privacy, integrity and
security of the System. To the extent
practicable, such training shall be made
available electronically.
``(iv) Notification to employees.--The
employer shall post notice or otherwise inform
individuals hired for employment of the use of
the System, that the System may be used for
immigration enforcement purposes, and that the
System cannot be used to discriminate or to
take adverse action against U.S. citizens or
employment authorized aliens.
``(v) Provision of additional
information.--The employer shall obtain from
the individual (and the individual shall
provide) and shall record in such manner as the
Secretary may specify--
``(I) the individual's social
security account number, or any other
information relevant to determining
citizenship as the Secretary of
Homeland Security may specify,
``(II) if the individual does not
attest to United States nationality
under subsection (c)(2) of this
section, such identification or
authorization number established by the
Department of Homeland Security as the
Secretary of Homeland Security shall
specify, and
``(III) such other information as
the Secretary may require to determine
the identity and employment
authorization of an employee.
``(vi) Presentation of documentation.--The
employer, and the individual whose identity and
employment eligibility are being confirmed,
shall fulfill the requirements of subsection
(c) of this section.
``(B) Seeking confirmation.--
``(i) The employer shall use the System to
provide to the Secretary all required
information in order to initiate confirmation
of the identity and employment eligibility of
any individual no earlier than the date upon
which the individual has accepted an offer of
employment, and no later than 3 business days,
or such other reasonable period as the
Secretary may provide, after the date when
employment begins. An employer may not,
however, make the starting date of an
individual's employment or training or any
other term and condition of employment
dependent on the receipt of a confirmation of
identity and employment eligibility.
``(ii) For reverification of an individual
with a limited period of employment
authorization, all required System procedures
must be initiated no later than 3 business days
after the date the individual's employment
authorization expires.
``(iii) For those employers required by the
Secretary to verify their entire workforce, the
System can be used for initial verification of
an individual hired before the employer is
subject to the System, and the employer must
initiate all required procedures on or before
such date as the Secretary shall specify.
``(iv) The Secretary shall provide, and the
employer shall utilize, as part of the System,
a method of notifying employers of a
confirmation or nonconfirmation of an
individual's identity and employment
eligibility, or a notice that further action is
required to verify such identity or employment
eligibility (`further action notice'). The
Secretary and the Commissioner shall establish
procedures to directly notify the individual,
as well as the employer, of a confirmation,
nonconfirmation, or further action notice, and
provide information about filing an
administrative appeal pursuant to paragraph
(7). The Secretary and the Commissioner may
provide for a phased-in implementation of the
notification requirements of this clause as
appropriate, but the notification system shall
cover all inquiries not later than 5 years
after the date of the enactment of the CIR Act
of 2010.
``(C) Confirmation or nonconfirmation.--
``(i) Initial response.--The System shall
provide a confirmation of an individual's
identity and employment eligibility or a
further action notice at the time of the
inquiry, unless for technological reasons or
due to unforeseen circumstances, the System is
unable to provide such confirmation or further
action notice. In such situations, the System
shall provide a confirmation or further action
notice within 3 business days of the initial
inquiry. If providing a confirmation or further
action notice, the System shall provide an
appropriate code indicating such confirmation
or such further action notice.
``(ii) Confirmation upon initial inquiry.--
When the employer receives an appropriate
confirmation of an individual's identity and
employment eligibility under the System, the
employer shall record the confirmation in such
manner as the Secretary may specify.
``(iii) Further action notice and later
confirmation or nonconfirmation.--
``(I) Notification and
acknowledgment that further action is
required.--Within 3 business days of an
employer's receipt of a further action
notice of an individual's identity or
employment eligibility under the
System, the employer shall notify the
individual for whom the confirmation is
sought of the further action notice and
any procedures specified by the
Secretary for addressing such notice.
The further action notice must be given
to the individual in writing. The
individual must affirmatively
acknowledge in writing, or in such
other manner as the Secretary may
specify, the receipt of the further
action notice from the employer. If the
individual refuses to acknowledge the
receipt of the further action notice,
or acknowledges in writing that he or
she will not contest the further action
notice under subclause (II), the
employer shall notify the Secretary in
such manner as the Secretary may
specify.
``(II) Contest.--Within 10 business
days of receiving notification of a
further action notice under subclause
(I), the individual must contact the
appropriate Federal agency and, if the
Secretary so requires, appear in person
for purposes of verifying the
individual's identity and employment
eligibility. The employer shall provide
the individual with time as needed
during daytime hours to contest the
further action notice. The Secretary,
in consultation with the Commissioner
and other appropriate Federal agencies,
shall specify an available secondary
verification procedure to confirm the
validity of information provided and to
provide a confirmation or
nonconfirmation.
``(III) No contest.--If the
individual refuses to acknowledge
receipt of the further action notice,
acknowledges that he or she will not
contest the further action notice as
provided in subclause (I), or does not
contact the appropriate Federal agency
within the period specified in
subclause (II), a nonconfirmation shall
issue. The employer shall record the
nonconfirmation in such manner as the
Secretary may specify and terminate the
individual's employment. An
individual's failure to contest a
further action notice shall not be
considered an admission of guilt with
respect to any violation of this
section or any provision of law.
``(IV) Confirmation or
nonconfirmation.--Unless the period is
extended in accordance with this
subclause, the System shall provide a
confirmation or nonconfirmation within
15 business days from the date that the
individual contests the further action
notice under subclause (II). If the
Secretary determines that good cause
exists, including to permit the
individual to obtain and provide needed
evidence of identity or employment
eligibility, the Secretary shall extend
the period for providing confirmation
or nonconfirmation for stated periods
beyond 15 business days. When
confirmation or nonconfirmation is
provided, the confirmation system shall
provide an appropriate code indicating
such confirmation or nonconfirmation.
``(V) Re-examination.--Nothing in
this section shall prevent the
Secretary from establishing procedures
to reexamine a case where a
confirmation or nonconfirmation has
been provided if subsequently received
information indicates that the
confirmation or nonconfirmation may not
have been correct.
``(VI) Employee protections.--In no
case shall an employer terminate
employment or take any other adverse
action against an individual solely
because of a failure of the individual
to have identity and employment
eligibility confirmed under this
subsection until a nonconfirmation has
been issued, and if the further action
notice was contested, the period to
timely file an administrative appeal
has expired without an appeal, or in
the case where an administrative appeal
has been filed, the appeal has been
denied or a stay of the nonconfirmation
has been terminated.
``(iv) Notice of nonconfirmation.--Within 3
business days of an employer's receipt of a
nonconfirmation, the employer shall notify the
individual who is the subject of the
nonconfirmation, and provide information about
filing an administrative appeal pursuant to
paragraph (7). The nonconfirmation notice must
be given to the individual in writing. The
individual must affirmatively acknowledge in
writing, or in such other manner as the
Secretary may specify, the receipt of the
nonconfirmation notice from the employer. If
the individual refuses or fails to acknowledge
the receipt of the nonconfirmation notice, the
employer shall notify the Secretary in such
manner as the Secretary may specify.
``(D) Consequences of nonconfirmation.--
``(i) Termination of continued
employment.--Except as provided in clause
(iii), if the employer has received a
nonconfirmation regarding an individual and has
notified the individual as required by
subparagraph (C)(iv), the employer shall
terminate employment of the individual upon the
expiration of the time period as specified in
paragraph(7)(A) for filing an administrative
appeal, or immediately if the further action
notice was not contested.
``(ii) Continued employment after
nonconfirmation.--If the employer, in violation
of subclause (i), continues to employ an
individual after receiving nonconfirmation, a
rebuttable presumption is created that the
employer has violated subsections (a)(1)(A) and
(a)(2) of this section. The previous sentence
shall not apply in any prosecution under
subsection (l)(1) of this section.
``(iii) Effect of administrative appeal.--
If an individual files an administrative appeal
of the nonconfirmation within the time period
specified in paragraph (7)(A), and provides a
copy of such appeal to the employer, the
employer shall not terminate the individual's
employment under this subparagraph prior to the
resolution of the administrative appeal unless
the Secretary or Commissioner terminates the
stay under paragraph (7)(B).
``(E) Obligation to respond to queries and
additional information.--
``(i) Employers are required to comply with
requests for information from the Secretary,
including queries concerning current and former
employees (within the time frame during which
records are required to be maintained under
this section regarding such former employees)
that relate to the functioning of the System,
the accuracy of the responses provided by the
System, and any suspected misuse,
discrimination, fraud, or identity theft in the
use of the System. Failure to comply with such
a request is a violation of section (a)(1)(B).
``(ii) Individuals being verified through
the System may be required to take further
action to address irregularities identified by
the Secretary or the Commissioner in the
documents relied upon for purposes of
subsection (c). The employer shall communicate
to the individual within 3 business days any
such requirement for further actions and shall
record the date and manner of such
communication. The individual must acknowledge
in writing, or in such other manner as the
Secretary may specify, the receipt of this
communication from the employer. Failure to
communicate such a requirement is a violation
of section (a)(1)(B).
``(iii) The Secretary is authorized, with
notice to the public provided in the Federal
Register, to implement, clarify, and supplement
the requirements of this paragraph in order to
facilitate the functioning, accuracy, and
fairness of the System or to prevent misuse,
discrimination, fraud, or identity theft in the
use of the System.
``(F) The Secretary may establish a process to
certify, on an annual basis or such other time frame as
the Secretary may provide, designated agents and other
System service providers seeking access to the System
to perform verification queries on behalf of employers,
based upon training, usage, and security standards
designated by the Secretary.
``(G) No later than 3 months after the date of
enactment of this section, the Secretary of Homeland
Security, in consultation with the Secretary of Labor,
the Secretary of Agriculture, the Commissioner of
Social Security, the Attorney General, the Equal
Employment Opportunity Commission, Office of Special
Counsel for Unfair Immigration Related Employment
Practices, and the Administrator of the Small Business
Administration, shall commence a campaign to
disseminate information respecting the procedures,
rights, and remedies prescribed under this section.
Such campaign shall be aimed at increasing the
knowledge of employers, employees, and the general
public concerning employer and employee rights,
responsibilities, and remedies under this section. The
Secretary shall assess the success of the campaign in
achieving its goals.
``(i) In order to carry out and assess the
campaign under this paragraph, the Secretary of
Homeland Security may, to the extent deemed
appropriate and subject to the availability of
appropriations, contract with public and
private organizations for outreach and
assessment activities under the campaign.
``(ii) There are authorized to be
appropriated to carry out this paragraph
$40,000,000 for each fiscal year 2011 through
2013.
``(H) Based on a regular review of the System and
the document verification procedures to identify misuse
or fraudulent use and to assess the security of the
documents and processes being used to establish
identity or employment authorization, the Secretary, in
consultation with the Commissioner, may modify the
documents or information that must be presented to the
employer, the information that must be provided to the
System by the employer, and the procedures that must be
followed by employers with respect to any aspect of the
System if the Secretary, in the Secretary's discretion,
concludes that the modification is necessary to ensure
that the System accurately and reliably determines the
identity and employment authorization of employees
while providing protection against misuse,
discrimination, fraud, and identity theft.
``(I) Subject to appropriate safeguards to prevent
misuse of the system, the Secretary, in consultation
with the Commissioner, shall establish a secure self-
verification procedure to permit an individual who
seeks to verify the individual's own employment
eligibility prior to obtaining or changing employment
to contact the appropriate agency and, in a timely
manner, correct or update the information used by the
System.
``(J) The Secretary may, upon notice provided in
the Federal Register, adjust the time periods described
in this paragraph.
``(6) Protection from liability for actions taken on the
basis of information provided by the system.--No employer
participating in the System who complies with all System
procedures as required in this Act shall be liable under this
Act for any employment-related action taken with respect to the
employee in good faith reliance on information provided through
the confirmation system.
``(7) Administrative review.--
``(A) In general.--An individual who is notified
pursuant to paragraph (5)(C)(iv) of a nonconfirmation
by the employer may, not later than 15 business days
after the date that such notice is received, file an
administrative appeal of such nonconfirmation. An
individual subject to a nonconfirmation may file an
appeal thereof after the 15-day period if the appeal is
accompanied by evidence that the individual did not
receive timely notice of a nonconfirmation, or that
there was good cause for the failure to file an appeal
within the 15-day period. All administrative appeals
shall be filed as follows:
``(i) Citizens or nationals of the united
states.--An individual claiming to be a citizen
or national of the United States shall file the
administrative appeal with the Commissioner.
``(ii) Aliens.--An individual claiming to
be an alien authorized to work in the United
States shall file the administrative appeal
with the Secretary.
``(B) Administrative stay of nonconfirmation.--The
nonconfirmation shall be automatically stayed upon the
timely filing of an administrative appeal, and the stay
shall remain in effect until the resolution of the
appeal, unless the Secretary or the Commissioner
terminates the stay based on a determination that the
administrative appeal is frivolous or filed for
purposes of delay.
``(C) Review for error.--The Secretary and the
Commissioner shall develop procedures for resolving
administrative appeals regarding nonconfirmations based
upon the information that the individual has provided,
including any additional evidence or argument that was
not previously considered. Any such additional evidence
or argument shall be filed within 15 days of the date
the appeal was originally filed. Appeals shall be
resolved within 30 days after the individual has
submitted all evidence and arguments he or she wishes
to submit, or has stated in writing that there is no
additional evidence that he or she wishes to submit.
The Secretary and the Commissioner may, on a case by
case basis for good cause, extend the filing and
submission period in order to ensure accurate
resolution of an appeal before him or her.
Administrative review under this paragraph shall be
limited to whether the nonconfirmation notice is
supported by the weight of the evidence.
``(D) Compensation for error.--If the individual
was denied a stay under subparagraph (B) and the
Secretary makes a determination that the
nonconfirmation issued for an individual was not caused
by an act or omission of the individual or the
employer, the Secretary shall compensate the individual
for lost wages in an amount not exceeding $75,000 and
reasonable costs and attorneys' fees incurred during
administrative and judicial review which shall not
exceed $50,000. Amounts under this clause may be
adjusted to account for inflation pursuant to the US
Consumer Price Index - All Urban Consumers (CPI-U)
compiled by the Bureau of Labor Statistics.
``(i) Calculation of lost wages.--Lost
wages shall be calculated based on the wage
rate and work schedule that prevailed prior to
termination. The individual shall be
compensated for wages lost beginning on the
first scheduled work day after employment was
terminated and ending 180 days after completion
of the administrative review process described
in this paragraph, or judicial review if any,
or the day after the individual is reinstated
or obtains employment elsewhere, whichever
occurs first. If the individual obtains
employment elsewhere at a lower wage rate, the
individual shall be compensated for the
difference in wages for the period ending 180
days after completion of the administrative
review process or judicial review, if any.
``(ii) Limitation on compensation.--For
purposes of determining an individual's
compensation for the loss of employment, such
compensation shall not include any period in
which the individual was ineligible for
employment in the United States.
``(iii) Source of funds.--Compensation or
reimbursement provided under this paragraph
shall not be provided from funds appropriated
in annual appropriations Acts to the Secretary
for the Department of Homeland Security.
``(8) Judicial review.--
``(A) In general.--After the Secretary or the
Commissioner makes a final determination on an appeal
filed by an individual under paragraph (7), the
individual may obtain judicial review of such
determination in a civil action commenced not later
than 90 days after notice of such decision.
``(B) Jurisdiction.--A civil action for such
judicial review shall be brought in the district court
of the United States for the judicial district in which
the plaintiff resides or, if the plaintiff does not
reside within any such judicial district, in the
District Court of the United States for the District of
Columbia.
``(C) Service.--The defendant is either the
Secretary or the Commissioner, but not both, depending
upon who issued the administrative order under
paragraph (7). In addition to serving the defendant,
the plaintiff must also serve the Attorney General.
``(D) Answer.--As part of the Secretary's or the
Commissioner's answer to a complaint for such judicial
review, the Secretary or the Commissioner shall file a
certified copy of the administrative record compiled
during the administrative review under paragraph (7),
including the evidence upon which the findings and
decision complained of are based. The court shall have
power to enter, upon the pleadings and the
administrative record, a judgment affirming or
reversing the result of that administrative review,
with or without remanding the cause for a rehearing.
``(E) Standard of review.--
``(i) The burden shall be on the plaintiff
to show that the administrative order was
erroneous. Administrative findings of fact are
conclusive unless any reasonable adjudicator
would be compelled to conclude to the contrary.
The court, upon good cause shown, may in its
discretion remand to the Secretary or the
Commissioner for additional fact-finding or
other proceedings.
``(ii) If the plaintiff meets his or her
burden to show that the administrative order
was erroneous, the court shall, upon request of
the plaintiff, determine whether the plaintiff
can establish by the preponderance of the
evidence that the error was caused by the
decision rules, processes, or procedures
utilized by the System or erroneous system
information that was not the result of acts or
omissions of the individual.
``(F) Compensation for error.--
``(i) In general.--In cases in which the
judicial review reverses the final
determination of the Secretary or the
Commissioner made under paragraph (7), and the
court finds that the final determination was
erroneous by reason of the decision rules,
processes, or procedures utilized by the System
or erroneous system information that was not
the result of acts or omissions of the
individual, the court may award to the
individual lost wages not exceeding $75,000,
reasonable costs and attorneys' fees incurred
during administrative and judicial review which
shall not exceed $50,000, and compensatory
damages in an amount deemed necessary by the
court. Amounts under this clause may be
adjusted to account for inflation pursuant to
the US Consumer Price Index - All Urban
Consumers (CPI-U) compiled by the Bureau of
Labor Statistics.
``(ii) Calculation of lost wages.--Lost
wages shall be calculated based on the wage
rate and work schedule that prevailed prior to
termination. The individual shall be
compensated for wages lost beginning on the
first scheduled work day after employment was
terminated and ending 180 days after completion
of the judicial review described in this
paragraph or the day after the individual is
reinstated or obtains employment elsewhere,
whichever occurs first. If the individual
obtains employment elsewhere at a lower wage
rate, the individual shall be compensated for
the difference in wages for the period ending
180 days after completion of the judicial
review process. No lost wages shall be awarded
for any period of time during which the
individual was not authorized to be employed in
the United States.
``(iii) Payment of compensation.--
Notwithstanding any other law, payment of
compensation for lost wages, costs and
attorneys' fees under this paragraph, or
compromise settlements of the same, shall be
made as provided by section 1304 of title 31,
United States Code. Appropriations made
available to the Secretary or the Commissioner,
accounts provided for under section 286 of the
Immigration and Nationality Act (8 U.S.C.
1356), and funds from the Federal Old-Age and
Survivors Insurance Trust Fund or the Federal
Disability Insurance Trust Fund shall not be
available to pay such compensation.
``(iv) Exclusive remedy.--Awards of
compensation for lost wages, costs, and
attorneys' fees under this paragraph shall be
the exclusive remedy for a finding under clause
(i) that a final determination of the Secretary
or the Commissioner made under paragraph (7)
was erroneous by reason of the negligence or
recklessness of the Secretary or the
Commissioner.
``(9) Private right of action.--If the nonconfirmation
issued for an individual was caused by negligence or other
misconduct on the part of the employer, the individual may seek
recovery of damages, reinstatement, back pay, and other
appropriate remedies in a civil action against the employer.
Such action must be commenced not later than 90 days after
notice of the Secretary's or the Commissioner's decision on an
administrative appeal as described in paragraph (7), or 90 days
after termination of the individual as a result of the final
nonconfirmation if no such administrative appeal is taken. The
action shall be brought in the district court of the United
States for the judicial district in which the plaintiff resides
or, if the plaintiff does not reside within any such judicial
district, in the District Court of the United States for the
District of Columbia. In such action, no prior administrative
or judicial finding relating to the employer in any proceeding
to which the employer was not a party may be given any res
judicata or collateral estoppel effect against the employer.
``(10) Limit on injunctive relief.--Regardless of the
nature of the action or claim or of the identity of the party
or parties bringing the action, no court (other than the
Supreme Court) shall have jurisdiction or authority to enjoin
or restrain the operation of the provisions in this section,
other than with respect to the application of such provisions
to an individual plaintiff.
``(11) Annual study and report.--
``(A) Requirement for study.--The Comptroller
General of the United States shall conduct an annual
study of the System as described in this paragraph.
``(B) Purpose of the study.--The Comptroller
General shall, for each year, undertake a study to
determine whether the System meets the following
requirements:
``(i) Demonstrated accuracy of the
databases.--New information and information
changes submitted by an individual to the
System is updated in all of the relevant
databases not later than 3 working days after
submission in at least 99 percent of all cases.
``(ii) Low error rates and delays in
verification.--
``(I) Rates of incorrect
nonconfirmation notices.--
``(aa) That, during a year,
the number of incorrect
nonconfirmations provided
through the System for
individuals who are native-born
U.S. citizens is not more than
1 percent.
``(bb) That, during a year,
the number of incorrect
nonconfirmations provided
through the System for
individuals who are foreign-
born, work-authorized
individuals is not more than 3
percent.
``(II) Stability or improvement in
error rates.--That, during a year, the
rate of incorrect nonconfirmations
shall not have increased by more than 3
percent over the previous year.
``(iii) Measurable employer compliance with
system requirements.--
``(I) No discrimination based on
system operations.--The System has not
and will not result in increased
discrimination or cause reasonable
employers to conclude that individuals
of certain races or ethnicities are
more likely to have difficulties when
offered employment caused by the
operation of the System.
``(II) Requirement for independent
study.--The determination described in
subclause (I) shall be based on an
independent study commissioned by the
Comptroller General in each phase of
expansion of the System.
``(iv) Protection of workers' private
information.--At least 97 percent of employers
who participate in the System are in full
compliance with the privacy requirements
described in this subsection.
``(v) Adequate agency staffing and
funding.--The Secretary and Commissioner of
Social Security have sufficient funding to meet
all of the deadlines and requirements of this
subsection.
``(C) Consultation.--In conducting a study under
this paragraph, the Comptroller General shall consult
with representatives of business, labor, immigrant
communities, State governments, privacy advocates, and
appropriate departments of the United States.
``(D) Requirement for reports.--Not later than 21
months after the date of the enactment of the Act, and
annually thereafter, the Comptroller General shall
submit to the Secretary and to Congress a report
containing the findings of the study carried out under
this paragraph and shall include the following:
``(i) An assessment of the accuracy of the
databases utilized by the System and of the
timeliness and accuracy of the responses
provided through the System to employers.
``(ii) An assessment of the privacy and
confidentiality of the System and of the
overall security of the System with respect to
cybertheft and theft or misuse of private data.
``(iii) An assessment of whether the System
is being implemented in a nondiscriminatory and
nonretaliatory manner.
``(iv) An assessment of the most common
causes for the erroneous issuance of
nonconfirmations by the System and
recommendations to correct such causes.
``(v) The recommendations of the
Comptroller General regarding whether or not
the System should be modified prior to further
expansion.
``(E) Certification.--If the Comptroller General
determines that the System meets the requirements set
out in clauses (i) through (v) of subparagraph (B) for
a year, the Comptroller shall certify such
determination and submit such certification to Congress
with the report required by subparagraph (D).
``(12) Annual audit and report.--
``(A) Purpose of the audit and report.--The Office
for Civil Rights and Civil Liberties shall conduct
annual audits of E-Verify described in section 403(a)
of the Illegal Immigration Reform and Responsibility
Act of 1996, Public Law No. 104-208, Div. C, 110 Stat.
3009-546, to assess employer compliance with System
requirements, including civil rights and civil
liberties protections, and compliance with the System
rules and procedures set forth in the Memorandum of
Understanding between employers and the Social Security
Administration and the Department of Homeland Security.
``(B) Requirements of audit.--Annual audits shall
include, but are not limited to, the following
activities:
``(i) Use of testers to check if employers'
are using E-Verify as outlined in the
Memorandum of Understanding between employers
and the Department of Homeland Security and the
Social Security Administration, including if
employers are misusing of the system to
prescreen job applicants, if employers are
giving proper notification to employees'
regarding nonconfirmations, and if employers
are taking adverse actions against workers
based upon nonconfirmations.
``(ii) Random audits of employers to
confirm that employers are using the system as
outlined in the Memorandum of Understanding and
in a manner consistent with civil rights and
civil liberties protections; and
``(iii) Periodic audits of employers for
which the Special Counsel has received
information or complaints and/or actual charges
of citizenship/national origin discrimination
or document abuse.
``(C) Authority of office for civil rights and
civil liberties.--The Office shall have the authority
to obtain from users of E-Verify relevant documents and
testimony and answers to written interrogatories. The
Office shall also have the authority to conduct site
visits, and interview employees.
``(D) Failure of employers to cooperate.--Employers
that fail to cooperate with the Office for Civil Rights
and Civil Liberties shall be noted in the annual report
set forth below in this subsection.
``(E) Requirement for reports.--Not later than 18
months after the date of enactment of the Act, and
annually thereafter, the Office for Civil Rights and
Civil Liberties shall submit to the President of the
Senate, the Speaker of the House of Representatives,
and the appropriate committees and subcommittees of
Congress a report containing the findings of the audit
carried out under this paragraph.
``(13) Management of the system.--
``(A) In general.--The Secretary is authorized to
establish, manage, and modify the System, which shall--
``(i) respond to inquiries made by
participating employers at any time through the
internet, or such other means as the Secretary
may designate, concerning an individual's
identity and whether the individual is
authorized to be employed;
``(ii) maintain records of the inquiries
that were made, of confirmations provided (or
not provided), and of the codes provided to
employers as evidence of their compliance with
their obligations under the System; and
``(iii) provide information to, and require
action by, employers and individuals using the
System.
``(B) Design and operation of system.--The System
shall be designed and operated--
``(i) to maximize its reliability and ease
of use by employers consistent with protecting
the privacy and security of the underlying
information, and ensuring full notice of such
use to employees;
``(ii) to maximize its ease of use by
employees, including notification of its use,
of results, and ability to challenge results;
``(iii) to respond accurately to all
inquiries made by employers on whether
individuals are authorized to be employed and
to register any times when the system is unable
to receive inquiries;
``(iv) to maintain appropriate
administrative, technical, and physical
safeguards to prevent unauthorized disclosure
of personal information, misuse by employers
and employees, and discrimination;
``(v) to allow for auditing of the use of
the System to detect misuse, discrimination,
fraud, and identity theft, and to preserve the
integrity and security of the information in
all of the System, including but not limited to
the following--
``(I) to develop and use tools and
processes to detect or prevent fraud
and identity theft, such as multiple
uses of the same identifying
information or documents to
fraudulently gain employment;
``(II) to develop and use tools and
processes to detect and prevent misuse
of the system by employers and
employees;
``(III) to develop tools and
processes to detect anomalies in the
use of the system that may indicate
potential fraud or misuse of the
system;
``(IV) to audit documents and
information submitted by employees to
employers, including authority to
conduct interviews with employers and
employees, and obtain information
concerning employment from the
employer;
``(vi) to confirm identity and employment
authorization through verification and
comparison of records maintained by the
Secretary, other Federal departments, states,
or outlying possessions of the United States,
or other available information, as determined
necessary by the Secretary, including--
``(I) records maintained by the
Social Security Administration;
``(II) birth and death records
maintained by vital statistics agencies
of any state or other United States
jurisdiction;
``(III) passport and visa records
(including photographs) maintained by
the Department of State; and
``(IV) state driver's license or
identity card information (including
photographs) maintained by State
departments of motor vehicles;
``(vii) to confirm electronically the
issuance of the employment authorization or
identity document and to display the digital
photograph that the issuer placed on the
document so that the employer can compare the
photograph displayed to the photograph on the
document presented by the employee. If a
photograph is not available from the issuer,
the Secretary shall specify alternative
procedures for confirming the authenticity of
the document; and
``(viii) to include, notwithstanding
section 6103 of title 26, U.S. Code, procedures
for verification by the Secretary of the
Treasury of the validity of any employer
identification number and related information
provided by an employer to the Secretary for
the purpose of participating in the System.
``(C) Access to information.--
``(i) Notwithstanding any other provision
of law, the Secretary of Homeland Security
shall have access to relevant records described
in subparagraphs (B)(vi) and (viii), for the
purposes of preventing identity theft, fraud
and misuse in the use of the System and
administering and enforcing the provisions of
this section governing employment verification.
Any governmental agency or entity possessing
such relevant records shall provide such
assistance and cooperation in resolving further
action notices and nonconfirmations relating to
such records, or otherwise to improve the
accuracy of the System, as the Secretary may
request. A state or other non-Federal
jurisdiction that does not provide such access,
assistance, and cooperation shall not be
eligible for any grant or other program of
financial assistance administered by the
Secretary or by the Commissioner.
``(ii) The Secretary, in consultation with
the Commissioner and other appropriate Federal
and State agencies, shall develop policies and
procedures to ensure protection of the privacy
and security of personally identifiable
information and identifiers contained in the
records accessed or maintained by the System.
The Secretary, in consultation with the
Commissioner and other appropriate Federal and
State agencies, shall develop and deploy
appropriate privacy and security training for
the Federal and State employees accessing the
records under the System.
``(iii) The Secretary, acting through the
Chief Privacy Officer of the Department of
Homeland Security, shall conduct regular
privacy audits of the policies and procedures
established under clause (ii), including any
collection, use, dissemination, and maintenance
of personally identifiable information and any
associated information technology systems, as
well as scope of requests for this information.
The Chief Privacy Officer shall review the
results of the audits and recommend to the
Secretary any changes necessary to improve the
privacy protections of the program.
``(D) Responsibilities of the secretary of homeland
security.--
``(i) As part of the System, the Secretary
shall maintain a reliable, secure method,
which, operating through the System and within
the time periods specified, compares the name,
alien identification or authorization number,
or other information as determined relevant by
the Secretary, provided in an inquiry against
such information maintained or accessed by the
Secretary in order to confirm (or not confirm)
the validity of the information provided, the
correspondence of the name and number, whether
the alien is authorized to be employed in the
United States (or, to the extent that the
Secretary determines to be feasible and
appropriate, whether the records available to
the Secretary verify the identity or status of
a national of the United States), and such
other information as the Secretary may
prescribe.
``(ii) As part of the System, the Secretary
shall establish a reliable, secure method,
which, operating through the System, displays
the digital photograph described in
subparagraph (B)(vii).
``(iii) The Secretary shall have authority
to prescribe when a confirmation,
nonconfirmation, or further action notice shall
be issued.
``(iv) The Secretary shall perform regular
audits under the System, as described in
subparagraph (B)(v) and shall utilize the
information obtained from such audits, as well
as any information obtained from the
Commissioner pursuant to section 304 of the CIR
ACT OF 2010, for the purposes of this section,
to administer and enforce the immigration laws,
and to ensure employee rights are protected
under the System.
``(v) The Secretary may make appropriate
arrangements to allow employers or employees
who are otherwise unable to access the System
to use Federal Government facilities or public
facilities or other available locations in
order to utilize the program.
``(vi) The Secretary shall, in consultation
with the Commissioner, establish a program
which shall provide a reliable, secure method
by which victims of identity fraud and other
individuals may suspend or limit the use of
their Social Security account number or other
identifying information for System purposes.
The Secretary may implement the program on a
limited pilot program basis before making it
fully available to all individuals.
``(vii) The Secretary, in consultation with
the Commissioner of Social Security, shall
establish procedures for an Enhanced
Verification System under paragraph (X).
``(viii) The Secretary and the Commissioner
shall establish a program in which Social
Security account numbers that have been
identified to be subject to unusual multiple
use in the System, or that are otherwise
suspected or determined to have been
compromised by identity fraud or other misuse,
shall be blocked from use for System purposes
unless the individual using such number is able
to establish, through secure and fair
additional security procedures, that he or she
is the legitimate holder of the number.
``(ix) The Secretary shall establish a
monitoring and compliance unit to detect and
reduce identity fraud and other misuse of the
program.
``(x) The Secretary, acting through the
Officer for Civil Rights and Civil Liberties of
the Department of Homeland Security, shall
conduct regular civil rights and civil
liberties assessments of the System, including
participation by employers, other private
entities, other Federal agencies, and state and
local government. The Officer shall review the
results of the assessment and recommend to the
Secretary any changes necessary to improve the
civil rights and civil liberties protections of
the program.
``(E) Responsibilities of the secretary of state.--
As part of the System, the Secretary of State shall
provide to the Secretary access to passport and visa
information as needed to confirm that a passport or
passport card presented under subsection (c)(1)(B)
confirms the identity of the subject of the System
check, or that a passport, passport card or visa
photograph matches the Secretary of State's records,
and shall provide such assistance as the Secretary may
request in order to resolve further action notices or
nonconfirmations relating to such information.
``(F) Updating information.--The Commissioner and
the Secretaries of Homeland Security and State shall
update their information in a manner that promotes
maximum accuracy and shall provide a process for the
prompt correction of erroneous information.
``(14) Limitation on use of the system.--Notwithstanding
any other provision of law, nothing in this subsection 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
subsection for any purpose other than for verification as
provided by this subsection the enforcement and administration
of the immigration laws, or the enforcement of Federal laws for
violations relating to use of the System.
``(15) Conforming amendment.--Sections 401 to 405 of the
Illegal Immigration Reform and Immigrant Responsibility Act of
1996 (division C of Public Law 104-208, as amended; 8 U.S.C.
1234a note) are repealed, provided that nothing in this
subsection shall be construed to limit the authority of the
Secretary to allow or continue to allow the participation in
the System of employers who have participated in the E-Verify
program established by such sections.
``(16) Nondiscrimination.--The employer shall use the
procedures for the System specified in this section for all
employees without regard to race, sex, national origin, or,
unless specifically permitted in this section, to citizenship
status.
``(e) Compliance.--
``(1) Complaints and investigations.--The Secretary of
Homeland Security shall establish procedures--
``(A) for individuals and entities to file
complaints respecting potential violations of
subsections (a) or (f)(1);
``(B) for the investigation of those complaints
which the Secretary deems appropriate to investigate;
and
``(C) for such other investigations of violations
of subsections (a) or (f)(1) as the Secretary
determines to be appropriate.
``(2) Authority in investigations.--In conducting
investigations and hearings under this subsection--
``(A) immigration officers shall have reasonable
access to examine evidence of any employer being
investigated;
``(B) immigration officers designated by the
Secretary, and administrative law judges and other
persons authorized to conduct hearings under this
section, may compel by subpoena the attendance of
witnesses and the production of evidence at any
designated place in an investigation or case under this
subsection. In case of refusal to fully comply with a
subpoena lawfully issued under this paragraph, the
Secretary may request that the Attorney General apply
in an appropriate district court of the United States
for an order requiring compliance with the subpoena,
and any failure to obey such order may be punished by
the court as contempt. Failure to cooperate with the
subpoena shall be subject to further penalties,
including but not limited to further fines and the
voiding of any mitigation of penalties or termination
of proceedings under paragraph (4)(D); and
``(C) the Secretary, in cooperation with the
Commissioner and Attorney General, and in consultation
with other relevant agencies, shall establish a Joint
Employment Fraud Task Force consisting of, at a
minimum, the System's compliance personnel, immigration
law enforcement officers, Special Counsel for Unfair
Immigration-Related Employment Practices personnel,
Department of Homeland Security Office for Civil Rights
and Civil Liberties personnel, and Social Security
Administration fraud division personnel.
``(3) Compliance procedures.--
``(A) Pre-penalty notice.--If the Secretary has
reasonable cause to believe that there has been a civil
violation of this section, the Secretary shall issue to
the employer concerned a written notice of the
Department's intention to issue a claim for a monetary
or other penalty. Such pre-penalty notice shall:
``(i) describe the violation;
``(ii) specify the laws and regulations
allegedly violated;
``(iii) disclose the material facts which
establish the alleged violation;
``(iv) describe the penalty sought to be
imposed; and
``(v) inform such employer that he or she
shall have a reasonable opportunity to make
representations as to why a monetary or other
penalty should not be imposed.
``(B) Employer's response.--Whenever any employer
receives written pre-penalty notice of a fine or other
penalty in accordance with subparagraph (A), the
employer may, within 30 days from receipt of such
notice, file with the Secretary its written response to
the notice. The response may include any relevant
evidence or proffer of evidence that the employer
wishes to present with respect to whether the employer
violated this section and whether, if so, the penalty
should be mitigated, and shall be filed and considered
in accordance with procedures to be established by the
Secretary.
``(C) Penalty claim.--After considering the
employer's response under subparagraph (B), the
Secretary shall determine whether there was a violation
and promptly issue a written final determination
setting forth the findings of fact and conclusions of
law on which the determination is based. If the
Secretary determines that there was a violation, the
Secretary shall issue the final determination with a
written penalty claim. The penalty claim shall specify
all charges in the information provided under clauses
(i) through (iii) of subparagraph (A) and any
mitigation of the penalty that the Secretary deems
appropriate under paragraph (4)(D).
``(4) Civil penalties.--All penalties in this section may
be adjusted periodically to account for inflation as provided
by law.
``(A) Hiring or continuing to employ unauthorized
aliens.--Any employer that violates any provision of
subsection (a)(1)(A) or (a)(2) shall:
``(i) pay a civil penalty of not less than
$2,000 and not more than $5,000 for each
unauthorized alien with respect to which each
violation of either subsection (a)(1)(A) or
(a)(2) occurred;
``(ii) if the employer has previously been
fined under this paragraph, pay a civil penalty
of not less than $4,000 and not more than
$10,000 for each unauthorized alien with
respect to which a violation of either
subsection (a)(1)(A) or (a)(2) occurred; and
``(iii) if the employer has previously been
fined more than once under this paragraph, pay
a civil penalty of not less than $8,000 and not
more than $25,000 for each unauthorized alien
with respect to which a violation of either
subsection (a)(1)(A) or (a)(2) occurred.
``(B) Enhanced penalty.--If an employer is
determined to have committed within the 5 years
immediately preceding the date of any violation of
subsection (a)(1)(A) or (a)(2) a civil or criminal
violation of a Federal or State law relating to wage
and hour or other employment standards, workplace
safety, collective bargaining, civil rights, or
immigration, by a court or an administrative agency
with jurisdiction over such violation, for which a
monetary penalty of at least $500, a judicial
injunction, or other equitable relief, or any term of
imprisonment has been imposed, any civil money penalty
or criminal fine otherwise applicable under this
section shall be trebled. In any proceeding under this
section, the Secretary of Homeland Security,
administrative law judge, or court, as appropriate,
shall determine whether a court or administrative
agency has imposed such penalty for such previous
violation of other law, but the validity and
appropriateness of such prior action shall not be
subject to review.
``(C) Recordkeeping or verification practices.--Any
employer that violates or fails to comply with any
requirement of subsection (a)(1)(B), shall pay a civil
penalty as follows:
``(i) not less than $500 and not more than
$2,000 for each violation;
``(ii) if an employer has previously been
fined under this paragraph, not less than
$1,000 and not more than $4,000 for each
violation; and
``(iii) if an employer has previously been
fined more than once under this paragraph, not
less than $2,000 and not more than $8,000 for
each violation.
``(D) Other penalties.--The Secretary may impose
additional penalties for violations, including cease
and desist orders, specially designed compliance plans
to prevent further violations, suspended fines to take
effect in the event of a further violation, and in
appropriate cases, the remedy provided by paragraph
(f)(2).
``(E) Mitigation.--The Secretary is authorized,
upon such terms and conditions as the Secretary deems
reasonable and just and in accordance with such
procedures as the Secretary may establish, to reduce or
mitigate penalties imposed upon employers, based upon
factors including, but not limited to, the employer's
hiring volume, compliance history, good-faith
implementation of a compliance program, and voluntary
disclosure of violations of this subsection to the
Secretary. The Secretary shall not mitigate a penalty
below the minimum penalty provided by this section,
except that the Secretary may, in the case of an
employer subject to penalty for record-keeping or
verification violations only who has not previously
been penalized under this section, in the Secretary's
discretion, mitigate the penalty below the statutory
minimum or remit it entirely.
``(5) Order of internal review and certification of
compliance.--If the Secretary has reasonable cause to believe
that an employer has failed to comply with this section, the
Secretary is authorized, at any time, to require that the
employer certify that it is in compliance with this section, or
has instituted a program to come into compliance. Within 60
days of receiving a notice from the Secretary requiring such a
certification, the employer's chief executive officer or
similar official with responsibility for, and authority to bind
the company on, all hiring and immigration compliance notices
shall certify under penalty of perjury that the employer is in
conformance with the requirements of subsections (c)(1) through
(c)(4), pertaining to document verification requirements, and
with subsection (d), pertaining to the System (once that system
is implemented with respect to that employer according to the
requirements of subsection (d)(1)), and with any additional
requirements that the Secretary may promulgate by regulation
pursuant to subsections (c) or (d) or that the employer has
instituted a program to come into compliance with these
requirements. At the request of the employer, the Secretary may
extend the 60-day deadline for good cause. The Secretary is
authorized to publish in the Federal Register standards or
methods for such certification, require specific recordkeeping
practices with respect to such certifications, and audit the
records thereof at any time. This authority shall not be
construed to diminish or qualify any other penalty provided by
this section.
``(6) Judicial review.--
``(A) In general.--Notwithstanding any other
provision of law (statutory or nonstatutory) including
sections 1361 and 1651 of title 28, no court shall have
jurisdiction to consider a final determination or
penalty claim issued under paragraph (3)(C), except as
specifically provided by this paragraph. Judicial
review of a final determination under paragraph (4) is
governed only by chapter 158 of title 28, except as
specifically provided below. The Secretary is
authorized to require that the petitioner provide,
prior to filing for review, security for payment of
fines and penalties through bond or other guarantee of
payment acceptable to the Secretary.
``(B) Requirements for review of a final
determination.--With respect to judicial review of a
final determination or penalty claim issued under
paragraph (3)(C), the following requirements apply:
``(i) Deadline.--The petition for review
must be filed no later than 30 days after the
date of the final determination or penalty
claim issued under paragraph (3)(C).
``(ii) Venue and forms.--The petition for
review shall be filed with the court of appeals
for the judicial circuit where the employer's
principal place of business was located when
the final determination or penalty claim was
issued. The record and briefs do not have to be
printed. The court of appeals shall review the
proceeding on a typewritten or electronically
filed record and briefs.
``(iii) Service.--The respondent is the
Secretary of Homeland Security. In addition to
serving the respondent, the petitioner must
also serve the Attorney General.
``(iv) Petitioner's brief.--The petitioner
shall serve and file a brief in connection with
a petition for judicial review not later than
40 days after the date on which the
administrative record is available, and may
serve and file a reply brief not later than 14
days after service of the brief of the
respondent, and the court may not extend these
deadlines, except for good cause shown. If a
petitioner fails to file a brief within the
time provided in this paragraph, the court
shall dismiss the appeal unless a manifest
injustice would result.
``(v) Scope and standard for review.--The
court of appeals shall decide the petition only
on the administrative record on which the final
determination is based. The burden shall be on
the petitioner to show that the final
determination was arbitrary, capricious, an
abuse of discretion, not supported by
substantial evidence, or otherwise not in
accordance with law.
``(C) Exhaustion of administrative remedies.--A
court may review a final determination under paragraph
(3)(C) only if--
``(i) the petitioner has exhausted all
administrative remedies available to the
petitioner as of right; and
``(ii) another court has not decided the
validity of the order, unless the reviewing
court finds that the petition presents grounds
that could not have been presented in the prior
judicial proceeding or that the remedy provided
by the prior proceeding was inadequate or
ineffective to test the validity of the order.
``(D) Limit on injunctive relief.--Regardless of
the nature of the action or claim or of the identity of
the party or parties bringing the action, no court
(other than the Supreme Court) shall have jurisdiction
or authority to enjoin or restrain the operation of the
provisions in this section, other than with respect to
the application of such provisions to an individual
petitioner.
``(7) Enforcement of orders.--If the final determination
issued against the employer under this subsection is not
subject to review as provided in paragraph (6), the Attorney
General, upon request by the Secretary, may bring a civil
action to enforce compliance with the final determination in
any appropriate district court of the United States. The court,
on a proper showing, shall issue a temporary restraining order
or a preliminary or permanent injunction requiring that the
employer comply with the final determination issued against
that employer under this subsection. In any such civil action,
the validity and appropriateness of the final determination
shall not be subject to review.
``(8) Liens.--
``(A) Creation of lien.--If any employer liable for
a fee or penalty under this section neglects or refuses
to pay such liability and fails to file a petition for
review (if applicable) as provided in paragraph (6),
such liability is a lien in favor of the United States
on all property and rights to property of such person
as if the liability of such person were a liability for
a tax assessed under the Internal Revenue Code of 1986.
If a petition for review is filed as provided in
paragraph (6), the lien (if any) shall arise upon the
entry of a final judgment by the court. The lien
continues for 20 years or until the liability is
satisfied, remitted, set aside, or terminated.
``(B) Effect of filing notice of lien.--Upon filing
of a notice of lien in the manner in which a notice of
tax lien would be filed under section 6323(f)(1) and
(2) of the Internal Revenue Code of 1986, the lien
shall be valid against any purchaser, holder of a
security interest, mechanic's lien or judgment lien
creditor, except with respect to properties or
transactions specified in subsection (b), (c), or (d)
of section 6323 of the Internal Revenue Code of 1986
for which a notice of tax lien properly filed on the
same date would not be valid. The notice of lien shall
be considered a notice of lien for taxes payable to the
United States for the purpose of any State or local law
providing for the filing of a notice of a tax lien. A
notice of lien that is registered, recorded, docketed,
or indexed in accordance with the rules and
requirements relating to judgments of the courts of the
State where the notice of lien is registered, recorded,
docketed, or indexed shall be considered for all
purposes as the filing prescribed by this section. The
provisions of section 3201(e) of chapter 176 of title
28 shall apply to liens filed as prescribed by this
section.
``(C) Enforcement of a lien.--A lien obtained
through this process shall be considered a debt as
defined by 28 U.S.C. section 3002 and enforceable
pursuant to the Federal Debt Collection Procedures Act.
``(9) Transition provision.--The Attorney General shall
have jurisdiction to adjudicate administrative proceedings
under this subsection, pursuant to procedures for hearings
before administrative law judges as in effect under section
274A(e) of this Act and its implementing regulations on the day
immediately before the date of the enactment of the CIR Act of
2010, until the date that regulations promulgated by the
Secretary, in consultation with the Attorney General, for the
adjudication of cases under this subsection are in effect. Such
regulations may provide for the continuing jurisdiction of the
Attorney General over cases pending before the Attorney General
on such date that the regulations are promulgated. Sections
1512 and 1517 of the Homeland Security Act (6 U.S.C. 552 and
557) shall apply to any transfer of jurisdiction to adjudicate
cases under this subsection from the Attorney General to the
Secretary as if such transfer is a transfer under the Homeland
Security Act; provided that, nothing in this sentence shall be
construed to require any transfer of personnel from the
Department of Justice to the Department of Homeland Security.
``(f) Prohibition of Indemnity Bonds.--
``(1) Prohibition.--It is unlawful for an employer, in the
hiring of any individual, to require the individual to post a
bond or security, to pay or agree to pay an amount, or
otherwise to provide a financial guarantee or indemnity,
against any potential liability arising under this section
relating to such hiring of the individual.
``(2) Civil penalty.--Any employer who is determined, after
notice and opportunity for mitigation of the monetary penalty
under subsection (e), to have violated paragraph (1) of this
subsection shall be subject to a civil penalty of $10,000 for
each violation and to an administrative order requiring the
return of any amounts received in violation of such paragraph
to the employee or, if the employee cannot be located, to the
general fund of the Treasury.
``(g) Government Contracts.--
``(1) Contractors and recipients.--Whenever an employer who
holds Federal contracts, grants, or cooperative agreements, or
reasonably may be expected to submit offers for or be awarded a
government contract, is determined by the Secretary to be a
repeat violator of this section or is convicted of a crime
under this section, the employer shall be subject to debarment
from the receipt of Federal contracts, grants, or cooperative
agreements for a period of up to 5 years in accordance with the
procedures and standards prescribed by the Federal Acquisition
Regulation. Prior to debarring the employer, the Secretary, in
cooperation with the Administrator of General Services, shall
advise all agencies holding contracts, grants, or cooperative
agreements with the employer of the proceedings to debar the
employer from the receipt of new Federal contracts, grants, or
cooperative agreements for a period of up to 5 years. After
consideration of the views of agencies holding contracts,
grants or cooperative agreements with the employer, the
Secretary may, in lieu of proceedings to debar the employer
from the receipt of new Federal contracts, grants, or
cooperative agreements for a period of up to 5 years, waive
operation of this subsection, limit the duration or scope of
the proposed debarment, or may refer to an appropriate lead
agency the decision of whether to seek debarment of the
employer, for what duration, and under what scope in accordance
with the procedures and standards prescribed by the Federal
Acquisition Regulation. However, any administrative
determination of liability for civil penalty by the Secretary
or the Attorney General shall not be reviewable in any
debarment proceeding.
``(2) Effect of indictments or other actions.--Indictments
for violations of this section or adequate evidence of actions
that could form the basis for debarment under this subsection
shall be considered a cause for suspension under the procedures
and standards for suspension prescribed by the Federal
Acquisition Regulation.
``(3) Inadvertent violations.--Inadvertent violations of
recordkeeping or verification requirements, in the absence of
any other violations of this section, shall not be a basis for
determining that an employer is a repeat violator for purposes
of this subsection.
``(4) Other remedies available.--Nothing in this subsection
shall be construed to modify or limit any remedy available to
any agency or official of the Federal Government for violation
of any contractual requirement to participate in the System, as
provided in the final rule published at 73 Federal Register
67,651 (Nov. 14, 2008), or any subsequent amendments thereto.
``(h) Preemption.--The provisions of this section preempt any State
or local law, contract license, or other standard, requirement, action
or instrument from--
``(1) imposing sanctions or liabilities for employing, or
recruiting or referring for employment, unauthorized aliens, or
for working without employment authorization;
``(2) requiring those hiring, recruiting, or referring
individuals for employment to ascertain or verify the
individuals' employment authorization or to participate in an
employment authorization verification system, or requiring
individuals to demonstrate employment authorization; and
``(3) requiring, authorizing or permitting the use of an
employment verification system, unless otherwise mandated by
Federal law, for any other purpose including, but without
limitation, such purposes as verifying the status of renters,
determining eligibility for receipt of benefits, enrollment in
school, obtaining or retaining a business license or other
license, or conducting a background check.
``(i) Backpay Remedies.--Neither backpay nor any other monetary
remedy for unlawful employment practices, workplace injuries or other
causes of action giving rise to liability shall be denied to a present
or former employee on account of--
``(1) the employer's or the employee's failure to comply
with the requirements of this section in establishing or
maintaining the employment relationship; the employee`s
violation of the provisions of federal law related to the
employment verification system set forth in subsection (a); or'
``(2) the employee's continuing status as an unauthorized
alien both during and after termination of employment.
``(j) Deposit of Amounts Received.--Except as otherwise specified,
civil penalties collected under this section shall be deposited by the
Secretary into the Immigration Reform Penalty Account.
``(k) Challenges to Validity of the System.--
``(1) In general.--Any right, benefit, or claim not
otherwise waived or limited pursuant to this section is
available in an action instituted in the United States District
Court for the District of Columbia, but shall be limited to
determinations of--
``(A) whether this section, or any regulation
issued to implement this section, violates the
Constitution of the United States; or
``(B) whether such a regulation issued by or under
the authority of the Secretary to implement this
section, is contrary to applicable provisions of this
section or was issued in violation of title 5, chapter
5, United States Code.
``(2) Deadlines for bringing actions.--Any action
instituted under this subsection must be filed no later than
180 days after the date the challenged section or regulation
described in subparagraph (A) or (B) of paragraph (1) is first
implemented.
``(3) Rule of construction.--In determining whether the
Secretary's interpretation regarding any provision of this
section is contrary to law, a court shall accord to such
interpretation the maximum deference permissible under the
Constitution.
``(l) Private Right of Action.--Any person or entity who is injured
in his business or property by reason of the employment of an
unauthorized alien by any other person or entity may sue such other
person or entity in any district court of the United States in the
district in which the defendant resides or is found or has an agent,
without respect to the amount in controversy, and shall recover
threefold the damages sustained, and the cost of suit, including
reasonable attorney's fees. The award of interest, and the amount of
damages payable to foreign states and instrumentalities of foreign
states, shall be determined in the manner provided by section 15 of
title 15, United States Code. The provision shall become effective 3
years after the date of the enactment of the CIR Act of 2010 and shall
apply only to injury occurring after the effective date.
``(m) Criminal Penalties and Injunctions for Pattern or Practice
Violations.--
``(1) Pattern and practice.--Any employer who engages in a
pattern or practice of knowing violations of subsection
(a)(1)(A) or (a)(2) shall be fined under title 18, United
States Code, imprisoned for not more than 3 years for the
entire pattern or practice, or both.
``(2) Enjoining of pattern or practice violations.--
Whenever the Secretary or the Attorney General has reasonable
cause to believe that an employer is engaged in a pattern or
practice of employment in violation of subsection (a)(1)(A) or
(a)(2), the Attorney General may bring a civil action in the
appropriate district court of the United States requesting such
relief, including a permanent or temporary injunction,
restraining order, or other order against the employer, as the
Secretary or Attorney General deems necessary.
``(n) Criminal Penalties for Unlawful Employment.--
``(1) Unauthorized aliens.--Any person who, during any 12-
month period, knowingly employs or hires for employment 10 or
more individuals within the United States knowing that the
individuals are unauthorized aliens (as defined in subsection
(b)(1) of this section) shall be fined under title 18, United
States Code, or imprisoned for not more than 5 years, or both.
``(2) Abusive employment.--Any person who, during any 12-
month period, knowingly employs or hires for employment 10 or
more individuals within the United States--
``(A) knowing that the individuals are unauthorized
aliens; and
``(B) under conditions that violate section 206 or
207 of Title 29 (relating to minimum wages and maximum
hours of employment),
shall be fined under title 18, United States Code, or
imprisoned for not more than 10 years, or both.
``(3) Attempt and conspiracy.--Any person who attempts or
conspires to commit any offense under this subsection shall be
punished in the same manner as a person who completes the
offense.''.
(b) Conforming Amendment.--Section 274(a)(3) of the Immigration and
Nationality Act (8 U.S.C. 1324(a)(3)) is repealed.
SEC. 302. DISCLOSURE OF CERTAIN TAXPAYER INFORMATION TO ASSIST IN
IMMIGRATION ENFORCEMENT.
Section 6103(l) of the Internal Revenue Code of 1986 is amended by
adding at the end the following new paragraph:
``(21) Disclosure of certain taxpayer identity information
by social security administration to department of homeland
security.--
``(A) In general.--From taxpayer identity
information or other information which has been
disclosed or otherwise made available to the Social
Security Administration and upon written request by the
Secretary of Homeland Security, the Commissioner of
Social Security shall disclose directly to the
Department of Homeland Security--
``(i) the taxpayer identity information of
persons within the specifications of the
written request who have filed an information
return required by reason of section 6051 or
section 6041(a) after calendar year 2010 that
contains--
``(I) 10 (or any greater number the
Secretary of Homeland Security shall
request) names and addresses of
employees (within the meaning of
section 6041(a)) with the same taxpayer
identifying number, and
``(II) the taxpayer identity and
date of birth of each such employee,
and
``(ii) the taxpayer identity of each person
who has filed an information return required by
reason of section 6051 or 6041(a) after
calendar year 2010 that contains the taxpayer
identifying number (assigned under section
6109) of an employee (within the meaning of
section 6051) or a recipient (within the
meaning of section 6041(a))--
``(I) who is under the age of 14
(or any lesser age the Secretary of
Homeland Security shall request),
according to the records maintained by
the Commissioner of Social Security, or
``(II) whose date of death,
according to the records so maintained,
occurred in a calendar year preceding
the calendar year for which the
information return was filed, and
``(iii) the taxpayer identity and date of
birth of each such employee.
``(B) Restriction on disclosure.--The taxpayer
identities disclosed under subparagraph (A) may be used
by officers, employees, and contractors of the
Department of Homeland Security only for purposes of,
and to the extent necessary to--
``(i) prevent identity fraud, and
``(ii) prevent unauthorized aliens from
obtaining or continuing employment in the
United States.
``(C) Reimbursement.--The Secretary of Homeland
Security shall transfer to the Commissioner of Social
Security the funds necessary to cover the additional
cost directly incurred by the Commissioner in carrying
out the searches requested by the Secretary of Homeland
Security.
``(D) Information returns under section 6041.--For
purposes of this paragraph, any reference to
information returns required by reason of section
6041(a) shall only be a reference to such information
returns relating to payments for labor.''.
SEC. 303. COMPLIANCE BY DEPARTMENT OF HOMELAND SECURITY CONTRACTORS
WITH CONFIDENTIALITY SAFEGUARDS.
(a) In General.--Section 6103(p) of the Internal Revenue Code is
amended by adding at the end the following new paragraph:
``(9) Disclosure to department of homeland security.--
Notwithstanding any other provision of this section, no return
or return information shall be disclosed to any contractor of
the Department of Homeland Security unless such Department, to
the satisfaction of the Secretary of the Treasury--
``(A) has requirements in effect that require each
such contractor that would have access to returns or
return information to provide safeguards (within the
meaning of paragraph (4)) to protect the
confidentiality of such returns or return information;
``(B) agrees to conduct an on-site review every 3
years (mid-point review in the case of contracts or
agreements of less than 3 years in duration) of each
contractor to determine compliance with such
requirements;
``(C) submits the findings of the most recent
review conducted under subparagraph (B) to the
Secretary as part of the report required by paragraph
(4)(E);and
``(D) certifies to the Secretary for the most
recent annual period that such contractor is in
compliance with all such requirements.
The certification required by subparagraph (D) shall include
the name and address of each contractor, a description of the
contract or agreement with such contractor, and the duration of
such contract or agreement.''.
(b) Conforming Amendments.--
(1) Section 6103(p)(8)(B) of such Code is amended by
inserting ``or paragraph (9)'' after ``subparagraph (A)''.
(2) Section 7213(a)(2) of such Code is amended by striking
``or (20)'' and inserting ``(20), or (21)''.
(c) Repeal of Reporting Requirements.--
(1) Report on earnings of aliens not authorized to work.--
Subsection (c) of section 290 of the Immigration and
Nationality Act (8 U.S.C. 1360) is repealed.
(2) Report on fraudulent use of social security account
numbers.--Subsection (b) of section 414 of the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996
(division C of Public Law 104-208; 8 U.S.C. 1360 note) is
repealed.
SEC. 304. INCREASING SECURITY AND INTEGRITY OF SOCIAL SECURITY CARDS.
(a) Fraud Resistant, Tamper-resistant, and Wear-resistant Social
Security Cards.--
(1) Issuance.--
(A) Preliminary work.--Not later than 180 days
after the date of the enactment of this Act, the
Commissioner of Social Security shall begin work to
administer and issue fraud-resistant, tamper-resistant,
and wear-resistant Social Security cards.
(B) Completion.--Not later than 2 years after the
date of the enactment of this Act, the Commissioner of
Social Security shall issue only fraud-resistant,
tamper-resistant and wear-resistant Social Security
cards.
(2) Amendment.--Section 205(c)(2)(G) of the Social Security
Act (42 U.S.C. 405(c)(2)(G)) is amended to read--
``(i) The Commissioner of Social Security
shall issue a social security card to each
individual at the time of the issuance of a
social security account number to such
individual. The social security card shall be
fraud-resistant, tamper-resistant and wear-
resistant.''.
(3) Authorization of appropriations.--There are authorized
to be appropriated such sums as may be necessary to carry out
this subsection and the amendments made by this subsection.
(b) Multiple Cards.--Section 205(c)(2)(G) of the Social Security
Act (42 U.S.C. 405(c)(2)(G)) is further amended by adding at the end
the following:
``(ii) The Commissioner of Social Security
shall not issue a replacement Social Security
card to any individual unless the Commissioner
determines that the purpose for requiring the
issuance of the replacement document is
legitimate.''.
(c) Criminal Penalties.--Section 208(a) of the Social Security Act
(42 U.S.C. 408(a)) is amended--
(1) by amending existing paragraph (7) to read as follows:
``(7) for any purpose--
``(A) knowingly uses a social security account
number or social security card knowing that the number
or card was obtained from the Commissioner of Social
Security by means of fraud or false statement with the
intent to defraud the actual holder of the number or
card;
``(B) knowingly and falsely represents a number to
be the social security account number assigned by the
Commissioner of Social Security to him or to another
person, when in fact such number is not the social
security account number assigned by the Commissioner of
Social Security to him or to such other person with the
intent to defraud the actual holder of the number or
card;
``(C) knowingly sells, or possesses with intent
sell a social security account number or a social
security card that is or purports to be a number or
card issued by the Commissioner of Social Security; or
``(D) knowingly alters, counterfeits, forges, or
falsely makes a social security account number or a
social security card;
``(E) knowingly distributes a social security
account number or a social security card knowing the
number or card to be altered, counterfeited, forged,
falsely made, or stolen; or;'';
(2) in paragraph (8)--
(A) by inserting the word ``knowingly'' immediately
before the word ``discloses'';
(B) by inserting the word ``account'' immediately
after the word ``security''; and
(C) by adding ``or'' at the end of the paragraph;
(3) by inserting immediately after paragraph (8) the
following:
``(9) without lawful authority, knowingly produces or
acquires for any person a social security account number, a
social security card, or a number or card that purports to be a
social security account number or social security card;'';
(4) in the undesignated penalty language at the end of
subsection (a), by striking the word ``five'' and inserting the
word ``ten''.
(d) Conspiracy and Disclosure.--Section 208 of the Social Security
Act (42 U.S.C. 408) is amended by adding at the end the following:
``(f) Whoever attempts or conspires to violate any criminal
provision within this section shall be punished in the same manner as a
person who completes a violation of that provision.
``(g)(1) Notwithstanding any other provision of law and subject to
paragraph (2), the Commissioner of Social Security shall disclose the
following records of the Social Security Administration to any federal
law enforcement agency that requests such records for the purpose of
investigating a violation of this section or section 274A, section
274B, or section 274C of the Immigration and Nationality Act, provided
that such request is in writing and from an officer in a supervisory
position or higher official:
``(A) records concerning the identity, address, location,
or financial institution accounts of the holder of a social
security account number or social security card;
``(B) records concerning the application for and issuance
of a social security account number or social security card;
and
``(C) records concerning the existence or non-existence of
a social security account number or social security card.
``(2) The Commissioner of Social Security shall not disclose any
tax return or tax return information pursuant to this subsection.''.
SEC. 305. INCREASING SECURITY AND INTEGRITY OF IMMIGRATION DOCUMENTS.
Not later than 1 year after the date of the enactment of this Act,
the Secretary shall--
(1) issue only machine-readable, tamper-resistant
employment authorization documents that use biometric
identifiers; and
(2) submit a report to Congress that describes the
feasibility, advantages, and disadvantages of issuing a
document described in paragraph (1) to any nonimmigrant alien
authorized for employment with a specific employer.
SEC. 306. RESPONSIBILITIES OF THE SOCIAL SECURITY ADMINISTRATION.
Section 205(c)(12) of the Social Security Act, 42 U.S.C. 405(c)(2),
is amended by adding at the end the following new subparagraph:
``(A) Responsibilities of the commissioner of
social security.--
``(i) As part of the verification system,
the Commissioner of Social Security shall,
subject to the provisions of section 274A(d) of
the Immigration and Nationality Act, establish
a reliable, secure method that, operating
through the System and within the time periods
specified in section 274A(d) of the Immigration
and Nationality Act:
``(I) Compares the name, date of
birth, social security account number
and available citizenship information
provided in an inquiry against such
information maintained by the
Commissioner in order to confirm (or
not confirm) the validity of the
information provided regarding an
individual whose identity and
employment eligibility must be
confirmed.
``(II) Determines the
correspondence of the name, number, and
any other identifying information.
``(III) Determines whether the name
and number belong to an individual who
is deceased.
``(IV) Determines whether an
individual is a national of the United
States (when available).
``(V) Determines whether the
individual has presented a social
security account number that is not
valid for employment.
The System shall not disclose or release social
security information to employers through the
confirmation system (other than such
confirmation or nonconfirmation, information
provided by the employer to the System, or the
reason for the issuance of a further action
notice).
``(ii) Social security administration
database improvements.--For purposes of
preventing identity theft, protecting
employees, and reducing burden on employers,
and notwithstanding section 6103 of title 26,
United States Code, the Commissioner of Social
Security, in consultation with the Secretary of
Homeland Security, shall review the Social
Security Administration databases and
information technology to identify any
deficiencies and discrepancies related to name,
birth date, citizenship status, or death
records of the social security accounts and
social security account holders likely to
contribute to fraudulent use of documents, or
identity theft, or to affect the proper
functioning of the System, and shall correct
any identified errors. The Commissioner shall
ensure that a system for identifying and
correcting such deficiencies and discrepancies
is adopted to ensure the accuracy of the Social
Security Administration's databases.
``(iii) Notification to suspend use of
social security number.--The Commissioner of
Social Security, in consultation with the
Secretary of Homeland Security, may establish a
secure process whereby an individual can
request that the Commissioner preclude any
confirmation under the System based on that
individual's Social Security number until it is
reactivated by that individual.''.
SEC. 307. ANTIDISCRIMINATION PROTECTIONS.
(a) Amendments.--Section 274B (8 U.S.C. 1324b) is amended--
(1) by amending subsection (a) to read as follows--
``(a) Prohibition of Discrimination Based on National Origin or
Citizenship Status.--
``(1) In general.--It is an unfair immigration-related
employment practice for a person or other entity to
discriminate against any individual, because of such
individual's national origin or citizenship status, with
respect to the hiring of the individual for employment, the
verification of the individual's eligibility for employment
through the System described in section 274A(d), the
compensation, terms, conditions, or privileges of the
employment of the individual, or the discharging of the
individual from employment.
``(2) Exceptions.--Paragraph (1) shall not apply to--
``(A) a person or other entity that employs 3 or
fewer employees, except for an employment agency, as
defined in paragraph (9);
``(B) a person's or entity's discrimination because
of an individual's national origin if the
discrimination with respect to that person or entity
and that individual is covered under section 703 of the
Civil Rights Act of 1964 (42 U.S.C. 2000e-2);
``(C) discrimination because of citizenship status
which is otherwise required in order to comply with
law, regulation, or executive order, or required by
Federal, State, or local government contract, or which
the Attorney General determines to be essential for an
employer to do business with an agency or department of
the Federal, State, or local government.
``(3) Additional exception providing right to prefer
equally qualified citizens.--Notwithstanding any other
provision of this section, it is not an unfair immigration-
related employment practice for a person or other entity to
prefer to hire, recruit, or refer an individual who is a
citizen or national of the United States over another
individual who is an alien if the two individuals are equally
qualified.
``(4) Unfair immigration-related employment practices and
the system.--It is also an unfair immigration-related
employment practice for a person or other entity--
``(A) to terminate the employment of an individual
or take any adverse employment action with respect to
that individual (including, but not limited to, any
change in the terms and conditions of employment of the
individual) due to a further action notice issued by
the System, or the individual's decision to challenge
or appeal any System determination;
``(B) to use the System with regard to any person
who is not an employee;
``(C) to use the System to reverify the employment
authorization of a current employee, other than
reverification upon expiration of employment
authorization, or as otherwise authorized under section
274A(d) or by Executive Order;
``(D) to use the System selectively to exclude
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 newly hired individuals;
``(E) to fail to provide any required notice to a
current employee within the relevant time period;
``(F) to use the System to deny workers' employment
benefits or otherwise interfere with their labor
rights;
``(G) to use the System for any discriminatory or
retaliatory purpose; and
``(H) to use an immigration status verification
system or service other than those described in section
274A for purposes of verifying employment eligibility
under that section.
``(5) Prohibition of intimidation or retaliation.--It is
also an unfair immigration-related employment practice for a
person or other entity to intimidate, threaten, coerce, or
retaliate against any individual for the purpose of interfering
with any right or privilege secured under this section or
because the individual intends to file or has filed a charge or
a complaint, testified, assisted, or participated in any manner
in an investigation, proceeding, or hearing under this section.
``(6) Treatment of certain documentary practices as
employment practices.--A person's or other entity's request,
for purposes of satisfying the requirements of section 274A(b),
for more or different documents than are required under such
section or refusing to honor documents tendered that reasonably
appear to be genuine shall be treated as an unfair immigration-
related employment practice in violation of paragraph (1).
``(7) Burden of proof in disparate impact cases.--
``(A) An unlawful immigration-related employment
practice or unfair employment practice case based on
disparate impact is established only if:
``(i) A complaining party demonstrates that
a respondent uses a particular employment
practice that causes a disparate impact on the
basis of national origin or citizenship status
and the respondent fails to demonstrate that
the challenged practice is job related for the
position in question and consistent with
business necessity.
``(ii) The complaining party demonstrates
that an alternative employment practice is
available and the respondent refuses to adopt
such an alternative employment practice. An
alternative employment practice is defined as a
policy that would satisfy the employer's
legitimate interests without having a disparate
impact on a protected class.
``(B) With respect to demonstrating that a
particular employment practice causes a disparate
impact as described in subparagraph (A), the
complaining party shall demonstrate that each
particular challenged employment practice causes a
disparate impact, except that if the complaining party
can demonstrate to the court that the elements of a
respondent's decision-making process are not capable of
separation for analysis, the decision-making process
may be analyzed as one employment practice.
``(C) If the respondent demonstrates that a
specific employment practice does not cause the
disparate impact, the respondent shall not be required
to demonstrate that such practice is required by
business necessity.
``(D) A demonstration that an employment practice
is required by business necessity may not be used as a
defense against a claim of intentional discrimination
under this statute.
``(8) Motivating factor.--Except as otherwise provided in
this Act, an unlawful immigration-related unfair employment
practice is established when the charging party demonstrates
that citizenship status or national origin was a motivating
factor for any employment practice, even though other factors
also motivated the practice.
``(9) Employment agency defined.--As used in this section,
the term `employment agency' means any person or entity
regularly undertaking with or without compensation to procure
employees for an employer or to procure for employees
opportunities to work for an employer and includes an agent of
such person or entity.'';
(2) in subsection (d)--
(A) by amending paragraphs (1) and (2) to read as
follows--
``(1) The Special Counsel shall investigate each charge
received and determine whether or not there is reasonable cause
to believe that the charge is true and whether or not to bring
a complaint with respect to the charge before an administrative
law judge. The Special Counsel may, on his or her own
initiative, conduct investigations respecting unfair
immigration-related employment practices or unfair employment
practices and, based on such an investigation, file a complaint
before such judge.
``(2) If the Special Counsel, after receiving such a charge
respecting an unfair immigration-related employment practice or
an unfair employment practice which alleges discriminatory
activity or a pattern or practice of discriminatory activity,
has not filed a complaint before an administrative law judge
with respect to such charge within 120 days, the Special
Counsel shall notify the person making the charge of the
determination not to file such a complaint during such period
and the person making the charge may file a complaint directly
before such judge within 90 days after the date of receipt of
the notice.'';
(3) in subsection (g)(2)--
(A) in subparagraph (A), by inserting before the
period ``and which requires such affirmative action as
may be appropriate, or any other individual equitable
relief as the administrative law judge determines
appropriate.'';
(B) in subparagraph (B)--
(i) in clause (iii), by inserting before
the semicolon ``, and to provide such other
relief as the administrative law judge
determines appropriate to make the individual
whole''; and
(ii) by amending clause (iv) to read as
follows--
``(iv) to pay any applicable civil
penalties proscribed below, the amounts of
which may be adjusted periodically to account
for inflation as provided by law--
``(I) except as provided in
subclauses (II) through (IV), to pay a
civil penalty of not less than $2,000
and not more than $5,000 for each
individual subjected to an unfair
immigration related employment
practice;
``(II) except as provided in
subclauses (III) and (IV), in the case
of a person or entity previously
subject to a single order under this
paragraph, to pay a civil penalty of
not less than $4,000 and not more than
$10,000 for each individual subjected
to an unfair immigration related
employment practice;
``(III) except as provided in
subclause (IV), in the case of a person
or entity previously subject to more
than one order under this paragraph, to
pay a civil penalty of not less than
$8,000 and not more than $25,000 for
each individual subjected to an unfair
immigration related employment
practice; and
``(IV) in the case of an unfair
immigration-related employment practice
described in subsection (a)(6) of this
section, to pay a civil penalty of not
less than $500 and not more than $5,000
for each individual subjected to an
unfair immigration related employment
practice.'';
(C) in clause (vii) by striking ``and'';
(D) in clause (viii) by striking the period and
inserting ``; and''; and (E) by adding a new clause
(ix) to read as follows--
``(i)(I) An order of the administrative law
judge may not require the admission or
reinstatement of an individual as a member of a
union, or the hiring, reinstatement, or
promotion of an individual as an employee, if
such individual was refused admission,
suspended, or expelled, or was refused
employment or advancement or was suspended or
discharged more likely that not, for any reason
other than discrimination on account of
citizenship status or national origin or in
violation of this section.
``(II) On a claim in which an individual
proves a violation under paragraph (a)(9) and a
respondent demonstrates that the respondent
would have taken the same action in the absence
of the impermissible motivating factor, the
administrative law judge may grant declaratory
relief, injunctive relief (except as provided
in clause (b)(2)), and attorney's fees and
costs demonstrated to be directly attributable
only to the pursuit of a claim under paragraph
(a)(9); and shall not award damages or issue an
order requiring any admission, reinstatement,
hiring, promotion, or payment, described in
subparagraph (I).'';
(4) in subsection (l)(3) by inserting ``and an additional
$40,000,000 for each of fiscal years 2011 through 2013'' before
the period at the end; and
(5) by adding new subsections (m) and (n) to read as
follows--
``(m) Reports.--The Secretary of Homeland Security shall make
transactional data and citizenship status data related to the System
available upon request by the Special Counsel.
``(n) Records.--Every employer, employment agency, and labor
organization subject to this section shall--
``(1) make and keep such records relevant to the
determinations of whether unlawful employment practices have
been or are being committed;
``(2) preserve such records for such periods; and
``(3) make such reports therefrom as the Special Counsel
shall prescribe by regulation or order, after public hearing,
as reasonable, necessary, or appropriate for the enforcement of
this section or the regulations or orders thereunder.
The Special Counsel may cooperate with State and local agencies charged
with the administration of State fair employment practices laws and,
with the consent of such agencies, may, for the purpose of carrying out
its functions and duties under this section and within the limitation
of funds appropriated specifically for such purpose, engage in and
contribute to the cost of research and other projects of mutual
interest undertaken by such agencies, and utilize the services of such
agencies and their employees, and, notwithstanding any other provision
of law, pay by advance or reimbursement such agencies and their
employees for services rendered to assist the Special Counsel in
carrying out this section. In furtherance of such cooperative efforts,
the Special Counsel may enter into written agreements with such State
or local agencies and such agreements may include provisions under
which the Special Counsel shall refrain from processing a charge in any
cases or class of cases specified in such agreements or under which the
Special Counsel shall relieve any person or class of persons in such
State or locality from requirements imposed under this section. The
Special Counsel shall rescind any such agreement whenever it determines
that the agreement no longer serves the interest of effective
enforcement of this section.''.
(b) Effective Date.--The amendments made by this section shall take
effect on the date of the enactment of this Act and shall apply to
violations occurring on or after such date.
SEC. 308. IMMIGRATION ENFORCEMENT SUPPORT BY THE INTERNAL REVENUE
SERVICE AND THE SOCIAL SECURITY ADMINISTRATION.
(a) Increase in Penalty on Employer Failing to File Correct
Information Returns.--Section 6721 of the Internal Revenue Code of
1986(relating to failure to file correct information returns), as
amended by section 2101 of the Small Business Jobs Act of 2010, is
amended as follows--
(1) in subsection (a)(1)--
(A) by striking ``$100'' and inserting ``$200'';
and
(B) by striking ``$1,500,000'' and inserting
``$2,000,000'';
(2) in subsection (b)(1)(A), by striking ``$15 in lieu of
$50'' and inserting ``$60 in lieu of $200'';
(3) in subsection (b)(1)(B), by striking ``$250,000'' and
inserting ``$300,000'';
(4) in subsection (b)(2)(A), by striking ``$30 in lieu of
$50'' and inserting ``$120 in lieu of $200'';
(5) in subsection (b)(2)(B), by striking ``$500,000'' and
inserting ``$600,000'';
(6) in subsection (d)--
(A) in paragraph (1)(B) by striking ```$75,000' for
`$250,000''' and inserting ```$100,000' for
`$300,000''';
(B) in paragraph (1)(C) by striking ```$200,000'
for `$500,000''' and inserting ```$200,000' for
`$600,000''';
(C) in paragraph (2)(A), by striking ``$5,000,000''
and inserting ``$2,000,000''; and
(D) in the heading, by striking ``$5,000,000'' and
inserting ``$2,000,000'';
(7) in subsection (e)--
(A) in paragraph (2) in the matter preceding
subparagraph (A) by striking ``$250'' and inserting
``$400'';
(B) in paragraph (2)(C)(i) by striking ``$25,000''
and inserting ``$100,000'';
(C) in paragraph (2)(C)(ii) by striking
``$100,000'' and inserting ``$400,000''; and
(D) in paragraph (3)(A), by striking ``$1,500,000''
and inserting ``$2,000,000''.
(b) Effective Date.--The amendments made by subsection (c) shall
apply to failures occurring after the date of enactment of this
section.
SEC. 309. ENHANCED VERIFICATION SYSTEM.
(a) Right to Review and Correct System Information.--The Secretary,
in consultation with the Commissioner of Social Security, shall
establish--
(1) procedures to permit an individual--
(A) to verify the individual's eligibility for
employment in the United States before obtaining or
changing employment;
(B) to view the individual's own records in the
Enhanced Verification System in order to ensure the
accuracy of such records; and
(C) to correct or update the information used by
the System regarding the individual by electronic
means, to the greatest extent practicable; and
(2) procedures for establishing an Enhanced Verification
System under subsection (b) through which an individual who has
viewed the individual's own record may electronically--
(A) block the use of the individual's Social
Security number under the System; and
(B) remove such block in order to--
(i) prevent the fraudulent or other misuse
of a Social Security account number;
(ii) prevent employer misuse of the system;
(iii) protect privacy; and
(iv) limit erroneous nonconfirmations
during employment verification.
(b) Enhanced Verification System.--
(1) In general.--The Secretary, in consultation with the
Commissioner of Social Security, shall establish a voluntary
self-verification system to allow an individual to submit
biometric information, verify the individual's own record, and
to block and unblock the use of the individual's Social
Security number in order to prevent the fraudulent or other
misuse of the individual's Social Security Number during
employment verification, to prevent employer misuse of the
system, to protect privacy, and to limit erroneous non-
confirmations during employment verification.
(2) Voluntary enrollment.--An individual may enroll in the
Enhanced Verification System on a voluntary basis.
(3) Electronic access.--The Secretary shall establish
procedures allowing individuals to use a Personal
Identification Number (PIN) or other biographic information to
authenticate the individual's identity and to block and unblock
the individual's Social Security number electronically.
(4) Use of enhanced verification system receipt for purpose
of employment verification.--The Secretary shall establish
procedures to allow an individual who has authenticated the
individual's identity and unblocked the individual's Social
Security number to receive a single -use code as a receipt
indicating that the individual is work authorized and has self-
verified, and procedures to allow the individual to use the
single-use code in place of the identity and eligibility
documents described in this section.
(5) Expedited review process.--The Secretary shall
establish an expedited review process to allow an individual
who has authenticated the individual's identity and unblocked
the individual's Social Security number immediately to correct
user or system errors which result in an erroneous non-
confirmation of work eligibility.
(6) Reports.--
(A) System assessment.--Not later than 3 months
after the end of the third and fourth years in which
the programs are in effect, the Secretary shall submit
reports to the Committee on the Judiciary of the Senate
and the Committee on the Judiciary of the House of
Representatives on the Enhanced Verification System
that--
(i) assesses the degree of fraudulent
attesting of United States citizenship;
(ii) assesses the benefits of the Enhanced
Verification System to employers and the degree
to which it assists in the enforcement of
section 274A of the Immigration and Nationality
Act;
(iii) assesses the benefits of the Enhanced
Verification System to individuals and the
degree to which they prevent misuse of the
System and erroneous non-confirmations during
employment verification;
(iv) determines whether the Enhanced
Verification System reduces discrimination
during the employment verification process;
(v) assesses the degree to which the
Enhanced Verification System protects employee
civil liberties and privacy; and
(vi) includes recommendations on whether
the Enhanced Verification System should be
continued or modified.
(B) Report on expansion.--Not later than September
30, 2015, the Secretary shall submit a report shall to
the committees referred to in subparagraph (A) that--
(i) evaluates whether the problems
identified by the reports submitted under
subparagraph (A) have been substantially
resolved; and
(ii) describes the actions to be taken by
the Secretary before requiring any individual
to participate in the Enhanced Verification
System.
(7) Limitation on use of the confirmation system and any
related systems.--Notwithstanding any other provision of law,
nothing in this section may be construed to permit any
department, bureau, or other agency of the United States
Government to utilize any information, database, or other
records assembled under this section for any other purpose
other than as provided for under the Enhanced Verification
System.
SEC. 310. AUTHORIZATION OF APPROPRIATIONS.
(a) Department of Homeland Security.--There are authorized to be
appropriated to the Department such sums as may be necessary to carry
out this title, and the amendments made by this title, including the
following:
(1) In each of the 5 years beginning on the date of the
enactment of this Act, the appropriations necessary to increase
to a level not less than 4500, by the end of such five-year
period, the total number of personnel of the Department of
Homeland Security assigned exclusively or principally to an
office or offices in U.S. Citizenship and Immigration Services
and U.S. Immigration and Customs Enforcement (and consistent
with the missions of such agencies), dedicated to administering
the System, and monitoring and enforcing compliance with
sections 274A, 274B, and 274C of the Immigration and
Nationality Act (8 U.S.C. 1324a, 1324b, and 1324c), including
compliance with the requirements of the System. These personnel
shall perform compliance and monitoring functions, including
the following:
(A) Verify Employment Identification Numbers of
employers participating in the System.
(B) Verify compliance of employers participating in
the System with the requirements for participation that
are prescribed by the Secretary.
(C) Monitor the System for multiple uses of Social
Security Numbers and immigration identification numbers
that could indicate identity theft or fraud.
(D) Monitor the System to identify discriminatory
or unfair practices.
(E) Monitor the System to identify employers who
are not using the system properly, including employers
who fail to make available appropriate records with
respect to their queries and any notices of
confirmation, nonconfirmation, or further action.
(F) Identify instances where employees allege that
an employer violated their privacy, civil or labor
rights, or misused the System, and create procedures
for employees to report such allegations.
(G) Analyze and audit the use of the System and the
data obtained through the System to identify fraud
trends, including fraud trends across industries,
geographical areas, or employer size.
(H) Analyze and audit the use of the System and the
data obtained through the System to develop compliance
tools as necessary to respond to changing patterns of
fraud.
(I) Provide employers with additional training and
other information on the proper use of the System,
including but not limited to privacy training and
employee rights.
(J) Perform threshold evaluation of cases for
referral to the Special Counsel for Unfair Immigration-
Related Employment Practices or the Equal Employment
Opportunity Commission, and other officials or agencies
with responsibility for enforcing anti-discrimination,
civil rights, privacy or worker protection laws, as may
be appropriate.
(K) Any other compliance and monitoring activities
that, in the Secretary's judgment, are necessary to
ensure the functioning of the System.
(L) Investigate identity theft and fraud detected
through the System and undertake the necessary
enforcement or referral actions.
(M) Investigate use of or access to fraudulent
documents and undertake the necessary enforcement
actions.
(N) Perform any other investigations that, in the
Secretary's judgment, are necessary to ensure the
lawful functioning of the System, and undertake any
enforcement actions necessary as a result of these
investigations.
(2) The appropriations necessary to acquire, install and
maintain technological equipment necessary to support the
functioning of the System and the connectivity between U.S.
Citizenship and Immigration Services and U.S. Immigration and
Customs Enforcement, Department of Justice, and other agencies
or officials with respect to the sharing of information to
support the System and related immigration enforcement actions.
(3) The appropriations necessary to establish a robust
redress process for employees who wish to appeal contested
nonconfirmations to ensure the accuracy and fairness of the
System.
(4) The appropriations necessary to provide a means by
which individuals may access their own employment authorization
data to ensure its accuracy independent of their employer.
(5) The appropriations necessary to establish a Joint
Employment Fraud Task Force to promote employer compliance with
the system and ensure a coordinated response to noncompliance.
(6) The appropriations necessary for the Office for Civil
Rights and Civil Liberties and the Office of Privacy to perform
their responsibilities as they relate to the System.
(7) The appropriations necessary to make grants to states
to support them in assisting the federal government in carrying
out the provisions of this title.
(b) Social Security Administration.--There are authorized to be
appropriated to the Social Security Administration such sums as may be
necessary to carry out its responsibilities under this title, including
section 308.
(c) Department of Justice.--There are authorized to be appropriated
to the Department of Justice such sums as may be necessary to carry out
its responsibilities under this title, including enforcing compliance
with section 274B of the Act, as amended by section 307 of this Act.
(d) Department of State.--There are authorized to be appropriated
to the Department of State such sums as may be necessary to carry out
its responsibilities under this title.
TITLE IV--REFORMING AMERICA'S LEGAL IMMIGRATION SYSTEM
Subtitle A--New Worker Program and the Creation of a Standing
Commission
SEC. 401. STANDING COMMISSION ON IMMIGRATION, LABOR MARKETS, AND THE
NATIONAL INTEREST.
(a) Establishment of Commission.--
(1) In general.--There is established an independent
Federal agency within the Executive Branch to be known as the
Standing Commission on Immigration, Labor Markets, and the
National Interest (referred to in this section as the
``Commission'').
(2) Purposes.--The purposes of the Commission are to--
(A) establish employment-based immigration policies
that promote America's economic growth and
competitiveness while minimizing job displacement, wage
depression and unauthorized employment in the United
States;
(B) create and implement a policy-focused research
agenda on the economic impacts of immigration at the
national, regional, State, industry and occupation
levels;
(C) collect and analyze information about
employment-based immigration and the labor market and
share the data and analysis with lawmakers, researchers
and the American public;
(D) recommend to the Congress and the President on
a regular basis an evidence-based methodology for
determining the level of employment-based immigration;
(E) recommend to Congress and the President the
numeric levels and characteristics of workers to be
admitted in various employment-based visa categories;
and
(F) to collect and analyze information about the
economic, labor, security, and foreign policy impacts
of our Nation's immigration policies.
(3) Membership.--The Commission shall be composed of--
(A) 7 voting members--
(i) who shall be appointed by the
President, with the advice and consent of the
Senate, not later than 6 months after the
establishment of this Act;
(ii) who shall serve for 5-year staggered
terms;
(iii) one of whom the President shall
appoint as Chair of the Commission to serve a
6-year term, which can be extended for 1
additional 3-year term;
(iv) who shall have expertise in economics,
demography, sociology, labor, business, civil
rights, immigration, or other pertinent
qualifications or experience;
(v) who may not be an employee of the
Federal Government or of any State or local
government; and
(vi) not more than 4 of whom may be members
of the same political party.
(B) 7 ex-officio members, including--
(i) the Secretary;
(ii) the Secretary of State;
(iii) the Attorney General;
(iv) the Secretary of Labor;
(v) the Secretary of Commerce;
(vi) the Secretary of Health and Human
Services;
(vii) the Secretary of Agriculture; and
(viii) the Commissioner of Social Security.
(4) Vacancies.--Any vacancy in the Commission shall be
filled in the same manner as the original appointment.
(5) Meetings.--
(A) Initial meeting.--The Commission shall meet and
begin carrying out the duties described in subsection
(b) as soon as practicable.
(B) Subsequent meetings.--After its initial
meeting, the Commission shall meet upon the call of the
Chair or a majority of its members.
(C) Quorum.--Four voting members of the Commission
shall constitute a quorum.
(b) Duties of the Commission.--The Commission shall collect,
analyze, and publish data regarding--
(1) the historic migration patterns to and from the United
States and demographic trends, including the birth rate,
education levels, and age profiles of the immigrant and native
population of the United States;
(2) the national, regional, State, and local impacts of
employment-based immigration--
(A) within industries and business sectors;
(B) on wages, labor standards, occupations, and
employment levels;
(C) on small business;
(D) on employment and unemployment levels;
(E) on economic growth, productivity, and
competitiveness;
(F) on national and border security; and
(G) on local communities;
(3) the development and implementation of the new worker
program to admit H-2C nonimmigrants (referred to in this
section as the ``Program''), including--
(A) the criteria for the admission of workers under
the Program; and
(B) the formula and methodologies for determining
the annual numerical limitations of the Program;
(4) the current and anticipated needs of employers for
skilled and unskilled labor;
(5) the national interest;
(6) the current and anticipated supply of skilled and
unskilled labor;
(7) the impact of employment-based immigration on the
economic growth, competitiveness, labor standards, labor
conditions, and wages;
(8) the extent and impact of unauthorized employment in the
United States;
(9) the factors that determine the economic success of
immigrants to the United States;
(10) specific aspects of the Nation's immigration policies
and programs that Congress has requested the Commission to
examine or analyze; and
(11) any other matters regarding the impact of employment-
based immigration that the Commission considers appropriate.
(c) Annual Reports.--
(1) Program evaluation.--Not later than 180 days after the
date of the enactment of this Act, and annually thereafter, the
Commission shall submit a report to the President and Congress
that--
(A) assesses the economic, labor, security, and
foreign policy impacts of the nation's immigration
policies;
(B) evaluates the Program and defines a formula and
methodologies for measuring the need for H-2C
nonimmigrants in States, industries, and occupations
and determines the numeric limitations of the H-2C
Program;
(C) recommends adjustments, based on the
established methodologies, to the Program's numeric
allocations for the subsequent fiscal year; and
(D) reviews the issuance and allocations of
employment-based immigrant and nonimmigrant visa
categories.
(2) Effect on employment levels.--Not later than February 1
of each year, the Commission shall submit a report to Congress
that contains--
(A) the Commission's recommendations on the
increase or decrease in the number of employment-based
immigrant visas to be made available for temporary or
permanent employment under the Immigration and
Nationality Act and a statement of the reasons for such
recommendations; and
(B) the Commission's recommendations on how many
immigrant visas from the discretionary national
interest pool described in section 411(e) should be
added to the subsequent fiscal year's annual immigrant
visa allocations to comport with the increases
recommended in subparagraph (A) and to which employment
preference categories such visas should be added.
(3) Effect of congressional inaction.--If Congress does not
enact a law to approve or disapprove the Commission's
recommendations under paragraph (2) not later than 90 days
after receiving a report under such paragraph, the number of
employment-based immigrant visas shall remain at the level
authorized for the previous fiscal year.
(d) National Interest Defined.--For purposes of determining whether
immigrant visas should be allocated from the discretionary national
interest pool in a given fiscal year, the term ``national interest''
shall be broadly defined and shall take into consideration--
(1) national and regional unemployment rates;
(2) unemployment rates by industry and sector;
(3) national and regional demographic and industry
projections;
(4) wage and labor impact;
(5) immigrant visa backlogs and length of familial
separation;
(6) national security and border security;
(7) community impact assessments; and
(8) competitiveness and economic growth.
(e) Powers of the Commission.--The Commission, by vote of a
majority of the members present and voting, shall have the power to--
(1) establish general policies and promulgate such rules
and regulations for the Commission as are necessary to carry
out the purposes of this section;
(2) appoint and fix the salary and duties of the Staff
Director of the Commission, who shall serve at the discretion
of the Commission and who shall be compensated at a rate not to
exceed the highest rate now or hereafter prescribed for Level 6
of the Senior Executive Service Schedule (5 U.S.C. 5382), and
such other personnel as may be necessary to enable the
Commission to carry out its functions;
(3) deny, revise, or ratify any request for regular,
supplemental, or deficiency appropriations prior to any
submission of such request to the Office of Management and
Budget by the Chair;
(4) utilize, with their consent, the services, equipment,
personnel, information, and facilities of other Federal, State,
local, and private agencies and instrumentalities with or
without reimbursement for such utilization;
(5) without regard to section 3324 of title 31, United
States Code, enter into and perform such contracts, leases,
cooperative agreements, and other transactions as may be
necessary in the conduct of the functions of the Commission,
with any public agency, or with any person, firm, association,
corporation, educational institution, or nonprofit
organization;
(6) accept and employ, in carrying out the provisions of
this title, voluntary and uncompensated services,
notwithstanding the provisions of section 1342 of title 31,
United States Code, however, individuals providing such
services shall not be considered Federal employees except for
purposes of chapter 81 of title 5, United States Code, with
respect to job-incurred disability and title 28, United States
Code, with respect to tort claims;
(7) request such information, data, and reports from any
Federal agency as the Commission may from time to time require
and as may be produced consistent with other law;
(8) arrange with the head of any other Federal agency for
the performance by such agency of any function of the
Commission, with or without reimbursement;
(9) establish a research and development program within the
Commission for the purpose of understanding and documenting the
effects of immigration and the admission of foreign workers on
the labor market and national competitiveness;
(10) collect systematically the data obtained from studies,
research, and the empirical experience of public and private
agencies concerning the need for and effects of immigration;
(11) interview and confer with state and local officials,
representatives of labor and industry, and experts in academia
to obtain information about the need for or benefit of
additional immigrant or nonimmigrant workers;
(12) make recommendations to Congress concerning the
numeric limitations of the H-2C program and all immigrant and
nonimmigrant employment-based visa categories and recommend
modifications or the enactment of statutes relating to matters
that the Commission finds to be necessary and advisable to
carry out an effective immigration policy;
(13) hold hearings and call witnesses to assist the
Commission in the exercise of its powers or duties;
(14) retain and, in its discretion pay reasonable
attorneys' fees out if its appropriated funds to, private
attorneys who--
(A) shall provide legal advice to the Commission in
the conduct of its work, or to appear for or represent
the Commission in any case in which the Commission is
authorized by law to represent itself, or in which the
Commission is representing itself with the consent of
the Department of Justice; and
(B) when serving as officers or employees of the
United States, shall be considered special government
employees as defined in section 202(a) of title 18;
(15) grant incentive awards to its employees pursuant to
chapter 45 of title 5, United States Code; and
(16) perform such other functions as may be necessary to
carry out the purposes of this section, which may be delegated
to any member or designated person, as appropriate.
(f) Information and Assistance From Federal Agencies.--
(1) Information.--The head of any Federal department or
agency that receives a request from the Commission for
information, including suggestions, estimates, and statistics,
as the Commission considers necessary to carry out the
provisions of this section, shall furnish such information to
the Commission, to the extent allowed by law.
(2) Assistance.--
(A) General services administration.--The
Administrator of General Services shall, on a
reimbursable basis, provide the Commission with
administrative support and other services for the
performance of the Commission's functions.
(B) Other federal agencies.--The departments and
agencies of the United States may provide the
Commission with such services, funds, facilities,
staff, and other support services as the heads of such
departments and agencies determine advisable and
authorized by law.
(g) Personnel Matters.--
(1) Staff.--
(A) Appointment and compensation.--The Chair, in
accordance with rules agreed upon by the Commission,
may appoint and fix the compensation of a staff
director and such other personnel as may be necessary
to enable the Commission to carry out its functions.
(B) Federal employees.--
(i) In general.--Except as provided under
clause (ii), the executive director and any
personnel of the Commission who are employees
shall be considered to be employees under
section 2105 of title 5, United States Code,
for purposes of chapters 63, 81, 83, 84, 85,
87, 89, and 90 of such title.
(ii) Commission members.--Clause (i) shall
not apply to members of the Commission.
(2) Detailees.--Any employee of the Federal Government may
be detailed to the Commission without reimbursement from the
Commission. Such detailee shall retain the rights, status, and
privileges of his or her regular employment without
interruption.
(3) Consultant services.--The Commission may procure the
services of experts and consultants in accordance with section
3109 of title 5, United States Code, at rates not to exceed the
daily rate paid a person occupying a position at level IV of
the Executive Schedule under section 5315 of such title 5.
(h) Compensation and Travel Expenses.--
(1) Compensation.--Each voting member of the Commission may
be compensated at a rate not to exceed the daily equivalent of
the annual rate of basic pay in effect for a position at level
IV of the Executive Schedule under section 5315 of title 5,
United States Code, for each day during which that member is
engaged in the actual performance of the duties of the
Commission.
(2) Travel expenses.--Members of the Commission shall be
allowed travel expenses, including per diem in lieu of
subsistence, at rates authorized for employees of agencies
under section 5703(b) of title 5, United States Code, while
away from their homes or regular places of business in the
performance of services for the Commission.
(i) Determination of New Levels of Program Visas.--The numeric
levels for visas under the Program shall be set by the Commission
unless Congress enacts superseding legislation.
(j) Funding.--Fees and fines deposited into the New Worker Program
and Conditional Nonimmigrants Fee Account established under section
286(w) of the Immigration and Nationality Act, as added by subsection
(k), may be used by the Commission to carry out its duties under this
section.
(k) Establishment of Account; Use of Fees.--Section 286 (8 U.S.C.
1356) is amended by adding at the end the following:
``(w) New Worker Program and Conditional Nonimmigrants Fee
Account.--
``(1) In general.--There is established in the general fund
of the Treasury a separate account, which shall be known as the
`New Worker Program and Conditional Nonimmigrants Fee Account'.
``(2) Deposits.--Notwithstanding any other provision of
law, there shall be deposited as offsetting receipts into the
account all fees and fines collected under this title.
``(3) Use of fees.--Fees collected under this section may
only be used by the Secretary of Homeland Security to
administer and operate the New Worker Program and Conditional
Nonimmigrants Fee Account Program.''.
SEC. 402. H-2C NONIMMIGRANT WORKER PROGRAM.
(a) Definition.--Section 101(a)(15)(H) (8 U.S.C. 1101(a)(15)(H)) is
amended--
(1) in clause (i)--
(A) by redesignating subclause (c) as subclause
(d); and
(B) by inserting after subclause (b) the following:
``(c) who is coming temporarily to the United
States to initially perform temporary labor or services
other than the labor or services described in clause
(i)(b), (i)(b)(1), (i)(d), (ii)(a), or (iii),
subparagraph (D), (E), (I), (L), (O), (P), or (R), or
section 214(e) (if United States workers who are able,
willing, and qualified to perform such labor or
services cannot be found in the United States); and'';
and
(2) by adding at the end the following:
``(iv) who--
``(I) is the spouse or minor child
of an alien described in this
subparagraph; and
``(II) is accompanying or following
to join such alien.''.
(b) Admission of H-2C Nonimmigrant Workers.--Chapter 2 of title II
(8 U.S.C. 1181 et seq.) is amended by inserting after section 218 the
following:
``SEC. 218A. ADMISSION OF H-2C NONIMMIGRANTS.
``(a) Authorization.--The Secretary of State may grant a visa to an
H-2C nonimmigrant who demonstrates an intent to perform labor or
services in the United States (other than the labor or services
described in clause (i)(b), (i)(b)(1), (i)(c), (ii)(a), or (iii) of
section 101(a)(15)(H), subparagraph (D), (E), (I), (L), (O), (P), or
(R) of section 101(a)(15), or section 214(e) (if United States workers
who are able, willing, and qualified to perform such labor or services
cannot be found in the United States).
``(b) Requirements for Admission.--An alien shall be eligible for
H-2C nonimmigrant status if the alien meets the following requirements:
``(1) Eligibility to work.--The alien shall establish that
the alien is capable of performing the labor or services
required for an occupation described in section
101(a)(15)(H)(ii)(c).
``(2) Evidence of employment offer.--Evidence of an alien's
employment offer shall be provided in accordance with the
requirements issued by the Secretary of State, in consultation
with the Secretary of Labor. In carrying out this paragraph,
the Secretary may consider evidence from employers, employer
associations, and labor representatives.
``(3) Fee.--The alien shall pay a $100 visa issuance fee in
addition to the cost of processing and adjudicating such
application. Nothing in this paragraph shall be construed to
affect consular procedures for charging reciprocal fees.
``(4) Medical examination.--The alien shall undergo a
medical examination (including a determination of immunization
status), at the alien's expense, that conforms to generally
accepted standards of medical practice.
``(5) Application content and waiver.--
``(A) Application form.--The alien shall submit to
the Secretary of State a completed application, which
contains evidence that the requirements under
paragraphs (1) and (2) have been met.
``(B) Content.--In addition to any other
information that the Secretary requires to determine an
alien's eligibility for H-2C nonimmigrant status, the
Secretary of State shall require an alien to provide
information concerning the alien's--
``(i) physical and mental health;
``(ii) criminal history and gang
membership;
``(iii) immigration history; and
``(iv) involvement with groups or
individuals that have engaged in terrorism,
genocide, persecution, or who seek the
overthrow of the United States government.
``(C) Knowledge.--The alien shall include with the
application submitted under this paragraph a signed
certification in which the alien certifies that--
``(i) the alien has read and understands
all of the questions and statements on the
application form;
``(ii) the alien certifies under penalty of
perjury under the laws of the United States
that the application, and any evidence
submitted with it, are all true and correct;
and
``(iii) the applicant authorizes the
release of any information contained in the
application and any attached evidence for law
enforcement purposes.
``(c) Grounds of Inadmissibility.--
``(1) In general.--In determining an alien's admissibility
as an H-2C nonimmigrant--
``(A) paragraphs (5), (6) (except subparagraphs (E)
and (G)), (7), (9), and (10)(B) of section 212(a) may
not apply with respect to conduct that occurred before
the effective date of this Act;
``(B) the Secretary of Homeland Security may not
waive the application of--
``(i) subparagraph (A), (B), (C), (D), (E),
(G), (H), or (I) of section 212(a)(2);
``(ii) section 212(a)(3); or
``(iii) subparagraph (A), (C) or (D) of
section 212(a)(10);
``(C) the Secretary of State may waive the
application of any provision of section 212(a) not
listed in subparagraph (B) on behalf of an individual
alien--
``(i) for humanitarian purposes;
``(ii) to ensure family unity; or
``(iii) if such a waiver is otherwise in
the public interest; and
``(D) nothing in this paragraph shall be construed
as affecting the authority of the Secretary other than
under this paragraph to waive the provisions of section
212(a).
``(2) Renewal of authorized admission and subsequent
admissions.--An alien seeking renewal of authorized admission
or subsequent admission as an H-2C nonimmigrant shall establish
that the alien is not inadmissible under section 212(a).
``(3) Background checks.--The Secretary of Homeland
Security shall not admit, and the Secretary of State shall not
issue a visa to, an alien seeking H-2C nonimmigrant status
unless all appropriate background checks have been completed.
``(d) Period of Authorized Admission.--
``(1) Authorized period.--The initial period of authorized
admission as an H-2C nonimmigrant shall be 3 years.
``(2) Renewal.--Before the expiration of the initial period
under paragraph (1), an H-2C nonimmigrant may submit an
application to the Secretary of Homeland Security to extend H-
2C nonimmigrant status for 1 additional 3-year period. The
Secretary may not require an applicant under this paragraph to
depart the United States as a condition for granting such
extension.
``(3) Loss of employment.--
``(A) In general.--
``(i) Period of unemployment.--Subject to
clause (ii) and subsection (c), the period of
authorized admission of an H-2C nonimmigrant
shall terminate if the alien is unemployed for
60 or more consecutive days.
``(ii) Exception.--The period of authorized
admission of an H-2C nonimmigrant shall not
terminate if the alien is unemployed for 60 or
more consecutive days if the alien submits
documentation to the Secretary of Homeland
Security that establishes that such
unemployment was caused by--
``(I) a period of physical or
mental disability of the alien or the
spouse, son, daughter, or parent (as
defined in section 101 of the Family
and Medical Leave Act of 1993 (29
U.S.C. 2611)) of the alien;
``(II) a period of vacation,
medical leave, maternity leave, or
similar leave from employment
authorized by employer policy, State
law, or Federal law; or
``(III) any other period of
temporary unemployment that is the
direct result of a major disaster or
emergency.
``(iii) Extension.--The Secretary of Labor
and the Secretary of Homeland Security shall
promulgate regulations to establish procedures
for granting an extension of the 60-day period
described in clause (i) in accordance with the
conditions described in section 218B(g).
``(B) Return to foreign residence.--Any alien whose
period of authorized admission terminates under
subparagraph (A) shall be required to leave the United
States.
``(C) Period of visa validity.--Any alien, whose
period of authorized admission terminates under
subparagraph (A), who leaves the United States under
subparagraph (B), may reenter the United States as an
H-2C nonimmigrant to work for an employer, if the alien
has complied with the requirements of subsection (b).
``(4) Visits outside the united states.--
``(A) In general.--Under regulations established by
the Secretary of Homeland Security, an H-2C
nonimmigrant--
``(i) may travel outside of the United
States; and
``(ii) may be readmitted without having to
obtain a new visa if the period of authorized
admission has not expired.
``(B) Effect on period of authorized admission.--
Time spent outside the United States under subparagraph
(A) shall not extend the period of authorized admission
in the United States.
``(5) Bars to extension or admission.--An alien may not be
granted H-2C nonimmigrant status, or an extension of such
status, if--
``(A) the alien has violated any material term or
condition of such status granted previously, including
failure to comply with the change of address reporting
requirements under section 265;
``(B) the alien is inadmissible as a nonimmigrant
except that grounds of inadmissibility that are waived
under section 218(a) of the Immigration and Nationality
Act as amended by this Act shall not apply; or
``(C) the granting of such status or extension of
such status would allow the alien to exceed 6 years as
an H-2C nonimmigrant, unless the alien has resided and
been physically present outside the United States for
at least 1 year after the expiration of such H-2C
nonimmigrant status.
``(e) Evidence of Nonimmigrant Status.--Each H-2C nonimmigrant
shall be issued documentary evidence of nonimmigrant status, which--
``(1) shall be machine-readable, tamper-resistant, and
allow for biometric authentication;
``(2) shall, during the alien's authorized period of
admission under subsection (f), serve as a valid entry document
for the purpose of applying for admission to the United
States--
``(A) instead of a passport and visa if the alien--
``(i) is a national of a foreign territory
contiguous to the United States; and
``(ii) is applying for admission at a land
border port of entry; and
``(B) in conjunction with a valid passport, if the
alien is applying for admission at an air or sea port
of entry;
``(3) may be accepted during the period of its validity by
an employer as evidence of employment authorization and
identity under section 274A(b)(1)(B); and
``(4) shall be issued to the H-2C nonimmigrant by the
Secretary of Homeland Security promptly after final
adjudication of such status or, at the discretion of the
Secretary of Homeland Security, may be issued by the Secretary
of State at a consulate instead of a visa.
``(f) Penalties for Failure to Depart.--If an H-2C nonimmigrant
fails to depart the United States by the date that the alien's
authorized admission as an H-2C nonimmigrant concludes, the visa of the
alien shall be void under section 222(g)(1) and the alien shall be
ineligible to be readmitted to the United States under section
222(g)(2). The alien may be removed if found to be within 1 or more of
the classes of deportable aliens described in section 237.
``(g) Portability.--A nonimmigrant alien described in this section,
who was previously issued a visa or otherwise provided H-2C
nonimmigrant status, may accept a new offer of employment with a
subsequent employer, if--
``(1) the employer complies with section 218B; and
``(2) the alien, after lawful admission to the United
States, did not work without authorization.
``(h) Change of Address.--An H-2C nonimmigrant shall comply with
the change of address reporting requirements under section 265 through
electronic or paper notification.
``(i) Collection of Fees.--All fees (other than the application
filing fee) collected under this section shall be deposited in the
Treasury in accordance with section 286(w).''.
(c) Clerical Amendment.--The table of contents (8 U.S.C. 1101 et
seq.) is amended by inserting after the item relating to section 218
the following:
``Sec. 218A. Admission of H-2C nonimmigrants.''.
(d) Employer Obligations.--
(1) In general.--Title II (8 U.S.C. 1201 et seq.) is
amended by inserting after section 218A, as added by subsection
(b), the following:
``SEC. 218B. EMPLOYER OBLIGATIONS.
``(a) General Requirements.--Each employer that seeks to employ an
H-2C nonimmigrant shall--
``(1) file a petition with the Secretary of Labor in
accordance with subsections (b) and (c); and
``(2) be required to pay--
``(A) an application filing fee for each alien,
based on the cost of carrying out the processing duties
under this subsection;
``(B) for an initial application, a secondary fee,
to be deposited in the Treasury in accordance with
section 286(w), of--
``(i) $500, in the case of an employer
employing 25 employees or less;
``(ii) $750, in the case of an employer
employing between 26 and 150 employees;
``(iii) $1,250, in the case of an employer
employing between 151 and 500 employees; or
``(iv) $1,500, in the case of an employer
employing more than 500 employees; and
``(C) a secondary fee shall only be required once
for each alien applying for the H-2C program and shall
not be required for subsequent applications to new
employers.
``(b) Required Procedure.--Unless the Secretary of Labor determines
that there is a shortage of United States workers in the occupation and
area of intended employment to which the H-2C nonimmigrant is sought,
each employer that employs an H-2C nonimmigrant shall comply with the
following requirements:
``(1) Efforts to recruit united states workers.--During the
period beginning not later than 90 days before the date on
which a petition is filed under subsection (a)(1), and ending
on the date that is 14 days before such filing date, the
employer involved shall recruit United States workers for the
position for which the H-2C nonimmigrant is sought under the
petition, by--
``(A) submitting a copy of the job opportunity,
including a description of the wages and other terms
and conditions of employment and the minimum education,
training, experience, and other requirements of the
job, to the State Employment Service Agency that serves
the area of employment in the State in which the
employer is located;
``(B) authorizing the employment service agency of
the State to post the job opportunity on the Internet
website established under Section 405 of this Act with
local job banks, and with unemployment agencies and
other labor referral and recruitment sources pertinent
to the job involved;
``(C) authorizing the employment service agency of
the State to notify--
``(i) labor organizations in the State in
which the job is located; and
``(ii) if applicable, the office of the
local union which represents the employees in
the same or substantially equivalent job
classification of the job opportunity;
``(D) posting the availability of the job
opportunity for which the employer is seeking a worker
in conspicuous locations at the place of employment for
all employees to see;
``(E) advertising the availability of the job
opportunity for which the employer is seeking a worker
in a publication with the highest circulation in the
labor market that is likely to be patronized by a
potential worker for not fewer than 10 consecutive
days; and
``(F) based on recommendations by the local job
service, advertising the availability of the job
opportunity in professional, trade, or ethnic
publications that are likely to be patronized by a
potential worker.
``(2) Efforts to employ united states workers.--An employer
that seeks to employ an H-2C nonimmigrant shall first offer the
job to any eligible United States worker who applies, is
qualified for the job and is available at the time of need,
notwithstanding any other valid employment criteria.
``(c) Petition.--A petition to hire an H-2C nonimmigrant under this
section shall include an attestation by the employer that the employer
has complied with the following requirements:
``(1) Protection of united states workers.--The employment
of an H-2C nonimmigrant--
``(A) will not adversely affect the wages and
working conditions of workers in the United States
similarly employed; and
``(B) did not and will not cause the separation
from employment of a United States worker employed by
the employer within the 180-day period beginning 90
days before the date on which the petition is filed.
``(2) Wages.--
``(A) In general.--The employer has offered to
United States workers during the period of recruitment
described in subsection (b)(1), and is offering and
will pay H-2C nonimmigrants during the period of
authorized employment not less than the greater of--
``(i) the actual wage level paid by the
employer to all other individuals with similar
experience and qualifications for the specific
employment in question; or
``(ii) the prevailing wage level for the
occupational classification in the area of
employment, as determined in accordance with
subparagraph (C), taking into account
experience and skill levels of employees.
``(B) Calculation.--The wage levels under
subparagraph (A) shall be calculated based on the best
information available at the time of the filing of the
application.
``(C) Prevailing wage level.--For purposes of
subparagraph (A)(ii), the prevailing wage level shall
be determined as follows:
``(i) If the job opportunity is covered by
a collective bargaining agreement between a
union and the employer, the prevailing wage
shall be the wage rate set forth in the
collective bargaining agreement.
``(ii) If the job opportunity is not
covered by such an agreement and it is in an
occupation that is covered by a wage
determination under a provision of subchapter
IV of chapter 31 of title 40, United States
Code, or the Service Contract Act of 1965 (41
U.S.C. 351 et seq.), the prevailing wage level
shall be the appropriate statutory wage.
``(iii)(I) If clauses (i) and (ii) do not
apply, the prevailing wage rate shall be not
less than the median rate of the highest 66
percent of the wage date for the occupation
provided by the Bureau of Labor Statistics,
including the Occupational Employment
Statistics survey, Current Employment
Statistics data, National Compensation Survey,
and Occupational Employment Projections
program. If the Bureau of Labor Statistics does
not have wage data applicable to such
occupation, the employer may base the
prevailing wage level on another wage survey
approved by the Secretary of Labor.
``(II) The Secretary shall promulgate
regulations applicable to approval of such
other wage surveys that require, among other
things, that the Bureau of Labor Statistics
determine such surveys are statistically
viable.
``(3) Working conditions.--All workers in the occupation at
the place of employment at which the H-2C nonimmigrant will be
employed will be provided the working conditions and benefits
that are normal to workers similarly employed in the area of
intended employment.
``(4) Labor dispute.--There is not a strike, lockout, or
work stoppage in the course of a labor dispute in the
occupation at the place of employment at which the H-2C
nonimmigrant will be employed. If such strike, lockout, or work
stoppage occurs following submission of the petition, the
employer will provide notification in accordance with
regulations promulgated by the Secretary of Labor.
``(5) Provision of insurance.--If the position for which
the H-2C nonimmigrant is sought is not covered by the State
workers' compensation law, the employer will provide, at no
cost to the H-2C nonimmigrant, 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.
``(6) Notice to employees.--
``(A) In general.--The employer has provided notice
of the filing of the petition to the bargaining
representative of the employer's employees in the
occupational classification and area of employment for
which the H-2C nonimmigrant is sought.
``(B) No bargaining representative.--If there is no
such bargaining representative, the employer has--
``(i) posted a notice of the filing of the
petition in a conspicuous location at the place
or places of employment for which the H-2C
nonimmigrant is sought; or
``(ii) electronically disseminated such a
notice to the employer's employees in the
occupational classification for which the H-2C
nonimmigrant is sought.
``(7) Recruitment.--The following conditions must be met:
``(A) There are not sufficient workers who are
able, willing, and qualified, and who will be available
at the time and place needed, to perform the labor or
services involved in the petition.
``(B) Good faith efforts have been taken to recruit
United States workers, in accordance with regulations
promulgated by the Secretary of Labor, which efforts
included--
``(i) the completion of recruitment during
the period beginning on the date that is 90
days before the date on which the petition was
filed with the Department of Homeland Security
and ending on the date that is 14 days before
such filing date; and
``(ii) the actual wage paid by the employer
for the occupation in the areas of intended
employment was used in conducting recruitment.
``(8) Ineligibility.--The employer is not currently
ineligible from using the H-2C nonimmigrant program described
in this section.
``(9) Construction and metal worker occupations.--No
petition by an employer may be granted for an H-2C nonimmigrant
worker if the employer seeks to employ an H-2C nonimmigrant in
an any construction or metal worker occupation.
``(10) Bona fide offer of employment.--The job for which
the H-2C nonimmigrant is sought is a bona fide job--
``(A) for which the employer needs labor or
services;
``(B) which has been and is clearly open to any
United States worker; and
``(C) for which the employer will be able to place
the H-2C nonimmigrant on the payroll.
``(11) Public availability and records retention.--A copy
of each petition filed under this section and documentation
supporting each attestation, in accordance with regulations
promulgated by the Secretary of Labor, will--
``(A) be provided to every H-2C nonimmigrant
employed under the petition;
``(B) be made available for public examination at
the employer's place of business or work site;
``(C) be made available to the Secretary of Labor
during any audit; and
``(D) remain available for examination for 5 years
after the date on which the petition is filed.
``(12) Notification upon separation from or transfer of
employment.--The employer will notify the Secretary of Labor
and the Secretary of Homeland Security of an H-2C
nonimmigrant's separation from employment or transfer to
another employer not more than 3 business days after the date
of such separation or transfer, in accordance with regulations
promulgated by the Secretary of Homeland Security.
``(13) Actual need for labor or services.--The petition was
filed not more than 60 days before the date on which the
employer needed labor or services for which the H-2C
nonimmigrant is sought.
``(14) Waiver of rights prohibited.--An H-2C nonimmigrant
may not be required to waive any rights or protections under
this Actor the amendments made by such Act. Nothing in this
paragraph may be construed to affect the interpretation of
other laws.
``(15) No threatening of employees.--It shall be a
violation of this subsection for an employer that has filed a
petition under this section to threaten the H-2C nonimmigrant
beneficiary with withdrawal of the petition for exercising a
right protected by this Actor any amendment made by such Act.
``(d) Audit of Attestations.--
``(1) Referrals by secretary of homeland security.--The
Secretary of Homeland Security shall refer all approved
petitions for H-2C nonimmigrants to the Secretary of Labor for
potential audit.
``(2) Audits authorized.--The Secretary of Labor may audit
any approved petition referred pursuant to paragraph (1), in
accordance with regulations promulgated by the Secretary of
Labor.
``(e) Ineligible Employers.--
``(1) In general.--The Secretary of Labor shall not approve
an employer's petitions, applications, certifications, or
attestations under any immigrant or nonimmigrant program if the
Secretary of Labor determines, after notice and an opportunity
for a hearing, that the employer submitting such documents--
``(A) has, with respect to the attestations
required under subsection (b)--
``(i) misrepresented a material fact;
``(ii) made a fraudulent statement; or
``(iii) failed to comply with the terms of
such attestations; or
``(B) failed to cooperate in the audit process in
accordance with regulations promulgated by the
Secretary of Labor.
``(2) Length of ineligibility.--An employer described in
paragraph (1) shall be ineligible to participate in the labor
certification programs of the Secretary of Labor for not less
than the time period determined by the Secretary, not to exceed
3 years.
``(3) Employers in high unemployment areas.--The Secretary
of Labor may not approve any employer's petition under
subsection (b) if the work to be performed by the H-2C
nonimmigrant is not agriculture based and is located in a
metropolitan or micropolitan statistical area (as defined by
the Office of Management and Budget) in which the unemployment
rate for workers who have not completed any education beyond a
high school diploma during the most recently completed 6-month
period averaged more than 10 percent.
``(f) Regulation of Foreign Labor Contractors.--
``(1) Coverage.--Notwithstanding any other provision of
law, an H-2C nonimmigrant may not be treated as an independent
contractor.
``(2) Applicability of laws.--An H-2C nonimmigrant shall
not be denied any right or any remedy under Federal, State, or
local labor or employment law that would be applicable to a
United States worker employed in a similar position with the
employer because of the alien's status as a nonimmigrant
worker.
``(3) Tax responsibilities.--With respect to each employed
H-2C nonimmigrant, an employer shall comply with all applicable
Federal, State, and local tax and revenue laws.
``(g) Whistleblower Protection.--It shall be unlawful for an
employer or a labor contractor of an H-2C nonimmigrant to intimidate,
threaten, restrain, coerce, retaliate, discharge, or in any other
manner, discriminate against an employee or former employee because the
employee or former employee--
``(1) discloses information to the employer or any other
person that the employee or former employee reasonably believes
demonstrates that a violation of this Act has occurred; or
``(2) cooperates or seeks to cooperate in an investigation
or other proceeding concerning compliance with the requirements
of this Act.
``(h) Labor Recruiters.--
``(1) In general.--Each employer that engages in foreign
labor contracting activity and each foreign labor contractor
shall ascertain and disclose, to each such worker who is
recruited for employment at the time of the worker's
recruitment--
``(A) the place of employment;
``(B) the compensation for the employment;
``(C) a description of employment activities;
``(D) the period of employment;
``(E) any other employee benefit to be provided and
any costs to be charged for each benefit;
``(F) any travel or transportation expenses to be
assessed;
``(G) the existence of any labor organizing effort,
strike, lockout, or other labor dispute at the place of
employment;
``(H) the existence of any arrangement with any
owner, employer, foreign contractor, or its agent where
such person receives a commission from the provision of
items or services to workers;
``(I) the extent to which workers will be
compensated through workers' compensation, private
insurance, or otherwise for injuries or death,
including--
``(i) work-related injuries and death
during the period of employment;
``(ii) the name of the State workers'
compensation insurance carrier or the name of
the policyholder of the private insurance;
``(iii) the name and the telephone number
of each person who must be notified of an
injury or death; and
``(iv) the time period within which such
notice must be given;
``(J) any education or training to be provided or
required, including--
``(i) the nature and cost of such training;
``(ii) the entity that will pay such costs;
and
``(iii) whether the training is a condition
of employment, continued employment, or future
employment; and
``(K) a statement, in a form specified by the
Secretary of Labor, describing the protections of this
Act for workers recruited abroad.
``(2) False or misleading information.--No foreign labor
contractor or employer who engages in foreign labor contracting
activity shall knowingly provide materially false or misleading
information to any worker concerning any matter required to be
disclosed in paragraph (1).
``(3) Languages.--The information required to be disclosed
under paragraph (1) shall be provided in writing in English or,
as necessary and reasonable, in the language of the worker
being recruited. The Secretary of Labor shall make forms
available in English, Spanish, and other languages, as
necessary, which may be used in providing workers with
information required under this section.
``(4) Fees.--A person conducting a foreign labor
contracting activity shall not assess any fee to a worker for
such foreign labor contracting activity.
``(5) Terms.--No employer or foreign labor contractor
shall, without justification, violate the terms of any
agreement made by that contractor or employer regarding
employment under this program.
``(6) Travel costs.--The employer shall cover the costs of
transporting the alien from the alien's home residence to the
place of employment.
``(7) Other worker protections.--
``(A) Notification.--Not less frequently than once
every 2 years, each employer shall notify the Secretary
of Labor of the identity of any foreign labor
contractor engaged by the employer in any foreign labor
contractor activity for, or on behalf of, the employer.
``(B) Registration of foreign labor contractors.--
``(i) In general.--No person shall engage
in foreign labor recruiting activity unless
such person has a certificate of registration
from the Secretary of Labor specifying the
activities that such person is authorized to
perform. An employer who retains the services
of a foreign labor contractor shall only use
those foreign labor contractors who are
registered under this subparagraph.
``(ii) Issuance.--The Secretary shall
promulgate regulations to establish an
efficient electronic process for the
investigation and approval of an application
for a certificate of registration of foreign
labor contractors not later than 14 days after
such application is filed, including--
``(I) requirements under paragraphs
(1), (4), and (5) of section 102 of the
Migrant and Seasonal Agricultural
Worker Protection Act (29 U.S.C. 1812);
``(II) an expeditious means to
update registrations and renew
certificates; and
``(III) any other requirements that
the Secretary may prescribe.
``(iii) Term.--Unless suspended or revoked,
a certificate under this subparagraph shall be
valid for 2 years.
``(iv) Refusal to issue; revocation;
suspension.--In accordance with regulations
promulgated by the Secretary of Labor, the
Secretary may refuse to issue or renew, or may
suspend or revoke, a certificate of
registration under this subparagraph if--
``(I) the application or holder of
the certification has knowingly made a
material misrepresentation in the
application for such certificate;
``(II) the applicant for, or holder
of, the certification is not the real
party in interest in the application or
certificate of registration and the
real party in interest--
``(aa) is a person who has
been refused issuance or
renewal of a certificate;
``(bb) has had a
certificate suspended or
revoked; or
``(cc) does not qualify for
a certificate under this
paragraph; or
``(III) the applicant for, or
holder of, the certification has failed
to comply with this Act.
``(C) Remedy for violations.--An employer engaging
in foreign labor contracting activity and a foreign
labor contractor that violates the provisions of this
subsection shall be subject to remedies for foreign
labor contractor violations under subsections (k) and
(l). If a foreign labor contractor acting as an agent
of an employer violates any provision of this
subsection, the employer shall be subject to remedies
under subsections (k) and (l). An employer that
violates a provision of this subsection relating to
employer obligations shall be subject to remedies under
subsections (k) and (l).
``(D) Employer notification.--An employer shall
notify the Secretary of Labor if the employer becomes
aware of a violation of this subsection by a foreign
labor recruiter.
``(E) Written agreements.--A foreign labor
contractor may not violate the terms of any written
agreements made with an employer relating to any
contracting activity or worker protection under this
subsection.
``(F) Bonding requirement.--The Secretary of Labor
may require a foreign labor contractor to post a bond
in an amount sufficient to ensure the protection of
individuals recruited by the foreign labor contractor.
The Secretary may consider the extent to which the
foreign labor contractor has sufficient ties to the
United States to adequately enforce this subsection.
``(i) Waiver of Rights Prohibited.--An H-2C nonimmigrant may not be
required to waive any rights or protections under this Act. Nothing
under this subsection shall be construed to affect the interpretation
of other laws.
``(j) No Threatening of Employees.--It shall be a violation of this
section for an employer who has filed a petition under this section to
threaten the alien beneficiary of such a petition with the withdrawal
of such a petition in retaliation for the beneficiary's exercise of a
right protected by this Act.
``(k) Enforcement.--
``(1) In general.--The Secretary of Labor shall promulgate
regulations for the receipt, investigation, and disposition of
complaints by an aggrieved person respecting a violation of
this section.
``(2) Filing deadline.--No investigation or hearing shall
be conducted on a complaint concerning a violation under this
section unless the complaint was filed not later than 12 months
after the date of such violation.
``(3) Reasonable cause.--The Secretary of Labor shall
conduct an investigation under this subsection if there is
reasonable cause to believe that a violation of this section
has occurred. The process established under this subsection
shall provide that, not later than 30 days after a complaint is
filed, the Secretary shall determine if there is reasonable
cause to find such a violation.
``(4) Notice and hearing.--
``(A) In general.--Not later than 60 days after the
Secretary of Labor makes a determination of reasonable
cause under paragraph (4), the Secretary shall issue a
notice to the interested parties and offer an
opportunity for a hearing on the complaint, in
accordance with section 556 of title 5, United States
Code.
``(B) Complaint.--If the Secretary of Labor, after
receiving a complaint under this subsection, does not
offer the aggrieved person or organization an
opportunity for a hearing under subparagraph (A), the
Secretary shall notify the aggrieved person or
organization of such determination and the aggrieved
party or organization may seek a hearing on the
complaint in accordance with such section 556.
``(C) Hearing deadline.--Not later than 60 days
after the date of a hearing under this paragraph, the
Secretary of Labor shall make a finding on the matter
in accordance with paragraph (5).
``(5) Attorney's fees.--A complainant who prevails with
respect to a claim under this subsection shall be entitled to
an award of reasonable attorney's fees and costs.
``(6) Power of the secretary.--The Secretary may bring an
action in any court of competent jurisdiction--
``(A) to seek remedial action, including injunctive
relief;
``(B) to recover the damages described in
subsection (i); or
``(C) to ensure compliance with terms and
conditions described in subsection (g).
``(7) Solicitor of labor.--Except as provided in section
518(a) of title 28, United States Code, the Solicitor of Labor
may appear for and represent the Secretary of Labor in any
civil litigation brought under this subsection. All such
litigation shall be subject to the direction and control of the
Attorney General.
``(8) Procedures in addition to other rights of
employees.--The rights and remedies provided to workers under
this section are in addition to any other contractual or
statutory rights and remedies of the workers, and are not
intended to alter or affect such rights and remedies.
``(l) Penalties.--
``(1) In general.--If, after notice and an opportunity for
a hearing, the Secretary of Labor finds a violation of
subsection (b), (e), (f), or (g), the Secretary may impose
administrative remedies and penalties, including--
``(A) back wages;
``(B) benefits; and
``(C) civil monetary penalties.
``(2) Civil penalties.--The Secretary of Labor may impose,
as a civil penalty--
``(A) for a violation of subsection (e) or (f)--
``(i) a fine in an amount not to exceed
$2,000 per violation per affected worker;
``(ii) if the violation was willful, a fine
in an amount not to exceed $5,000 per violation
per affected worker;
``(iii) if the violation was willful and if
in the course of such violation a United States
worker was harmed, a fine in an amount not to
exceed $25,000 per violation per affected
worker; and
``(B) for a violation of subsection (g)--
``(i) a fine in an amount not less than
$500 and not more than $4,000 per violation per
affected worker;
``(ii) if the violation was willful, a fine
in an amount not less than $2,000 and not more
than $5,000 per violation per affected worker;
and
``(iii) if the violation was willful and if
in the course of such violation a United States
worker was harmed, a fine in an amount not less
than $6,000 and not more than $35,000 per
violation per affected worker.
``(3) Use of civil penalties.--All penalties collected
under this subsection shall be deposited in the Treasury in
accordance with section 286(w).
``(4) Criminal penalties.--If a willful and knowing
violation of subsection (g) causes extreme physical or
financial harm to an individual, the person in violation of
such subsection may be imprisoned for not more than 6 months,
fined in an amount not more than $35,000, or both.
``(m) Definitions.--In this section and in sections 218A, 218C, and
218D:
``(1) Aggrieved person.--The term `aggrieved person' means
a person adversely affected by an alleged violation of this
section, including--
``(A) a worker whose job, wages, or working
conditions are adversely affected by the violation; and
``(B) a representative for workers whose jobs,
wages, or working conditions are adversely affected by
the violation who brings a complaint on behalf of such
worker.
``(2) Area of employment.--The terms `area of employment'
and `area of intended employment' mean the area within normal
commuting distance of the worksite or physical location at
which the work of the worker is or will be performed. If such
worksite or location is within a metropolitan statistical area,
any place within such area is deemed to be within the area of
employment.
``(3) Eligible individual.--The term ```eligible
individual''' means, with respect to employment, an individual
who is not an unauthorized alien (as defined in section 274A)
with respect to that employment.
``(4) Employ; employee; employer.--The terms `employ',
`employee', and `employer' have the meanings given such terms
in section 3 of the Fair Labor Standards Act of 1938 (29 U.S.C.
203).
``(5) Foreign labor contractor.--The term `foreign labor
contractor' means any person who for any compensation or other
valuable consideration paid or promised to be paid, performs
any foreign labor contracting activity.
``(6) Foreign labor contracting activity.--The term
`foreign labor contracting activity' means recruiting,
soliciting, hiring, employing, or furnishing, an individual who
resides outside of the United States for employment in the
United States as a nonimmigrant alien described in section
101(a)(15)(H)(ii)(c).
``(7) H-2c nonimmigrant.--The term `H-2C nonimmigrant'
means a nonimmigrant described in section 101(a)(15)(H)(ii)(c).
``(8) Separation from employment.--The term `separation
from employment' means the 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. The term
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 at equivalent or
higher compensation and benefits than the position from which
the employee was discharged, regardless of whether the employee
accepts the offer. Nothing in this paragraph shall limit an
employee's rights under a collective bargaining agreement or
other employment contract.
``(9) United states worker.--The term `United States
worker' means an employee who is--
``(A) a citizen or national of the United States;
or
``(B) an alien who is--
``(i) lawfully admitted for permanent
residence;
``(ii) admitted as a refugee under section
207;
``(iii) granted asylum under section 208;
or
``(iv) otherwise authorized, under this Act
or by the Secretary of Homeland Security, to be
employed in the United States.''.
(2) Clerical amendment.--The table of contents is amended
by inserting after the item relating to section 218A, as added
by subsection (b)(2), the following:
``Sec. 218B. Employer obligations.''.
(e) Numerical Limitations.--Section 214(g)(1) (8 U.S.C. 1184(g)) is
amended--
(1) by striking ``(beginning with fiscal year 1992)'';
(2) in subparagraph (B), by striking the period at the end
and inserting ``; and''; and
(3) by adding at the end the following:
``(C) under section 101(a)(15)(H)(ii)(c), may not
exceed--
``(i) the number of visas recommended by
the Commission on Immigration and the National
Interest created by this Act in its annual
report to Congress submitted on the first of
March every year; or
``(ii) if the Commission fails to make a
recommendation, the number designated by the
Commission in the prior fiscal year.''.
(f) Admission of Nonimmigrants.--
(1) Presumption of nonimmigrant status.--Section 214(b) (8
U.S.C. 1184(b)) is amended by striking ``and other than'' and
inserting ``a nonimmigrant described in section
101(a)(15)(H)(ii)(c)), and''.
(2) Evidence to abandon foreign residence.--Section 214(h)
(8 U.S.C. 1184(h)) is amended by striking ``H(i)(b) or (c),''
and inserting ``(H)(i)(b), H(i)(c), (H)(ii)(c),''.
(g) Rulemaking; Effective Date.--
(1) Rulemaking.--Not later than 6 months after the date of
the enactment of this Act, the Secretary of Labor shall
promulgate regulations, in accordance with the notice and
comment provisions of section 553 of title 5, United States
Code, to carry out the provisions of sections 218A and 218B of
the Immigration and Nationality Act, as added by this section.
(2) Effective date.--The amendments made by subsections
(b), (c), and section 403 shall take effect on the date that is
1 year after the date of the enactment of this Act with regard
to aliens, who, on such effective date, are in the foreign
country where they maintain residence.
SEC. 403. RECRUITMENT OF UNITED STATES WORKERS.
(a) Electronic Job Registry.--The Secretary of Labor shall
establish a publicly accessible web page on the Internet website of the
Department of Labor that provides a single Internet link to each State
workforce agency's statewide electronic registry of jobs available
throughout the United States to United States workers.
(b) Recruitment of United States Workers.--
(1) Posting.--An employer shall attest that the employer
has posted an employment opportunity at a prevailing wage level
(as described in section 218B(c)(2)(C) of the Immigration and
Nationality Act).
(2) Records.--An employer shall maintain records for not
less than 1 year after the date on which an H-2C nonimmigrant
is hired that describe the reasons for not hiring any of the
United States workers who may have applied for such position.
(c) Oversight and Maintenance of Records.--The Secretary of Labor
shall promulgate regulations regarding the maintenance of electronic
job registry records for the purpose of audit or investigation.
(d) Access to Electronic Job Registry.--The Secretary of Labor
shall ensure that job opportunities advertised on an electronic job
registry established under this section are accessible--
(1) by the State workforce agencies, which may further
disseminate job opportunity information to other interested
parties; and
(2) through the Internet, for access by workers, employers,
labor organizations, and other interested parties.
SEC. 404. ADJUSTMENT TO LAWFUL PERMANENT RESIDENT STATUS.
Section 245 of the Immigration and Nationality Act (8 U.S.C. 1255)
is amended by adding at the end the following:
``(n)(1) For purposes of adjustment of status under subsection (a),
employment-based immigrant visas shall be made available to an alien
having nonimmigrant status described in section 101(a)(15)(H)(ii)(c)
upon the filing of a petition for such a visa--
``(A) by the alien's employer; or
``(B) by the alien, if the alien has been employed as an H-
2C nonimmigrant in the United States for a cumulative total of
4 years.
``(2) An alien applying for adjustment of status shall--
``(A) pay an application fee of $100, in addition to the
fee established by the Secretary of Homeland Security to
process an application for adjustment of status;
``(B) be physically present in the United States;
``(C) establish evidence of continuous lawful employment;
and
``(D)(i) meet the requirements under section 312 of the
Immigration and Nationality Act; or
``(ii) be satisfactorily pursuing a course of study to
achieve such an understanding of English and knowledge and
understanding of the history and Government of the United
States.
``(3) An alien shall demonstrate evidence of employment.
``(A) An alien may conclusively establish employment status
in compliance with paragraph (2) by submitting records to the
Secretary that demonstrate such employment, and have been
maintained by the Social Security Administration, the Internal
Revenue Service, or any other Federal, State, or local
government agency.
``(B) Other documents.--An alien who is unable to submit a
document described in subparagraph (A) may satisfy the
requirement under paragraph (1) by submitting to the Secretary
at least 2 other types of reliable documents that provide
evidence of employment, including--
``(i) bank records;
``(ii) business records;
``(iii) employer records;
``(iv) records of a labor union, day labor center,
or organization that assists workers in employment;
``(v) sworn affidavits from nonrelatives who have
direct knowledge of the alien's work, that contain--
``(I) the name, address, and telephone
number of the affiant;
``(II) the nature and duration of the
relationship between the affiant and the alien;
and
``(III) other verification or information;
and
``(vi) remittance records.
``(C) Additional documents and restrictions.--The Secretary
may--
``(i) designate additional documents to evidence
employment in the United States; and
``(ii) set such terms and conditions on the use of
affidavits as is necessary to verify and confirm the
identity of any affiant or otherwise prevent fraudulent
submissions.
``(4) An alien who demonstrates that the alien meets the
requirements of section 312 may be considered to have satisfied the
requirements of that section for purposes of becoming naturalized as a
citizen of the United States under title III.
``(5) Filing a petition under paragraph (1) on behalf of an alien
or otherwise seeking permanent residence in the United States for such
alien shall not constitute evidence of the alien's ineligibility for
nonimmigrant status under section 101(a)(15)(H)(ii)(c).
``(6) The limitation regarding the period of authorized stay under
section 218A(d) shall not apply to an H-2C nonimmigrant if--
``(A) a labor certification application filed under section
203(b) on behalf of such alien is pending;
``(B) an immigrant visa petition filed under section 204(b)
on behalf of such alien is pending; or
``(C) an application for adjustment of status is pending.
``(7) The Secretary of Homeland Security shall extend the stay of
an alien who qualifies for an exemption under paragraph (6) in 1-year
increments until a final decision is made on the alien's lawful
permanent residence.
``(8) Nothing in this subsection shall be construed to prevent an
alien having nonimmigrant status described in section
101(a)(15)(H)(ii)(c) from filing an application for adjustment of
status under this section in accordance with any other provision of
law.''.
SEC. 405. EMPLOYER COMPLIANCE.
(a) Compliance Investigators.--The Secretary of Labor, subject to
the availability of appropriations for such purpose, shall annually
increase, by not less than 2,000, the number of positions for
compliance investigators dedicated to enforcing compliance with this
title, and the amendments made by this title.
(b) Increased Penalties for Violating Employers.--Any employer of a
nonimmigrant alien described in section 101(a)(15)(H) of the
Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(H)), as amended
by section 402, that is subject to a fine under section 16 of the Fair
Labor Standards Act of 1938 (29 U.S.C. 216) or section 17 of the
Occupational Safety and Health Act of 1970 (29 U.S.C. 666) for a
violation with respect to such alien or other affected workers, shall
be required to pay a fine equal to twice the fine that would otherwise
be assessed under such sections.
(c) Ensuring Employer Compliance With Federal Labor and Employment
Laws.--
(1) Compliance.--Section 274A(d), as amended by section
301, is further amended--
(A) in paragraph (2), by adding at the end the
following:
``(D) Misrepresentation.--United States Immigration
and Customs Enforcement officials may not misrepresent
to employees or employers that they are a member of any
agency or organization that provides domestic violence
services, enforces health and safety law or other labor
laws, provides health care services, or any other
services intended to protect life and safety.''; and
(B) by adding at the end the following:
``(8) Coordination.--An investigation under paragraph (1)
shall be coordinated with the appropriate regional office of
the National Labor Relations Board, the Department of Labor,
and all relevant State and local agencies that are charged with
enforcing workplace standards. Such coordination shall include
gathering evidence from such agencies about past and pending
charges filed against the entity under investigation not later
than 3 years after the commencement of the investigation.
Evidence gathered from such agencies shall be considered in
determining whether the entity under investigation has violated
subsection (a).''.
(2) Remedies.--Section 274A(i), as amended by section 301,
is further amended by adding at the end the following:
``(3) Remedies.--A court may not deny back pay or any other
monetary damages to a current or former employee based on the--
``(A) failure of the employer or employee to comply
with the requirements of this section;
``(B) violation by the employer or employee of a
provision of Federal law related to the Electronic
Employment Verification System described in subsection
(c) in establishing or maintaining the employment
relationship; or
``(C) status of the employee before or after the
termination of employment.''.
(3) Protection against discrimination.--Section 274B (8
U.S.C. 1324b) is amended--
(A) in subsection (a)--
(i) by amending paragraph (1) to read as
follows:
``(1) In general.--It is an unfair immigration-related
employment practice for a person or other entity to
discriminate against any individual (other than an unauthorized
alien defined in section 274A(h)(3)) with respect to--
``(A) the hiring, or recruitment or referral for a
fee, of the individual for employment or the
discharging of the individual from employment--
``(i) because of such individual's national
origin; or
``(ii) in the case of a protected
individual, because of such individual's
citizenship status; or
``(B) the compensation, terms, conditions, or
privileges of the employment of the individual.''; and
(ii) in paragraph (6), by striking ``if
made for the purpose or with the intent of
discriminating against an individual in
violation of paragraph (1)'' and inserting ``in
violation of paragraph (1),'';
(B) in subsection (d)--
(i) in paragraph (1), by striking ``and,
based on such an investigation and subject to
paragraph (3), file a complaint before such a
judge'' and inserting ``Any such investigation
shall begin not later than 180 days after the
alleged discriminatory act. Any such complaint
filed with an administrative law judge shall be
filed not later than 1 year after the
commencement of the independent
investigation.''; and
(ii) by striking paragraph (3); and
(C) in subsection (g)(2)(B), by amending clause
(iii) to read as follows:
``(iii)(I) to hire individuals directly and
adversely affected, with back pay; and
``(II) to provide such other relief as the
administrative law judge determines appropriate
to make the individual whole;''.
(d) Enforcing Workplace Safety for Immigrant Workers.--Section 6(b)
of the Occupational Safety and Health Act of 1970 (29 U.S.C. 655(b)) is
amended by adding at the end the following:
``(9)(A) In this paragraph, the term required personal
protective equipment has the meaning given the term personal
protective equipment under section 1910.132(a) of title 29,
Code of Federal Regulations.
``(B)(i) Not later than 30 days after the date of the
enactment of this Act, the Secretary shall amend section
1910.132(a) of title 29, Code of Federal Regulations, to
require employers to provide employees with required personal
protective equipment at no cost to the employee.
``(ii) In promulgating any future standard under this
section, the Secretary shall specify that the required personal
protective equipment shall be provided at no cost to the
employee.''.
SEC. 406. AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be appropriated such sums as may be
necessary to carry out this title, and the amendments made by this
title.
Subtitle B--Family and Employment Visa Reforms
CHAPTER 1--FAMILY AND EMPLOYMENT BASED IMMIGRANT VISAS
SEC. 411. RECAPTURE OF IMMIGRANT VISAS LOST TO BUREAUCRATIC DELAY.
(a) Worldwide Level of Family-sponsored Immigrants.--Section 201(c)
(8 U.S.C. 1151(c)) is amended to read as follows:
``(c) Worldwide Level of Family-sponsored Immigrants.--
``(1) In general.--Subject to subparagraph (B), the
worldwide level of family-sponsored immigrants under this
subsection for a fiscal year is equal to the sum of--
``(A) 480,000; and
``(B) the sum of--
``(i) the number computed under paragraph
(2); and
``(ii) the number computed under paragraph
(3).
``(2) Unused visa numbers from previous fiscal year.--The
number computed under this paragraph for a fiscal year is the
difference, if any, between--
``(A) the worldwide level of family-sponsored
immigrant visas established for the previous fiscal
year; and
``(B) the number of visas issued under section
203(a), subject to this subsection, during the previous
fiscal year.
``(3) Unused visa numbers from fiscal years 1992 through
2007.--The number computed under this paragraph is the
difference, if any, between--
``(A) the difference, if any, between--
``(i) the sum of the worldwide levels of
family-sponsored immigrant visas established
for fiscal years 1992 through 2007; and
``(ii) the number of visas issued under
section 203(a), subject to this subsection,
during such fiscal years; and
``(B) the number of unused visas from fiscal years
1992 through 2007 that were issued after fiscal year
2007 under section 203(a), subject to this
subsection.''.
(b) Worldwide Level of Employment-based Immigrants.--Section 201(d)
(8 U.S.C. 1151(d)) is amended to read as follows:
``(d) Worldwide Level of Employment-based Immigrants.--
``(1) In general.--The worldwide level of employment-based
immigrants under this subsection for a fiscal year is equal to
the sum of--
``(A) 140,000;
``(B) the number computed under paragraph (2); and
``(C) the number computed under paragraph (3).
``(2) Unused visa numbers from previous fiscal year.--The
number computed under this paragraph for a fiscal year is the
difference, if any, between--
``(A) the worldwide level of employment-based
immigrant visas established for the previous fiscal
year; and
``(B) the number of visas issued under section
203(b), subject to this subsection, during the previous
fiscal year.
``(3) Unused visa numbers from fiscal years 1992 through
2007.--The number computed under this paragraph is the
difference, if any, between--
``(A) the difference, if any, between--
``(i) the sum of the worldwide levels of
employment-based immigrant visas established
for each of fiscal years 1992 through 2007; and
``(ii) the number of visas issued under
section 203(b), subject to this subsection,
during such fiscal years; and
``(B) the number of unused visas from fiscal years
1992 through 2007 that were issued after fiscal year
2007 under section 203(b), subject to this
subsection.''.
(c) Aliens Not Subject to Direct Numerical Limitations.--Section
201(b)(1) (8 U.S.C. 1151(b)(1)) is amended by adding at the end the
following:
``(F) A derivative beneficiary as described in
section 203(d) of an employment-based immigrant under
section 203(b).
``(G) Aliens with extraordinary ability in the
sciences, arts, education, business, or athletics which
has been demonstrated by sustained national or
international acclaim, if:
``(i) the achievements of such alien have
been recognized in the field through extensive
documentation;
``(ii) such alien seeks to enter the United
States to continue work in the area of
extraordinary ability; and
``(iii) the entry of such alien into the
United States will substantially benefit
prospectively the United States.
``(H) Aliens who have earned an advanced degree in
the sciences (not including the social sciences),
technology, engineering, or mathematics from a United
States institution of higher education (as defined in
section 1001(a) of title 20) and have been working in a
field related to their degree subject in the United
States under a nonimmigrant visa during the 2-year
period preceding their application for an immigrant
visa under section 203(b).
``(I) Alien physicians who have completed service
requirements of a waiver or exemption requested by an
interested State agency or by an interested Federal
agency under section 214(l), including those alien
physicians who completed such service before the date
of the enactment of this subparagraph.
``(J) Aliens who are eligible for adjustment of
status under section 245(n)(1) as an alien who
described in section 101(a)(15)(H)(ii)(c).''
(d) Requirement to Satisfy Eligibility Requirements.--Section 203
(8 U.S.C. 1153) is amended by adding at the end the following new
subsection:
``(i) Requirement to Satisfy Eligibility Requirements.--
Notwithstanding the inapplicability of the worldwide levels specified
in sections 201(c) and (d) to aliens described in section 201(b)(1),
aliens described in section 201(b)(1) (H) and (I) must satisfy the
requirements for eligibility for an immigrant visa under one of the
preference categories under subsection (b).''.
(e) Discretionary National Interest Pool.--The discretionary
national interest pool is the number that is the average of the
difference between--
(1) the number of legal immigrant visas issued annually
from fiscal year 1995 through fiscal year 2010; and
(2) the number of legal immigrant visas issued annually
plus unauthorized entries estimated annually by the Secretary
of Homeland Security from fiscal year 1995 through fiscal year
2010.
(f) Applicability.--The amendments made by subsection (c) shall
apply to any immigrant petition or immigrant visa application--
(1) pending on the date of the enactment of this Act; or
(2) filed on or after such date of enactment.
(g) Elimination of the EB-1A Preference Category.--Section
203(b)(1) (8 U.S.C. 1153(b)(1)) is amended--
(1) by striking subparagraph (A); and
(2) by redesignating subparagraphs (B) and (C) as
subparagraphs (A) and (B), respectively.
(h) Effective Date.--The amendments made by this section shall take
effect on the first day of the first fiscal year that commences no
earlier than 9 months after the date of the enactment of the
Comprehensive Immigration Reform Act of 2010.
SEC. 412. RECLASSIFICATION OF SPOUSES AND MINOR CHILDREN OF LEGAL
PERMANENT RESIDENTS AS IMMEDIATE RELATIVES.
(a) In General.--Section 201(b)(2) (8 U.S.C. 1151(b)(2)) is amended
to read as follows:
``(2) Immediate relative.--
``(A) In general.--
``(i) Immediate relative defined.--In this
subparagraph, the term `immediate relative'
means a child, spouse, or parent of a citizen
of the United States or a child or spouse of a
lawful permanent resident (and for each family
member of a citizen or lawful permanent
resident under this subparagraph, such
individual's spouse or child who is
accompanying or following to join the
individual), except that, in the case of
parents, such citizens shall be at least 21
years of age. In the case of an alien who was
the spouse of a citizen of the United States
and was not legally separated from the citizen
at the time of the citizen's death, the alien
(and each child of the alien) shall be
considered, for purposes of this subsection, to
remain an immediate relative after the date of
the citizen's death but only if the spouse
files a petition under section 204(a)(1)(A)(ii)
within 2 years after such date and only until
the date the spouse remarries. For purposes of
this clause, an alien who has filed a petition
under clause (iii) or (iv) of section
204(a)(1)(A) of this Act remains an immediate
relative in the event that the United States
citizen or lawful permanent resident spouse or
parent loses United States citizenship on
account of the abuse.''.
(b) Allocation of Immigrant Visas.--Section 203(a) (8 U.S.C.
1153(a)) is amended--
(1) in paragraph (1), by striking ``23,400'' and inserting
``127,200'';
(2) by striking paragraph (2) and inserting the following:
``(2) Unmarried sons and unmarried daughters of permanent
resident aliens.--Qualified immigrants who are the unmarried
sons or unmarried daughters (but are not the children) of an
alien lawfully admitted for permanent residence shall be
allocated visas in a number not to exceed 80,640, plus any
visas not required for the class specified in paragraph (1).'';
(3) in paragraph (3), by striking ``23,400'' and inserting
``80,640''; and
(4) in paragraph (4), by striking ``65,000'' and inserting
``191,520''.
(c) Technical and Conforming Amendments.--
(1) Rules for determining whether certain aliens are
immediate relatives.--Section 201(f) (8 U.S.C. 1151(f)) is
amended--
(A) in paragraph (1), by striking ``paragraphs (2)
and (3),'' and inserting ``paragraph (2),'';
(B) by striking paragraph (2);
(C) by redesignating paragraphs (3) and (4) as
paragraphs (2) and (3), respectively; and
(D) in paragraph (3), as redesignated by
subparagraph (C), by striking ``through (3)'' and
inserting ``and (2)''.
(2) Numerical limitation to any single foreign state.--
Section 202 (8 U.S.C. 1152) is amended--
(A) in subsection (a)(4)--
(i) by striking subparagraphs (A) and (B);
(ii) by redesignating subparagraphs (C) and
(D) as subparagraphs (A) and (B), respectively;
and
(iii) in subparagraph (A), as redesignated
by clause (ii), by striking ``section
203(a)(2)(B)'' and inserting ``section
203(a)(2)''; and
(B) in subsection (e), in the flush matter
following paragraph (3), by striking ``, or as limiting
the number of visas that may be issued under section
203(a)(2)(A) pursuant to subsection (a)(4)(A)''.
(3) Allocation of immigration visas.--Section 203(h) (8
U.S.C. 1153(h)) is amended--
(A) in paragraph (1)--
(i) in the matter preceding subparagraph
(A), by striking ``subsections (a)(2)(A) and
(d)'' and inserting ``subsection (d)'';
(ii) in subparagraph (A), by striking
``becomes available for such alien (or, in the
case of subsection (d), the date on which an
immigrant visa number became available for the
alien's parent),'' and inserting ``became
available for the alien's parent,''; and
(iii) in subparagraph (B), by striking
``applicable'';
(B) by amending paragraph (2) to read as follows:
``(2) Petitions described.--The petition described in this
paragraph is a petition filed under section 204 for
classification of the alien's parent under subsection (a), (b),
or (c).''; and
(C) in paragraph (3), by striking ``subsections
(a)(2)(A) and (d)'' and inserting ``subsection (d)''.
(4) Procedure for granting immigrant status.--Section 204
(8 U.S.C. 1154) is amended--
(A) in subsection (a)(1)--
(i) in subparagraph (A)--
(I) in clause (i), by inserting
``or lawful permanent resident'' after
``citizen'';
(II) in clause (ii), by striking
``described in the second sentence of
section 201(b)(2)(A)(i) also'' and
inserting ``, alien child, or alien
parent described in section
201(b)(2)(A)'';
(III) in clause (iii)--
(aa) in subclause (I)(aa),
by inserting ``or legal
permanent resident'' after
``citizen''; and
(bb) in subclause
(II)(aa)--
(AA) in subitems
(AA) and (BB), by
inserting ``or legal
permanent resident;''
after ``citizen'' each
place that term
appears;
(BB) in subitem
(CC), by inserting ``or
legal permanent
resident'' after
``citizen'' each place
that term appears; and
(CC) in subitem
(CC)(bbb), by inserting
``or legal permanent
resident'' after
``citizenship'';
(IV) in clause (iv), by inserting
``or legal permanent resident'' after
``citizen'' each place that term
appears;
(V) in clause (v)(I), by inserting
``or legal permanent resident'' after
``citizen''; and
(VI) in clause (vi)--
(aa) by inserting ``or
legal permanent resident
status'' after ``renunciation
of citizenship''; and
(bb) by inserting ``or
legal permanent resident''
after ``abuser's citizenship'';
(ii) by striking subparagraph (B);
(iii) in subparagraph (C), by striking
``subparagraph (A)(iii), (A)(iv), (B)(ii), or
(B)(iii)'' and inserting ``clause (iii) or (iv)
of subparagraph (A)''; and
(iv) in subparagraph (J), by striking ``or
clause (ii) or (iii) of subparagraph (B)'';
(B) in subsection (a), by striking paragraph (2);
(C) in subsection (c)(1), by striking ``or
preference status''; and
(D) in subsection (h), by striking ``or a petition
filed under subsection (a)(1)(B)(ii)''.
(d) Country Limit.--Section 202(a)(2) (8 U.S.C. 1152(a)(2)) is
amended to read as follows:
``(2) Per country levels for family-sponsored and
employment-based immigrants.--Subject to paragraphs (3), (4),
and (5) the total number of immigrant visas made available to
natives of any single foreign state under subsection (a) of
section 203 in any fiscal year may not exceed 15 percent of the
total number of such visas made available under such subsection
in that fiscal year.''.
SEC. 413. PROMOTING FAMILY UNITY.
(a) Unlawfully Present Aliens.--Section 212(a)(9) (8 U.S.C.
1182(a)(9)) is amended--
(1) by striking subparagraph (B) and inserting the
following:
``(B) Aliens unlawfully present.--
``(i) In general.--Subject to the
provisions of clause (iii), any alien (other
than an alien lawfully admitted for permanent
residence) who has been unlawfully present in
the United States for one year or more is
inadmissible until such time as the alien
departs or is removed and remains outside of
the United States for a period of 3 consecutive
years.
``(ii) Construction of unlawful presence.--
For purposes of this paragraph, an alien is
deemed to be unlawfully present in the United
States if the alien is present in the United
States after the expiration of the period of
stay authorized by the Secretary or is present
in the United States without being admitted or
paroled.
``(iii) Exceptions.--
``(I) Minors.--No period of time in
which an alien is under 21 years of age
shall be taken into account in
determining the period of unlawful
presence in the United States under
clause (i).
``(II) Asylees.--No period of time
in which an alien has a bona fide
application for asylum pending under
section shall be taken into account in
determining the period of unlawful
presence in the United States under
clause (i) unless the alien during such
period was employed without
authorization in the United States.
``(III) Family unity.--No period of
time in which the alien is a
beneficiary of family unity protection
pursuant to section of the Immigration
Act of 1990 shall be taken into account
in determining the period of unlawful
presence in the United States under
clause (I).
``(IV) Battered women and
children.--Clause (i) shall not apply
to an alien who would be described in
paragraph (6)(A)(ii) if `violation of
the terms of the alien's nonimmigrant
visa' were substituted for `unlawful
entry into the United States' in
subclause (III) of that paragraph.
``(V) Trafficking victims.--Clause
(i) shall not apply to an alien who
demonstrates that the severe form of
trafficking (as that term is defined in
section 103 of the Trafficking Victims
Protection Act of 2000 (22 U.S.C.
7102)) was at least one central reason
for the alien's unlawful presence in
the United States.
``(VI) Immigrant visas.--Clause (i)
shall not apply to an alien for whom an
immigrant visa is available or was
available on or before the date of the
enactment of the Comprehensive
Immigration Reform Act of 2011, and is
otherwise admissible to the United
States for permanent residence.
``(VII) Unlawful presence prior to
the cir act of 2010.--Any unlawful
presence accrued by an alien as of the
date of enactment of this Comprehensive
Immigration Reform Act of 2011 shall
not be considered unlawful presence for
the purpose of this subparagraph if
such alien was as of the date of
enactment of this Comprehensive
Immigration Reform Act of 2011--
``(aa) the beneficiary of a
pending or approved petition
for classification as an
immediate relative (as
described in section
201(b)(2));
``(bb) the beneficiary of a
pending or approved petition
under section 203(a) or (b); or
``(cc) a derivative
beneficiary of a pending or
approved petition for
classification as an immediate
relative or under section
203(a) or (b).
``(iv) Tolling for good cause.--In the case
of an alien who--
``(I) has been lawfully admitted or
paroled into the United States;
``(II) has filed a nonfrivolous
application for a change or extension
of status before the date of expiration
of the period of stay authorized by the
Secretary; and
``(III) has not been employed
without authorization in the United
States before or during the pendency of
such application, the calculation of
the period of time specified in clause
(i)(I) shall be tolled during the
pendency of such application, but not
to exceed 120 days.
``(v) Waiver.--The Secretary has sole
discretion to waive clause (i) in the case of
an immigrant who is the spouse, son, daughter
or parent of a United States citizen or of an
alien lawfully admitted for permanent
residence, if it is established to the
satisfaction of the Secretary that the refusal
of admission to such immigrant alien would
result in hardship to the alien or to the
citizen or lawfully resident spouse, son,
daughter, or parent of such alien or if the
Secretary determines in her unreviewable
discretion that a waiver is necessary for
humanitarian purposes or the public interest or
to ensure family unity in the case of an alien
who is eligible for an immigrant visa under
section 201 or 203. Clause (i) may also be
waived by the Secretary, in her sole and
unreviewable discretion, if she permits the
alien to depart the United States voluntarily
pursuant to section 240B(a)(1). No court shall
have jurisdiction to review a decision or
action by the Attorney General regarding a
waiver under this clause.''; and
(2) by striking subparagraph (C).
(b) False Claims and Misrepresentations.--Title II (8 U.S.C. 1151
et seq.) is amended--
(1) in section 212 (8 U.S.C. 1182)--
(A) in subsection (a)(6)(C)--
(i) in clause (ii), by inserting ``and
willfully'' after ``falsely'' each place such
term appears; and
(ii) in clause (iii), by striking ``of
clause (i)''; and
(B) in subsection (i), by amending paragraph (1) to
read as follows:
``(1) The Attorney General or the Secretary of Homeland
Security may, in the discretion of the Attorney General or the
Secretary, waive the application of subsection (a)(6)(C) if it
is established to the satisfaction of the Attorney General or
the Secretary that the refusal of admission to the United
States would--
``(A) result in extreme hardship to the alien or,
in the case of an immigrant who is the parent, spouse,
son, or daughter of a United States citizen or of an
alien lawfully admitted for permanent residence, to the
citizen or lawfully resident parent, spouse, son, or
daughter; or
``(B) in the case of a VARA self-petitioner, result
in significant hardship to the alien or the alien's
United States citizen, lawful permanent resident, or
qualified alien parent or child.''; and
(2) in section 237(a)(3)(D) (8 U.S.C. 1227(a)(3)(D)), by
inserting ``and willfully'' after ``falsely'' each place such
term appears.
SEC. 414. DISCRETIONARY AUTHORITY WITH RESPECT TO REMOVAL OR
DEPORTATION OF CITIZEN AND RESIDENT IMMEDIATE FAMILY
MEMBERS.
Section 240(c)(4) (8 U.S.C. 1229a(c)(4)) is amended by adding at
the end the following:
``(D) Judicial discretion.--In the case of an alien
subject to removal, deportation, or exclusion, the
immigration judge may exercise discretion to decline to
order the alien removed, deported or excluded from the
United States if the judge determines that such
removal, deportation, or exclusion is against the
public interest or would result in hardship to the
alien's United States citizen or permanent resident
parent, spouse or child except that this subparagraph
shall not apply to an alien whom the judge determines--
``(i) is described in subparagraphs (B),
(C), (D)(ii), (E), (H), (I), or (J) of section
212(a)(2);
``(ii) is described in section 212(a)(3);
``(iii) subparagraphs (A), (C), or (D) of
section 212(a)(10);
``(iv) is described in section 237(a)(4);
or
``(v) has engaged in conduct described in
paragraph (8) or (9) of section 103 of the
Trafficking Victims Protection Act of 2000 (22
U.S.C. 7102).''.
SEC. 415. MILITARY FAMILIES.
(a) In General.--The Secretary or the Attorney General shall adjust
the status of an alien described in subsection (b) to that of an alien
lawfully admitted for permanent residence if the alien--
(1) applies for such adjustment;
(2) is admissible to the United States as an immigrant,
except as provided in subsection (d);
(3) pays a fee in an amount determined by the Secretary for
the processing of such application (unless such fee is waived
by the Secretary); and
(4) is physically present in the United States.
(b) Aliens Eligible for Adjustment of Status.--The benefits
provided under subsection (a) shall only apply to an alien who is--
(1) a parent, spouse, child, son, or daughter (and their
spouse, child, son, or daughter, if any) of--
(A) a living Armed Forces member described in
subsection (c); or
(B) a deceased Armed Forces member described in
subsection (c) if--
(i) the Armed Forces member died as a
result of injury or disease incurred in or
aggravated by the Armed Forces member's
service; and
(ii) the alien applies for such
adjustment--
(I) if the death of the Armed
Forces member occurred prior to the
date of the enactment of this Act, not
later than 2 years after the date of
such enactment; or
(II) if the death of the Armed
Forces member occurred after the date
of the enactment of this Act, not later
than 2 years after the death of the
Armed Forces member; or
(2) a son or daughter described in paragraph (1) or (3) of
section 203(a) of the Immigration and Nationality Act (8 U.S.C.
1153(a)) who has a Filipino parent who was naturalized pursuant
to section 405 of the Immigration Act of 1990 (8 U.S.C. 1440
note).
(c) Armed Forces Member Defined.--In this section, the term ``Armed
Forces member'' means any person who--
(1) is, or was at the time of the person's death described
in subsection (b)(1)(B)(i), a United States citizen or lawfully
admitted for permanent residence;
(2) is serving, or has served honorably on or after October
7, 2001, as a member of the National Guard or the Selected
Reserve of the Ready Reserve, or in an active-duty status in
the military, air, or naval forces of the United States; and
(3) if separated from the service described in paragraph
(2), was separated under honorable conditions.
(d) Waiver of Certain Grounds of Inadmissibility.--
(1) In general.--The provisions of paragraphs (4), (5),
(6)(A), (7)(A), and (9)(B) of section 212(a) of the Immigration
and Nationality Act (8 U.S.C. 1182(a)) shall not apply to
adjustment of status under this Act.
(2) Additional waivers.--The Secretary of Homeland Security
or the Attorney General may waive any other provision of
section 212(a) of such Act (other than paragraph (2)(C) and
subparagraphs (A), (B), (C), (E), and (F) of paragraph (3))
with respect to an adjustment of status under this Act--
(A) for humanitarian purposes;
(B) to assure family unity; or
(C) if such waiver is otherwise in the public
interest.
(e) Record of Adjustment.--Upon the approval of an application for
adjustment of status under this Act, the Secretary of Homeland Security
shall create a record of the alien's admission as an alien lawfully
admitted for permanent residence.
(f) No Offset in Number of Visas Available.--
(1) In general.--If an alien is lawfully admitted for
permanent residence under this Act, the Secretary of State
shall not reduce the number of immigrant visas authorized to be
issued under the Immigration and Nationality Act (8 U.S.C. 1101
et seq.).
(2) Exemption from direct numerical limitations.--Section
201(b)(1) of the Immigration and Nationality Act (8 U.S.C.
1151(b)(1)) is amended by adding at the end the following:
``(F) Aliens who are described in paragraph (1) or
(3) of section 203(a) and have a Filipino parent who
was naturalized pursuant to section 405 of the
Immigration Act of 1990 (8 U.S.C. 1440 note).''.
SEC. 416. EQUAL TREATMENT FOR ALL STEPCHILDREN.
Section 101(b)(1)(B) (8 U.S.C. 1101(b)(1)(B)) is amended by
striking ``, provided the child had not reached the age of eighteen
years at the time the marriage creating the status of stepchild
occurred''.
SEC. 417. WIDOWS, WIDOWERS, AND ORPHANS.
(a) Protection for Certain Surviving Relatives.--Section 204(l)(1)
(8 U.S.C. 1154(l)(1) is amended by adding at the end the following:
``An alien is not required to reside in the United States to qualify to
have his or her petition or application adjudicated under this
paragraph if the alien is described in subparagraph (A), (B), or (C) of
paragraph (2) and his or her priority date was current at the time of
the qualifying relative's death or is described in subparagraph (D),
(E), or (F) of paragraph (2).''
``(1) In general.--An alien described in paragraph (2) who
resided in the United States at the time of the death of the
qualifying relative and who continues to reside in the United
States''.
(b) Continued Waiver Eligibility for Widows, Widowers, and
Orphans.--Section 212(a)(1)(B) (8 U.S.C. 1182(a)(1)(B)) is amended to
read as follows:
``(B) Waiver for widows, widowers, and orphans.--An
alien who would have been statutorily eligible for a
waiver of inadmissibility under this Act, if his or her
qualifying relative had not died, may be considered for
any waiver under this Act notwithstanding such death,
which shall constitute the functional equivalent of
extreme hardship to the qualifying relative.''.
(c) Naturalization of Surviving Relatives.--Section 319(a) (8
U.S.C. 1430(a)) is amended by inserting ``(or, if the spouse is
deceased, the spouse was a citizen of the United States)'' after
``citizen of the United States''.
SEC. 418. FIANCE CHILD STATUS PROTECTION.
(a) Definition.--Section 101(a)(15)(K)(iii) (8 U.S.C.
1101(a)(15)(K)(iii)) is amended by inserting ``, provided that a
determination of the age of such minor child is made using the age of
the alien on the date on which the petition is filed with the Secretary
of Homeland Security to classify the alien's parent as the fiance or
fiance of a United States citizen (in the case of an alien parent
described in clause (i)) or as the spouse of a United States citizen
under section 201(b)(2)(A)(i) (in the case of an alien parent described
in clause (ii));'' before the semicolon at the end.
(b) Adjustment of Status Authorized.--Section 214(d) (8 U.S.C.
1184(d)(1)) is amended--
(1) by redesignating paragraphs (2) and (3) as paragraphs
(3) and (4), respectively; and
(2) in paragraph (1), by striking ``In the event'' and
inserting the following:
``(2)(A) If an alien does not marry the petitioner under
paragraph (1) within 3 months after the alien and the alien's
minor children are admitted into the United States, such alien
and children shall be required to depart from the United
States. If such aliens fail to depart from the United States,
they shall be removed in accordance with sections 240 and 241.
``(B) Subject to subparagraphs (C) and (D), if an alien
marries the petitioner described in section 101(a)(15)(K)(i)
within 3 months after the alien is admitted into the United
States, the Secretary of Homeland Security or the Attorney
General, subject to the provisions of section 245(d), may
adjust the status of the alien, and any minor children
accompanying or following to join the alien, to that of an
alien lawfully admitted for permanent residence on a
conditional basis under section 216 if the alien and any such
minor children apply for such adjustment and are not determined
to be inadmissible to the United States.
``(C) Paragraphs (5) and (7)(A) of section 212(a)) shall
not apply to an alien who is eligible to apply for adjustment
of his or her status to an alien lawfully admitted for
permanent residence under this section.
``(D) An alien eligible for a waiver of inadmissibility as
otherwise authorized under this Act shall be permitted to apply
for adjustment of his or her status to that of an alien
lawfully admitted for permanent residence under this
section.''.
(c) Age Determination.--Section 245(d) (8 U.S.C. 1155(d)) is
amended--
(1) by inserting ``(1)'' before ``The Attorney General'';
and
(2) by adding at the end the following:
``(2) A determination of the age of an alien admitted to
the United States under section 101(a)(15)(K)(iii) shall be
made, for purposes of adjustment to the status of an alien
lawfully admitted for permanent residence on a conditional
basis under section 216, using the age of the alien on the date
on which the petition is filed with the Secretary of Homeland
Security to classify the alien's parent as the fiance or fiance
of a United States citizen (in the case of an alien parent
admitted to the United States under section 101(a)(15)(K)(i))
or as the spouse of a United States citizen under section
201(b)(2)(A)(i) (in the case of an alien parent admitted to the
United States under section 101(a)(15)(K)(ii)).''.
(d) Effective Date.--
(1) In general.--The amendments made by this subsection
shall be effective as if included in the Immigration Marriage
Fraud Amendments of 1986 (Public Law 99-639).
(2) Applicability.--The amendments made by this subsection
shall apply to all petitions or applications described in such
amendments that--
(A) are pending as of the date of the enactment of
this Act; or
(B) have been denied, but would have been approved
if such amendments had been in effect at the time of
adjudication of the petition or application.
(3) Motion to reopen or reconsider.--A motion to reopen or
reconsider a petition or application described in subparagraph
(B)(ii) shall be granted if such motion is filed with the
Secretary or the Attorney General not later than 2 years after
the date of the enactment of this Act.
SEC. 419. SPECIAL HUMANITARIAN VISAS.
Section 103 (8 U.S.C. 1103) is amended by adding at the end the
following:
``(i) Authority to Waive Eligibility Requirements for Special
Humanitarian Considerations.--Notwithstanding any other provision of
law, the Secretary of Homeland Security may waive any requirements
under this Act on behalf of not more than 1,000 aliens whose
circumstances involve special humanitarian considerations.''.
SEC. 420. EXEMPTION FROM IMMIGRANT VISA LIMIT FOR CERTAIN VETERANS FROM
THE PHILIPPINES.
Section 201(b)(1) (8 U.S.C. 1151(b)(1)) is amended by adding at the
end the following:
``(F) Aliens who are eligible for an immigrant visa under
paragraph (1) or (3) of section 203(a) and who have a parent
who was naturalized pursuant to section 405 of the Immigration
Act of 1990 (8 U.S.C. 1440 note).''.
SEC. 420A. DETERMINATIONS UNDER THE HAITIAN REFUGEE IMMIGRATION
FAIRNESS ACT OF 1998.
(a) In General.--Section 902(d) of the Haitian Refugee Immigration
Fairness Act of 1998 (8 U.S.C. 1255 note) is amended by adding at the
end the following:
``(3) Determinations with respect to children.--
``(A) Use of application filing date.--
Determinations made under this subsection as to whether
an individual is a child of a parent shall be made
using the age and marital status of the individual on
October 21, 1998.
``(B) Application submission by parent.--
Notwithstanding paragraph (1)(C), an application under
this subsection filed based on status as a child may be
filed for the benefit of such child by a parent or
guardian of the child, if the child is physically
present in the United States on such filing date.''.
(b) New Applications and Motions to Reopen.--
(1) New applications.--Notwithstanding section 902(a)(1)(A)
of the Haitian Refugee Immigration Fairness Act of 1998, an
alien who is eligible for adjustment of status under such Act
may submit an application for adjustment of status under such
Act not later than the later of--
(A) 2 years after the date of the enactment of the
Comprehensive Immigration Reform Act of 2011; or
(B) 1 year after the date on which final
regulations are promulgated to implement this section
and the amendment made by subsection (a).
(2) Motions to reopen.--The Secretary shall establish
procedures for the reopening and reconsideration of
applications for adjustment of status under the Haitian Refugee
Immigration Fairness Act of 1998 that are affected by the
amendment made by subsection (a).
(3) Relationship of application to certain orders.--Section
902(a)(3) of the Haitian Refugee Immigration Fairness Act of
1998 shall apply to an alien present in the United States who
has been ordered excluded, deported, removed, or ordered to
depart voluntarily, and who files an application under
paragraph (1) or a motion under paragraph (2), in the same
manner as such section 902(a)(3) applied to aliens filing
applications for adjustment of status under such Act prior to
April 1, 2000.
(c) Inadmissibility Determination.--Section 902 of the Haitian
Refugee Immigration Fairness Act of 1998 (8 U.S.C. 1255 note) is
amended--
(1) in subsection (a)(1)(B), by inserting ``(6)(C)(i),''
after ``(6)(A),''; and
(2) in subsection (d)(1)(D), by inserting ``(6)(C)(i),''
after ``(6)(A),''.
SEC. 420B. AFFIDAVIT OF SUPPORT.
Section 213A (8 U.S.C. 1183a) is amended--
(1) in subsection (a)(1)(A) by striking ``125'' and
inserting ``100'';
(2) in subsection (f)(1)(E), by striking ``125'' and
inserting ``100'';
(3) in subsection (f)(4)(B)(i), by striking ``125'' and
inserting ``100''; and
(4) in subsection (f)(5)(A), by striking ``125'' and
inserting ``100''.
SEC. 420C. RETAINING WORKERS SUBJECT TO GREEN CARD BACKLOG.
(a) Adjustment of Status.--
(1) In general.--Section 245 (8 U.S.C. 1255), as amended by
section 404, is further amended by adding at the end the
following:
``(o) Adjustment of Status for Employment-based Immigrants.--
``(1) Eligibility.--The Secretary of Homeland Security
shall promulgate regulations to provide for the filing of an
application for adjustment of status by an alien (and any
eligible dependents of such alien), regardless of whether an
immigrant visa is immediately available at the time the
application is filed, if the alien--
``(A) has an approved petition under subparagraph
(E) or (F) of section 204(a)(1); or
``(B) at the discretion of the Secretary, has a
pending petition under subparagraph (E) or (F) of
section 204(a)(1).
``(2) Visa availability.--An application filed pursuant to
paragraph (1) may not be approved until an immigrant visa
becomes available.
``(3) Fees.--If an application is filed pursuant to
paragraph (1), the beneficiary of such application shall pay a
supplemental fee of $500. Such fee may not be charged to any
dependent accompanying or following to join such beneficiary.
``(4) Extension of employment authorization and advanced
parole document.--
``(A) In general.--The Secretary of Homeland
Security shall provide employment authorization and
advanced parole documents, in 3-year increments, to
beneficiaries of an application for adjustment of
status based on a petition that is filed or, at the
discretion of the Secretary, pending, under
subparagraph (E) or (F) of section 204(a)(1).
``(B) Fee adjustments.--Application fees under this
subsection may be adjusted in accordance with the 3-
year period of validity assigned to the employment
authorization or advanced parole documents under
subparagraph (A).''.
(b) Use of Fees.--Section 286 (8 U.S.C. 1356) is amended--
(1) in subsection (m)--
(A) by striking ``Notwithstanding any other
provisions of law,'' and inserting the following:
``(c) Immigration Examinations Fee Account.--
``(1) In general.--Notwithstanding any other provision of
law, all fees collected under section 245(o)(3) and'';
(B) by striking ``: Provided, however, That all''
and inserting the following:
``(2) Virgin islands; guam.--All''; and
(C) by striking ``: Provided further, That fees''
and inserting the following:
``(3) Cost recovery.--Fees''.
(2) in subsection (n)--
(A) by striking ``(n) All deposits'' and inserting
the following:
``(4) Use of funds.--
``(A) In general.--Except as provided under
subparagraph (B), all deposits''; and
(B) adding at the end the following:
``(C) Supplemental fee for adjustment of status of
employment-based immigrants.--Any amounts deposited
into the Immigration Examinations Fee Account that were
collected under section 245(o)(3) shall remain
available until expended by the Secretary of Homeland
Security for backlog reduction and clearing security
background check delays.'';
(3) in subsection (o), by striking ``(o) The Attorney
General'' and inserting the following:
``(5) Annual financial report to congress.--The Attorney
General''; and
(4) in subsection (p), by striking ``(p) The provisions set
forth in subsections (m), (n), and (o) of this section'' and
inserting the following:
``(6) Applicability.--The provisions set forth in this
subsection shall''.
SEC. 420D. RETURN OF TALENT PROGRAM.
(a) Short Title.--This section may be cited as the ``Return of
Talent Act''.
(b) Establishment.--
(1) In general.--Title III (8 U.S.C. 1401 et seq.) is
amended by inserting after section 317 the following:
``SEC. 317A. TEMPORARY ABSENCE OF PERSONS PARTICIPATING IN THE RETURN
OF TALENT PROGRAM.
``(a) In General.--The Secretary of Homeland Security, in
consultation with the Secretary of State, shall establish the Return of
Talent Program to permit eligible aliens to temporarily return to the
alien's country of citizenship in order to make a material contribution
to that country if the country is engaged in post-conflict or natural
disaster reconstruction activities, for a period not longer than 2
years, unless an exception is granted under subsection (d).
``(b) Eligible Alien.--An alien is eligible to participate in the
Return of Talent Program established under subsection (a) if the alien
meets the special immigrant description under section 101(a)(27)(N).
``(c) Family Members.--The spouse, parents, siblings, and any minor
children of an alien who participates in the Return of Talent Program
established under subsection (a) may return to such alien's country of
citizenship with the alien and reenter the United States with the
alien.
``(d) Extension of Time.--The Secretary of Homeland Security may
extend the 2-year period referred to in subsection (a) upon a showing
that circumstances warrant that an extension is necessary for post-
conflict or natural disaster reconstruction efforts.
``(e) Residency Requirements.--An immigrant described in section
101(a)(27)(N) who participates in the Return of Talent Program
established under subsection (a), and the spouse, parents, siblings,
and any minor children who accompany such immigrant to that immigrant's
country of citizenship, shall be considered, during such period of
participation in the program--
``(1) for purposes of section 316(a), physically present
and residing in the United States for purposes of
naturalization within the meaning of that section; and
``(2) for purposes of section 316(b), to meet the
continuous residency requirements in that section.
``(f) Oversight and Enforcement.--The Secretary of Homeland
Security, in consultation with the Secretary of State, shall oversee
and enforce the requirements of this section.''.
(2) Table of contents.--The table of contents (8 U.S.C.
1101 et seq.) is amended by inserting after the item relating
to section 317 the following:
``Sec. 317A. Temporary absence of persons participating in the Return
of Talent Program.''.
(c) Eligible Immigrants.--Section 101(a)(27) (8 U.S.C.
1101(a)(27)), as amended by section 517, is further amended by adding
at the end the following:
``(O) an immigrant who--
``(i) has been lawfully admitted to the
United States for permanent residence;
``(ii) demonstrates an ability and
willingness to make a material contribution to
the post-conflict or natural disaster
reconstruction in the alien's country of
citizenship; and
``(iii) as determined by the Secretary of
State in consultation with the Secretary of
Homeland Security--
``(I) is a citizen of a country in
which Armed Forces of the United States
are engaged, or have engaged in the 10
years preceding such determination, in
combat or peacekeeping operations;
``(II) is a citizen of a country
where authorization for United Nations
peacekeeping operations was initiated
by the United Nations Security Council
during the 10 years preceding such
determination; or
``(III) is a citizen of a country
which received, during the preceding 2
years, funding from the Office of
Foreign Disaster Assistance of the
United States Agency for International
Development in response to a declared
disaster in such country by the United
States Ambassador, the Chief of the
U.S. Mission, or the appropriate
Assistant Secretary of State, that is
beyond the ability of such country's
response capacity and warrants a
response by the United States
Government.''.
(d) Report to Congress.--Not later than 2 years after the date of
the enactment of this Act, the Secretary, in consultation with the
Secretary of State, shall submit a report to Congress that describes--
(1) the countries of citizenship of the participants in the
Return of Talent Program established under section 317A of the
Immigration and Nationality Act, as added by subsection (b);
(2) the post-conflict or natural disaster reconstruction
efforts that benefitted, or were made possible, through
participation in the program; and
(3) any other information that the Secretary determines to
be appropriate.
(e) Regulations.--Not later than 6 months after the date of the
enactment of this Act, the Secretary shall promulgate regulations to
carry out this section and the amendments made by this section.
(f) Authorization of Appropriations.--There are authorized to be
appropriated to United States Citizenship and Immigration Services such
sums as may be necessary to carry out this section and the amendments
made by this section.
CHAPTER 2--UNITING AMERICAN FAMILIES ACT
SEC. 421. SHORT TITLE.
This chapter may be cited as the ``Uniting American Families Act of
2010''.
SEC. 422. DEFINITIONS.
(a) Permanent Partner and Permanent Partnership.--Section 101(a) (8
U.S.C. 1101(a)) is amended by adding at the end the following:
``(52) The term `permanent partner' means an individual 18
years of age or older who--
``(A) is in a committed, intimate relationship with
another individual 18 years of age or older in which
both parties intend a lifelong commitment;
``(B) is financially interdependent with that other
individual;
``(C) is not married to or in a permanent
partnership with anyone other than that other
individual;
``(D) is unable to contract with that other
individual a marriage cognizable under this Act; and
``(E) is not a first, second, or third degree blood
relation of that other individual.
``(53) The term `permanent partnership' means the
relationship that exists between 2 permanent partners.
``(54) The term `alien permanent partner' means the
individual in a permanent partnership who is being sponsored
for a visa.''.
(b) Derivative Status for Permanent Partners of Nonimmigrant Visa
Holders.--Section 101(a)(15) (8 U.S.C. 1101(a)(15)) is amended--
(1) in subparagraph (E), by inserting ``or permanent
partner'' after ``spouse'';
(2) in subparagraph (F)(ii), by inserting ``or permanent
partner'' after ``spouse'';
(3) in subparagraph (G)(i), by inserting ``, which shall
include his or her permanent partner'' after ``members of his
or their immediate family'';
(4) in subparagraph (G)(ii), by inserting ``, which shall
include permanent partners,'' after ``the members of their
immediate families'';
(5) in subparagraph (G)(iii), by inserting ``, which shall
include his permanent partner,'' after ``the members of his
immediate family'';
(6) in subparagraph (G)(iv), by inserting ``, which shall
include permanent partners'' after ``the members of their
immediate families'';
(7) in subparagraph (G)(v), by inserting ``, which shall
include permanent partners'' after ``the members of the
immediate families'';
(8) in subparagraph (H)(iii), by inserting ``or permanent
partner'' after ``spouse'';
(9) in subparagraph (I), by inserting ``or permanent
partner'' after ``spouse'';
(10) in subparagraph (J), by inserting ``or permanent
partner'' after ``spouse'';
(11) in subparagraph (K)(ii), by inserting ``or permanent
partnership'' after ``marriage'';
(12) in subparagraph (L), by inserting ``or permanent
partner'' after ``spouse'';
(13) in subparagraph (M)(ii), by inserting ``or permanent
partner'' after ``spouse'';
(14) in subparagraph (O)(iii), by inserting ``or permanent
partner'' after ``spouse'';
(15) in subparagraph (P)(iv), by inserting ``or permanent
partner'' after ``spouse'';
(16) in subparagraph (Q)(ii)(II), by inserting ``or
permanent partner'' after ``spouse'';
(17) in subparagraph (R), by inserting ``or permanent
partner'' after ``spouse'';
(18) in subparagraph (S), by inserting ``or permanent
partner'' after ``spouse'';
(19) in subparagraph (T)(ii)(I), by inserting ``or
permanent partner'' after ``spouse'';
(20) in subparagraph (T)(ii)(II), by inserting ``or
permanent partner'' after ``spouse'';
(21) in subparagraph (U)(ii)(I), by inserting ``or
permanent partner'' after ``spouse'';
(22) in subparagraph (U)(ii)(II), by inserting ``or
permanent partner'' after ``spouse''; and
(23) in subparagraph (V), by inserting ``permanent partner
or'' after ``beneficiary (including a''.
(c) Child.--Section 101(b)(1) (8 U.S.C. 1101(b)(1)) is amended by
adding at the end the following:
``(H)(i) a biological child of an alien permanent
partner if the child was under the age of 18 at the
time the permanent partnership was formed; or
``(ii) a child adopted by an alien permanent
partner while under the age of 16 years if the child
has been in the legal custody of, and has resided with,
such adoptive parent for at least 2 years and if the
child was under the age of 18 at the time the permanent
partnership was formed.''.
SEC. 423. AVAILABILITY OF IMMIGRANT VISAS FOR PERMANENT PARTNERS.
(a) Worldwide Level of Immigration.--Section 201(b)(2)(A)(i) (8
U.S.C. 1151(b)(2)(A)(i)) is amended--
(1) by inserting ``permanent partners,'' after
``spouses,'';
(2) by inserting ``or permanent partner'' after ``spouse''
each place it appears;
(3) by inserting ``(or, in the case of a permanent
partnership, whose permanent partnership was not terminated)''
after ``was not legally separated from the citizen''; and
(4) by striking ``remarries.'' and inserting ``remarries or
enters a permanent partnership with another person.''.
(b) Numerical Limitations on Individual Foreign States.--
(1) Per country levels.--Section 202(a)(4) (8 U.S.C.
1152(a)(4)) is amended--
(A) in the heading, by inserting ``, permanent
partners,'' after ``spouses'';
(B) in the heading of subparagraph (A), by
inserting ``, permanent partners,'' after ``spouses'';
and
(C) in the heading of subparagraph (C), by striking
``and daughters'' inserting ``without permanent
partners and unmarried daughters without permanent
partners''.
(2) Rules for chargeability.--Section 202(b)(2) (8 U.S.C.
1152(b)(2)) is amended--
(A) by inserting ``or permanent partner'' after
``spouse'' each place it appears; and
(B) by inserting ``or permanent partners'' after
``husband and wife''.
(c) Allocation of Immigrant Visas.--
(1) Preference allocation for family members of permanent
resident aliens.--Section 203(a)(2) (8 U.S.C. 1153(a)(2)) is
amended--
(A) in the heading--
(i) by striking ``and'' after ``spouses''
and inserting , ``permanent partners,''; and
(ii) by inserting ``without permanent
partners'' after ``sons'' and after
``daughters'';
(B) in subparagraph (A), by inserting ``, permanent
partners,'' after ``spouses''; and
(C) in subparagraph (B), by inserting ``without
permanent partners'' after ``sons'' and after
``daughters''.
(2) Preference allocation for sons and daughters of
citizens.--Section 203(a)(3) (8 U.S.C. 1153(a)(3)) is amended--
(A) in the heading, by inserting ``and daughters
and sons with permanent partners'' after ``daughters'';
and
(B) by inserting ``, or daughters or sons with
permanent partners,'' after ``daughters''.
(3) Employment creation.--Section 203(b)(5)(A)(ii) (8
U.S.C. 1153(b)(5)(A)(ii)) is amended by inserting ``permanent
partner,'' after ``spouse,''.
(4) Treatment of family members.--Section 203(d) (8 U.S.C.
1153(d)) is amended by inserting ``, permanent partner,'' after
``spouse'' each place it appears.
SEC. 423A. PROCEDURE FOR GRANTING IMMIGRANT STATUS.
(a) Classification Petitions.--Section 204(a)(1) (8 U.S.C.
1154(a)(1)) is amended--
(1) in subparagraph (A)(ii), by inserting ``or permanent
partner'' after ``spouse'';
(2) in subparagraph (A)(iii)--
(A) by inserting ``or permanent partner'' after
``spouse'' each place it appears; and
(B) in subclause (I), by inserting ``or permanent
partnership'' after ``marriage'' each place it appears;
(3) in subparagraph (A)(v)(I), by inserting ``permanent
partner,'' after ``is the spouse,'';
(4) in subparagraph (A)(vi)--
(A) by inserting ``or termination of the permanent
partnership'' after ``divorce''; and
(B) by inserting ``, permanent partner,'' after
``spouse''; and
(5) in subparagraph (B)--
(A) by inserting ``or permanent partner'' after
``spouse'' each place it appears;
(B) by inserting ``or permanent partnership'' after
``marriage'' in clause (ii)(I)(aa) and the first place
it appears in clause (ii)(I)(bb); and
(C) in clause (ii)(II)(aa)(CC)(bbb), by inserting
``(or the termination of the permanent partnership)''
after ``termination of the marriage''.
(b) Immigration Fraud Prevention.--Section 204(c) (8 U.S.C.
1154(c)) is amended--
(1) by inserting ``or permanent partner'' after ``spouse''
each place it appears; and
(2) by inserting ``or permanent partnership'' after
``marriage'' each place it appears.
SEC. 424. ADMISSION OF REFUGEES AND ASYLEES.
(a) Annual Admission of Refugees and Admission of Emergency
Situation Refugees.--Section 207(c) (8 U.S.C. 1157(c)) is amended--
(1) in paragraph (2)--
(A) by inserting ``or permanent partner'' after
``spouse'' each place it appears; and
(B) by inserting ``or permanent partner's'' after
``spouse's''; and
(2) in paragraph (4), by inserting ``or permanent partner''
after ``spouse''.
(b) Asylum.--Section 208(b)(3) (8 U.S.C. 1158(b)(3)) is amended--
(1) in the heading, by inserting ``or permanent partner''
after ``spouse''; and
(2) in the text, by inserting ``or permanent partner''
after ``spouse''.
(c) Adjustment of Status of Refugees.--Section 209(b)(3) (8 U.S.C.
1159(b)(3)) is amended by inserting ``or permanent partner'' after
``spouse''.
SEC. 425. INADMISSIBLE AND DEPORTABLE ALIENS.
(a) Classes of Aliens Ineligible for Visas or Admission.--Section
212(a) (8 U.S.C. 1182(a)) is amended--
(1) in paragraph (3)(D)(iv), by inserting ``permanent
partner,'' after ``spouse,'';
(2) in paragraph (4)(C)(i)(I), by inserting ``, permanent
partner,'' after ``spouse,'';
(3) in paragraph (6)(E)(ii), by inserting ``permanent
partner,'' after ``spouse,''; and
(4) in paragraph (9)(B)(v), by inserting ``, permanent
partner,'' after ``spouse,''.
(b) Waivers.--Section 212(d) (8 U.S.C. 1182(d)) is amended--
(1) in paragraph (11), by inserting ``permanent partner,''
after ``spouse,''; and
(2) in paragraph (12), by inserting ``, permanent
partner,'' after ``spouse''.
(c) Waivers of Inadmissibility on Health-related Grounds.--Section
212(g)(1)(A) (8 U.S.C. 1182(g)(1)(A)) is amended by inserting ``or
permanent partner'' after ``spouse''.
(d) Waivers of Inadmissibility on Criminal and Related Grounds.--
Section 212(h)(1)(B) (8 U.S.C. 1182(h)(1)(B)) is amended by inserting
``permanent partner,'' after ``spouse,''.
(e) Waiver of Inadmissibility for Misrepresentation.--Section
212(i)(1) (8 U.S.C. 1182(i)(1)) is amended by inserting ``permanent
partner,'' after ``spouse,''.
(f) Deportable Aliens.--Section 237(a) of the Immigration and
Nationality Act (8 U.S.C. 1227(a)) is amended--
(1) in paragraph (1)(D)(i), by inserting ``or permanent
partners'' after ``spouses'' each place it appears;
(2) in paragraphs (1)(E)(ii), (1)(E)(iii), and
(1)(H)(i)(I), by inserting ``or permanent partner'' after
``spouse'';
(3) by adding at the end of paragraph (1) the following new
subparagraph:
``(I) Permanent partnership fraud.--An alien shall
be considered to be deportable as having procured a
visa or other documentation by fraud (within the
meaning of section 212(a)(6)(C)(i)) and to be in the
United States in violation of this Act (within the
meaning of subparagraph (B)) if--
``(i) the alien obtains any admission to
the United States with an immigrant visa or
other documentation procured on the basis of a
permanent partnership entered into less than 2
years prior to such admission and which, within
2 years subsequent to such admission, is
terminated because the criteria for permanent
partnership are no longer fulfilled, unless the
alien establishes to the satisfaction of the
Secretary of Homeland Security that such
permanent partnership was not contracted for
the purpose of evading any provisions of the
immigration laws; or
``(ii) it appears to the satisfaction of
the Secretary of Homeland Security that the
alien has failed or refused to fulfill the
alien`s permanent partnership which in the
opinion of the Secretary of Homeland Security
was made for the purpose of procuring the
alien's admission as an immigrant.'' and
(4) in paragraphs (2)(E)(i) and (3)(C)(ii), by inserting
``or permanent partner'' after ``spouse'' each place it
appears.
SEC. 426. NONIMMIGRANT AND CONDITIONAL PERMANENT RESIDENT STATUS.
(a) Nonimmigrant Status for Permanent Partners Awaiting the
Availability of an Immigrant Visa.--Section 214(r) (8 U.S.C. 1184(r))
is amended--
(1) in paragraph (1), by inserting ``or permanent partner''
after ``spouse''; and
(2) by inserting ``or permanent partnership'' after
``marriage'' each place it appears.
(b) Conditional Permanent Resident Status for Certain Alien
Spouses, Permanent Partners, and Sons and Daughters.--
(1) Section heading.--
(A) In general.--The heading for section 216 (8
U.S.C. 1186a) is amended by inserting ``and permanent
partners'' after ``spouses''.
(B) Clerical amendment.--The table of contents is
amended by amending the item relating to section 216 to
read as follows:
``Sec. 216. Conditional permanent resident status for certain alien
spouses and permanent partners and sons and
daughters.''.
(2) In general.--Section 216(a) (8 U.S.C. 1186a(a)) is
amended--
(A) in paragraph (1), by inserting ``or permanent
partner'' after ``spouse'';
(B) in paragraph (2)(A), by inserting ``or
permanent partner'' after ``spouse'';
(C) in paragraph (2)(B), by inserting ``permanent
partner,'' after ``spouse,''; and
(D) in paragraph (2)(C), by inserting ``permanent
partner,'' after ``spouse,''.
(3) Termination of status if finding that qualifying
marriage improper.--Section 216(b) of such Act (8 U.S.C.
1186a(b)) is amended--
(A) in the heading, by inserting ``or Permanent
Partnership'' after ``Marriage'';
(B) in paragraph (1)(A), by inserting ``or
permanent partnership'' after ``marriage''; and
(C) in paragraph (1)(A)(ii)--
(i) by inserting ``or has ceased to satisfy
the criteria for being considered a permanent
partnership under this Act,'' after
``terminated,''; and
(ii) by inserting ``or permanent partner''
after ``spouse''.
(4) Requirements of timely petition and interview for
removal of condition.--Section 216(c) (8 U.S.C. 1186a(c)) is
amended--
(A) in paragraphs (1), (2)(A)(ii), (3)(A)(ii),
(3)(C), (4)(B), and (4)(C), by inserting ``or permanent
partner'' after ``spouse'' each place it appears; and
(B) in paragraph (3)(A), in the matter following
clause (ii), and in paragraph (3)(D), (4)(B), and
(4)(C), by inserting ``or permanent partnership'' after
``marriage'' each place it appears.
(5) Contents of petition.--Section 216(d)(1) of such Act (8
U.S.C. 1186a(d)(1)) is amended--
(A) in the heading of subparagraph (A), by
inserting ``or permanent partnership'' after
``marriage'';
(B) in subparagraph (A)(i), by inserting ``or
permanent partnership'' after ``marriage'';
(C) in subparagraph (A)(i)(I), by inserting before
the comma at the end ``, or is a permanent partnership
recognized under this Act'';
(D) in subparagraph (A)(i)(II)--
(i) by inserting ``or has not ceased to
satisfy the criteria for being considered a
permanent partnership under this Act,'' after
``terminated,''; and
(ii) by inserting ``or permanent partner''
after ``spouse'';
(E) in subparagraph (A)(ii), by inserting ``or
permanent partner'' after ``spouse''; and
(F) in subparagraph (B)(i)--
(i) by inserting ``or permanent
partnership'' after ``marriage''; and
(ii) by inserting ``or permanent partner''
after ``spouse''.
(6) Definitions.--Section 216(g) (8 U.S.C. 1186a(g)) is
amended--
(A) in paragraph (1)--
(i) by inserting ``or permanent partner''
after ``spouse'' each place it appears; and
(ii) by inserting ``or permanent
partnership'' after ``marriage'' each place it
appears;
(B) in paragraph (2), by inserting ``or permanent
partnership'' after ``marriage'';
(C) in paragraph (3), by inserting ``or permanent
partnership'' after ``marriage''; and
(D) in paragraph (4)--
(i) by inserting ``or permanent partner''
after ``spouse'' each place it appears; and
(ii) by inserting ``or permanent
partnership'' after ``marriage''.
(c) Conditional Permanent Resident Status for Certain Alien
Entrepreneurs, Spouses, Permanent Partners, and Children.--
(1) Section heading.--
(A) In general.--The heading for section 216A (8
U.S.C. 1186b) is amended by inserting ``or permanent
partners'' after ``spouses''.
(B) Clerical amendment.--The table of contents is
amended by amending the item relating to section 216A
to read as follows:
``Sec. 216A. Conditional permanent resident status for certain alien
entrepreneurs, spouses or permanent
partners, and children.''.
(2) In general.--Section 216A(a) (8 U.S.C. 1186b(a)) is
amended, in paragraphs (1), (2)(A), (2)(B), and (2)(C), by
inserting ``or permanent partner'' after ``spouse'' each place
it appears.
(3) Termination of status if finding that qualifying
entrepreneurship improper.--Section 216A(b)(1) (8 U.S.C.
1186b(b)(1)) is amended by inserting ``or permanent partner''
after ``spouse'' in the matter following subparagraph (C).
(4) Requirements of timely petition and interview for
removal of condition.--Section 216A(c) (8 U.S.C. 1186b(c)) is
amended, in paragraphs (1), (2)(A)(ii), and (3)(C), by
inserting ``or permanent partner'' after ``spouse''.
(5) Definitions.--Section 216A(f)(2) (8 U.S.C. 1186b(f)(2))
is amended by inserting ``or permanent partner'' after
``spouse'' each place it appears.
SEC. 427. REMOVAL, CANCELLATION OF REMOVAL, AND ADJUSTMENT OF STATUS.
(a) Removal Proceedings.--Section 240 (8 U.S.C. 1229a) is amended--
(1) in the heading of subsection (c)(7)(C)(iv), by
inserting ``permanent partners,'' after ``spouses,''; and
(2) in subsection (e)(1), by inserting ``or permanent
partner'' after ``spouse''.
(b) Cancellation of Removal; Adjustment of Status.--Section 240A(b)
(8 U.S.C. 1229b(b)) is amended--
(1) in paragraph (1)(D), by inserting ``or permanent
partner'' after ``spouse'';
(2) in the heading for paragraph (2), by inserting ``,
permanent partner,'' after ``Spouse''; and
(3) in paragraph (2)(A), by inserting ``, permanent
partner,'' after ``spouse'' each place it appears.
(c) Adjustment of Status of Nonimmigrant to That of Person Admitted
for Permanent Residence.--
(1) Prohibition on adjustment of status.--Section 245(d) (8
U.S.C. 1255(d)) is amended by inserting ``or permanent
partnership'' after ``marriage''.
(2) Avoiding immigration fraud.--Section 245(e) (8 U.S.C.
1255(e)) is amended--
(A) in paragraph (1), by inserting ``or permanent
partnership'' after ``marriage''; and
(B) by adding at the end the following new
paragraph:
``(4) Paragraph (1) and section 204(g) shall not apply with
respect to a permanent partnership if the alien establishes by
clear and convincing evidence to the satisfaction of the
Secretary of Homeland Security that the permanent partnership
was entered into in good faith and in accordance with section
101(a)(52) and the permanent partnership was not entered into
for the purpose of procuring the alien's admission as an
immigrant and no fee or other consideration was given (other
than a fee or other consideration to an attorney for assistance
in preparation of a lawful petition) for the filing of a
petition under section 204(a) or 214(d) with respect to the
alien permanent partner. In accordance with regulations, there
shall be only one level of administrative appellate review for
each alien under the previous sentence.''.
(3) Adjustment of status for certain aliens paying fee.--
Section 245(i)(1) (8 U.S.C. 1255(i)(1)) is amended by inserting
``or permanent partner'' after ``spouse'' each place it
appears.
SEC. 428. APPLICATION OF CRIMINAL PENALTIES FOR MISREPRESENTATION AND
CONCEALMENT OF FACTS REGARDING PERMANENT PARTNERSHIPS.
Section 275(c) (8 U.S.C. 1325(c)) is amended to read as follows:
``(c) Any individual who knowingly enters into a marriage or
permanent partnership for the purpose of evading any provision of the
immigration laws shall be imprisoned for not more than 5 years, or
fined not more than $250,000, or both.''.
SEC. 429. NATURALIZATION REQUIREMENTS.
(a) Requirements as to Residence, Good Moral Character, Attachment
to the Principles of the Constitution.--Section 316(b) (8 U.S.C.
1427(b)) is amended by inserting ``or permanent partner'' after
``spouse''.
(b) Naturalization for Permanent Partners of Citizens.--Section 319
(8 U.S.C. 1430) is amended--
(1) in subsection (a), by inserting ``or permanent
partner'' after ``spouse'' each place it appears;
(2) in subsection (a), by inserting ``or permanent
partnership'' after ``marital union'';
(3) in subsection (b)(1), by inserting ``or permanent
partner'' after ``spouse'';
(4) in subsection (b)(3), by inserting ``or permanent
partner'' after ``spouse'';
(5) in subsection (d)--
(A) by inserting ``or permanent partner'' after
``spouse'' each place it appears; and
(B) by inserting ``or permanent partnership'' after
``marital union'';
(6) in subsection (e)(1)--
(A) by inserting ``or permanent partner'' after
``spouse''; and
(B) by inserting ``or permanent partnership'' after
``marital union''; and
(7) in subsection (e)(2), by inserting ``or permanent
partner'' after ``spouse''.
SEC. 430. APPLICATION OF FAMILY UNITY PROVISIONS TO OTHER LAWS.
(a) Application of Family Unity Provisions to Permanent Partners of
Certain LIFE Act Beneficiaries.--Section 1504 of the LIFE Act (division
B of the Miscellaneous Appropriations Act, 2001, as enacted into law by
section 1(a)(4) of Public Law 106-554) is amended--
(1) in the heading, by inserting ``, permanent partners,''
after ``spouses'';
(2) in subsection (a), by inserting ``, permanent
partner,'' after ``spouse''; and
(3) in each of subsections (b) and (c)--
(A) in the subsection headings, by inserting ``,
Permanent Partners,'' after ``Spouses''; and
(B) by inserting ``, permanent partner,'' after
``spouse'' each place it appears.
(b) Application to Cuban Adjustment Act.--
(1) In general.--The first section of Public Law 89-732
(November 2, 1966; 8 U.S.C. 1255 note) is amended--
(A) in the next to last sentence, by inserting ``,
permanent partner,'' after ``spouse'' the first 2
places it appears; and
(B) in the last sentence, by inserting ``,
permanent partners,'' after ``spouses''.
(2) Conforming amendments.--
(A) Immigration and nationality act.--Section
101(a)(51)(D) (8 U.S.C. 1101(a)(51)(D)) is amended by
striking ``or spouse'' and inserting ``, spouse, or
permanent partner''.
(B) Violence against women act.--Section
1506(c)(2)(A)(i)(IV) of the Violence Against Women Act
of 2000 (8 U.S.C. 1229a note; division B of Public Law
106-386) is amended by striking ``or spouse'' and
inserting ``, spouse, or permanent partner''.
CHAPTER 3--REFORMS TO SPECIFIC EMPLOYMENT-BASED VISA CATEGORIES
Subchapter A--Reforms to the EB-5 Program
SEC. 431. EB-5 REGIONAL CENTER PROGRAM FEES.
(a) In General.--Section 610 of the Departments of Commerce,
Justice, and State, the Judiciary, and Related Agencies Appropriations
Act, 1993 (8 U.S.C. 1153 note) is amended--
(1) by striking ``pilot'' each place it appears;
(2) in subsection (b), by striking ``for 15 years''; and
(3) by adding at the end the following:
``(e) In addition to any other fees authorized by law, the
Secretary of Homeland Security shall impose a fee of $2,500 to apply
for designation as a regional center under this section. Fees collected
under this subsection shall be deposited in the Treasury in accordance
with section 286(x) of the Immigration and Nationality Act.''.
(b) Establishment of Account; Use of Fees.--Section 286 (8 U.S.C.
1356) is amended by adding at the end the following:
``(x) Immigrant Entrepreneur Regional Center Account.--
``(1) In general.--There is established in the general fund
of the Treasury a separate account, which shall be known as the
`Immigrant Entrepreneur Regional Center Account'.
Notwithstanding any other provision of law, there shall be
deposited as offsetting receipts into the account all fees
collected under section 610(b) of the Departments of Commerce,
Justice, and State, the Judiciary, and Related Agencies
Appropriations Act, 1993 (8 U.S.C. 1153 note) and any fees
collected in connection with forms I-526 or I-829.
``(2) Use of fees.--Fees collected under this section may
only be used by the Secretary of Homeland Security to
administer and operate the employment creation program
described in section 203(b)(5).''.
(c) Premium Processing Fee for EB-5 Immigrant Investors.--Section
286(u) (8 U.S.C. 1356(u)) is amended by adding at the end the
following: ``In the case of a petition filed under section 204(a)(1)(H)
for classification under section 203(b)(5), if the petitioner desires a
guarantee of a decision on the petition in 60 days or less, the premium
fee under this subsection shall be set at $2,500 and shall be deposited
as offsetting receipts in the Immigrant Entrepreneur Regional Center
Account established under subsection (x).''.
(d) Rulemaking.--Not later than 120 days after the date of the
enactment of this Act, the Secretary of Homeland Security shall
prescribe regulations to implement the amendments made by this section.
(e) Effective Date.--The amendments made by subsections (a)(3) and
(b) shall take effect on the effective date of the regulations
prescribed pursuant to subsection (c). The remaining amendments made by
this section shall take effect on the date of the enactment of this
Act.
SEC. 432. ADJUSTMENT OF STATUS.
(a) Eligibility for Adjustment of Status.--Section 245(k) (8 U.S.C.
1255(k)) is amended, in the matter preceding paragraph (1), by striking
``(1), (2), or (3)'' and inserting ``(1), (2), (3), or (5)''.
(b) Concurrent Filing of EB-5 Petitions and Applications for
Adjustment of Status.--Section 245 (8 U.S.C. 1255) is amended by adding
at the end the following:
``(n) If, at the time a petition is filed for classification
through a regional center under section 203(b)(5), approval of the
petition would make a visa immediately available to the alien
beneficiary, the alien beneficiary's adjustment application under this
section shall be considered to be properly filed whether the
application is submitted concurrently with, or subsequent to, the visa
petition.''.
SEC. 433. SET-ASIDE PROGRAMS.
(a) Improved Set-aside for Targeted Employment Areas.--Section
203(b)(5)(B) of the Immigration and Nationality Act (8 U.S.C.
1153(b)(5)(B)) is amended as follows:
(1) Targeted employment area defined.--Clause (ii) is
amended to read as follows:
``(ii) Targeted employment area defined.--
In this paragraph, the term `targeted
employment area' means, at the time a petition
for classification under this paragraph is
filed, any of the following:
``(iii) A rural area.
``(iv) An area that has experienced high
unemployment (of at least 150 percent of the
national average rate).
``(v) A county that has had a 20 percent or
more decrease in population since 1970.
``(vi) An area that is within the
boundaries established for purposes of a State
or Federal economic development incentive
program, including areas defined as Enterprise
Zones, Renewal Communities and Empowerment
Zones.
``(vii) An area designated by a State
agency to which the Governor has delegated the
authority to designate targeted employment
areas within the State.''.
(2) Rural area defined.--Clause (iii) is amended by
striking ``other than an area within a metropolitan statistical
area or''.
(3) Effect of prior determination.--Such section is amended
by adding at the end the following:
``(iv) Effect of prior determination.--In a
case in which a geographic area is determined
under clause (ii) to be a targeted employment
area, such determination shall remain in effect
during the 2-year period beginning on the date
of the determination for purposes of any alien
seeking a visa reserved under this
subparagraph.''.
(b) Set-aside of Visas for Regional Center Program.--Section 610(b)
of the Departments of Commerce, Justice, and State, the Judiciary, and
Related Agencies Appropriations Act, 1993 (8 U.S.C. 1153 note) is
amended by striking ``3,000'' and inserting ``10,000''.
SEC. 434. EXPANSION OF EB-5 PROGRAM.
(a) EB-5 Extension.--Subparagraph (A) of section 216A(d)(2) of the
Immigration and Nationality Act (8 U.S.C. 1186b(d)(2)(A)) is amended by
adding at the end the following: ``A date specified by the applicant
(but not later than the fourth anniversary) shall be substituted for
the second anniversary in applying the preceding sentence if the
applicant demonstrates that the applicant has attempted to follow his
business model in good faith, provides an explanation for the delay in
filing the petition that is based on circumstances outside of the
applicant's control, and demonstrates that such circumstances will be
able to be resolved within the specified period.''.
(b) EB-5 Program Study.--
(1) In general.--The Secretary, in appropriate consultation
with the Secretary of Commerce and other interested parties,
shall conduct a study concerning--
(A) current job creation counting methodology and
initial projections under section 203(b)(5) of the
Immigration and Nationality Act (8 U.S.C. 1153(b)(5));
and
(B) how best to promote the employment creation
program described in such section overseas to potential
immigrant investors.
(2) Report.--Not later than 1 year after the date of the
enactment of this Act, the Secretary shall submit a report to
the Congress containing the results of the study conducted
under paragraph (1).
(c) EB-5 Full-time Equivalents.--
(1) In general.--Section 203(b)(5)(A)(ii) (8 U.S.C.
1153(b)(5)(A)(ii)) is amended by inserting ``(or full-time
equivalent)'' after ``full-time''.
(2) Definition.--Section 203(b)(5)(D) (8 U.S.C.
1153(b)(5)(D)) is amended to read as follows:
``(D) Employment-related definitions.--
``(i) Full-time employment defined.--In
this paragraph, the term `full-time employment'
means employment in a position that requires at
least 35 hours of service per week at any time,
regardless of who fills the position.
``(ii) Full-time equivalent employment
defined.--In this paragraph, the term `full-
time equivalent employment' means employment
representing the number of full-time employees
that could have been employed if the reported
number of hours worked by part-time employees
had been worked by full-time employees. This
shall be calculated by dividing the part-time
hours paid by the standard number of hours for
full-time employees.''.
Subchapter B--Adjustments to Other Select Visa Programs
SEC. 435. ELIMINATION OF SUNSET PROVISIONS.
(a) Special Immigrant Nonminister Religious Worker Program.--
Section 101(a)(27)(C)(ii) (8 U.S.C. 1101 (a)(27)(C)(ii)) is amended by
striking ``September 30, 2012'' each place such term appears.
(b) Conrad State 30 Program.--Section 220(c) of the Immigration and
Nationality Technical Corrections Act of 1994 (8 U.S.C. 1182 note) is
amended by striking ``and before September 30, 2012.''.
SEC. 436. PERMANENT AUTHORIZATION OF THE NONIMMIGRANT NURSES IN HEALTH
PROFESSIONAL SHORTAGE AREAS PROGRAM.
(a) In General.--Section 2(e)(2) of the Nursing Relief for
Disadvantaged Areas Act of 1999 (8 U.S.C. 1182 note) is amended to read
as follows:
``(e) Application of Nonimmigrant Changes.--The amendments made by
this section shall apply to classification petitions filed for
nonimmigrant status only--
``(1) during the period--
``(A) beginning on the date that interim or final
regulations are first promulgated under subsection (d);
and
``(B) ending on the date that is 3 years after the
date of the enactment of the Nursing Relief for
Disadvantaged Areas Reauthorization Act of 2005; and
``(2) beginning on the date of enactment of the CIR Act of
2010.''.
(b) Inapplicability of Certain Regulatory Requirements.--The
requirements of chapter 5 of title 5, United States Code (commonly
referred to as the ``Administrative Procedure Act'') or any other law
relating to rulemaking, information collection or publication in the
Federal Register, shall not apply to any action to implement the
amendments made by section 2 to the extent the Secretary Homeland of
Security, the Secretary of Labor, or the Secretary of Health and Human
Services determines that compliance with any such requirement would
impede the expeditious implementation of such amendments.
SEC. 437. INCENTIVES FOR PHYSICIANS TO PRACTICE IN MEDICALLY
UNDERSERVED COMMUNITIES.
Section 214 of the Immigration and Nationality Act (8 U.S.C. 1184)
is amended--
(1) in subsection (g), by adding at the end the following:
``(12) An alien physician described in section 212(j)(2)(B)
who entered the United States as a nonimmigrant described in
section 101(a)(15)(H)(i)(b) to pursue graduate medical
education or training shall not be subject to the limitations
described in paragraphs (1) and (4), provided that the period
of authorized admission of such alien as an H-1B nonimmigrant
may not extend beyond the 6-year period beginning on the date
on which the alien receives the exemption described in
subparagraph (A), if--
``(A) an interested State agency submits a request
for an exemption under section 214(l)(1)(B), but not 1
of the 10 waivers or exemptions described in subsection
(l)(1)(D)(ii); and
``(B) the Secretary of State recommends that the
alien be exempted from such limitations.''; and
(2) in subsection (l)--
(A) in paragraph (1)--
(i) by striking ``the Attorney General
shall not grant such waiver unless'' and
inserting ``or for an exemption from the
limitations described in paragraphs (1) and (4)
of subsection (g) on behalf of an alien
described in subsection (g)(12), the Secretary
shall not grant such waiver or exemption
unless'';
(ii) in subsection (A), by inserting ``or
exemption'' before the semicolon at the end;
(iii) in subsection (B), by striking
``would not cause the number of waivers
allotted for that State for that fiscal year to
exceed 30'' and inserting ``or exemption would
not cause the total number of waivers plus the
total number of exemptions allotted for that
State for that fiscal year to exceed 30, unless
such allotment is increased pursuant to
paragraph (4)'';
(iv) in subsection (C)(ii), by inserting
``or exemption'' after ``waiver''; and
(v) in subsection (D)--
(I) in clause (ii), by striking
``would not cause the number of the
waivers'' and inserting ``or exemption
would not cause the total number of
waivers and exemptions''; and
(II) in clause (iii), by inserting
``or exemption'' after ``waiver'';
(B) in paragraph (2)(A), by striking ``status of an
alien and inserting status of an alien described in
212(e)(iii)''; and
(C) by adding at the end the following:
``(4) If at least 90 percent of the total number of waivers
and exemptions allotted under paragraph (1)(B) to States that
were granted not fewer than 5 such waivers or exemptions, in
the aggregate, during any 1 of the 3 previous fiscal years are
granted, on a nationwide basis, in the current fiscal year, the
allotment of such waivers and exemptions in the current fiscal
year shall be increased from 30 to 35 for each State. Such
allotments shall be further increased in increments of 5 each
time such 90 percent threshold of the adjusted allotment level
is reached, on a nationwide basis. The allotment for each State
shall reset to 30 at the beginning of each fiscal year.''.
SEC. 438. STUDENT VISA REFORM.
(a) In General.--
(1) Nonimmigrant classification.--Section 101(a)(15)(F) (8
U.S.C. 1101(a)(15)(F)) is amended to read as follows:
``(F) an alien--
``(i) who--
``(I) is a bona fide student
qualified to pursue a full course of
study in mathematics, engineering,
technology, or the sciences leading to
a bachelors or graduate degree and who
seeks to enter the United States for
the purpose of pursuing such a course
of study consistent with section 214(m)
at an institution of higher education
(as defined by section 101(a) of the
Higher Education Act of 1965 (20 U.S.C.
1001(a))) in the United States,
particularly designated by the alien
and approved by the Secretary of
Homeland Security, after consultation
with the Secretary of Education, which
institution or place of study shall
have agreed to report to the Secretary
the termination of attendance of each
nonimmigrant student, and if any such
institution of learning or place of
study fails to make reports promptly
the approval shall be withdrawn; or
``(II) is engaged in temporary
employment for optional practical
training related to such alien's area
of study following completion of the
course of study described in subclause
(I) for a period or periods of not more
than 24 months;
``(ii) who--
``(I) has a residence in a foreign
country which the alien has no
intention of abandoning, who is a bona
fide student qualified to pursue a full
course of study, and who seeks to enter
the United States temporarily and
solely for the purpose of pursuing such
a course of study consistent with
section 214(m) at an established
college, university, seminary,
conservatory, academic high school,
elementary school, or other academic
institution or in a language training
program in the United States,
particularly designated by the alien
and approved by the Secretary of
Homeland Security, after consultation
with the Secretary of Education, which
institution or place of study shall
have agreed to report to the Secretary
the termination of attendance of each
nonimmigrant student, and if any such
institution of learning or place of
study fails to make reports promptly
the approval shall be withdrawn; or
``(II) is engaged in temporary
employment for optional practical
training related to such alien's area
of study following completion of the
course of study described in subclause
(I) for a period or periods of not more
than 24 months;
``(iii) who is the spouse or minor child of
an alien described in clause (i) or (ii) if
accompanying or following to join such an
alien;
``(iv) who--
``(I) is a national of Canada or
Mexico, who maintains actual residence
and place of abode in the country of
nationality, who is described in clause
(i) or (ii) except that the alien's
qualifications for and actual course of
study may be full- or part-time, and
who commutes to the United States
institution or place of study from
Canada or Mexico; or
``(II) is engaged in temporary
employment for optional practical
training related to such student's area
of study following completion of the
course of study described in subclause
(I) for a period or periods of not more
than 24 months; or
``(v) who--
``(I) maintains actual residence
and place of abode in the alien's
country of nationality; and
``(II) is described in clause (i),
except that the alien's actual course
of study may involve a distance
learning program, for which the alien
is temporarily visiting the United
States for a period of up to 30
days.''.
(2) Admission.--Section 214(b) (8 U.S.C. 1184(b)) is
amended by inserting ``(F)(i),'' before ``(L) or (V)''.
(3) Conforming amendment.--Section 214(m)(1) (8 U.S.C.
1184(m)(1)) is amended, in the matter preceding subparagraph
(A), by striking ``(i) or (iii)'' and inserting ``(i), (ii),
(iv), or (v)''.
(b) Off-campus Work Authorization for Foreign Students.--
(1) In general.--Aliens admitted as nonimmigrant students
described in section 101(a)(15)(F), as amended by subsection
(a), (8 U.S.C. 1101(a)(15)(F)) may be employed in an off-campus
position unrelated to the alien's field of study if--
(A) the alien has enrolled full-time at the
educational institution and is maintaining good
academic standing;
(B) the employer provides the educational
institution and the Secretary of Labor with an
attestation that the employer--
(i) has spent at least 21 days recruiting
United States citizens to fill the position;
and
(ii) will pay the alien and other similarly
situated workers at a rate not less than the
greater of--
(I) the actual wage level for the
occupation at the place of employment;
or
(II) the prevailing wage level for
the occupation in the area of
employment; and
(C) the alien will not be employed more than--
(i) 20 hours per week during the academic
term; or
(ii) 40 hours per week during vacation
periods and between academic terms.
(2) Disqualification.--If the Secretary of Labor determines
that an employer has provided an attestation under paragraph
(1)(B) that is materially false or has failed to pay wages in
accordance with the attestation, the employer, after notice and
opportunity for a hearing, shall be disqualified from employing
an alien student under paragraph (1).
SEC. 439. TEMPORARY VISAS FOR INDIVIDUALS FROM IRELAND.
(a) Definition.--Section 101(a)(15)(E)(iii) (8 U.S.C.
1101(a)(15)(E)) is amended by inserting ``or solely to perform services
as an employee who meets the requirements of section 203(d)(2) if the
alien is a national of the republic of Ireland'' after ``Australia''.
(b) Temporary Admission of Inadmissible Aliens.--Clause (i) of
section 212(a)(d)(3)(A) (8 U.S.C. 1182(d)(3)(A)) is amended by
inserting before the semicolon the following: ``provided that such
recommendation and approval shall not be required for the issuance of a
visa pursuant to section 101(a)(15)(E) for ineligibility under
paragraphs (6), (7) or (9) of section 212(a) that is based on conduct
occurring prior to the date of enactment of this Act''.
(c) Numerical Limitations.--Section 214(g)(11)(B)(8 U.S.C.
1184(g)(11)(B)) is amended by inserting ``for each of the nationalities
included in section 101(a)(15)(E)(iii)'' before the period.
SEC. 440. S VISAS.
(a) Expansion of S Visa Classification.--Section 101(a)(15)(S) (8
U.S.C. 1101(a)(15)(S)) is amended--
(1) in clause (i)--
(A) by striking ``Attorney General'' each place
that term appears and inserting ``Secretary of Homeland
Security'';
(B) in subclause (I), by inserting before the
semicolon, ``, including a criminal enterprise
undertaken by a foreign government, its agents,
representatives, or officials'';
(C) in subclause (III), by inserting ``if the
information concerns a criminal enterprise undertaken
by an individual or organization that is not a foreign
government, its agents, representatives, or
officials,'' before ``whose''; and
(D) by striking ``or'' at the end; and
(2) in clause (ii)--
(A) by striking ``Attorney General'' and inserting
``Secretary of Homeland Security''; and
(B) by striking ``1956,'' and all that follows
through ``the alien;'' and inserting the following:
``1956; or
``(iii) who the Secretary of Homeland
Security and the Secretary of State, in
consultation with the Director of Central
Intelligence, jointly determine--
``(I) is in possession of critical
reliable information concerning the
activities of governments or
organizations, or their agents,
representatives, or officials, with
respect to weapons of mass destruction
and related delivery systems, if such
governments or organizations are at
risk of developing, selling, or
transferring such weapons or related
delivery systems; and
``(II) is willing to supply or has
supplied, fully and in good faith,
information described in subclause (I)
to appropriate persons within the
United States Government; and
if the Secretary of Homeland Security (or with
respect to clauses (ii) and (iii), the
Secretary of State and the Secretary of
Homeland Security jointly) considers it to be
appropriate, the spouse, children, married and
unmarried sons and daughters, and parents of an
alien described in clause (i), (ii), or (iii)
if accompanying, or following to join, the
alien;''.
(b) Numerical Limitation.--Section 214(k)(1) (8 U.S.C. 1184(k)(1))
is amended to read as follows:
``(1) The number of aliens who may be provided a visa as
nonimmigrants under section 101(a)(15)(S) in any fiscal year
may not exceed 1,000.''.
(c) Reports.--
(1) Content.--Section 214(k)(4) (8 U.S.C. 1184(k)(4)) is
amended--
(A) in the matter preceding subparagraph (A)--
(i) by striking ``Attorney General'' and
inserting ``Secretary of Homeland Security'';
and
(ii) by striking ``concerning'' and
inserting ``that includes'';
(B) in subparagraph (D), by striking ``and'' at the
end;
(C) in subparagraph (E), by striking the period at
the end and inserting ``; and''; and
(D) by adding at the end the following:
``(F) if the total number of such nonimmigrants
admitted is fewer than 25 percent of the total number
provided for under paragraph (1)--
``(i) the reasons for the reduced number of
such nonimmigrants;
``(ii) the efforts made by the Secretary of
Homeland Security to admit such nonimmigrants;
and
``(iii) any extenuating circumstances that
contributed to the reduced number of such
nonimmigrants.''.
(2) Form of report.--Section 214(k) (8 U.S.C. 1184(k)) is
amended by adding at the end the following:
``(5) To the extent required by law and if it is in the
interests of national security or the security of such
nonimmigrants that are admitted, as determined by the Secretary
of Homeland Security--
``(A) the information contained in a report
described in paragraph (4) may be classified; and
``(B) the Secretary of Homeland Security shall, to
the extent feasible, submit a non-classified version of
the report to the Committee on the Judiciary of the
House of Representatives and the Committee on the
Judiciary of the Senate.''.
CHAPTER 4--PROTECTION OF H-2B NONIMMIGRANTS AND WORKERS RECRUITED
ABROAD
SEC. 441. DEFINITIONS.
(a) In General.--Except as otherwise provided by this title, the
terms used in this title shall have the same meanings, respectively, as
are given those terms in section 3 of the Fair Labor Standards Act of
1938.
(b) Other Definitions.--As used in this chapter:
(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-2B nonimmigrant is
or will be performed. If such worksite or location is within a
Metropolitan Statistical Area, any place within such area shall
be deemed to be within the area of employment.
(2) Building and grounds cleaning and maintenance
occupation.--The term ``Building and Grounds Cleaning and
Maintenance occupation'' means any occupation listed as a
Building and Grounds Cleaning and Maintenance occupation in the
Department of Labor's Standard Occupational Classification (as
published by such Department).
(3) Construction occupation.--The term ``construction
occupation'' means any occupation listed as a construction or
extraction occupation in the Department of Labor's Standard
Occupational Classification (as published by such Department),
except that it does not include any occupation listed in such
classification as an extraction worker occupation.
(4) Displace.--In the case of an application with respect
to one or more H-2B non immigrants by an employer, the employer
is considered to ``displace'' a United States worker from a job
if the employer lays off the worker from a job that is
essentially the equivalent of the job for which the
nonimmigrant or non immigrants is or are sought. A job shall
not be considered to be essentially equivalent of an other job
unless it involves essentially the same responsibilities, was
held by a United States worker with substantially equivalent
qualifications and experience, and is located in the same area
of employment as the other job.
(5) Foreign labor contracting activity.--The term ``foreign
labor contracting activity'' means recruiting, soliciting for
hire, or furnishing an individual who resides outside of the
United States to be employed in the United States. The term
shall not include such activity performed by labor
organizations, including labor organizations representing
agricultural laborers.
(6) Foreign labor contractor.--The term ``foreign labor
contractor'' means any person who performs any foreign labor
contracting activity. The term shall not include labor
organizations, including labor organizations representing
agricultural laborers.
(7) Foreign worker program.--The term ``foreign worker
program'' means any program authorized by the Immigration and
Nationality Act to employ nonimmigrants described in
subparagraphs (B), (E), (H), (J), (L), (O), (P), or (R) of
section 101(a)(15) of such Act (8 U.S.C. 1101(a)(15)).
(8) H-2B nonimmigrant.--The term ``H-2B nonimmigrant''
means an alien admitted or provided status as a nonimmigrant
described in section 101(a)(15)(H)(ii)(B).
(9) Lays off.--
(A) In general.--The term ``lays off'', with
respect to a worker--
(i) means to cause the 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 (1)(E)); 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
at equivalent or higher compensation and
benefits than the position from which the
employee was discharged, regard less of whether
or not the employee accepts the offer.
(B) Construction.--Nothing in this subparagraph is
intended to limit an employee's rights under a
collective bargaining agreement or other employment
contract.
(10) Metal workers occupation.--The term ``Metal Workers
occupation'' means any occupation listed as a metal worker or
plastic worker occupation in the Department of Labor's Standard
Occupational Classification (as published by such Department).
(11) Registered h-2b employer.--The term ``registered H-2B
employer'' means an employer that has been registered by the
Secretary of Labor under paragraph (2) to employ an H-2B
nonimmigrant.
(12) Secretary.--The term ``Secretary'' means the Secretary
of Labor.
(13) State.--The term ``State'' means any State of the
United States and includes the District of Columbia, Puerto
Rico, Guam, American Samoa, the Commonwealth of the Northern
Mariana Islands, and the Virgin Islands of the United States.
(14) Substantial failure.--The term ``substantial failure''
means the willful failure to comply with the requirements of
this section that constitutes a significant deviation from the
terms and conditions of an application.
(15) United states worker.--The term ``United States
worker'' means an employee who--
(A) is a citizen or national of the United States;
or
(B) is an alien who is lawfully admitted for
permanent residence, is admitted as a refugee under
section 207, is granted asylum under section 208, or is
an immigrant otherwise authorized, by this Act or by
the Secretary of Homeland Security, to be employed.
(16) Worker.--The term ``worker'' means an individual who
is the subject of foreign labor contracting activity.
SEC. 442. PROTECTIONS FOR WORKERS RECRUITED ABROAD.
(a) Disclosure of Working Conditions.--Any person who engages in
foreign labor contracting activity shall ascertain and disclose, to
each worker who is recruited for employment at the time of the worker's
recruitment--
(1) the place of employment;
(2) the compensation for the employment;
(3) a description of employment activities;
(4) the period of employment;
(5) any travel or transportation expenses to be assessed;
(6) any other employee benefit to be provided and any costs
to be charged for each benefit;
(7) the existence of any strike or lockout in the course of
a labor dispute at the place of employment;
(8) the existence of any arrangement with any person
involving the receipt of a commission or any other benefit for
the provision of items or services to workers;
(9) the extent to which workers will be compensated through
workers' compensation, private insurance, or otherwise for
injuries or death, including--
(A) work related injuries and death during the
period of employment;
(B) the name of the State workers' compensation
insurance carrier or the name of the policyholder of
the private insurance;
(C) the name and telephone number of each person
who must be notified of an injury or death; and
(D) the time period within which such notice must
be given;
(10) any education or training to be provided or required,
including--
(A) the nature and cost of such training;
(B) the person that will pay such costs; and
(C) whether the training is a condition of
employment, continued employment, or future employment;
and
(11) a statement, in a form specified by the Secretary of
Labor, describing the protections of this section and of the
Trafficking Victims Protection Act of 2000 (division A of
Public Law 106-486), including relevant complaint line
information, for workers recruited abroad.
(b) False or Misleading Information.--No person who engages in
foreign labor contracting activity shall knowingly provide materially
false or misleading information to any worker concerning any matter
required to be disclosed in paragraph (1).
(c) Form of Disclosure.--The information required to be disclosed
under paragraph (1) shall be provided in writing in English or, as
necessary and reasonable, in the language of the worker being
recruited. The Secretary of Labor shall make forms available in
English, Spanish, and other languages, as necessary and reasonable,
which may be used in providing workers with information required under
this section.
(d) Recruitment Fees.--No person conducting foreign labor
contracting activity shall assess any fee to a worker for such foreign
labor contracting activity.
(e) Transportation Costs.--The employer shall bear the
transportation costs, including subsistence costs during the period of
travel, for the worker from the worker's home residence at the time of
recruitment to the place of employment either through direct payment or
reimbursement in the first workweek and from the place of employment to
such worker's place of permanent residence.
(f) Unlawful Discrimination.--
(1) Discrimination prohibited.--It shall be unlawful for an
employer or a foreign labor contractor to discharge any
individual, or otherwise discriminate against an individual
with respect to compensation, terms, conditions, or privileges
of employment because such individual's race, color, creed,
sex, national origin, religion, age, or disability.
(2) Determination.--For the purposes of determining the
existence of unlawful discrimination under paragraph (1)--
(A) in the case of a claim of discrimination based
on race, color, creed, sex, national origin, or
religion, the same legal standards shall apply as are
applicable under title VII of the Civil Rights Act of
1964 (42 U.S.C. 2000e et seq.);
(B) in the case of a claim of discrimination based
on unlawful discrimination based on age, the same legal
standards shall apply as are applicable under the Age
Discrimination in Employment Act of 1967 (29 U.S.C. 621
et seq.); and
(C) in the case of a claim of discrimination based
on disability, the same legal standards shall apply as
are applicable under title I of the Americans With
Disabilities Act (42 U.S.C. 12101 et seq.).
(g) Discrimination Prohibited Against Workers Seeking Relief Under
This Chapter.--No person shall intimidate, threaten, restrain, coerce,
blacklist, discharge, or in any manner discriminate against any worker
because such worker has, with just cause, filed any complaint or
instituted, or caused to be instituted, any proceeding under or related
to this chapter, or has testified or is about to testify in any such
proceedings, or because of the exercise, with just cause, by such
worker on behalf of himself or others of any right or protection
afforded by this chapter.
(h) Procedures in Addition to Other Rights of Employees.--The
rights and remedies provided to workers under this chapter are in
addition to any other contractual or statutory rights and remedies of
the workers, and are not intended to alter or affect such rights and
remedies.
(i) Authority to Prescribe Regulations.--The Secretary of Labor
shall prescribe such regulations as may be necessary to carry out this
chapter.
SEC. 443. ENFORCEMENT PROVISIONS.
(a) Complaints and Investigations.--
(1) In general.--The Secretary of Labor shall establish a
process for the receipt, investigation, and disposition of
complaints respecting the application of a predominant wage
level proposed by an employer seeking certification under this
subsection, an employer's failure to meet a condition specified
in an application submitted under paragraph (2) or (3) or an
applicant's misrepresentation of material facts in such an
application but not the methodology used to calculate the
predominant wage level itself. Complaints may be filed by any
aggrieved person or organization (including bargaining
representatives). No investigation or hearing shall be
conducted on a complaint concerning such a failure or
misrepresentation unless the complaint was filed not later than
12 months after the date of the failure or misrepresentation,
respectively. The Secretary shall conduct an investigation
under this paragraph if there is reasonable cause to believe
that such a failure or misrepresentation has occurred.
(2) Investigations.--The Secretary of Labor may initiate an
investigation of any employer that employs nonimmigrants
described in section 101(a)(15)(H)(ii)(b) or (c) if the
Secretary of Labor has reasonable cause to believe that the
employer is not in compliance with this subsection. The
Secretary of Labor may consider information submitted by an
employer to the Secretary of Homeland Security or the Secretary
of Labor for purposes of securing the employment of a
nonimmigrant described in section 101(a)(15)(H)(ii)(b) or (c)
when determining whether the Secretary of Labor has reasonable
cause to believe that an employer is not in compliance with
this section. An investigation initiated and conducted under
this subparagraph may be considered a complaint under the
process established pursuant to subparagraph (A).
(3) Reasonable basis.--Under the process established
pursuant to subparagraph (A), the Secretary of Labor shall
determine, not later than 30 days after the date such a
complaint is filed, whether a reasonable basis exist to make a
finding described in subparagraph (B). If the Secretary
determines that such a reasonable basis exists, the Secretary
shall provide for notice of such determination to the
interested parties and an opportunity for a hearing on the
complaint, in accordance with section 556 of title 5, United
States Code, not later than 60 days after the date of the
determination. If such a hearing is requested, the Secretary
shall make a finding concerning the matter by not later than 60
days after the date of the hearing. In the case of similar
complaints respecting the same applicant, the Secretary may
consolidate the hearings under this subparagraph on such
complaints.
(4) Penalties.--If the Secretary of Labor finds, after
notice and an opportunity for a hearing, a substantial failure
to meet any of the conditions of the application described
under paragraph (2) or (3), a willful misrepresentation of a
material fact in such application, or a violation of
subparagraph (F)--
(A) the Secretary of Labor shall notify the
Secretary of Homeland Security of such finding and may,
in addition to any other remedy authorized by law,
impose such administrative remedies (including civil
monetary penalties in an amount not to exceed $10,000
per violation) as the Secretary of Labor determines to
be appropriate;
(B) the Secretary of Labor may not approve
applications filed with respect to that employer under
paragraph (2) or (3) during a period of at least 1 year
but not more than 5 years for aliens to be employed by
the employer; and
(C) the Secretary of Homeland Security may not
approve petitions filed with respect to that employer
under section 204 or 214(c) during a period of at least
1 year for aliens to be employed by the employer.
(5) Criminal sanctions.--Whoever knowingly violates this
chapter shall be fined up to $3,000 per violation or imprisoned
not more than one year, or both. Upon conviction, after a first
conviction under this section, for a second or subsequent
violation of this chapter, the defendant shall be fined up to
$10,000 or imprisoned not more than three years, or both.
(6) Highest penalties.--In determining the level of
penalties to be assessed under subparagraph (D), the highest
penalties shall be reserved for willful failures to meet any of
the conditions of the application that involve harm to United
States workers.
(7) Discrimination or retaliation prohibited.--It is a
violation of this subparagraph for an employer who has filed an
application under this subsection to intimidate, threaten,
restrain, coerce, discharge, or in any other manner
discriminate or retaliate against an employee (including a
former employee or an applicant for employment) because the
employee--
(A) has disclosed information to the employer, or
to any other person, that the employee reasonably
believes evidences a violation of this subsection, or
any rule or regulation pertaining to this subsection;
or
(B) cooperates, or seeks to cooperate, in an
investigation or other proceeding concerning the
employer's compliance with the requirements of this
subsection, or any rule or regulation pertaining to
this subsection.
(b) Authority To Ensure Compliance.--The Secretary of Labor may
bring an action in any court of competent jurisdiction as may be
necessary to assure employer compliance with terms and conditions of
employment under this subsection, including imposing appropriate
penalties and seeking appropriate injunctive relief and specific
performance of contractual obligations. The rights and remedies
provided to H-2B workers by this subsection are in addition to, and not
in lieu of, any other contractual or statutory rights and remedies of
such workers, and are not intended to alter or affect such rights and
remedies.
SEC. 444. TRANSFER OF FOREST, CONSERVATION, NURSERY, AND LOGGING
WORKERS TO THE H-2A AGRICULTURAL WORKER PROGRAM.
(a) Classification as Agricultural Labor.--Any farming, fishing, or
forestry occupation (as included in this major group the Standard
Occupational Classification published by the Department of Labor's
Bureau of Labor Statistics) shall be considered agricultural labor for
the purposes of employing nonimmigrants described in
section101(a)(15)(H)(ii)(a) of the Immigration and Nationality Act (8
U.S.C. 1101(a)(15)(H)(ii)(a)).
(b) Simultaneous Classification.--Any workers currently considered
seasonal agricultural workers under the Migrant Seasonal Worker
Protection Act (29 U.S.C. 1801 et seq.) shall retain their simultaneous
classification under such Act.
SEC. 445. H-2B NONIMMIGRANT LABOR CERTIFICATION APPLICATION FEES.
(a) Establishment of Fees.--Section 212(a)(5)(A) (8 U.S.C.
1182(a)(5)(A)) is amended by adding the following:
``(v) Establishment of h-2b employment
certification application fee.--
``(I) In general.--The Secretary of
Labor shall impose a fee on an employer
that submits an application for an
employment certification for aliens
granted nonimmigrant status under
section 101(a)(15)(H)(ii)(b) to the
Secretary of Labor under this
subparagraph.
``(II) Fee during initial year.--
During the 12-month period beginning on
the date of the enactment of this
clause, the fee imposed under subclause
(I) shall be $800 for each application.
``(III) Additional fee per
worker.--In addition to the application
fee required under clause (i), the
Secretary shall require each employer
to pay a fee of $300, to be deposited
in the Treasury in accordance with
section 286(x), for each H-2B worker
position requested in an application
described in subparagraph (A).
``(IV) Fee after initial year.--
After the expiration of the period
described in subclause (II), the fee
imposed under subclause (I) shall be
set at a level the Secretary of Labor
determines will--
``(aa) ensure recovery of
the full costs of carrying out
labor certification activities
under this subparagraph; and
``(bb) recover any
additional costs associated
with the administration of the
fees collected.
``(V) Prohibition on employer
accepting reimbursement of fee.--
``(aa) In general.--An
employer subject to a fee under
this clause may not require or
accept reimbursement, directly
or indirectly, of or other
compensation for all or part of
the cost of such fee.
``(bb) Civil penalty.--If
the Secretary of Labor
determines, after notice and
opportunity for a hearing, that
an employer has violated item
(aa), the Secretary of Labor
may impose a civil penalty in
an amount not to exceed $5,000
per violation.
``(VI) Deposit of fees and
penalties.--Fees and civil penalties
collected under this clause shall be
deposited in the `H-2B Employment
Certification Application Fee Account'
established under section 286(x).''.
(b) Establishment of Account and Use of Fund.--Section 286 (8
U.S.C. 1356) is amended by adding at the end the following:
``(x) H-2B Employment Certification Application Fee Account.--
``(1) Establishment of account.--There is established in
the general fund of the Treasury a separate account, which
shall be known as the `H-2B Employment Certification
Application Fee Account'. Notwithstanding any other provision
of this title, there shall be deposited as offsetting receipts
into the account all amounts from the fees and civil penalties
collected under section 212(a)(5)(A)(v).
``(2) Use of fees.--Of the amounts deposited into the H-2B
Employment Certification Application Fee Account under this
subsection in each fiscal year, the Secretary of Labor shall
use such amounts as the Secretary of Labor determines are
necessary for the costs of Federal administration, including
personnel, in carrying out labor certification activities under
section 212(a)(5)(A), and to assist the States, as appropriate,
in the determination of prevailing wages for purposes of
carrying out such section.
``(3) Availability of funds.--The fees deposited into the
H-2B Employment Certification Application Fee Account under
this subsection shall remain available until expended for the
activities described in paragraph (2).''.
(c) Program Integrity.--Section 212(a)(5)(A) (8 U.S.C.
1182(a)(5)(A)), as amended by subsection (a), is further amended by
adding at the end the following:
``(vi) Program integrity regulations.--The
Secretary of Labor may prescribe such
regulations as may be necessary to ensure the
integrity of the labor certification process
carried out under this subparagraph, including
standards and procedures under which employers
and their representatives are excluded from
participation in the labor certification
process under this subparagraph.''.
SEC. 446. LABOR AGREEMENT PROVISIONS.
(a) Recruitment of United States Workers.--Section 212 (8 U.S.C.
1182) is amended--
(1) in subsection (p)(3), by striking ``(a)(5)(A),
(n)(1)(A)(i)(II),'' and inserting ``(n)(1)(A)(i)(II)'';
(2) by redesignating subsection (t) (as added by section
1(b)(2)(B) of Public Law 108-449) as subsection (u); and
(3) by adding at the end the following:
``(v)(1) Except as provided under paragraph (5), an employer that
seeks to employ an alien described in section 101(a)(15)(H)(ii)(b)
(referred to in this subsection as an `H-2B nonimmigrant') shall take
the following steps to recruit United States workers for the position
for which the alien is sought not later than 14 days before filing an
application under paragraph (3):
``(A) The employer shall submit a copy of the job offer,
including a description of wages and other terms and conditions
of employment, to the State workforce agency that serves the
area of employment in the State in which the employer is
located (referred to in this subsection as the `SWA'). The SWA
shall provide the employer with an acknowledgment of receipt of
such documentation in accordance with this paragraph.
``(B) The employer shall authorize the SWA to post the job
opportunity on the Internet, with local job banks, with other
State workforce agencies, and with unemployment agencies and
other labor referral and recruitment sources pertinent to such
job opportunity.
``(C) The employer shall authorize the SWA to provide
notification of the job opportunity to--
``(i) the central office of the State Federation of
Labor in the State in which the job is located; and
``(ii) the office of the local union which
represents the employees in the same or substantially
equivalent job classification, if applicable.
``(D) The employer shall--
``(i) provide notice of the job opportunity to the
bargaining representative (if any) of the employer's
employees in the occupational classification and area
for which the employer is seeking a worker, or
``(ii) if there is no such bargaining
representative, post the availability of the job
opportunity for which the employer is seeking a worker
in conspicuous locations at the place or places of
employment or in some other manner that provides reason
able notification to all employees in the occupational
classification and in the same area of intended
employment for which H-2B nonimmigrants are sought.
``(E) The employer shall advertise the availability of the
job opportunity for which the employer is seeking a worker in
one or more publications in the labor market that is likely to
be patronized by potential applicants (as determined by the
SWA). Such advertisement, at a minimum, shall--
``(i) describe the job opportunity and term of
employment;
``(ii) state the wage rate to be offered;
``(iii) summarize the employer's minimum job
requirements; ``(iv) offer training if the job
opportunity is the type for which employers normally
provide training; and``(v) be posted for 3 consecutive
issues during the first half of the 21-day recruitment
period.
``(F) If the job involved in the application requires a
particular skill or an advanced degree, and a professional or
trade journal normally would be used to advertise the job
opportunity, the local job service may require the employer to
place an advertisement in the journal most likely to bring
responses from able, willing, qualified, and available United
States workers.
``(G) In no event shall the employer advertise such job
opportunity to United States workers using wages or other terms
and conditions of employment which are less favorable for
United States workers than those to be offered to an H-2B
nonimmigrant of similar qualifications.
``(2) Exception for Non-registered h-2b Employers.--
``(A) In general.--An employer that is not registered under
paragraph (2) but that seeks to employ an H-2B nonimmigrant in
an occupational classification may file an application under
paragraph (3) to employ one or more H-2B nonimmigrants if the
employer demonstrates to the Secretary of Labor that:
``(i) the failure to hire such workers to address a
temporary need for labor or services would directly
result in the loss of jobs for United States workers
and would deprive the impacted community of a
substantial economic benefit (as certified by a State
or regional economic development authority, including
consultation with any relevant union);
``(ii) labor, geographical, or other conditions
substantially prevent the employer from meeting such
need for labor or services with workers in the United
States;
``(iii) the employer has not been found to have
violated, within the last 5 years, applicable Federal,
State and local employment-related laws and
regulations, including employment-related health and
safety laws; and
``(iv) the employer has not been found to have
violated, within the last 5 years, a material term or
condition of any foreign worker program.
``(B) Limitation.--The number of H-2B nonimmigrants
admitted under this paragraph may not exceed 1,000.
``(3) Limitations on Employment.--
``(A) Duration of employment.--Certification of an H-2B
nonimmigrant for employment with an employer in the United
States shall be limited to a maximum of 10 months per employer.
An H-2B nonimmigrant shall not be certified for more than 5
years without returning to his country of origin. The Secretary
of State and Secretary of Homeland Security may allow admission
of the H-2B nonimmigrant into the United States for additional
periods, of no more than 60 days in the aggregate, to allow for
travel to and from the worksite and transfer between H-2B
employers.
``(B) Transfer of h-2b nonimmigrants between employers.--
``(i) In general.--An H-2B nonimmigrant may not
accept employment from any employer in the United
States other than an employer with an approved H-2B
application filed on behalf of such nonimmigrant under
paragraph (3). An employer may not trade, transfer, or
otherwise provide an H-2B nonimmigrant to any other
employer for employment in the United States.
``(ii) Construction.--Nothing in this paragraph
prohibits an H-2B nonimmigrant in the United States
from accepting new employment with a new employer upon
approval of a petition filed by such employer on the H-
2B nonimmigrant's behalf.
``(C) Availability of united states worker.--The employer
shall be required to provide employment to any able and
qualified United States worker who applies to the employer
prior to 30 days before the commencement of the H-2B
nonimmigrant's employment.
``(4) Compliance and Statistics.--
``(A) Public examination.--The Secretary of Labor shall
make available for public examination, including by posting
over the Internet, the following:
``(i) within 60 days of the close of the
registration period under paragraph (2), a list of all
employers registered under such paragraph;
``(ii) upon the filing of an application by an
employer under paragraph (3), a copy of such
application, except that the Secretary shall redact any
proprietary in formation from such application; and
``(iii) a list (by employer, location and
occupational classification), compiled on a current
basis, of the applications filed under this subsection.
Such list shall include the wage rate, number of aliens
sought, period of intended employment, and dates of
need.
``(B) Maintenance of documentation.--The employer shall
maintain for at least 3 years after the filing of the
application or the employment relationship is terminated,
whichever is later, documentation evidencing compliance with
the conditions in paragraph (3) and recruitment efforts in
paragraph (4).
``(C) Audit authority.--On a yearly basis, the Secretary of
Labor shall audit at least 5 percent of employers employing H-
2B nonimmigrants to determine compliance with the terms and
conditions of this subsection.
``(5) Complaints and Investigations.--
``(A) In general.--The Secretary of Labor shall establish a
process for the receipt, investigation, and disposition of
complaints respecting the application of a predominant wage
level proposed by an employer seeking certification under this
subsection, but not the methodology used to calculate the
predominant wage level itself, an employer's failure to meet a
condition specified in an application submitted under paragraph
(2) or (3) or an applicant's misrepresentation of material
facts in such an application. Complaints may be filed by any
aggrieved person or organization (including bargaining
representatives). No investigation or hearing shall be
conducted on a complaint concerning such a failure or
misrepresentation unless the complaint was filed not later than
one year after the date of the failure or misrepresentation,
respectively. The Secretary shall conduct an investigation
under this paragraph if there is reasonable cause to believe
that such a failure or misrepresentation has occurred.''.
(b) Petitions by Employers That Have Signed Labor Agreements With
Unions That Operate Hiring Halls.--Section 212(v), as added by
subsection (a), is amended by adding at the end the following:
``(6) An employer that seeks to hire an H-2B nonimmigrant
may file an application with the Secretary of Labor in
accordance with this paragraph, instead of complying with
paragraphs (1) through (4), if--
``(A) the employer has signed a labor agreement
with a labor organization (as defined in section 2(5)
of the Labor-Management Relations Act (29 U.S.C.
152(5)) under which the labor organization is
responsible for referring applicants for employment to
the employer under a procedure commonly known as a
`hiring hall' or `referral hall'; and
``(B) the application is accompanied by a written
statement prepared by the labor organization attesting
that--
``(i) the labor organization operates a
hiring hall that, pursuant to contractual
agreement and actual practice, is a source of
employees in the same or substantially
equivalent occupational classification in which
the employer seeks to employ an H-2B
nonimmigrant;
``(ii) the labor organization does not have
a sufficient number of qualified applicants
available for referral in the same or
substantially equivalent occupational
classification in which the employer seeks to
employ an H-2B nonimmigrant;
``(iii) the labor organization has
advertised, for at least 5 consecutive days,
the availability of the job opportunity for
which the employer is seeking to employ an H-2B
nonimmigrant in the publication with the
highest circulation in the labor market that is
likely to be patronized by potential
applicants;
``(iv) the employer is contractually
obligated to pay all employees, in the same or
substantially equivalent occupational
classification in which the employer seeks to
employ an H-2B nonimmigrant, wages and benefits
set forth in a labor agreement with the labor
organization, which equals or exceeds the
prevailing wage rate the employer would be
obligated to pay; and
``(v) the H-2B nonimmigrants who the
employer seeks to employ will be paid not less
than the same wages and benefits and be subject
to the same terms and conditions of employment
set forth in the employer's labor agreement
with the labor organization.''.
(c) Prevailing Wages for United States Workers and H-2B Workers.--
Section 212 (8 U.S.C. 1182), as amended by this section, is further
amended by adding at the end the following:
``(w)(1) No alien may be admitted or provided status as a
nonimmigrant under section 101(a)(15)(H)(ii)(b) in an occupational
classification unless the Secretary of Labor certifies that the
employer--
``(A) is offering and will offer during the period of
authorized employment to aliens admitted or provided such
status the wage rate set forth in the collective bargaining
agreement, if the job opportunity is covered by a collective
bargaining agreement;
``(B) if the job opportunity is not covered by a collective
bargaining agreement, the wage the employer is offering and
will offer, to any alien or United States worker employed by or
offered employment by the employer, during the period of
authorized employment for aliens admitted or provided such
status, wages that are not less than the higher of--
``(i) the wage determination, if any, issued
pursuant to subchapter IV of chapter 31 of title 40,
United States Code (commonly known as the `Davis-Bacon
Act');
``(ii) the wage determination, if any, issued
pursuant to the Service Contract Act of 1965 (41 U.S.C.
351 et seq.);
``(iii) the median rate of the highest 66 percent
of the wage data applicable to such occupational
classification under the most recently published
Occupational Employment Statistics Survey, compiled by
the Bureau of Labor Statistics; or
``(iv) a wage that is not less than 150 percent of
the Federal minimum wage in effect under the Fair Labor
Standards Act (29 U.S.C. 201 et seq.); and
``(C) will provide working conditions for such alien that
will not adversely affect the working conditions of workers
similarly employed.
``(2) An employer may not appeal a decision of the Secretary of
Labor concerning the wages required to be paid under paragraph (1)(A)
unless United States workers and their labor representatives are given
the opportunity to submit contrary evidence or appeal that such
required wages are too low.
``(3) An employer may not hire a nonimmigrant described in section
101(a)(15)(H)(ii)(b) unless--
``(A) real prevailing wages in the occupational
classification in which such nonimmigrant is to be hired are at
least 3 percent higher than such wages during the preceding
year under the Occupational Employment Statistics Survey
compiled by the Bureau of Labor Statistics; or
``(B) the employer offers to pay the H-2B worker or a
United States worker a wage in the occupational classification
in which such worker is to be hired that is at least 3 percent
higher during the preceding year, after adjusting for inflation
under the Occupational Employment Survey.''.
SEC. 447. ENFORCEMENT OF FEDERAL LABOR LAWS.
(a) H-2B Nonagricultural Guest Workers.--Section 214(c)(14) (8
U.S.C. 1184(c)(14)) is amended--
(1) in subparagraph (A), by striking ``of Homeland
Security'' each place it appears and inserting ``of Labor'';
(2) by striking subparagraph (B);
(3) by redesignating subparagraphs (C) and (D) as
subparagraphs (B) and (C), respectively; and
(4) by adding at the end the following:
``(D) The Secretary of Labor is authorized to take such actions,
including imposing appropriate penalties and seeking appropriate
injunctive relief and specific performance of contractual obligations,
as may be necessary to assure employer compliance with the terms and
conditions required under this Act for employing nonimmigrant workers
described in section 101(a)(15)(H)(ii)(b) or (c). The authority of the
Secretary of Labor under this subparagraph shall not preempt any other
rights which affected persons may have under Federal or State law.
``(E) Any aggrieved person whose wages or working conditions have
been directly and adversely affected by an employer in violation of
applicable laws and regulations governing the employment of
nonimmigrant workers described in section 101(a)(15)(H)(ii)(b) or (c),
or by a violation of the terms and conditions of employment, may bring
a civil action against such employer in the appropriate district court
of the United States. Such cause of action shall not be subject to
exhaustion of administrative remedies and shall be in addition to any
other causes of action and remedies that may exist.
``(F) Notwithstanding any other provision of law, the Legal
Services Corporation may provide legal services on behalf of
nonimmigrant workers described in section 101(a)(15)(H)(ii)(b) or (c)
regarding the terms and conditions of employment, transportation, and
housing and other provisions of law applicable to the employment of
such nonimmigrants.''.
(b) Certification Requirement; Protection for Workers.--Section
214(c)(14), as amended by subsection (a), is further amended by adding
at the end the following:
``(G) A petition by an employer seeking to hire an alien described
in section 101(a)(15)(H)(ii)(b) shall not be approved until the
employer has provided written certification, under penalty of perjury,
to the Secretary of Labor that--
``(i) the employer has not been required under law to
provide a notice of a mass layoff pursuant to the Worker
Adjustment and Retraining Notification Act (29 U.S.C. 2101 et
seq.) during the 12-month period immediately preceding the date
on which the alien is to be hired; and
``(ii) the employer does not intend to provide a notice of
a mass layoff pursuant to such Act.
``(H) If an employer is required under law to provide a notice of a
mass layoff pursuant to such Act after hiring nonimmigrants granted
status under section 101(a)(15)(H)(ii)(b), the status of such
nonimmigrants shall expire on the date that is 60 days after the date
on which such notice is provided.
``(I) An employer shall be exempt from the requirements under
subparagraphs (G) and (H) if the employer provides written
certification, under penalty of perjury, that the total number of the
employer's employees in the United States will not be reduced as a
result of a mass layoff.
``(J) Employers who hire nonimmigrants described in section
101(a)(15)(H)(ii)(b) shall pay up front or reimburse in the first
workweek the nonimmigrants reasonable cost of transportation incurred
by such nonimmigrants and United States workers to initially reach the
job site and, once the period of employment for the job opportunity is
completed, to return to their countries of origin or to the next place
of employment, if the worker has contracted with a subsequent employer
who has not agreed to provide or pay for the worker's transportation to
such subsequent employer's place of employment. The amount of
reimbursement for reasonable cost of transportation expenses shall not
exceed 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.
``(K) In the case of an H-2B nonimmigrant who is dismissed from
employment by the employer before the end of the period of authorized
admission, the employer shall be liable for the reasonable costs of
return transportation of the alien abroad.
``(L)(i) Employers who hire nonimmigrants described in section
101(a)(15)(H)(ii)(b) shall guarantee to offer the worker employment for
100 percent of the workdays of the total periods during which the work
contract and all extensions of such contract are in effect, beginning
with the first workday after the arrival of the worker at the place of
employment and ending on the expiration date specified in the work
contract or in its extensions, if any.
``(ii) If the employer affords a worker during the total work
contract period less employment than that required under this
subparagraph, the employer shall pay the worker the amount which the
worker would have earned had the worker worked for the guaranteed
number of days.
``(iii) In this subparagraph, the term `workday'--
``(I) means a day in which the worker is offered the number
of hours stated in the job order; and
``(II) excludes the worker's Sabbath and Federal holidays.
``(iv) A work guarantee does not meet the requirements under this
subparagraph unless the number of hours of work offered by the employer
is equal to not less than the product of--
``(I) 75 percent of the workdays; multiplied by
``(II) the average number of hours per day stated in the
job order.
``(v) A worker may be offered more than the specified hours of work
on a single workday.
``(vi) The employer may not require, for purposes of meeting the
work guarantee, that the worker work longer than the number of hours
specified in the job order on a workday, the worker's Sabbath, or a
Federal holiday.
``(M) If the job opportunity is not covered by the 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's workers compensation law for
comparable employment.
``(N) Agreements by employees purporting to waive or to modify
their rights under this Act shall be void as contrary to public policy.
``(O) Consistent with section 292 and notwithstanding any other
provision of law, the Legal Services Corporation may provide legal
services on behalf of an H-2B nonimmigrant.''.
(c) Report.--Section 214(g)(10) (8 U.S.C. 1184(g)(10)) is amended--
(1) by inserting ``(A)'' after ``(10)''; and
(2) by adding at the end the following:
``(B) Each employer that hires a nonimmigrant worker
described in section 101(a)(15)(H)(ii)(b) shall--
``(i) notify the Secretary of Labor not later than
30 days after the conclusion of each such
nonimmigrant's term of employment; and
``(ii) submit to the Secretary of Labor employment
payroll records and similar documentation showing that
the employer complied with the recruitment provisions
herein and paid the required prevailing wage and
transportation, and other expenses required under this
section and section 212.''.
(d) H-2B Portability.--Section 214(n) (8 U.S.C. 1184(n)) is
amended--
(1) in paragraph (1)--
(A) by striking ``section 101(a)(15)(H)(i)(b)'' and
inserting ``clause (i)(b) or (ii)(b) of section
101(a)(15)(H)''; and
(B) by inserting ``A nonimmigrant described in
101(a)(15)(H)(ii)(b) is authorized to accept new
employment immediately, if a petition for unnamed
workers is already in place, upon the filing by the
prospective employer of a new petition, or upon the
filing of a temporary labor certification covering the
petition with the Department of Labor, which may be
filed not earlier than 45 days before the need for new
employees'' after ``provided under subsection (a)'';
and
(2) in paragraph (2)(B), by inserting ``(or labor
certification if the alien is described in
101(a)(15)(H)(ii)(b))'' after ``nonfrivolous petition''.
CHAPTER 5--H-2B AND L-1 VISA REFORMS
Subchapter A--H-1B Employer Application Requirements
SEC. 451. APPLICATION REQUIREMENTS.
(a) Modification of Application Requirements.--
(1) Internet posting requirement.--Section 212(n)(1)(C) (8
U.S.C. 1182(n)(1)(C)) is amended--
(A) by redesignating clause (ii) as subclause (II);
(B) by striking ``(i) has provided'' and inserting
the following: ``(ii)(I) has provided''; and
(C) by inserting before clause (ii), as
redesignated by paragraph (2) of this subsection, the
following:
``(i) has posted on the Internet website
described in paragraph (3), for at least 30
calendar days, a detailed description of each
position for which a nonimmigrant is sought
that includes a description of--
``(I) the wages and other terms and
conditions of employment;
``(II) the minimum education,
training, experience, and other
requirements for the position; and
``(III) the process for applying
for the position; and''.
(2) Outplacement restriction.--Section 212(n)(1)(F) (8
U.S.C. 1182(n)(1)(F)) is amended--
(A) by inserting ``(ii)'' before ``In the case of
an application'';
(B) by renumbering clauses (i) and (ii) as
subclauses (I) and (II); and
(C) by inserting the following at the beginning as
clause (i):
``(i) The employer will not place,
outsource, lease, or otherwise contract to
provide the services of the H-1B nonimmigrant
at the worksite of an employer other than the
petitioning employer or its affiliate,
subsidiary, or parent unless:
``(I) the H-1B nonimmigrant will be
controlled and supervised principally
by the petitioning employer; and
``(II) the placement of the H-1B
nonimmigrant at the worksite of the
unaffiliated employer is not
essentially an arrangement to provide
labor for hire for the unaffiliated
employer.''.
(b) New Application Requirements.--Section 212(n)(1) (8 U.S.C.
1182(n)(1)) is amended by adding at the end the following:
``(H)(i) The employer has not advertised any available
position specified in the application in an advertisement that
states or indicates that--
``(I) such position is only available to an
individual who is or will be an H-1B nonimmigrant; or
``(II) an individual who is or will be an H-1B
nonimmigrant shall receive priority or a preference in
the hiring process for such position.
``(ii) The employer has not solely recruited individuals
who are or who will be H-1B nonimmigrants to fill such
position.
``(I) If the employer employs 50 or more employees in the
United States, the sum of the number of such employees who are
H-1B nonimmigrants who are not intending immigrants as defined
in section 463 of the CIR Act of 2010 plus the number of such
employees who are nonimmigrants described in section
101(a)(15)(L) who are not intending immigrants as defined in
section 463 of the CIR Act of 2010 may not exceed 50 percent of
the total number of employees.
``(J) If the employer, in such previous period as the
Secretary shall specify, employed 1 or more H-1B nonimmigrants,
the employer shall submit to the Secretary the Internal Revenue
Service Form W-2 Wage and Tax Statement filed by the employer
with respect to the H-1B nonimmigrants for such period.''.
(c) Application Review Requirements.--
(1) Technical amendment.--Section 212(n)(1) (8 U.S.C.
1182(n)(1)), as amended by this Act, is further amended in the
undesignated paragraph at the end, by striking ``The employer''
and inserting the following: ``(K) The employer.''.
(2) Application review requirements.--Section 212(n)(1)(K),
as designated by paragraph (1), is amended--
(A) by inserting ``and through the Department of
Labor's website, without charge.'' after ``D.C.'';
(B) by striking ``only for completeness'' and
inserting ``for completeness and clear indicators of
fraud or misrepresentation of material fact,'';
(C) by striking ``or obviously inaccurate'' and
inserting ``, presents clear indicators of fraud or
misrepresentation of material fact, or is obviously
inaccurate'';
(D) by striking ``within 7 days of'' and inserting
``not later than 14 days after''; and
(E) by adding at the end the following: ``If the
Secretary's review of an application identifies clear
indicators of fraud or misrepresentation of material
fact, the Secretary may conduct an investigation and
hearing in accordance with paragraph (2).''.
Subchapter B--Investigation and Disposition of Complaints Against H-1B
Employers
SEC. 452. INVESTIGATION PROCEDURES.
(a) General Modification of Procedures for Investigation and
Disposition.--Section 212(n)(2)(A) (8 U.S.C. 1182(n)(2)) is amended--
(1) by striking ``(A) Subject'' and inserting ``(A)(i)
Subject'';
(2) by striking ``12 months'' and inserting ``24 months'';
(3) by striking the last sentence; and
(4) by adding at the end the following:
``(i)(I) Upon the receipt of such a
complaint, the Secretary may initiate an
investigation to determine if such a failure or
misrepresentation has occurred.
``(II) The Secretary may conduct surveys of
the degree to which employers comply with the
requirements of this subsection and may conduct
annual compliance audits of employers that
employ H-1B, H-2B, or H-2C nonimmigrants.
``(III) The Secretary shall--
``(aa) conduct annual compliance
audits of not less than 1 percent of
the employers that employ H-1B
nonimmigrants during the applicable
calendar year;
``(bb) conduct annual compliance
audits of each employer with more than
100 employees who work in the United
States if more than 15 percent of such
employees are H-1B nonimmigrants; and
``(cc) make available to the public
an executive summary or report
describing the general findings of the
audits carried out pursuant to this
subclause.''.
(b) Investigation, Working Conditions, and Penalties.--Section
212(n)(2)(C) (8 U.S.C. 1182(n)(2)) is amended--
(1) in clause (i)--
(A) in the matter preceding subclause (I)--
(i) by striking ``a condition of paragraph
(1)(B), (1)(E), or (1)(F)'' and inserting ``a
condition under subparagraph (A), (B), (C)(i),
(E), (F), (G)(i)(I), (H), (I), or (J) of
paragraph (1)''; and
(ii) by striking ``(1)(C)'' and inserting
``(1)(C)(ii)''; and
(B) in subclause (I)--
(i) by striking ``$1,000'' and inserting
``$2,000''; and
(ii) by striking ``and'' at the end;
(C) in subclause (II), by striking the period at
the end and inserting a semicolon and ``and'';
(D) by adding at the end the following:
``(III) an employer that violates
such subparagraph (A) shall be liable
to the employees harmed by such
violations for lost wages and
benefits.''; and
(2) in clause (ii)--
(A) in subclause (I)--
(i) by striking ``may'' and inserting
``shall''; and
(ii) by striking ``$5,000'' and inserting
``$10,000''; and
(B) in subclause (II), by striking the period at
the end and inserting a semicolon and ``and'';
(C) by adding at the end the following:
``(III) an employer that violates
such subparagraph (A) shall be liable
to the employees harmed by such
violations for lost wages and
benefits.''; and
(3) in clause (iii)--
(A) in the matter preceding subclause (I), by
striking ``90 days'' both places it appears and
inserting ``180 days'';
(B) in subclause (I)--
(i) by striking ``may'' and inserting
``shall''; and
(ii) by striking ``and'' at the end;
(C) in subclause (II), by striking the period at
the end and inserting a semicolon and ``and''; and
(D) by adding at the end the following:
``(III) an employer that violates
subparagraph (A) of such paragraph
shall be liable to the employees harmed
by such violations for lost wages and
benefits.'';
(4) in clause (iv)--
(A) by inserting ``to take, fail to take, or
threaten to take or fail to take, a personnel action,''
or before ``to intimidate'';
(B) by inserting ``(I)'' after ``(iv)''; and
(C) by adding at the end the following:
``(II) An employer that violates
this clause shall be liable to the
employees harmed by such violation for
lost wages and benefits.''; and
(5) in clause (vi)--
(A) by amending subclause (I) to read as follows:
``(I) It is a violation of this
clause for an employer who has filed an
application under this subsection--
``(aa) to require an H-1B
nonimmigrant to pay a penalty
for ceasing employment with the
employer prior to a date agreed
to by the nonimmigrant and the
employer (the Secretary shall
determine whether a required
payment is a penalty, and not
liquidated damages, pursuant to
relevant State law); and
``(bb) to fail to offer to
an H-1B nonimmigrant, during
the nonimmigrant's period of
authorized employment, on the
same basis, and in accordance
with the same criteria, as the
employer offers to United
States workers, benefits and
eligibility for benefits,
including--
``(AA) the
opportunity to
participate in health,
life, disability, and
other insurance plans;
``(BB) the
opportunity to
participate in
retirement and savings
plans; and
``(CC) cash bonuses
and noncash
compensation, such as
stock options (whether
or not based on
performance).''; and
(B) in subclause (III), by striking ``$1,000'' and
inserting ``$2,000''.
(c) Initiation of Investigations.--Section 212(n)(2)(G) (8 U.S.C.
1182(n)(2)) is amended--
(1) in clause (i), by striking ``if the Secretary and all
that follows''and inserting ``with regard to the employer's
compliance with the requirements of this subsection.'';
(2) in clause (ii), by striking ``and whose identity'' and
all that follows through ``failure or failures.'' and inserting
``the Secretary of Labor may conduct an investigation into the
employer's compliance with the requirements of this
subsection.'';
(3) in clause (iii), by striking the last sentence;
(4) by striking clauses (iv) and (v);
(5) by redesignating clauses (vi), (vii), and (viii) as
clauses (iv), (v), and (vi), respectively;
(6) in clause (iv), as so redesignated, by striking ``meet
a condition described in clause (ii), unless the Secretary of
Labor receives the information not later than 12 months'' and
inserting ``comply with the requirements under this subsection,
unless the Secretary of Labor receives the information not
later than 24 months'';
(7) by amending clause (v), as so redesignated, to read as
follows:
``(v) The Secretary of Labor shall provide
notice to an employer of the intent to conduct
an investigation. The notice shall be provided
in such a manner, and shall contain sufficient
detail, to permit the employer to respond to
the allegations before an investigation is
commenced. The Secretary is not required to
comply with this clause if the Secretary
determines that such compliance would interfere
with an effort by the Secretary to investigate
or secure compliance by the employer with the
requirements of this subsection. A
determination by the Secretary under this
clause shall not be subject to judicial
review.'';
(8) in clause (vi), as so redesignated, by striking ``An
investigation'' and all that follows through ``the
determination.'' and inserting ``If the Secretary of Labor,
after an investigation under clause (i) or (ii), determines
that a reasonable basis exists to make a finding that the
employer has failed to comply with the requirements under this
subsection, the Secretary shall provide interested parties with
notice of such determination and an opportunity for a hearing
in accordance with section 556 of title 5, United States Code,
not later than 120 days after the date of such
determination.''; and
(9) by adding at the end the following:
``(vii) If the Secretary of Labor, after a
hearing, finds a reasonable basis to believe
that the employer has violated the requirements
under this subsection, the Secretary shall
impose a penalty under subparagraph (C).''.
(d) Conforming Amendment.--Section 212(n)(2)(F) (8 U.S.C.
1182(n)(2)(F)) is amended by striking ``The preceding sentence shall
apply to an employer regardless of whether or not the employer is an H-
1B-dependent employer.''.
(e) Information Sharing.--Section 212(n)(2)(H) (8 U.S.C.
1182(n)(2)(H)) is amended to read as follows:
``(H) The Director of United States Citizenship and
Immigration Services shall provide the Secretary of Labor with
any information contained in the materials submitted by
employers of H-1B nonimmigrants as part of the adjudication
process that indicates that the employer is not complying with
visa program requirements for H-1B nonimmigrants. The Secretary
may initiate and conduct an investigation and hearing under
this paragraph after receiving information of noncompliance
under this subparagraph.''.
Subchapter C--Other Protections
SEC. 453. H-1B GOVERNMENT AUTHORITY AND REQUIREMENTS.
(a) Immigration Documents.--Section 204 of the Immigration and
Nationality Act (8 U.S.C. 1154) is amended by adding at the end the
following:
``(m) Employer to Provide Immigration Paperwork Exchanged With
Federal Agencies.--Not later than 21 business days after receiving a
written request from a former, current, or future employee or
beneficiary, an employer shall provide such employee or beneficiary
with the original (or a certified copy of the original) of all
petitions, notices, and other written communication exchanged between
the employer and the Department of Labor, the Department of Homeland
Security, or any other Federal agency or department that is related to
an immigrant or nonimmigrant petition filed by the employer for such
employee or beneficiary.''.
(b) Report on Job Classification and Wage Determinations.--Not
later than 1 year after the date of the enactment of this Act, the
Comptroller General of the United States shall prepare a report
analyzing the accuracy and effectiveness of the Secretary of Labor's
current job classification and wage determination system. The report
shall--
(1) specifically address whether the systems in place
accurately reflect the complexity of current job types as well
as geographic wage differences; and
(2) make recommendations concerning necessary updates and
modifications.
(c) Minor Violations.--Section 212(n)(2)(C)(i)(II) (8 U.S.C.
1182(n)(2)(C)(i)(II)) is amended by striking ``shall'' and inserting
``may''.
(d) Posting Available Positions Through Department of Labor.--
(1) Department of labor website.--Section 212(n)(3) (8
U.S.C. 1182(n)) is amended to read as follows:
``(3)(A) Not later than 90 days after the date of the
enactment of the Comprehensive Immigration Reform Act of 2010,
the Secretary of Labor shall establish a searchable Internet
website for posting positions as required by paragraph (1)(C),
which shall be available to the public without charge.
``(B) The Secretary may work with private companies or
nonprofit organizations to develop and operate the Internet
website described in subparagraph (A).
``(C) The Secretary may promulgate rules, after notice and
a period for comment, to carry out the requirements of this
paragraph.''.
(2) Requirement for publication.--The Secretary of Labor
shall submit to Congress and publish in the Federal Register
and other appropriate media a notice of the date that the
Internet website required under section 212(n)(3) of the
Immigration and Nationality Act will be operational.
(3) Application.--The amendments made by paragraph (1)
shall apply to an application filed on or after the date that
is 30 days after the date described in paragraph (2).
SEC. 454. H-1B AND L-1 VISA REQUIREMENTS.
(a) Additional H-1B Visa Reforms.--
(1) In general.--Section 214(g)(5) (8 U.S.C. 1184(g)(5)) is
amended--
(A) in subparagraph (B)--
(i) by striking ``nonprofit research'' and
inserting ``nonprofit'';
(ii) by inserting ``Federal, State, or
local'' before ``governmental''; and
(iii) by striking ``or'' at the end;
(B) in subparagraph (C) by adding at the end ``or
has been awarded a medical specialty certification
based on post-doctoral training and experience in the
United States.''; and
(2) Applicability.--The amendments made by subsection (a)
shall apply to any petition or visa application pending on the
date of enactment of this Act and any petition or visa
application filed on or after such date.
(b) Requirements for Information for H-1B and L-1 Nonimmigrants.--
Section 214 (8 U.S.C. 1184) is amended by adding at the end the
following:
``(s) Requirements for Information for H-1B and L-1
Nonimmigrants.--
``(1) In general.--Upon issuing a visa to an applicant for
nonimmigrant status pursuant to subparagraph (H)(i)(b) or (L)
of section 101(a)(15) who is outside the United States, the
issuing office shall provide the applicant with--
``(A) a brochure outlining the obligations of the
applicant's employer and the rights of the applicant
with regard to employment under Federal law, including
labor and wage protections;
``(B) the contact information for appropriate
Federal agencies or departments that offer additional
information or assistance in clarifying such
obligations and rights; and
``(C) a copy of the application submitted for the
nonimmigrant under section 212(n) or the petition
submitted for the nonimmigrant under subsection
(c)(2)(A), as appropriate.
``(2) Upon the issuance of a visa to an applicant referred
to in paragraph (1) who is inside the United States, the
issuing officer of the Department of Homeland Security shall
provide the applicant with the material described in clauses
(i), (ii), and (iii) of subparagraph (A).''.
SEC. 455. ADDITIONAL DEPARTMENT OF LABOR EMPLOYEES.
(a) In General.--The Secretary of Labor is authorized to hire 200
additional employees to administer, oversee, investigate, and enforce
programs involving nonimmigrant employees described in section
101(a)(15)(H)(i)(B).
(b) Authorization of Appropriations.--There are authorized to be
appropriated such sums as may be necessary to carry out this section.
Subchapter D--L-1 Visa Fraud and Abuse Protections
SEC. 456. L-1 EMPLOYER PETITION REQUIREMENTS.
(a) Employment at New Offices.--Section 214(c)(2) (8 U.S.C.
1184(c)(2)) is amended by adding at the end the following:
``(G)(i) If the beneficiary of a petition under this paragraph is
coming to the United States to open, or be employed in, a new office,
the petition may be approved for up to 12 months only if--
``(I) the alien has not been the beneficiary of 2 or more
petitions under this subparagraph during the immediately
preceding 2 years; and
``(II) the employer operating the new office has--
``(aa) an adequate business plan;
``(bb) sufficient physical premises to carry out
the proposed business activities; and
``(cc) the financial ability to commence doing
business immediately upon the approval of the petition.
``(ii) An extension of the approval period under clause (i) may not
be granted until the importing employer submits an application to the
Secretary of Homeland Security that contains--
``(I) evidence that the importing employer meets the
requirements of this subsection;
``(II) evidence that the beneficiary of the petition is
eligible for nonimmigrant status under section 101(a)(15)(L);
``(III) a statement summarizing the original petition;
``(IV) evidence that the importing employer has fully
complied with the business plan submitted under clause (i)(I);
``(V) evidence of the truthfulness of any representations
made in connection with the filing of the original petition;
``(VI) evidence that the importing employer, for the entire
period beginning on the date on which the petition was approved
under clause (i), has been doing business at the new office
through regular, systematic, and continuous provision of goods
and services;
``(VII) a statement of the duties the beneficiary has
performed at the new office during the approval period under
clause (i) and the duties the beneficiary will perform at the
new office during the extension period granted under this
clause;
``(VIII) a statement describing the staffing at the new
office, including the number of employees and the types of
positions held by such employees;
``(IX) evidence of wages paid to employees;
``(X) evidence of the financial status of the new office;
and
``(XI) any other evidence or data prescribed by the
Secretary.
``(iii) A new office employing the beneficiary of an L-1 petition
approved under this paragraph shall do business only through regular,
systematic, and continuous provision of goods and services for the
entire period for which the petition is sought.
``(iv) Notwithstanding clause (ii), and subject to the maximum
period of authorized admission set forth in subparagraph (D), the
Secretary of Homeland Security, in the Secretary's discretion, may
approve a subsequently filed petition on behalf of the beneficiary to
continue employment at the office described in this subparagraph for a
period beyond the initially granted 12-month period if the importing
employer has been doing business at the new office through regular,
systematic, and continuous provision of goods and services for the 6
months immediately preceding the date of extension petition filing and
demonstrates that the failure to satisfy any of the requirements
described in those subclauses was directly caused by extraordinary
circumstances, as determined by the Secretary in the Secretary's
discretion.''.
(b) Cooperation With Secretary of State.--Section 214(c)(2) (8
U.S.C. 1184(c)(2)), as amended by subsection (a), is further amended by
adding at the end the following:
``(H) For purposes of approving petitions under this paragraph, the
Secretary of Homeland Security shall work cooperatively with the
Secretary of State to verify the existence or continued existence of a
company or office in the United States or in a foreign country.''.
(c) Investigation and Disposition of Complaints Against L-1
Employers.--Section 214(c)(2) (8 U.S.C. 1184(c)(2)), as amended by this
section, is further amended by adding at the end the following:
``(I)(i) The Secretary of Homeland Security may initiate an
investigation of any employer that employs nonimmigrants described in
section 101(a)(15)(L) with regard to the employer's compliance with the
requirements of this subsection.
``(ii) If the Secretary receives specific credible information from
a source who is likely to have knowledge of an employer's practices,
employment conditions, or compliance with the requirements under this
subsection, the Secretary may conduct an investigation into the
employer's compliance with the requirements of this subsection. The
Secretary may withhold the identity of the source from the employer,
and the source's identity shall not be subject to disclosure under
section 552 of title 5, United States Code.
``(iii) The Secretary shall establish a procedure for any person
desiring to provide to the Secretary information described in clause
(ii) that may be used, in whole or in part, as the basis for the
commencement of an investigation described in such clause, to provide
the information in writing on a form developed and provided by the
Secretary and completed by or on behalf of the person.
``(iv) No investigation described in clause (ii) (or hearing
described in clause (vi) based on such investigation) may be conducted
with respect to information about a failure to comply with the
requirements under this subsection, unless the Secretary receives the
information not later than 24 months after the date of the alleged
failure.
``(v) Before commencing an investigation of an employer under
clause (i) or (ii), the Secretary shall provide notice to the employer
of the intent to conduct such investigation. The notice shall be
provided in such a manner, and shall contain sufficient detail, to
permit the employer to respond to the allegations before an
investigation is commenced. The Secretary is not required to comply
with this clause if the Secretary determines that to do so would
interfere with an effort by the Secretary to investigate or secure
compliance by the employer with the requirements of this subsection.
There shall be no judicial review of a determination by the Secretary
under this clause.
``(vi) If the Secretary, after an investigation under clause (i) or
(ii), determines that a reasonable basis exists to make a finding that
the employer has failed to comply with the requirements under this
subsection, the Secretary shall provide the interested parties with
notice of such determination and an opportunity for a hearing in
accordance with section 556 of title 5, United States Code, not later
than 120 days after the date of such determination. If such a hearing
is requested, the Secretary shall make a finding concerning the matter
by not later than 120 days after the date of the hearing.
``(vii) If the Secretary, after a hearing, finds a reasonable basis
to believe that the employer has violated the requirements under this
subsection, the Secretary shall impose a penalty under subparagraph
(L).
``(viii)(I) The Secretary may conduct surveys of the degree to
which employers comply with the requirements under this section.
``(II) The Secretary shall--
``(aa) conduct annual compliance audits of not less than 1
percent of the employers that employ nonimmigrants described in
section 101(a)(15)(L) during the applicable fiscal year;
``(bb) conduct annual compliance audits of each employer
with more than 100 employees who work in the United States if
more than 15 percent of such employees are nonimmigrants
described in 101(a)(15)(L); and
``(cc) make available to the public an executive summary or
report describing the general findings of the audits carried
out pursuant to this subclause.''.
(d) Wage Rate and Working Conditions for L-1 Nonimmigrant.--
(1) In general.--Section 214(c)(2) (8 U.S.C. 1184(c)(2)),
as amended by this section, is further amended by adding at the
end the following:
``(J)(i) If an employer, in such previous period specified by the
Secretary of Homeland Security, employed 1 or more such nonimmigrants,
the employer shall provide to the Secretary of Homeland Security the
Internal Revenue Service Form W-2 Wage and Tax Statement filed by the
employer with respect to such nonimmigrants for such period.
``(ii) It is a failure to meet a condition under this subparagraph
for an employer who has filed a petition to import 1 or more aliens as
nonimmigrants described in section 101(a)(15)(L)--
``(I) to require such a nonimmigrant to pay a penalty for
ceasing employment with the employer before a date mutually
agreed to by the nonimmigrant and the employer; or
``(II) to fail to offer to such a nonimmigrant, during the
nonimmigrant's period of authorized employment, on the same
basis, and in accordance with the same criteria, as the
employer offers to United States workers, benefits and
eligibility for benefits, including--
``(aa) the opportunity to participate in health,
life, disability, and other insurance plans;
``(bb) the opportunity to participate in retirement
and savings plans; and
``(cc) cash bonuses and noncash compensation, such
as stock options (whether or not based on performance).
``(iii) The Secretary of Homeland Security shall determine whether
a required payment under clause (iii)(I) is a penalty (and not
liquidated damages) pursuant to relevant State law.''.
(2) Rulemaking.--The Secretary of Homeland Security shall
promulgate rules, after notice and a period of comment, to
implement the requirements of section 214(c)(2)(J) of the
Immigration and Nationality Act (8 U.S.C. 1184(c)(2)), as added
by paragraph (1). In promulgating rules under this paragraph,
the Secretary shall take into consideration any special
circumstances relating to intracompany transfers.
(e) Penalties.--Section 214(c)(2) (8 U.S.C. 1184(c)(2)), as amended
by this section, is further amended by adding at the end the following:
``(K)(i) If the Secretary of Homeland Security finds, after notice
and an opportunity for a hearing, a failure by an employer to meet a
condition under subparagraph (F), (G), (J), or (L) or a
misrepresentation of material fact in a petition to employ 1 or more
aliens as nonimmigrants described in section 101(a)(15)(L)--
``(I) the Secretary shall impose such administrative
remedies (including civil monetary penalties in an amount not
to exceed $2,000 per violation) as the Secretary determines to
be appropriate;
``(II) the Secretary may not, during a period of at least 1
year, approve a petition for that employer to employ 1 or more
aliens as such nonimmigrants; and
``(III) in the case of a violation of subparagraph (J) or
(L), the employer shall be liable to the employees harmed by
such violation for lost wages and benefits.
``(ii) If the Secretary finds, after notice and an opportunity for
a hearing, a willful failure by an employer to meet a condition under
subparagraph (F), (G), (J). or (L) or a willful misrepresentation of
material fact in a petition to employ 1 or more aliens as nonimmigrants
described in section 101(a)(15)(L)--
``(I) the Secretary shall impose such administrative
remedies (including civil monetary penalties in an amount not
to exceed $10,000 per violation) as the Secretary determines to
be appropriate;
``(II) the Secretary may not, during a period of at least 2
years, approve a petition filed for that employer to employ 1
or more aliens as such nonimmigrants; and
``(III) in the case of a violation of subparagraph (J) or
(L), the employer shall be liable to the employees harmed by
such violation for lost wages and benefits.''.
(f) Prohibition on Retaliation Against L-1 Nonimmigrants.--Section
214(c)(2) (8 U.S.C. 1184(c)(2)), as amended by this section, is further
amended by adding at the end the following:
``(L)(i) It is a violation of this subparagraph for an employer who
has filed a petition to import 1 or more aliens as nonimmigrants
described in section 101(a)(15)(L) to take, fail to take, or threaten
to take or fail to take, a personnel action, or to intimidate,
threaten, restrain, coerce, blacklist, discharge, or discriminate in
any other manner against an employee because the employee--
``(I) has disclosed information that the employee
reasonably believes evidences a violation of this subsection,
or any rule or regulation pertaining to this subsection; or
``(II) cooperates or seeks to cooperate with the
requirements of this subsection, or any rule or regulation
pertaining to this subsection.
``(ii) In this subparagraph, the term `employee' includes--
``(I) a current employee;
``(II) a former employee; and
``(III) an applicant for employment.''.
(g) Technical Amendments.--Section 214(c)(2) (8 U.S.C. 1184(c)(2)),
as amended by this section, is further amended by striking ``Attorney
General'' each place it appears and inserting ``Secretary of Homeland
Security''.
(h) Reports on L-1 Nonimmigrants.--Section 214(c)(8) (8 U.S.C.
1184(c)(8)) is amended by inserting ``(L),'' after ``(H),''.
SEC. 457. APPLICATION.
Except as specifically otherwise provided, the amendments made by
this section and subchapter C shall apply to applications filed on or
after the date of the enactment of this Act.
SEC. 458. REPORT ON L-1 BLANKET PETITION PROCESS.
(a) Requirement for Report.--Not later than 6 months after the date
of the enactment of this Act, the Inspector General of the Department
of Homeland Security shall submit a report to the appropriate
committees of Congress regarding the use of blanket petitions under
section 214(c)(2)(A) of the Immigration and Nationality Act (8 U.S.C.
1184(c)(2)(A)).
(b) Contents.--The report submitted under subsection (a) shall
assess the efficiency and reliability of the process for reviewing the
blanket petitions described in subsection (a), including whether the
process includes adequate safeguards against fraud and abuse.
(c) Appropriate Committees of Congress.--In this section the term
``appropriate committees of Congress'' means--
(1) the Committee on Homeland Security and Governmental
Affairs of the Senate;
(2) the Committee on the Judiciary of the Senate;
(3) the Committee on Homeland Security of the House of
Representatives; and
(4) the Committee on the Judiciary of the House of
Representatives.
CHAPTER 6--MISCELLANEOUS EMPLOYMENT VISA REFORMS
SEC. 461. PROVIDING PREMIUM PROCESSING OF EMPLOYMENT-BASED VISA
PETITIONS.
Pursuant to section 286(u) of the Immigration and Nationality Act
(8 U.S.C. 1356(u)), the Secretary shall establish and collect--
(a) a fee for premium processing of employment-based immigrant
petitions; and
(b) a fee for premium processing of an administrative appeal of any
decision on a permanent employment-based immigrant petition.
SEC. 462. VISA REVALIDATION.
Section 222 (8 U.S.C. 1202) is amended--
(1) in subsection (h), in the matter preceding subparagraph
(1), by inserting ``and except as provided under subsection
(i),'' after ``Act''; and
(2) by adding at the end the following:
``(i) The Secretary of State shall permit an alien granted a
nonimmigrant visa under subparagraph (E), (H), (I), (L), (O), or (P) of
section 101(a)(15) to apply for a renewal of such visa within the
United States if--
``(1) such visa is valid or did not expire more than 12
months before the date of such application;
``(2) the alien is seeking a nonimmigrant visa under the
same subparagraph under which the alien had previously received
a visa; and
``(3) the alien has complied with the immigration laws and
regulations of the United States.''.
SEC. 463. APPLICATION FEES FOR INTENDING IMMIGRANTS.
Section 402 of Public Law 111-230 is amended--
(1) in subsection (a), by inserting ``and are not intending
immigrants'' before the period at the end;
(2) in subsection (b), by inserting ``and are not intending
immigrants'' before the period at the end; and
(3) by adding at the end the following:
``(d) Subsections (a) and (b) shall not apply to seasonal or
intermittent nonimmigrants, and family members of nonimmigrants
described in section 101(a)(15)(L).
``(e) For purposes of subsections (a) and (b), the term `intending
immigrant' means any alien who intends to work and reside permanently
in the United States, as evidenced by--
``(1) a pending or approved application for alien
employment certification under section 212(a)(5)(A); or
``(2) a pending or approved petition under paragraph (1),
(2) or (3) of section 203(b).''.
SEC. 464. E-1, E-2, AND L-1 VISAS.
(a) E-1 and E-2 Visas.--Section 101(a)(15)(E) (8 U.S.C.
1101(a)(15)(E)) is amended--
(1) by striking ``of commerce and navigation'';
(2) by redesignating clause (iii) as clause (iv); and
(3) by inserting ``(iii) to be employed by an entity
described in clause (i) or (ii) as a manager, supervisor, or
employee with essential skills to the enterprise, which is at
least 50 percent owned by nationals of the treaty country and,
if the entity is described in clause (ii), 1 or more nationals
of the treaty country have invested, or are actively in process
of investing, a substantial amount of capital to the
enterprise;''.
(b) L-1 Visas for Small Companies.--Section (a)(44)(C) of 8 U.S.C.
1101 is amended by inserting at the end of the paragraph the following:
``Neither the small size of the organization, nor the small number of
employees shall be a negative factor in determining managerial or
executive status''.
SEC. 465. TIME LIMITS FOR NONIMMIGRANTS TO DEPART THE UNITED STATES.
Section 214 (8 U.S.C. 1184) is amended by adding at the end the
following:
``(s) Separated Employees and Dependents.--
``(1) In general.--Any alien who ceases to be employed by
the alien's petitioning employer, regardless of the reason for
such separation, shall be automatically granted a period of
authorized stay equal to 60 days from the date of separation in
which to--
``(A) depart the United States; or
``(B) apply for change or extension of status.
``(2) Spouse and children.--
``(A) In general.--The spouse and children of an
alien described in paragraph (1) shall be automatically
granted a period of authorized stay equal to the
principal alien employee.
``(B) Death of principal alien employee.--The
spouse and children of a nonimmigrant alien who dies
shall be entitled to retain the dependent nonimmigrant
status to which they were eligible at the time of such
death until the later of--
``(i) 1 year after such death; or
``(ii) the date on which an adjudication of
benefits under section 204(l) is completed.''.
CHAPTER 7--POWER ACT
SEC. 471. SHORT TITLE.
This chapter may be cited as the`` Protect Our Workers from
Exploitation and Retaliation Act'' or the ``POWER Act''.
SEC. 472. VICTIMS OF SERIOUS LABOR AND EMPLOYMENT VIOLATIONS OR CRIME.
(a) Protection for Victims of Labor and Employment Violations.--
Section 101(a)(15)(U) (8 U.S.C. 1101(a)(15)(U)) is amended--
(1) in clause (i)--
(A) by amending subclause (I) to read as follows:
``(I) the alien--
``(aa) has suffered
substantial abuse or harm as a
result of having been a victim
of criminal activity described
in clause (iii);
``(bb) has suffered
substantial abuse or harm
related to a violation
described in clause (iv);
``(cc) is a victim of
criminal activity described in
clause (iii) and would suffer
extreme hardship upon removal;
or
``(dd) has suffered a
violation described in clause
(iv) and would suffer extreme
hardship upon removal;'';
(B) in subclause (II), by inserting ``, or a labor
or employment violation resulting in a workplace claim
described in clause (iv)'' before the semicolon at the
end;
(C) in subclause (III)--
(i) by striking ``or State judge, to the
Service'' and inserting ``, State, or local
judge, to the Department of Homeland Security,
to the Equal Employment Opportunity Commission,
to the Department of Labor, to the National
Labor Relations Board''; and
(ii) by inserting ``, or investigating,
prosecuting, or seeking civil remedies for a
labor or employment violation related to a
workplace claim described in clause (iv)''
before the semicolon at the end; and
(D) in subclause (IV)--
(i) by inserting ``(aa)'' after ``(IV)'';
and
(ii) by adding at the end the following:
``or
``(bb) a workplace claim
described in clause (iv)
resulted from a labor or
employment violation;'';
(2) in clause (ii)(II), by striking ``and'' at the end;
(3) in clause (iii), by striking ``or'' at the end and
inserting ``and''; and
(4) by adding at the end the following:
``(iv) in the labor or employment violation
related to a workplace claim, the alien--
``(I) has filed, is a material
witness in, or is likely to be helpful
in the investigation of, a workplace
claim (as defined in section
274A(e)(10)(C)(iii)(II)); and
``(II) reasonably fears, has been
threatened with, or has been the victim
of, an action involving force, physical
restraint, retaliation, or abuse of the
immigration or other legal process
against the alien or another person by
the employer in relation to acts
underlying the workplace claim or
related to the filing of the workplace
claim; or'';
(b) Temporary Protection for Victims of Crime, Labor, and
Employment Violations.--Notwithstanding any other provision of law, the
Secretary may permit an alien to temporarily remain in the United
States and grant the alien employment authorization if the Secretary
determines that the alien--
(1) has filed for relief under section 101(a)(15)(U) of the
Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(U)); or
(2)(A) has filed, or is a material witness to, a bona fide
workplace claim (as defined in section 274A(e)(10)(B)(iii)(II)
of such Act, as added by section 3(b)); and
(B) has been helpful, is being helpful, or is likely to be
helpful to--
(i) a Federal, State, or local law enforcement
official;
(ii) a Federal, State, or local prosecutor;
(iii) a Federal, State, or local judge;
(iv) the Department of Homeland Security;
(v) the Equal Employment Opportunity Commission;
(vi) the Department of Labor;
(vii) the National Labor Relations Board; or
(viii) other Federal, State, or local authorities
investigating, prosecuting, or seeking civil remedies
related to the workplace claim.
(c) Conforming Amendments.--Section 214(p) (8 U.S.C. 1184(p)) is
amended--
(1) in paragraph (1), by inserting ``or investigating,
prosecuting, or seeking civil remedies for workplace claims
described in section 101(a)(15)(U)(iv)'' after ``section
101(a)(15)(U)(iii)'' each place such term appears;
(2) in paragraph (2)(A), by striking ``10,000'' and
inserting ``20,000''; and
(3) in paragraph (6)--
(A) by inserting ``or workplace claims described in
section 101(a)(15)(U)(iv)'' after ``described in
section 101(a)(15)(U)(iii)''; and
(B) by inserting ``or workplace claim'' after
``prosecution of such criminal activity''.
(d) Adjustment of Status for Victims of Crimes.--Section 245(m)(1)
(8 U.S.C. 1255(m)(1)) is amended by inserting ``or an investigation or
prosecution regarding a workplace claim'' after ``prosecution''.
(e) Change of Nonimmigrant Classification.--Section 384(a)(1) of
the Illegal Immigration Reform and Immigrant Responsibility Act of 1996
(8 U.S.C. 1367(a)(1)) is amended--
(1) in subparagraph (E), by striking ``physical or mental
abuse and the criminal activity'' and inserting ``abuse and the
criminal activity or workplace claim'';
(2) in subparagraph (F), by adding ``or'' at the end; and
(3) by inserting after subparagraph (F) the following:
``(G) the alien's employer,''.
SEC. 473. LABOR ENFORCEMENT ACTIONS.
(a) Removal Proceedings.--Section 239(e) (8 U.S.C. 1229(e)) is
amended--
(1) in paragraph (1)--
(A) by striking ``In cases where'' and inserting
``If''; and
(B) by inserting ``or as a result of information
provided to the Department of Homeland Security in
retaliation against individuals for exercising or
attempting to exercise their employment rights or other
legal rights'' after ``paragraph (2)''; and
(2) in paragraph (2), by adding at the end the following:
``(C) At a facility about which a workplace claim
has been filed or is contemporaneously filed.''.
(b) Unlawful Employment of Aliens.--Section 274A(e) (8 U.S.C.
1324a(e)) is amended by adding at the end the following:
``(10) Conduct in enforcement actions.--
``(A) Enforcement action.--If the Department of
Homeland Security undertakes an enforcement action at a
facility about which a workplace claim has been filed
or is contemporaneously filed, or as a result of
information provided to the Department in retaliation
against employees for exercising their rights related
to a workplace claim, the Department shall ensure
that--
``(i) any aliens arrested or detained who
are necessary for the investigation or
prosecution of workplace claim violations or
criminal activity (as described in subparagraph
(T) or (U) of section 101(a)(15)) are not
removed from the United States until after the
Department--
``(I) notifies the appropriate law
enforcement agency with jurisdiction
over such violations or criminal
activity; and
``(II) provides such agency with
the opportunity to interview such
aliens; and
``(ii) no aliens entitled to a stay of
removal or abeyance of removal proceedings
under this section are removed.
``(B) Protections for victims of crime, labor, and
employment violations.--
``(i) Stay of removal or abeyance of
removal proceedings.--An alien against whom
removal proceedings have been initiated under
chapter 4 of title II, who has filed a
workplace claim, who is a material witness in
any pending or anticipated proceeding involving
a workplace claim, or who has filed for relief
under section 101(a)(15)(U), shall be entitled
to a stay of removal or an abeyance of removal
proceedings and to employment authorization
until the resolution of the workplace claim or
the denial of relief under section
101(a)(15)(U) after exhaustion of
administrative appeals, whichever is later,
unless the Department establishes, by a
preponderance of the evidence in proceedings
before the immigration judge presiding over
that alien's removal hearing, that--
``(I) the Department initiated the
alien's removal proceeding for wholly
independent reasons and not based on,
or as a result of, any information
provided to, or obtained by, the
Department--
``(aa) from the alien's
employer;
``(bb) from any outside
source, including any anonymous
source or any individual
described in subparagraphs (A)
through (G) of section
1384(a)(1) of the Illegal
Immigration Reform and
Immigrant Responsibility Act of
1996 (8 U.S.C. 1367(a)(1)); or
``(cc) during the
prosecution or investigation of
the workplace claim; and
``(II) the workplace claim was
filed in a bad faith with the intent to
delay or avoid the alien's removal.
``(ii) Duration.--Any stay of removal or
abeyance of removal proceedings and employment
authorization issued pursuant to clause (i)
shall remain valid until the resolution of the
workplace claim or the denial of relief under
section 101(a)(15)(U) after the exhaustion of
administrative appeals, and shall be extended
by the Secretary of Homeland Security for a
period of not longer than 3 additional years
upon determining that--
``(I) such relief would enable the
alien asserting a workplace claim to
pursue the claim to resolution;
``(II) the deterrent goals of any
statute underlying a workplace claim
would be served; or
``(III) such extension would
otherwise further the interests of
justice.
``(iii) Definitions.--In this section:
``(I) Material witness.--
Notwithstanding any other provision of
law, the term `material witness' means
an individual who presents a
declaration from an attorney
investigating, prosecuting, or
defending the workplace claim or from
the presiding officer overseeing the
workplace claim attesting that, to the
best of the declarant's knowledge and
belief, reasonable cause exists to
believe that the testimony of the
individual will be relevant to the
outcome of the workplace claim.
``(II) Workplace claim.--The term
`workplace claim' means any written or
oral claim, charge, complaint, or
grievance filed with, communicated to,
or submitted to the employer, a
Federal, State, or local agency or
court, or an employee representative
related to the violation of applicable
Federal, State, and local labor laws,
including laws concerning wages and
hours, labor relations, family and
medical leave, occupational health and
safety, or nondiscrimination.''.
SEC. 474. AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be appropriated such sums as may be
necessary to carry out this chapter and the amendments made by this
chapter.
CHAPTER 8--AGRICULTURAL JOB OPPORTUNITIES, BENEFITS, AND SECURITY
SEC. 475. SHORT TITLE.
This chapter may be cited as the ``Agricultural Job Opportunities,
Benefits, and Security Act of 2010'' or the ``AgJOBS Act of 2010''.
Subchapter A--Blue Card Status
SEC. 476. REQUIREMENTS FOR BLUE CARD STATUS.
(a) Requirement to Grant Blue Card Status.--Notwithstanding any
other provision of law, the Secretary shall, pursuant to the
requirements of this section, grant blue card status to an alien who
qualifies under this section if the Secretary determines that the
alien--
(1) has performed agricultural employment in the United
States for at least 863 hours or 150 work days during the 24-
month period ending on December 31, 2008;
(2) applied for such status during the 18-month application
period beginning on the first day of the seventh month that
begins after the date of the enactment of this Act;
(3) is otherwise admissible to the United States under
section 212 of the Immigration and Nationality Act (8 U.S.C.
1182), except as otherwise provided under section 478(a)(2);
and
(4) has not been convicted of any felony or a misdemeanor,
an element of which involves bodily injury, threat of serious
bodily injury, or harm to property in excess of $500.
(b) Authorized Travel.--An alien who is granted blue card status is
authorized to travel outside the United States (including commuting to
the United States from a residence in a foreign country) in the same
manner as an alien lawfully admitted for permanent residence.
(c) Authorized Employment.--The Secretary shall provide an alien
who is granted blue card status an employment authorized endorsement or
other appropriate work permit, in the same manner as an alien lawfully
admitted for permanent residence.
(d) Termination of Blue Card Status.--
(1) Deportable aliens.--The Secretary shall terminate blue
card status granted to an alien if the Secretary determines
that the alien is deportable.
(2) Other grounds for termination.--The Secretary shall
terminate blue card status granted to an alien if--
(A) the Secretary finds, by a preponderance of the
evidence, that the adjustment to blue card status was
the result of fraud or willful misrepresentation, as
described in section 212(a)(6)(C)(i) of the Immigration
and Nationality Act (8 U.S.C. 1182(a)(6)(C)(i)); or
(B) the alien--
(i) commits an act that makes the alien
inadmissible to the United States under section
212 of the Immigration and Nationality Act (8
U.S.C. 1182), except as provided under section
478(a)(2);
(ii) is convicted of a felony or 3 or more
misdemeanors committed in the United States;
(iii) is convicted of an offense, an
element of which involves bodily injury, threat
of serious bodily injury, or harm to property
in excess of $500; or
(iv) fails to perform the agricultural
employment required under paragraph (1)(A) of
section 478(a) unless the alien was unable to
work in agricultural employment due to the
extraordinary circumstances described in
paragraph (3) of such section.
(e) Record of Employment.--
(1) In general.--Each employer of an alien granted blue
card status shall annually--
(A) provide a written record of employment to the
alien; and
(B) provide a copy of such record to the Secretary.
(2) Civil penalties.--
(A) In general.--If the Secretary determines, after
notice and opportunity for a hearing, that an employer
of an alien granted blue card status has failed to
provide the record of employment required under
paragraph (1) or has provided a false statement of
material fact in such a record, the employer shall be
subject to a civil penalty in an amount not to exceed
$1,000 per violation.
(B) Limitation.--The penalty applicable under
subparagraph (A) for failure to provide records shall
not apply unless the alien has provided the employer
with evidence of employment authorization granted under
this section.
(3) Sunset.--The obligation under paragraph (1) shall
terminate on the date that is 6 years after the date of the
enactment of this Act.
(f) Required Features of Identity Card.--The Secretary shall
provide each alien granted blue card status, and the spouse and any
child of each such alien residing in the United States, with a card
that contains--
(1) an encrypted, machine-readable, electronic
identification strip that is unique to the alien to whom the
card is issued;
(2) biometric identifiers, including fingerprints and a
digital photograph; and
(3) physical security features designed to prevent
tampering, counterfeiting, or duplication of the card for
fraudulent purposes.
(g) Fine.--An alien granted blue card status shall pay a $100 fine
to the Secretary.
(h) Maximum Number.--The Secretary may not issue more than
1,350,000 blue cards during the 5-year period beginning on the date of
the enactment of this Act.
(i) Treatment of Aliens Granted Blue Card Status.--
(1) In general.--Except as otherwise provided under this
section, an alien granted blue card status (including a spouse
or child of the alien granted derivative status) shall be
considered to be an alien lawfully admitted for permanent
residence for purposes of any law other than any provision of
the Immigration and Nationality Act (8 U.S.C. 1101 et seq.).
(2) Delayed eligibility for certain federal public
benefits.--Except as otherwise provided in law, an alien
granted blue card status (including a spouse or child of the
alien granted derivative status) shall not be eligible, by
reason of such status, for any form of assistance or benefit
described in section 403(a) of the Personal Responsibility and
Work Opportunity Reconciliation Act of 1996 (8 U.S.C. 1613(a))
until 5 years after the date on which the alien is granted an
adjustment of status under section 478.
SEC. 477. APPLICATION FOR BLUE CARD STATUS.
(a) Submission.--The Secretary shall provide that--
(1) applications for blue card status may be submitted--
(A) to the Secretary if the applicant is
represented by an attorney or a nonprofit religious,
charitable, social service, or similar organization
recognized by the Board of Immigration Appeals under
section 292.2 of title 8, Code of Federal Regulations;
or
(B) to a qualified designated entity if the
applicant consents to the forwarding of the application
to the Secretary; and
(2) applications for adjustment of status under section 478
shall be filed directly with the Secretary.
(b) Qualified Designated Entity Defined.--In this section, the term
``qualified designated entity'' means--
(1) a qualified farm labor organization or an association
of employers designated by the Secretary; or
(2) any such other person designated by the Secretary if
that Secretary determines such person is qualified and has
substantial experience, demonstrated competence, and has a
history of long-term involvement in the preparation and
submission of applications for adjustment of status under
section 209, 210, or 245 of the Immigration and Nationality Act
(8 U.S.C. 1159, 1160, and 1255), the Act entitled ``An Act to
adjust the status of Cuban refugees to that of lawful permanent
residents of the United States, and for other purposes'',
approved November 2, 1966 (Public Law 89-732; 8 U.S.C. 1255
note), Public Law 95-145 (8 U.S.C. 1255 note), or the
Immigration Reform and Control Act of 1986 (Public Law 99-603;
100 Stat. 3359) or any amendment made by that Act.
(c) Proof of Eligibility.--
(1) In general.--An alien may establish that the alien
meets the requirement of section 476(a)(1) or 478(a)(1) through
government employment records or records supplied by employers
or collective bargaining organizations, and other reliable
documentation as the alien may provide. The Secretary shall
establish special procedures to properly credit work in cases
in which an alien was employed under an assumed name.
(2) Documentation of work history.--
(A) Burden of proof.--An alien applying for status
under section 476(a) or 478(a) has the burden of
proving by a preponderance of the evidence that the
alien has worked the requisite number of hours or days
required under section 476(a)(1) or 478(a)(1), as
applicable.
(B) Timely production of records.--If an employer
or farm labor contractor employing such an alien has
kept proper and adequate records respecting such
employment, the alien's burden of proof under
subparagraph (A) may be met by securing timely
production of those records under regulations to be
promulgated by the Secretary.
(C) Sufficient evidence.--An alien may meet the
burden of proof under subparagraph (A) to establish
that the alien has performed the days or hours of work
required by section 476(a)(1) or 478(a)(1) by producing
sufficient evidence to show the extent of that
employment as a matter of just and reasonable
inference.
(d) Applications Submitted to Qualified Designated Entities.--
(1) Requirements.--Each qualified designated entity shall
agree--
(A) to forward to the Secretary an application
submitted to that entity pursuant to subsection
(a)(1)(B) if the applicant has consented to such
forwarding;
(B) not to forward to the Secretary any such
application if the applicant has not consented to such
forwarding; and
(C) to assist an alien in obtaining documentation
of the alien's work history, if the alien requests such
assistance.
(2) No authority to make determinations.--No qualified
designated entity may make a determination required by this
subtitle to be made by the Secretary.
(e) Limitation on Access to Information.--Files and records
collected or compiled by a qualified designated entity for the purposes
of this section are confidential and the Secretary shall not have
access to such a file or record relating to an alien without the
consent of the alien, except as allowed by a court order issued
pursuant to subsection (f).
(f) Confidentiality of Information.--
(1) In general.--Except as otherwise provided in this
section, the Secretary or any other official or employee of the
Department or a bureau or agency of the Department is
prohibited from--
(A) using information furnished by the applicant
pursuant to an application filed under this title, the
information provided by an applicant to a qualified
designated entity, or any information provided by an
employer or former employer for any purpose other than
to make a determination on the application or for
imposing the penalties described in subsection (g);
(B) making any publication in which the information
furnished by any particular individual can be
identified; or
(C) permitting a person other than a sworn officer
or employee of the Department or a bureau or agency of
the Department or, with respect to applications filed
with a qualified designated entity, that qualified
designated entity, to examine individual applications.
(2) Required disclosures.--The Secretary shall provide the
information furnished under this title or any other information
derived from such furnished information to--
(A) a duly recognized law enforcement entity in
connection with a criminal investigation or
prosecution, if such information is requested in
writing by such entity; or
(B) an official coroner, for purposes of
affirmatively identifying a deceased individual,
whether or not the death of such individual resulted
from a crime.
(3) Construction.--
(A) In general.--Nothing in this subsection may 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 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.
(B) Criminal convictions.--Notwithstanding any
other provision of this subsection, information
concerning whether the alien applying for blue card
status or an adjustment of status under section 478 has
been convicted of a crime at any time may be used or
released for immigration enforcement or law enforcement
purposes.
(4) Crime.--Any person who knowingly uses, publishes, or
permits information to be examined in violation of this
subsection shall be subject to a fine in an amount not to
exceed $10,000.
(g) Penalties for False Statements in Applications.--
(1) Criminal penalty.--Any person who--
(A) files an application for blue card status or an
adjustment of status under section 478 and knowingly
and willfully falsifies, conceals, or covers up a
material fact or makes any false, fictitious, or
fraudulent statements or representations, or makes or
uses any false writing or document knowing the same to
contain any false, fictitious, or fraudulent statement
or entry; or
(B) creates or supplies a false writing or document
for use in making such an application,
shall be fined in accordance with title 18, United States Code,
imprisoned not more than 5 years, or both.
(2) Inadmissibility.--An alien who is convicted of a crime
under paragraph (1) shall be considered to be inadmissible to
the United States on the ground described in section
212(a)(6)(C)(i) of the Immigration and Nationality Act (8
U.S.C. 1182(a)(6)(C)(i)).
(h) Eligibility for Legal Services.--Section 504(a)(11) of Public
Law 104-134 (110 Stat. 1321-53 et seq.) shall not be construed to
prevent a recipient of funds under the Legal Services Corporation Act
(42 U.S.C. 2996 et seq.) from providing legal assistance directly
related to an application for blue card status or an adjustment of
status under section 478.
(i) Application Fees.--
(1) Fee schedule.--The Secretary shall provide for a
schedule of fees that--
(A) shall be charged for the filing of an
application for blue card status or for an adjustment
of status under section 478; and
(B) may be charged by qualified designated entities
to help defray the costs of services provided to such
applicants.
(2) Prohibition on excess fees by qualified designated
entities.--A qualified designated entity may not charge any fee
in excess of, or in addition to, the fees authorized under
paragraph (1)(B) for services provided to applicants.
(3) Disposition of fees.--
(A) In general.--There is established in the
general fund of the Treasury a separate account, which
shall be known as the ``Agricultural Worker Immigration
Status Adjustment Account''. Notwithstanding any other
provision of law, there shall be deposited as
offsetting receipts into the account all fees collected
under paragraph (1)(A).
(B) Use of fees for application processing.--
Amounts deposited in the ``Agricultural Worker
Immigration Status Adjustment Account'' shall remain
available to the Secretary until expended for
processing applications for blue card status or an
adjustment of status under section 478.
SEC. 478. ADJUSTMENT TO PERMANENT RESIDENCE.
(a) In General.--Except as provided in subsection (b), the
Secretary shall adjust the status of an alien granted blue card status
to that of an alien lawfully admitted for permanent residence if the
Secretary determines that the following requirements are satisfied:
(1) Qualifying employment.--
(A) In general.--Subject to subparagraph (B), the
alien has performed at least--
(i) 5 years of agricultural employment in
the United States for at least 100 work days
per year, during the 5-year period beginning on
the date of the enactment of this Act; or
(ii) 3 years of agricultural employment in
the United States for at least 150 work days
per year, during the 3-year period beginning on
the date of the enactment of this Act.
(B) 4-year period of employment.--An alien shall be
considered to meet the requirements of subparagraph (A)
if the alien has performed 4 years of agricultural
employment in the United States for at least 150 work
days during 3 years of those 4 years and at least 100
work days during the remaining year, during the 4-year
period beginning on the date of the enactment of this
Act.
(2) Proof.--An alien may demonstrate compliance with the
requirement under paragraph (1) by submitting--
(A) the record of employment described in section
476(e); or
(B) documentation that may be submitted under
section 477(c).
(3) Extraordinary circumstances.--
(A) In general.--In determining whether an alien
has met the requirement of paragraph (1)(A), the
Secretary may credit the alien with not more than 12
additional months of agricultural employment in the
United States to meet such requirement if the alien was
unable to work in agricultural employment due to--
(i) pregnancy, injury, or disease, if the
alien can establish such pregnancy, disabling
injury, or disease through medical records;
(ii) illness, disease, or other special
needs of a minor child, if the alien can
establish such illness, disease, or special
needs through medical records;
(iii) severe weather conditions that
prevented the alien from engaging in
agricultural employment for a significant
period of time; or
(iv) termination from agricultural
employment, if the Secretary finds that the
termination was without just cause and that the
alien was unable to find alternative
agricultural employment after a reasonable job
search.
(B) Effect of finding.--A finding made under
subparagraph (A)(iv), with respect to an alien, shall
not--
(i) be conclusive, binding, or admissible
in a separate or subsequent judicial or
administrative action or proceeding between the
alien and a current or prior employer of the
alien or any other party; or
(ii) subject the alien's employer to the
payment of attorney fees incurred by the alien
in seeking to obtain a finding under
subparagraph (A)(iv).
(4) Application period.--The alien applies for adjustment
of status not later than 7 years after the date of the
enactment of this Act.
(5) Fine.--The alien pays a fine of $400 to the Secretary.
(b) Grounds for Denial of Adjustment of Status.--The Secretary
shall deny an alien granted blue card status an adjustment of status
under this section if--
(1) the Secretary finds, by a preponderance of the
evidence, that the adjustment to blue card status was the
result of fraud or willful misrepresentation, as described in
section 212(a)(6)(C)(i) of the Immigration and Nationality Act
(8 U.S.C. 1182(a)(6)(C)(i)); or
(2) the alien--
(A) commits an act that makes the alien
inadmissible to the United States under section 212 of
the Immigration and Nationality Act (8 U.S.C. 1182),
except as provided under section 105(b);
(B) is convicted of a felony or 3 or more
misdemeanors committed in the United States;
(C) is convicted of an offense, an element of which
involves bodily injury, threat of serious bodily
injury, or harm to property in excess of $500; or
(D) failed to perform the agricultural employment
required under paragraph (1)(A) of subsection (a)
unless the alien was unable to work in agricultural
employment due to the extraordinary circumstances
described in paragraph (3) of such subsection.
(c) Grounds for Removal.--Any alien granted blue card status who
does not apply for adjustment of status under this section before the
expiration of the application period described in subsection (a)(4) or
who fails to meet the other requirements of subsection (a) by the end
of the application period, is deportable and may be removed under
section 240 of the Immigration and Nationality Act (8 U.S.C. 1229a).
(d) Payment of Taxes.--
(1) In general.--Not later than the date on which an
alien's status is adjusted under this section, the alien shall
establish that the alien does not owe any applicable Federal
tax liability by establishing that--
(A) no such tax liability exists;
(B) all such outstanding tax liabilities have been
paid; or
(C) the alien has entered into an agreement for
payment of all outstanding liabilities with the
Internal Revenue Service.
(2) Applicable federal tax liability.--In paragraph (1) the
term ``applicable Federal tax liability'' means liability for
Federal taxes, including penalties and interest, owed for any
year during the period of employment required under subsection
(a)(1) for which the statutory period for assessment of any
deficiency for such taxes has not expired.
(3) IRS cooperation.--The Secretary of the Treasury shall
establish rules and procedures under which the Commissioner of
Internal Revenue shall provide documentation to an alien upon
request to establish the payment of all taxes required by this
subsection.
(e) Spouses and Minor Children.--
(1) In general.--Notwithstanding any other provision of
law, the Secretary shall confer the status of lawful permanent
resident on the spouse and minor child of an alien granted any
adjustment of status under subsection (a), including any
individual who was a minor child on the date such alien was
granted blue card status, if the spouse or minor child applies
for such status, or if the principal alien includes the spouse
or minor child in an application for adjustment of status to
that of a lawful permanent resident.
(2) Treatment of spouses and minor children.--
(A) Granting of status and removal.--The Secretary
shall grant derivative status to the alien spouse and
any minor child residing in the United States of an
alien granted blue card status and shall not remove
such derivative spouse or child during the period that
the alien granted blue card status maintains such
status, except as provided in paragraph (3). A grant of
derivative status to such a spouse or child under this
subparagraph shall not decrease the number of aliens
who may receive blue card status under subsection (h)
of section 101.
(B) Travel.--The derivative spouse and any minor
child of an alien granted blue card status may travel
outside the United States in the same manner as an
alien lawfully admitted for permanent residence.
(C) Employment.--The derivative spouse of an alien
granted blue card status may apply to the Secretary for
a work permit to authorize such spouse to engage in any
lawful employment in the United States while such alien
maintains blue card status.
(3) Grounds for denial of adjustment of status and
removal.--The Secretary shall deny an alien spouse or child
adjustment of status under paragraph (1) and may remove such
spouse or child under section 240 of the Immigration and
Nationality Act (8 U.S.C. 1229a) if the spouse or child--
(A) commits an act that makes the alien spouse or
child inadmissible to the United States under section
212 of such Act (8 U.S.C. 1182), except as provided
under section 479(a)(2);
(B) is convicted of a felony or 3 or more
misdemeanors committed in the United States; or
(C) is convicted of an offense, an element of which
involves bodily injury, threat of serious bodily
injury, or harm to property in excess of $500.
SEC. 479. OTHER PROVISIONS.
(a) Waiver of Numerical Limitations and Certain Grounds for
Inadmissibility.--
(1) Numerical limitations do not apply.--The numerical
limitations of sections 201 and 202 of the Immigration and
Nationality Act (8 U.S.C. 1151 and 1152) shall not apply to the
adjustment of aliens to lawful permanent resident status under
section 478.
(2) Waiver of certain grounds of inadmissibility.--In the
determination of an alien``s eligibility for status under
section 101(a) or an alien''s eligibility for adjustment of
status under section 478(b)(2)(A) the following rules shall
apply:
(A) Grounds of exclusion not applicable.--The
provisions of paragraphs (5), (6)(A), (7), and (9) of
section 212(a) of the Immigration and Nationality Act
(8 U.S.C. 1182(a)) shall not apply.
(B) Waiver of other grounds.--
(i) In general.--Except as provided in
subparagraph (B), the Secretary may waive any
other provision of such section 212(a) in the
case of individual aliens for humanitarian
purposes, to ensure family unity, or if
otherwise in the public interest.
(ii) Grounds that may not be waived.--
Subparagraphs (A), (B), (C), (D), (G), (H), and
(I) of paragraph (2) and paragraphs (3) and (4)
of such section 212(a) may not be waived by the
Secretary under subparagraph (A).
(iii) Construction.--Nothing in this
paragraph shall be construed as affecting the
authority of the Secretary other than under
this subparagraph to waive provisions of such
section 212(a).
(C) Special rule for determination of public
charge.--An alien is not ineligible for blue card
status or an adjustment of status under section 478 by
reason of a ground of inadmissibility under section
212(a)(4) of the Immigration and Nationality Act (8
U.S.C. 1182(a)(4)) if the alien demonstrates a history
of employment in the United States evidencing self-
support without reliance on public cash assistance.
(3) Temporary stay of removal and work authorization for
certain applicants.--
(A) Before application period.--Effective on the
date of enactment of this Act, the Secretary shall
provide that, in the case of an alien who is
apprehended before the beginning of the application
period described in section 476(a)(2) and who can
establish a nonfrivolous case of eligibility for blue
card status (but for the fact that the alien may not
apply for such status 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 blue card status, the
alien--
(i) may not be removed; and
(ii) shall be granted authorization to
engage in employment in the United States and
be provided an employment authorized
endorsement or other appropriate work permit
for such purpose.
(B) During application period.--The Secretary shall
provide that, in the case of an alien who presents a
nonfrivolous application for blue card status during
the application period described in section 476(a)(2),
including an alien who files such an application within
30 days of the alien's apprehension, and until a final
determination on the application has been made in
accordance with this section, the alien--
(i) may not be removed; and
(ii) shall be granted authorization to
engage in employment in the United States and
be provided an employment authorized
endorsement or other appropriate work permit
for such purpose.
(b) Administrative and Judicial Review.--
(1) In general.--There shall be no administrative or
judicial review of a determination respecting an application
for blue card status or adjustment of status under section 478
except in accordance with this section.
(2) Administrative review.--
(A) Single level of administrative appellate
review.--The Secretary shall establish an appellate
authority to provide for a single level of
administrative appellate review of such a
determination.
(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.
(3) Judicial review.--
(A) Limitation to review of removal.--There shall
be judicial review of such a determination only in the
judicial review of an order of removal under section
242 of the Immigration and Nationality Act (8 U.S.C.
1252).
(B) Standard for judicial review.--Such judicial
review shall be based solely upon the administrative
record established at the time of the review by the
appellate authority and the findings of fact and
determinations contained in such record shall be
conclusive unless the applicant can establish abuse of
discretion or that the findings are directly contrary
to clear and convincing facts contained in the record
considered as a whole.
(c) Use of Information.--Beginning not later than the first day of
the application period described in section 476(a)(2), the Secretary,
in cooperation with qualified designated entities (as that term is
defined in section 477(b)), shall broadly disseminate information
respecting the benefits that aliens may receive under this subtitle and
the requirements that an alien is required to meet to receive such
benefits.
(d) Regulations, Effective Date, Authorization of Appropriations.--
(1) Regulations.--The Secretary shall issue regulations to
implement this chapter not later than the first day of the
seventh month that begins after the date of enactment of this
Act.
(2) Effective date.--This chapter shall take effect on the
date that regulations required under subsection (a) are issued,
regardless of whether such regulations are issued on an interim
basis or on any other basis.
(3) Authorization of appropriations.--There are authorized
to be appropriated to the Secretary such sums as may be
necessary to implement this subtitle, including any sums needed
for costs associated with the initiation of such
implementation, for fiscal years 2011 and 2012.
SEC. 480. CORRECTION OF SOCIAL SECURITY RECORDS.
(a) In General.--Section 208(e)(1) of the Social Security Act (42
U.S.C. 408(e)(1)) is amended--
(1) in subparagraph (B)(ii), by striking ``or'' at the end;
(2) in subparagraph (C), by inserting ``or'' at the end;
(3) by inserting after subparagraph (C) the following:
``(D) who is granted blue card status under the
AgJOBS Act of 2010.''; and
(4) by striking ``1990.'' and inserting ``1990, or in the
case of an alien described in subparagraph (D), if such conduct
is alleged to have occurred before the date on which the alien
was granted blue card status.''.
(b) Effective Date.--The amendments made by subsection (a) shall
take effect on the first day of the seventh month that begins after the
date of the enactment of this Act.
Subchapter B--Reform of H-2A Worker Program
SEC. 481. AMENDMENTS TO THE IMMIGRATION AND NATIONALITY ACT.
(a) In General.--Title II (8 U.S.C. 1151 et seq.) is amended by
striking section 218 and inserting the following:
``SEC. 218. H-2A EMPLOYER APPLICATIONS.
``(a) Applications to the Secretary of Labor.--
``(1) In general.--No alien may be admitted to the United
States as an H-2A worker, or otherwise provided status as an H-
2A worker, unless the employer has filed with the Secretary of
Labor an application containing--
``(A) the assurances described in subsection (b);
``(B) a description of the nature and location of
the work to be performed;
``(C) the anticipated period (expected beginning
and ending dates) for which the workers will be needed;
and
``(D) the number of job opportunities in which the
employer seeks to employ the workers.
``(2) Accompanied by job offer.--Each application filed
under paragraph (1) shall be accompanied by a copy of the job
offer describing the wages and other terms and conditions of
employment and the bona fide occupational qualifications that
shall be possessed by a worker to be employed in the job
opportunity in question.
``(b) Assurances for Inclusion in Applications.--The assurances
referred to in subsection (a)(1) are the following:
``(1) Job opportunities covered by collective bargaining
agreements.--With respect to a job opportunity that is covered
under a collective bargaining agreement:
``(A) Union contract described.--The job
opportunity is covered by a union contract which was
negotiated at arm's length between a bona fide union
and the employer.
``(B) Strike or lockout.--The specific job
opportunity for which the employer is requesting an H-
2A worker is not vacant because the former occupant is
on strike or being locked out in the course of a labor
dispute.
``(C) Notification of bargaining representatives.--
The employer, at the time of filing the application,
has provided notice of the filing under this paragraph
to the bargaining representative of the employer's
employees in the occupational classification at the
place or places of employment for which aliens are
sought.
``(D) Temporary or seasonal job opportunities.--The
job opportunity is temporary or seasonal.
``(E) Offers to united states workers.--The
employer has offered or will 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
who will be available at the time and place of need.
``(F) Provision of insurance.--If the job
opportunity is not covered by the 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's workers'
compensation law for comparable employment.
``(2) Job opportunities not covered by collective
bargaining agreements.--With respect to a job opportunity that
is not covered under a collective bargaining agreement:
``(A) Strike or lockout.--The specific job
opportunity for which the employer has applied for an
H-2A worker is not vacant because the former occupant
is on strike or being locked out in the course of a
labor dispute.
``(B) Temporary or seasonal job opportunities.--The
job opportunity is temporary or seasonal.
``(C) Benefit, wage, and working conditions.--The
employer will provide, at a minimum, the benefits,
wages, and working conditions required by section 218A
to all workers employed in the job opportunities for
which the employer has applied for an H-2A worker under
subsection (a) and to all other workers in the same
occupation at the place of employment.
``(D) 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 and for a period of 30 days
preceding the period of employment in the occupation at
the place of employment for which the employer has
applied for an H-2A worker.
``(E) Requirements for placement of the
nonimmigrant with other employers.--The employer will
not place the nonimmigrant with another employer
unless--
``(i) the nonimmigrant performs duties in
whole or in part at 1 or more worksites owned,
operated, or controlled by such other employer;
``(ii) there are indicia of an employment
relationship between the nonimmigrant and such
other employer; and
``(iii) the employer has inquired of the
other employer as to whether, and has no actual
knowledge or notice that, during the period of
employment and for a period of 30 days
preceding the period of employment, the other
employer has displaced or intends to displace a
United States worker employed by the other
employer in the occupation at the place of
employment for which the employer seeks
approval to employ H-2A workers.
``(F) Statement of liability.--The application form
shall include a clear statement explaining the
liability under subparagraph (E) of an employer if the
other employer described in such subparagraph displaces
a United States worker as described in such
subparagraph.
``(G) Provision of insurance.--If the job
opportunity is not covered by the 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's workers'
compensation law for comparable employment.
``(H) Employment of united states workers.--
``(i) Recruitment.--The employer has taken
or will take the following steps to recruit
United States workers for the job opportunities
for which the H-2A nonimmigrant is, or H-2A
nonimmigrants are, sought:
``(I) Contacting former workers.--
The employer shall make reasonable
efforts through the sending of a letter
by United States Postal Service mail,
or otherwise, to contact any United
States worker the employer employed
during the previous season in the
occupation at the place of intended
employment for which the employer is
applying for workers and has made the
availability of the employer's job
opportunities in the occupation at the
place of intended employment known to
such previous workers, unless the
worker was terminated from employment
by the employer for a lawful job-
related reason or abandoned the job
before the worker completed the period
of employment of the job opportunity
for which the worker was hired.
``(II) Filing a job offer with the
local office of the state employment
security agency.--Not later than 28
days before the date on which the
employer desires to employ an H-2A
worker in a temporary or seasonal
agricultural job opportunity, the
employer shall submit a copy of the job
offer described in subsection (a)(2) to
the local office of the State
employment security agency which serves
the area of intended employment and
authorize the posting of the job
opportunity on `America`s Job Bank' or
other electronic job registry, except
that nothing in this subclause shall
require the employer to file an
interstate job order under section 653
of title 20, Code of Federal
Regulations.
``(III) Advertising of job
opportunities.--Not later than 14 days
before the date on which the employer
desires to employ an H-2A worker in a
temporary or seasonal agricultural job
opportunity, the employer shall
advertise the availability of the job
opportunities for which the employer is
seeking workers in a publication in the
local labor market that is likely to be
patronized by potential farm workers.
``(IV) Emergency procedures.--The
Secretary of Labor shall, by
regulation, provide a procedure for
acceptance and approval of applications
in which the employer has not complied
with the provisions of this
subparagraph because the employer's
need for H-2A workers could not
reasonably have been foreseen.
``(ii) Job offers.--The employer has
offered or will 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 nonimmigrants are, sought
and who will be available at the time and place
of need.
``(iii) Period of employment.--The employer
will provide employment to any qualified United
States worker who applies to the employer
during the period beginning on the date on
which the H-2A worker departs for the
employer's place of employment and ending on
the date on which 50 percent of the period of
employment for which the H-2A worker who is in
the job was hired has elapsed, subject to the
following requirements:
``(I) Prohibition.--No person or
entity shall willfully and knowingly
withhold United States workers before
the arrival of H-2A workers in order to
force the hiring of United States
workers under this clause.
``(II) Complaints.--Upon receipt of
a complaint by an employer that a
violation of subclause (I) has
occurred, the Secretary of Labor shall
immediately investigate. The Secretary
of Labor shall, within 36 hours of the
receipt of the complaint, issue
findings concerning the alleged
violation. If the Secretary of Labor
finds that a violation has occurred,
the Secretary of Labor shall
immediately suspend the application of
this clause with respect to that
certification for that date of need.
``(III) Placement of united states
workers.--Before referring a United
States worker to an employer during the
period described in the matter
preceding subclause (I), the Secretary
of Labor shall make all reasonable
efforts to place the United States
worker in an open job acceptable to the
worker, if there are other job offers
pending with the job service that offer
similar job opportunities in the area
of intended employment.
``(iv) Statutory construction.--Nothing in
this subparagraph shall be construed to
prohibit an employer from using such legitimate
selection criteria relevant to the type of job
that are normal or customary to the type of job
involved so long as such criteria are not
applied in a discriminatory manner.
``(c) Applications by Associations on Behalf of Employer Members.--
``(1) In general.--An agricultural association may file an
application under subsection (a) on behalf of 1 or more of its
employer members that the association certifies in its
application has or have agreed in writing to comply with the
requirements of this section and sections 218A, 218B, and 218C.
``(2) Treatment of associations acting as employers.--If an
association filing an application under paragraph (1) is a
joint or sole employer of the temporary or seasonal
agricultural workers requested on the application, the
certifications granted under subsection (e)(2)(B) to the
association may be used for the certified job opportunities of
any of its producer members named on the application, and such
workers may be transferred among such producer members to
perform the agricultural services of a temporary or seasonal
nature for which the certifications were granted.
``(d) Withdrawal of Applications.--
``(1) In general.--An employer may withdraw an application
filed pursuant to subsection (a), except that if the employer
is an agricultural association, the association may withdraw an
application filed pursuant to subsection (a) with respect to 1
or more of its members. To withdraw an application, the
employer or association shall notify the Secretary of Labor in
writing, and the Secretary of Labor shall acknowledge in
writing the receipt of such withdrawal notice. An employer who
withdraws an application under subsection (a), or on whose
behalf an application is withdrawn, is relieved of the
obligations undertaken in the application.
``(2) Limitation.--An application may not be withdrawn
while any alien provided status under section
101(a)(15)(H)(ii)(a) pursuant to such application is employed
by the employer.
``(3) Obligations under other statutes.--Any obligation
incurred by an employer under any other law or regulation as a
result of the recruitment of United States workers or H-2A
workers under an offer of terms and conditions of employment
required as a result of making an application under subsection
(a) is unaffected by withdrawal of such application.
``(e) Review and Approval of Applications.--
``(1) Responsibility of employers.--The employer shall make
available for public examination, within 1 working day after
the date on which an application under subsection (a) is filed,
at the employer's principal place of business or worksite, a
copy of each such application (and such accompanying documents
as are necessary).
``(2) Responsibility of the secretary of labor.--
``(A) Compilation of list.--The Secretary of Labor
shall compile, on a current basis, a list (by employer
and by occupational classification) of the applications
filed under subsection (a). Such list shall include the
wage rate, number of workers sought, period of intended
employment, and date of need. The Secretary of Labor
shall make such list available for examination in the
District of Columbia.
``(B) Review of applications.--The Secretary of
Labor shall review such an application only for
completeness and obvious inaccuracies. Unless the
Secretary of Labor finds that the application is
incomplete or obviously inaccurate, the Secretary of
Labor shall certify that the intending employer has
filed with the Secretary of Labor an application as
described in subsection (a). Such certification shall
be provided within 7 days of the filing of the
application.
``SEC. 218A. H-2A EMPLOYMENT REQUIREMENTS.
``(a) Preferential Treatment of Aliens Prohibited.--Employers
seeking to hire United States workers shall offer the United States
workers no less than the same benefits, wages, and working conditions
that the employer is offering, intends to offer, or will provide to H-
2A workers. Conversely, 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) Minimum Benefits, Wages, and Working Conditions.--Except in
cases where higher benefits, wages, or working conditions are required
by the provisions of subsection (a), in order to protect similarly
employed United States workers from adverse effects with respect to
benefits, wages, and working conditions, every job offer which shall
accompany an application under section 218(b)(2) shall include each of
the following benefit, wage, and working condition provisions:
``(1) Requirement to provide housing or a housing
allowance.--
``(A) In general.--An employer applying under
section 218(a) for H-2A workers shall offer to provide
housing at no cost to all workers in job opportunities
for which the employer has applied under that section
and to all other workers in the same occupation at the
place of employment, whose place of residence is beyond
normal commuting distance.
``(B) Type of housing.--In complying with
subparagraph (A), an employer may, at the employer's
election, provide housing that meets applicable Federal
standards for temporary labor camps or secure housing
that meets applicable local standards for rental or
public accommodation housing or other substantially
similar class of habitation, or in the absence of
applicable local standards, State standards for rental
or public accommodation housing or other substantially
similar class of habitation. In the absence of
applicable local or State standards, Federal temporary
labor camp standards shall apply.
``(C) Family housing.--If it is the prevailing
practice in the occupation and area of intended
employment to provide family housing, family housing
shall be provided to workers with families who request
it.
``(D) Workers engaged in the range production of
livestock.--The Secretary of Labor shall issue
regulations that address the specific requirements for
the provision of housing to workers engaged in the
range production of livestock.
``(E) Limitation.--Nothing in this paragraph shall
be construed to require an employer to provide or
secure housing for persons who were not entitled to
such housing under the temporary labor certification
regulations in effect on June 1, 1986.
``(F) Charges for housing.--
``(i) Charges for public housing.--If
public housing provided for migrant
agricultural workers under the auspices of a
local, county, or State government is secured
by an employer, and use of the public housing
unit normally requires charges from migrant
workers, such charges shall be paid by the
employer directly to the appropriate individual
or entity affiliated with the housing's
management.
``(ii) Deposit charges.--Charges in the
form of deposits for bedding or other similar
incidentals related to housing shall not be
levied upon workers by employers who provide
housing for their workers. An employer may
require a worker found to have been responsible
for damage to such housing which is not the
result of normal wear and tear related to
habitation to reimburse the employer for the
reasonable cost of repair of such damage.
``(G) Housing allowance as alternative.--
``(i) In general.--If the requirement set
out in clause (ii) is satisfied, the employer
may provide a reasonable housing allowance
instead of offering housing under subparagraph
(A). 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 virtue of providing such housing allowance.
No housing allowance may be used for housing
which is owned or controlled by the employer.
``(ii) Certification.--The requirement of
this clause is satisfied if the Governor of the
State certifies to the Secretary of Labor that
there is adequate housing available in the area
of intended employment for migrant farm workers
and H-2A workers who are seeking temporary
housing while employed in agricultural work.
Such certification shall expire after 3 years
unless renewed by the Governor of the State.
``(iii) Amount of allowance.--
``(I) Nonmetropolitan counties.--If
the place of employment of the workers
provided an allowance under this
subparagraph is a nonmetropolitan
county, the amount of the housing
allowance under this subparagraph shall
be equal to the statewide average fair
market rental for existing housing for
nonmetropolitan counties for the State,
as established by the Secretary of
Housing and Urban Development pursuant
to section 8(c) of the United States
Housing Act of 1937 (42 U.S.C.
1437f(c)), based on a 2-bedroom
dwelling unit and an assumption of 2
persons per bedroom.
``(II) Metropolitan counties.--If
the place of employment of the workers
provided an allowance under this
paragraph is in a metropolitan county,
the amount of the housing allowance
under this subparagraph shall be equal
to the statewide average fair market
rental for existing housing for
metropolitan counties for the State, as
established by the Secretary of Housing
and Urban Development pursuant to
section 8(c) of the United States
Housing Act of 1937 (42 U.S.C.
1437f(c)), based on a 2-bedroom
dwelling unit and an assumption of 2
persons per bedroom.
``(2) Reimbursement of transportation.--
``(A) To place of employment.--A worker who
completes 50 percent of the period of employment of the
job opportunity for which the worker was hired shall be
reimbursed by the employer for the cost of the worker's
transportation and subsistence from the place from
which the worker came to work for the employer (or
place of last employment, if the worker traveled from
such place) to the place of employment.
``(B) From place of employment.--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 place of employment to the
place from which the worker, disregarding intervening
employment, came to work for the employer, or to the
place of next employment, if the worker has contracted
with a subsequent employer who has not agreed to
provide or pay for the worker's transportation and
subsistence to such subsequent employer's place of
employment.
``(C) Limitation.--
``(i) Amount of reimbursement.--Except as
provided in clause (ii), the amount of
reimbursement provided under subparagraph (A)
or (B) to a worker or alien shall not exceed
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,
or the worker is not residing in employer-
provided housing or housing secured through an
allowance as provided in paragraph (1)(G).
``(D) Early termination.--If the worker is laid off
or employment is terminated for contract impossibility
(as described in paragraph (4)(D)) before the
anticipated ending date of employment, the employer
shall provide the transportation and subsistence
required by subparagraph (B) and, notwithstanding
whether the worker has completed 50 percent of the
period of employment, shall provide the transportation
reimbursement required by subparagraph (A).
``(E) Transportation between living quarters and
worksite.--The employer shall provide transportation
between the worker`s living quarters and the employer's
worksite without cost to the worker, and such
transportation will be in accordance with applicable
laws and regulations.
``(3) Required wages.--
``(A) In general.--An employer applying for workers
under section 218(a) shall offer to pay, and shall pay,
all workers in the occupation for which the employer
has applied for workers, not less (and is not required
to pay more) than the greater of the prevailing wage in
the occupation in the area of intended employment or
the adverse effect wage rate. No worker shall be paid
less than the greater of the hourly wage prescribed
under section 6(a)(1) of the Fair Labor Standards Act
of 1938 (29 U.S.C. 206(a)(1)) or the applicable State
minimum wage.
``(B) Limitation.--Effective on the date of the
enactment of the Agricultural Job Opportunities,
Benefits, and Security Act of 2009 and continuing for 3
years thereafter, no adverse effect wage rate for a
State may be more than the adverse effect wage rate for
that State in effect on January 1, 2009, as established
by section 655.107 of title 20, Code of Federal
Regulations.
``(C) Required wages after 3-year freeze.--
``(i) First adjustment.--If Congress does
not set a new wage standard applicable to this
section before the first March 1 that is not
less than 3 years after the date of enactment
of this section, the adverse effect wage rate
for each State beginning on such March 1 shall
be the wage rate that would have resulted if
the adverse effect wage rate in effect on
January 1, 2009, had been annually adjusted,
beginning on March 1, 2012, by the lesser of--
``(I) the 12-month percentage
change in the Consumer Price Index for
All Urban Consumers between December of
the second preceding year and December
of the preceding year; and
``(II) 4 percent.
``(ii) Subsequent annual adjustments.--
Beginning on the first March 1 that is not less
than 4 years after the date of enactment of
this section, and each March 1 thereafter, the
adverse effect wage rate then in effect for
each State shall be adjusted by the lesser of--
``(I) the 12-month percentage
change in the Consumer Price Index for
All Urban Consumers between December of
the second preceding year and December
of the preceding year; and
``(II) 4 percent.
``(D) Deductions.--The employer shall make only
those deductions from the worker`s wages that are
authorized by law or are reasonable and customary in
the occupation and area of employment. The job offer
shall specify all deductions not required by law which
the employer will make from the worker's wages.
``(E) Frequency of pay.--The employer shall pay the
worker not less frequently than twice monthly, or in
accordance with the prevailing practice in the area of
employment, whichever is more frequent.
``(F) Hours and earnings statements.--The employer
shall furnish to the worker, on or before each payday,
in 1 or more written statements--
``(i) the worker's total earnings for the
pay period;
``(ii) the worker's hourly rate of pay,
piece rate of pay, or both;
``(iii) the hours of employment which have
been offered to the worker (broken out by hours
offered in accordance with and over and above
the 3/4 guarantee described in paragraph (4);
``(iv) the hours actually worked by the
worker;
``(v) an itemization of the deductions made
from the worker's wages; and
``(vi) if piece rates of pay are used, the
units produced daily.
``(G) Report on wage protections.--Not later than
December 31, 2011, the Comptroller General of the
United States shall prepare and transmit to the
Secretary of Labor, the Committee on the Judiciary of
the Senate, and Committee on the Judiciary of the House
of Representatives, a report that addresses--
``(i) whether the employment of H-2A or
unauthorized aliens in the United States
agricultural workforce has depressed United
States farm worker wages below the levels that
would otherwise have prevailed if alien farm
workers had not been employed in the United
States;
``(ii) whether an adverse effect wage rate
is necessary to prevent wages of United States
farm workers in occupations in which H-2A
workers are employed from falling below the
wage levels that would have prevailed in the
absence of the employment of H-2A workers in
those occupations;
``(iii) whether alternative wage standards,
such as a prevailing wage standard, would be
sufficient to prevent wages in occupations in
which H-2A workers are employed from falling
below the wage level that would have prevailed
in the absence of H-2A employment;
``(iv) whether any changes are warranted in
the current methodologies for calculating the
adverse effect wage rate and the prevailing
wage; and
``(v) recommendations for future wage
protection under this section.
``(H) Commission on wage standards.--
``(i) Establishment.--There is established
the Commission on Agricultural Wage Standards
under the H-2A program (in this subparagraph
referred to as the `Commission').
``(ii) Composition.--The Commission shall
consist of 10 members as follows:
``(I) Four representatives of
agricultural employers and 1
representative of the Department of
Agriculture, each appointed by the
Secretary of Agriculture.
``(II) Four representatives of
agricultural workers and 1
representative of the Department of
Labor, each appointed by the Secretary
of Labor.
``(iii) Functions.--The Commission shall
conduct a study that shall address--
``(I) whether the employment of H-
2A or unauthorized aliens in the United
States agricultural workforce has
depressed United States farm worker
wages below the levels that would
otherwise have prevailed if alien farm
workers had not been employed in the
United States;
``(II) whether an adverse effect
wage rate is necessary to prevent wages
of United States farm workers in
occupations in which H-2A workers are
employed from falling below the wage
levels that would have prevailed in the
absence of the employment of H-2A
workers in those occupations;
``(III) whether alternative wage
standards, such as a prevailing wage
standard, would be sufficient to
prevent wages in occupations in which
H-2A workers are employed from falling
below the wage level that would have
prevailed in the absence of H-2A
employment;
``(IV) whether any changes are
warranted in the current methodologies
for calculating the adverse effect wage
rate and the prevailing wage rate; and
``(V) recommendations for future
wage protection under this section.
``(iv) Final report.--Not later than
December 31, 2011, the Commission shall submit
a report to the Congress setting forth the
findings of the study conducted under clause
(iii).
``(v) Termination date.--The Commission
shall terminate upon submitting its final
report.
``(4) Guarantee of employment.--
``(A) Offer to worker.--The employer shall
guarantee to offer the worker employment for the hourly
equivalent of at least 3/4 of the work days of the
total period of employment, beginning with the first
work day after the arrival of the worker at the place
of employment and ending on the expiration date
specified in the job offer. For purposes of this
subparagraph, the hourly equivalent means the number of
hours in the work days as stated in the job offer and
shall exclude the worker's Sabbath and Federal
holidays. If the employer affords the United States or
H-2A worker less employment than that required under
this paragraph, the employer shall pay such worker the
amount which the worker would have earned had the
worker, in fact, worked for the guaranteed number of
hours.
``(B) Failure to work.--Any hours which the worker
fails to work, up to a maximum of the number of hours
specified in the job offer for a work day, when the
worker has been offered an opportunity to do so, and
all hours of work actually performed (including
voluntary work in excess of the number of hours
specified in the job offer in a work day, on the
worker's Sabbath, or on Federal holidays) may be
counted by the employer in calculating whether the
period of guaranteed employment has been met.
``(C) Abandonment of employment, termination for
cause.--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 3/4
guarantee described in subparagraph (A).
``(D) Contract impossibility.--If, before the
expiration of the period of employment specified in the
job offer, the services of the worker are no longer
required for reasons beyond the control of the employer
due to any form of natural disaster, including a flood,
hurricane, freeze, earthquake, fire, drought, plant or
animal disease or pest infestation, or regulatory
drought, before the guarantee in subparagraph (A) is
fulfilled, the employer may terminate the worker's
employment. In the event of such termination, the
employer shall fulfill the employment guarantee in
subparagraph (A) for the work days that have elapsed
from the first work day after the arrival of the worker
to the termination of employment. In such cases, the
employer will make efforts to transfer the United
States worker to other comparable employment acceptable
to the worker. If such transfer is not effected, the
employer shall provide the return transportation
required in paragraph (2)(D).
``(5) Motor vehicle safety.--
``(A) Mode of transportation subject to coverage.--
``(i) In general.--- Except as provided in
clauses (iii) and (iv), this subsection applies
to any H-2A employer that uses or causes to be
used any vehicle to transport an H-2A worker
within the United States.
``(ii) Defined term.--In this paragraph,
the term `uses or causes to be used'--
``(I) applies only to
transportation provided by an H-2A
employer to an H-2A worker, or by a
farm labor contractor to an H-2A worker
at the request or direction of an H-2A
employer; and
``(II) does not apply to--
``(aa) transportation
provided, or transportation
arrangements made, by an H-2A
worker, unless the employer
specifically requested or
arranged such transportation;
or
``(bb) car pooling
arrangements made by H-2A
workers themselves, using 1 of
the workers' own vehicles,
unless specifically requested
by the employer directly or
through a farm labor
contractor.
``(iii) Clarification.--Providing a job
offer to an H-2A worker that causes the worker
to travel to or from the place of employment,
or the payment or reimbursement of the
transportation costs of an H-2A worker by an H-
2A employer, shall not constitute an
arrangement of, or participation in, such
transportation.
``(iv) Agricultural machinery and equipment
excluded.--This subsection does not apply to
the transportation of an H-2A worker on a
tractor, combine, harvester, picker, or other
similar machinery or equipment while such
worker is actually engaged in the planting,
cultivating, or harvesting of agricultural
commodities or the care of livestock or poultry
or engaged in transportation incidental
thereto.
``(v) Common carriers excluded.--This
subsection does not apply to common carrier
motor vehicle transportation in which the
provider holds itself out to the general public
as engaging in the transportation of passengers
for hire and holds a valid certification of
authorization for such purposes from an
appropriate Federal, State, or local agency.
``(B) Applicability of standards, licensing, and
insurance requirements.--
``(i) In general.--When using, or causing
to be used, any vehicle for the purpose of
providing transportation to which this
subparagraph applies, each employer shall--
``(I) ensure that each such vehicle
conforms to the standards prescribed by
the Secretary of Labor under section
401(b) of the Migrant and Seasonal
Agricultural Worker Protection Act (29
U.S.C. 1841(b)) and other applicable
Federal and State safety standards;
``(II) ensure that each driver has
a valid and appropriate license, as
provided by State law, to operate the
vehicle; and
``(III) have an insurance policy or
a liability bond that is in effect
which insures the employer against
liability for damage to persons or
property arising from the ownership,
operation, or causing to be operated,
of any vehicle used to transport any H-
2A worker.
``(ii) Amount of insurance required.--The
level of insurance required shall be determined
by the Secretary of Labor pursuant to
regulations to be issued under this subsection.
``(iii) Effect of workers' compensation
coverage.--If the employer of any H-2A worker
provides workers' compensation coverage for
such worker in the case of bodily injury or
death as provided by State law, the following
adjustments in the requirements of subparagraph
(B)(i)(III) relating to having an insurance
policy or liability bond apply:
``(I) No insurance policy or
liability bond shall be required of the
employer, if such workers are
transported only under circumstances
for which there is coverage under such
State law.
``(II) An insurance policy or
liability bond shall be required of the
employer for circumstances under which
coverage for the transportation of such
workers is not provided under such
State law.
``(c) Compliance With Labor Laws.--An employer shall assure that,
except as otherwise provided in this section, the employer will comply
with all applicable Federal, State, and local labor laws, including
laws affecting migrant and seasonal agricultural workers, with respect
to all United States workers and alien workers employed by the
employer, except that a violation of this assurance shall not
constitute a violation of the Migrant and Seasonal Agricultural Worker
Protection Act (29 U.S.C. 1801 et seq.).
``(d) Copy of Job Offer.--The employer shall provide to the worker,
not later than the day the work commences, a copy of the employer's
application and job offer described in section 218(a), or, if the
employer will require the worker to enter into a separate employment
contract covering the employment in question, such separate employment
contract.
``(e) Range Production of Livestock.--Nothing in this section,
section 218, or section 218B shall preclude the Secretary of Labor and
the Secretary from continuing to apply special procedures and
requirements to the admission and employment of aliens in occupations
involving the range production of livestock.
``SEC. 218B. PROCEDURE FOR ADMISSION AND EXTENSION OF STAY OF H-2A
WORKERS.
``(a) Petitioning for Admission.--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 may file a petition
with the Secretary. The petition shall be accompanied by an accepted
and currently valid certification provided by the Secretary of Labor
under section 218(e)(2)(B) covering the petitioner.
``(b) Expedited Adjudication by the Secretary.--The Secretary shall
establish a procedure for expedited adjudication of petitions filed
under subsection (a) and within 7 working days shall, by fax, cable, or
other means assuring expedited delivery, transmit a copy of notice of
action on the petition to the petitioner and, in the case of approved
petitions, to the appropriate immigration officer at the port of entry
or United States consulate (as 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.
``(c) Criteria for Admissibility.--
``(1) In general.--An H-2A worker shall be considered
admissible to the United States if the alien is otherwise
admissible under this section, section 218, and section 218A,
and the alien is not ineligible under paragraph (2).
``(2) Disqualification.--An alien shall be considered
inadmissible to the United States and ineligible for
nonimmigrant status under section 101(a)(15)(H)(ii)(a) if the
alien has, at any time during the past 5 years--
``(A) violated a material provision of this
section, including the requirement to promptly depart
the United States when the alien's authorized period of
admission under this section has expired; or
``(B) otherwise violated a term or condition of
admission into the United States as a nonimmigrant,
including overstaying the period of authorized
admission as such a nonimmigrant.
``(3) Waiver of ineligibility for unlawful presence.--
``(A) In general.--An alien who has not previously
been admitted into the United States pursuant to this
section, and who is otherwise eligible for admission in
accordance with paragraphs (1) and (2), shall not be
deemed inadmissible by virtue of section 212(a)(9)(B).
If an alien described in the preceding sentence is
present in the United States, the alien may apply from
abroad for H-2A status, but may not be granted that
status in the United States.
``(B) Maintenance of waiver.--An alien provided an
initial waiver of ineligibility pursuant to
subparagraph (A) shall remain eligible for such waiver
unless the alien violates the terms of this section or
again becomes ineligible under section 212(a)(9)(B) by
virtue of unlawful presence in the United States after
the date of the initial waiver of ineligibility
pursuant to subparagraph (A).
``(d) Period of Admission.--
``(1) In general.--The alien shall be admitted for the
period of employment in the application certified by the
Secretary of Labor pursuant to section 218(e)(2)(B), not to
exceed 10 months, supplemented by a period of not more than 1
week before the beginning of the period of employment for the
purpose of travel to the worksite and a period of 14 days
following the period of employment for the purpose of departure
or extension based on a subsequent offer of employment, except
that--
``(A) the alien is not authorized to be employed
during such 14-day period except in the employment for
which the alien was previously authorized; and
``(B) the total period of employment, including
such 14-day period, may not exceed 10 months.
``(2) Construction.--Nothing in this subsection shall limit
the authority of the Secretary to extend the stay of the alien
under any other provision of this Act.
``(e) 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 shall be
considered to have failed to maintain nonimmigrant status as an
H-2A worker and shall depart the United States or be subject to
removal under section 237(a)(1)(C)(i).
``(2) Report by employer.--The employer, or association
acting as agent for the employer, shall notify the Secretary
not later than 7 days after an H-2A worker prematurely abandons
employment.
``(3) Removal by the secretary.--The Secretary 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 his or her employment
if the alien promptly departs the United States upon
termination of such employment.
``(f) Replacement of Alien.--
``(1) In general.--Upon presentation of the notice to the
Secretary required by subsection (e)(2), the Secretary of State
shall promptly issue a visa to, and the Secretary shall admit
into the United States, an eligible alien designated by the
employer to replace an H-2A worker--
``(A) who abandons or prematurely terminates
employment; or
``(B) whose employment is terminated after a United
States worker is employed pursuant to section
218(b)(2)(H)(iii), if the United States worker
voluntarily departs before the end of the period of
intended employment or if the employment termination is
for a lawful job-related reason.
``(2) Construction.--Nothing in this subsection is intended
to limit any preference required to be accorded United States
workers under any other provision of this Act.
``(g) Identification Document.--
``(1) In general.--Each alien authorized to be admitted
under section 101(a)(15)(H)(ii)(a) shall be provided an
identification and employment eligibility document to verify
eligibility for employment in the United States and verify the
alien's identity.
``(2) Requirements.--No identification and employment
eligibility document may be issued which does not meet the
following requirements:
``(A) The document shall be capable of reliably
determining whether--
``(i) the individual with the
identification and employment eligibility
document whose eligibility is being verified is
in fact eligible for employment;
``(ii) the individual whose eligibility is
being verified is claiming the identity of
another person; and
``(iii) the individual whose eligibility is
being verified is authorized to be admitted
into, and employed in, the United States as an
H-2A worker.
``(B) The document shall be in a form that is
resistant to counterfeiting and to tampering.
``(C) The document shall--
``(i) be compatible with other databases of
the Secretary for the purpose of excluding
aliens from benefits for which they are not
eligible and determining whether the alien is
unlawfully present in the United States; and
``(ii) be compatible with law enforcement
databases to determine if the alien has been
convicted of criminal offenses.
``(h) Extension of Stay of H-2A Aliens in the United States.--
``(1) Extension of stay.--If an employer seeks approval to
employ an H-2A alien who is lawfully present in the United
States, the petition filed by the employer or an association
pursuant to subsection (a), shall request an extension of the
alien's stay and a change in the alien's employment.
``(2) Limitation on filing a petition for extension of
stay.--A petition may not be filed for an extension of an
alien's stay--
``(A) for a period of more than 10 months; or
``(B) to a date that is more than 3 years after the
date of the alien's last admission to the United States
under this section.
``(3) Work authorization upon filing a petition for
extension of stay.--
``(A) In general.--An alien who is lawfully present
in the United States may commence the employment
described in a petition under paragraph (1) on the date
on which the petition is filed.
``(B) Definition.--For purposes of subparagraph
(A), the term `file' means sending the petition by
certified mail via the United States Postal Service,
return receipt requested, or delivered by guaranteed
commercial delivery which will provide the employer
with a documented acknowledgment of the date of receipt
of the petition.
``(C) Handling of petition.--The employer shall
provide a copy of the employer's petition to the alien,
who 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.
``(D) Approval of petition.--Upon approval of a
petition for an extension of stay or change in the
alien's authorized employment, the Secretary 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.
``(4) Limitation on employment authorization of aliens
without valid identification and employment eligibility
document.--An expired identification and employment eligibility
document, together with a copy of a petition for extension of
stay or change in the alien's authorized employment that
complies with the requirements of paragraph (1), shall
constitute a valid work authorization document for a period of
not more than 60 days beginning on the date on which such
petition is filed, after which time only a currently valid
identification and employment eligibility document shall be
acceptable.
``(5) 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 3 years.
``(B) Requirement to remain 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 States 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.
``(i) Special Rules for Aliens Employed as Sheepherders, Goat
Herders, or Dairy Workers.--Notwithstanding any provision of the
Agricultural Job Opportunities, Benefits, and Security Act of 2009, an
alien admitted under section 101(a)(15)(H)(ii)(a) for employment as a
sheepherder, goat herder, or dairy worker--
``(1) may be admitted for an initial period of 12 months;
``(2) subject to subsection (j)(5), may have such initial
period of admission extended for a period of up to 3 years; and
``(3) shall not be subject to the requirements of
subsection (h)(5) (relating to periods of absence from the
United States).
``(j) Adjustment to Lawful Permanent Resident Status for Aliens
Employed as Sheepherders, Goat Herders, or Dairy Workers.--
``(1) Eligible alien.--For purposes of this subsection, the
term `eligible alien' means an alien--
``(A) having nonimmigrant status under section
101(a)(15)(H)(ii)(a) based on employment as a
sheepherder, goat herder, or dairy worker;
``(B) who has maintained such nonimmigrant status
in the United States for a cumulative total of 36
months (excluding any period of absence from the United
States); and
``(C) who is seeking to receive an immigrant visa
under section 203(b)(3)(A)(iii).
``(2) Classification petition.--In the case of an eligible
alien, the petition under section 204 for classification under
section 203(b)(3)(A)(iii) may be filed by--
``(A) the alien's employer on behalf of the
eligible alien; or
``(B) the eligible alien.
``(3) No labor certification required.--Notwithstanding
section 203(b)(3)(C), no determination under section
212(a)(5)(A) is required with respect to an immigrant visa
described in paragraph (1)(C) for an eligible alien.
``(4) Effect of petition.--The filing of a petition
described in paragraph (2) or an application for adjustment of
status based on the approval of such a petition shall not
constitute evidence of an alien's ineligibility for
nonimmigrant status under section 101(a)(15)(H)(ii)(a).
``(5) Extension of stay.--The Secretary shall extend the
stay of an eligible alien having a pending or approved
classification petition described in paragraph (2) in 1-year
increments until a final determination is made on the alien's
eligibility for adjustment of status to that of an alien
lawfully admitted for permanent residence.
``(6) Construction.--Nothing in this subsection shall be
construed to prevent an eligible alien from seeking adjustment
of status in accordance with any other provision of law.
``SEC. 218C. WORKER PROTECTIONS AND LABOR STANDARDS ENFORCEMENT.
``(a) Enforcement Authority.--
``(1) Investigation of complaints.--
``(A) Aggrieved person or third-party complaints.--
The Secretary of Labor shall establish a process for
the receipt, investigation, and disposition of
complaints respecting a petitioner`s failure to meet a
condition specified in section 218(b), or an employer's
misrepresentation of material facts in an application
under section 218(a). Complaints may be filed by any
aggrieved person or organization (including bargaining
representatives). No investigation or hearing shall be
conducted on a complaint concerning such a failure or
misrepresentation unless the complaint was filed not
later than 12 months after the date of the failure, or
misrepresentation, respectively. The Secretary of Labor
shall conduct an investigation under this subparagraph
if there is reasonable cause to believe that such a
failure or misrepresentation has occurred.
``(B) Determination on complaint.--Under such
process, the Secretary of Labor shall provide, within
30 days after the date such a complaint is filed, for a
determination as to whether or not a reasonable basis
exists to make a finding described in subparagraph (C),
(D), (E), or (G). If the Secretary of Labor determines
that such a reasonable basis exists, the Secretary of
Labor shall provide for notice of such determination to
the interested parties and an opportunity for a hearing
on the complaint, in accordance with section 556 of
title 5, United States Code, within 60 days after the
date of the determination. If such a hearing is
requested, the Secretary of Labor shall make a finding
concerning the matter not later than 60 days after the
date of the hearing. In the case of similar complaints
respecting the same applicant, the Secretary of Labor
may consolidate the hearings under this subparagraph on
such complaints.
``(C) Failures to meet conditions.--If the
Secretary of Labor finds, after notice and opportunity
for a hearing, a failure to meet a condition of
paragraph (1)(A), (1)(B), (1)(D), (1)(F), (2)(A),
(2)(B), or (2)(G) of section 218(b), a substantial
failure to meet a condition of paragraph (1)(C),
(1)(E), (2)(C), (2)(D), (2)(E), or (2)(H) of section
218(b), or a material misrepresentation of fact in an
application under section 218(a)--
``(i) the Secretary of Labor shall notify
the Secretary of such finding and may, in
addition, impose such other administrative
remedies (including civil money penalties in an
amount not to exceed $1,000 per violation) as
the Secretary of Labor determines to be
appropriate; and
``(ii) the Secretary may disqualify the
employer from the employment of aliens
described in section 101(a)(15)(H)(ii)(a) for a
period of 1 year.
``(D) Willful failures and willful
misrepresentations.--If the Secretary of Labor finds,
after notice and opportunity for hearing, a willful
failure to meet a condition of section 218(b), a
willful misrepresentation of a material fact in an
application under section 218(a), or a violation of
subsection (d)(1)--
``(i) the Secretary of Labor shall notify
the Secretary of such finding and may, in
addition, impose such other administrative
remedies (including civil money penalties in an
amount not to exceed $5,000 per violation) as
the Secretary of Labor determines to be
appropriate;
``(ii) the Secretary of Labor may seek
appropriate legal or equitable relief to
effectuate the purposes of subsection (d)(1);
and
``(iii) the Secretary may disqualify the
employer from the employment of H-2A workers
for a period of 2 years.
``(E) Displacement of united states workers.--If
the Secretary of Labor finds, after notice and
opportunity for hearing, a willful failure to meet a
condition of section 218(b) or a willful
misrepresentation of a material fact in an application
under section 218(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 application
under section 218(a) or during the period of 30 days
preceding such period of employment--
``(i) the Secretary of Labor shall notify
the Secretary of such finding and may, in
addition, impose such other administrative
remedies (including civil money penalties in an
amount not to exceed $15,000 per violation) as
the Secretary of Labor determines to be
appropriate; and
``(ii) the Secretary may disqualify the
employer from the employment of H-2A workers
for a period of 3 years.
``(F) Limitations on civil money penalties.--The
Secretary of Labor shall not impose total civil money
penalties with respect to an application under section
218(a) in excess of $90,000.
``(G) Failures to pay wages or required benefits.--
If the Secretary of Labor finds, after notice and
opportunity for a hearing, that the employer has failed
to pay the wages, or provide the housing allowance,
transportation, subsistence reimbursement, or guarantee
of employment, required under section 218A(b), 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. The back wages or
other required benefits under section 218A(b) shall be
equal to the difference between the amount that should
have been paid and the amount that actually was paid to
such worker.
``(2) Statutory construction.--Nothing in this section
shall be construed as limiting the authority of the Secretary
of Labor to conduct any compliance investigation under any
other labor law, including any law affecting migrant and
seasonal agricultural workers, or, in the absence of a
complaint under this section, under section 218 or 218A.
``(b) Rights Enforceable by Private Right of Action.--H-2A workers
may enforce the following rights through the private right of action
provided in subsection (c), and no other right of action shall exist
under Federal or State law to enforce such rights:
``(1) The providing of housing or a housing allowance as
required under section 218A(b)(1).
``(2) The reimbursement of transportation as required under
section 218A(b)(2).
``(3) The payment of wages required under section
218A(b)(3) when due.
``(4) The benefits and material terms and conditions of
employment expressly provided in the job offer described in
section 218(a)(2), not including the assurance to comply with
other Federal, State, and local labor laws described in section
218A(c), compliance with which shall be governed by the
provisions of such laws.
``(5) The guarantee of employment required under section
218A(b)(4).
``(6) The motor vehicle safety requirements under section
218A(b)(5).
``(7) The prohibition of discrimination under subsection
(d)(2).
``(c) Private Right of Action.--
``(1) Mediation.--Upon the filing of a complaint by an H-2A
worker aggrieved by a violation of rights enforceable under
subsection (b), and within 60 days of the filing of proof of
service of the complaint, a party to the action may file a
request with the Federal Mediation and Conciliation Service to
assist the parties in reaching a satisfactory resolution of all
issues involving all parties to the dispute. Upon a filing of
such request and giving of notice to the parties, the parties
shall attempt mediation within the period specified in
subparagraph (B).
``(A) Mediation services.--The Federal Mediation
and Conciliation Service shall be available to assist
in resolving disputes arising under subsection (b)
between H-2A workers and agricultural employers without
charge to the parties.
``(B) 90-day limit.--The Federal Mediation and
Conciliation Service may conduct mediation or other
nonbinding dispute resolution activities for a period
not to exceed 90 days beginning on the date on which
the Federal Mediation and Conciliation Service receives
the request for assistance unless the parties agree to
an extension of this period of time.
``(C) Authorization.--
``(i) In general.--Subject to clause (ii),
there are authorized to be appropriated to the
Federal Mediation and Conciliation Service
$500,000 for each fiscal year to carry out this
section.
``(ii) Mediation.--Notwithstanding any
other provision of law, the Director of the
Federal Mediation and Conciliation Service is
authorized to conduct the mediation or other
dispute resolution activities from any other
appropriated funds available to the Director
and to reimburse such appropriated funds when
the funds are appropriated pursuant to this
authorization, such reimbursement to be
credited to appropriations currently available
at the time of receipt.
``(2) Maintenance of civil action in district court by
aggrieved person.--An H-2A worker aggrieved by a violation of
rights enforceable under subsection (b) by an agricultural
employer or other person may file suit in any district court of
the United States having jurisdiction over the parties, without
regard to the amount in controversy, without regard to the
citizenship of the parties, and without regard to the
exhaustion of any alternative administrative remedies under
this Act, not later than 3 years after the date the violation
occurs.
``(3) Election.--An H-2A worker who has filed an
administrative complaint with the Secretary of Labor may not
maintain a civil action under paragraph (2) unless a complaint
based on the same violation filed with the Secretary of Labor
under subsection (a)(1) is withdrawn before the filing of such
action, in which case the rights and remedies available under
this subsection shall be exclusive.
``(4) Preemption of state contract rights.--Nothing in this
Act shall be construed to diminish the rights and remedies of
an H-2A worker under any other Federal or State law or
regulation or under any collective bargaining agreement, except
that no court or administrative action shall be available under
any State contract law to enforce the rights created by this
Act.
``(5) Waiver of rights prohibited.--Agreements by employees
purporting to waive or modify their rights under this Act shall
be void as contrary to public policy, except that a waiver or
modification of the rights or obligations in favor of the
Secretary of Labor shall be valid for purposes of the
enforcement of this Act. The preceding sentence may not be
construed to prohibit agreements to settle private disputes or
litigation.
``(6) Award of damages or other equitable relief.--
``(A) If the court finds that the respondent has
intentionally violated any of the rights enforceable
under subsection (b), it shall award actual damages, if
any, or equitable relief.
``(B) Any civil action brought under this section
shall be subject to appeal as provided in chapter 83 of
title 28, United States Code.
``(7) Workers' compensation benefits; exclusive remedy.--
``(A) Notwithstanding any other provision of this
section, where a State`s workers' compensation law is
applicable and coverage is provided for an H-2A worker,
the workers` compensation benefits shall be the
exclusive remedy for the loss of such worker under this
section in the case of bodily injury or death in
accordance with such State's workers' compensation law.
``(B) The exclusive remedy prescribed in
subparagraph (A) precludes the recovery under paragraph
(6) of actual damages for loss from an injury or death
but does not preclude other equitable relief, except
that such relief shall not include back or front pay or
in any manner, directly or indirectly, expand or
otherwise alter or affect--
``(i) a recovery under a State workers'
compensation law; or
``(ii) rights conferred under a State
workers' compensation law.
``(8) Tolling of statute of limitations.--If it is
determined under a State workers` compensation law that the
workers' compensation law is not applicable to a claim for
bodily injury or death of an H-2A worker, the statute of
limitations for bringing an action for actual damages for such
injury or death under subsection (c) shall be tolled for the
period during which the claim for such injury or death under
such State workers` compensation law was pending. The statute
of limitations for an action for actual damages or other
equitable relief arising out of the same transaction or
occurrence as the injury or death of the H-2A worker shall be
tolled for the period during which the claim for such injury or
death was pending under the State workers' compensation law.
``(9) Preclusive effect.--Any settlement by an H-2A worker
and an H-2A employer or any person reached through the
mediation process required under subsection (c)(1) shall
preclude any right of action arising out of the same facts
between the parties in any Federal or State court or
administrative proceeding, unless specifically provided
otherwise in the settlement agreement.
``(10) Settlements.--Any settlement by the Secretary of
Labor with an H-2A employer on behalf of an H-2A worker of a
complaint filed with the Secretary of Labor under this section
or any finding by the Secretary of Labor under subsection
(a)(1)(B) shall preclude any right of action arising out of the
same facts between the parties under any Federal or State court
or administrative proceeding, unless specifically provided
otherwise in the settlement agreement.
``(d) Discrimination Prohibited.--
``(1) In general.--It is a violation of this subsection for
any person who has filed an application under section 218(a),
to intimidate, threaten, restrain, coerce, blacklist,
discharge, or in any other manner discriminate against an
employee (which term, for purposes of this subsection, includes
a former employee and an applicant for employment) because the
employee has disclosed information to the employer, or to any
other person, that the employee reasonably believes evidences a
violation of section 218 or 218A or any rule or regulation
pertaining to section 218 or 218A, or because the employee
cooperates or seeks to cooperate in an investigation or other
proceeding concerning the employer's compliance with the
requirements of section 218 or 218A or any rule or regulation
pertaining to either of such sections.
``(2) Discrimination against h-2a workers.--It is a
violation of this subsection for any person who has filed an
application under section 218(a), to intimidate, threaten,
restrain, coerce, blacklist, discharge, or in any manner
discriminate against an H-2A employee because such worker has,
with just cause, filed a complaint with the Secretary of Labor
regarding a denial of the rights enumerated and enforceable
under subsection (b) or instituted, or caused to be instituted,
a private right of action under subsection (c) regarding the
denial of the rights enumerated under subsection (b), or has
testified or is about to testify in any court proceeding
brought under subsection (c).
``(e) Authorization To Seek Other Appropriate Employment.--The
Secretary of Labor and the Secretary shall establish a process under
which an H-2A worker who files a complaint regarding a violation of
subsection (d) and is otherwise eligible to remain and work in the
United States may be allowed to seek other appropriate employment in
the United States for a period not to exceed the maximum period of stay
authorized for such nonimmigrant classification.
``(f) Role of Associations.--
``(1) Violation by a member of an association.--An employer
on whose behalf an application is filed by an association
acting as its agent is fully responsible for such application,
and for complying with the terms and conditions of sections 218
and 218A, as though the employer had filed the application
itself. If such an employer is determined, under this section,
to have committed a violation, the penalty for such violation
shall apply only to that member of the association unless the
Secretary of Labor determines that the association or other
member participated in, had knowledge, or reason to know, of
the violation, in which case the penalty shall be invoked
against the association or other association member as well.
``(2) Violations by an association acting as an employer.--
If an association filing an application as a sole or joint
employer is determined to have committed a violation under this
section, the penalty for such violation shall apply only to the
association unless the Secretary of Labor determines that an
association member or members participated in or had knowledge,
or reason to know of the violation, in which case the penalty
shall be invoked against the association member or members as
well.
``SEC. 218D. DEFINITIONS.
``For purposes of this section and sections 218, 218A, 218B, and
218C:
``(1) Agricultural employment.--The term `agricultural
employment' means 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 or the
performance of agricultural labor or services described in
section 101(a)(15)(H)(ii)(a).
``(2) Bona fide union.--The term `bona fide union' means
any organization in which employees participate and which
exists for the purpose of dealing with employers concerning
grievances, labor disputes, wages, rates of pay, hours of
employment, or other terms and conditions of work for
agricultural employees. Such term does not include an
organization formed, created, administered, supported,
dominated, financed, or controlled by an employer or employer
association or its agents or representatives.
``(3) Displace.--The term `displace', in the case of an
application with respect to 1 or more H-2A workers by an
employer, means laying off a United States worker from a job
for which the H-2A worker or workers is or are sought.
``(4) Eligible.--The term `eligible', when used with
respect to an individual, means an individual who is not an
unauthorized alien (as defined in section 274A).
``(5) Employer.--The term `employer' means any person or
entity, including any farm labor contractor and any
agricultural association, that employs workers in agricultural
employment.
``(6) H-2A employer.--The term `H-2A employer' means an
employer who seeks to hire 1 or more nonimmigrant aliens
described in section 101(a)(15)(H)(ii)(a).
``(7) H-2A worker.--The term `H-2A worker' means a
nonimmigrant described in section 101(a)(15)(H)(ii)(a).
``(8) Job opportunity.--The term `job opportunity' means a
job opening for temporary or seasonal full-time employment at a
place in the United States to which United States workers can
be referred.
``(9) Laying off.--
``(A) In general.--The term `laying off', with
respect to a worker--
``(i) means to cause the worker's loss of
employment, other than through a discharge for
inadequate performance, violation of workplace
rules, cause, voluntary departure, voluntary
retirement, contract impossibility (as
described in section 218A(b)(4)(D)), or
temporary suspension of employment due to
weather, markets, or other temporary
conditions; 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 section
218(b)(2)(E), with either employer described in
such section) 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) Statutory construction.--Nothing in this
paragraph is intended to limit an employee's rights
under a collective bargaining agreement or other
employment contract.
``(10) Regulatory drought.--The term `regulatory drought'
means a decision subsequent to the filing of the application
under section 218 by an entity not under the control of the
employer making such filing which restricts the employer's
access to water for irrigation purposes and reduces or limits
the employer's ability to produce an agricultural commodity,
thereby reducing the need for labor.
``(11) Seasonal.--Labor is performed on a `seasonal' basis
if--
``(A) ordinarily, it pertains to or is of the kind
exclusively performed at certain seasons or periods of
the year; and
``(B) from its nature, it may not be continuous or
carried on throughout the year.
``(12) Secretary.--Except as otherwise provided, the term
`Secretary' means the Secretary of Homeland Security.
``(13) Temporary.--A worker is employed on a `temporary'
basis where the employment is intended not to exceed 10 months.
``(14) United states worker.--The term `United States
worker' means any worker, whether a national of the United
States, an alien lawfully admitted for permanent residence, or
any other alien, who is authorized to work in the job
opportunity within the United States, except an alien admitted
or otherwise provided status under section
101(a)(15)(H)(ii)(a).''.
(b) Table of Contents.--The table of contents of the Immigration
and Nationality Act (8 U.S.C. 1101 et seq.) is amended by striking the
item relating to section 218 and inserting the following:
``Sec. 218. H-2A employer applications.
``Sec. 218A. H-2A employment requirements.
``Sec. 218B. Procedure for admission and extension of stay of H-2A
workers.
``Sec. 218C. Worker protections and labor standards enforcement.
``Sec. 218D. Definitions.''.
Subchapter C--Miscellaneous Provisions
SEC. 482. DETERMINATION AND USE OF USER FEES.
(a) Schedule of Fees.--The Secretary shall establish and
periodically adjust a schedule of fees for the employment of aliens
pursuant to the amendment made by section 480 and a collection process
for such fees from employers. Such fees shall be the only fees
chargeable to employers for services provided under such amendment.
(b) Determination of Schedule.--
(1) In general.--The schedule under subsection (a) shall
reflect a fee rate based on the number of job opportunities
indicated in the employer's application under section 218 of
the Immigration and Nationality Act, as amended by section 480,
and sufficient to provide for the direct costs of providing
services related to an employer's authorization to employ
aliens pursuant to the amendment made by section 480, to
include the certification of eligible employers, the issuance
of documentation, and the admission of eligible aliens.
(2) Procedure.--
(A) In general.--In establishing and adjusting such
a schedule, the Secretary shall comply with Federal
cost accounting and fee setting standards.
(B) Publication and comment.--The Secretary shall
publish in the Federal Register an initial fee schedule
and associated collection process and the cost data or
estimates upon which such fee schedule is based, and
any subsequent amendments thereto, pursuant to which
public comment shall be sought and a final rule issued.
(c) Use of Proceeds.--Notwithstanding any other provision of law,
all proceeds resulting from the payment of the fees pursuant to the
amendment made by section 480 shall be available without further
appropriation and shall remain available without fiscal year limitation
to reimburse the Secretary, the Secretary of State, and the Secretary
of Labor for the costs of carrying out--
(1) sections 218 and 218B of the Immigration and
Nationality Act; and
(2) the provisions of this Act.
SEC. 483. RULEMAKING.
(a) Requirement for the Secretary To Consult.--The Secretary shall
consult with the Secretary of Labor and the Secretary of Agriculture
during the promulgation of all regulations to implement the duties of
the Secretary under this Act and the amendments made by this Act.
(b) Requirement for the Secretary of State To Consult.--The
Secretary of State shall consult with the Secretary, the Secretary of
Labor, and the Secretary of Agriculture on all regulations to implement
the duties of the Secretary of State under this Act and the amendments
made by this Act.
(c) Requirement for the Secretary of Labor To Consult.--The
Secretary of Labor shall consult with the Secretary of Agriculture and
the Secretary on all regulations to implement the duties of the
Secretary of Labor under this Act and the amendments made by this Act.
(d) Deadline for Issuance of Regulations.--All regulations to
implement the duties of the Secretary, the Secretary of State, and the
Secretary of Labor created under sections 218, 218A, 218B, 218C, and
218D of the Immigration and Nationality Act, as amended or added by
section 480 of this Act, shall take effect on the effective date of
section 480 and shall be issued not later than 1 year after the date of
enactment of this Act.
SEC. 484. REPORTS TO CONGRESS.
(a) Annual Report.--Not later than September 30 of each year, the
Secretary shall submit a report to Congress that identifies, for the
previous year--
(1) the number of job opportunities approved for employment
of aliens admitted under section 101(a)(15)(H)(ii)(a) of the
Immigration and Nationality Act (8 U.S.C.
1101(a)(15)(H)(ii)(a)), and the number of workers actually
admitted, disaggregated by State and by occupation;
(2) the number of such aliens reported to have abandoned
employment pursuant to section 218B(e)(2) of such Act;
(3) the number of such aliens who departed the United
States within the period specified in section 218B(d) of such
Act;
(4) the number of aliens who applied for blue card status
pursuant to section 476(a);
(5) the number of aliens who were granted such status
pursuant section 476(a);
(6) the number of aliens who applied for an adjustment of
status pursuant to section 478(a); and
(7) the number of aliens who received an adjustment of
status pursuant section 478(a).
(b) Implementation Report.--Not later than 180 days after the date
of the enactment of this Act, the Secretary shall prepare and submit a
report to Congress that describes the measures being taken and the
progress made in implementing this Act.
SEC. 485. EFFECTIVE DATE.
Section 481 and the amendments made by section 480 shall take
effect 1 year after the date of the enactment of this Act.
TITLE V--REGISTRATION OF UNDOCUMENTED INDIVIDUALS
Subtitle A--Lawful Prospective Immigrant Status
SEC. 501. LAWFUL PROSPECTIVE IMMIGRANT STATUS.
(a) In General.--
(1) Authority to grant lawful prospective immigrant
status.--Notwithstanding any other provision of law, the
Secretary may grant an alien status as a Lawful Prospective
Immigrant if the alien--
(A) submits an application for such status; and
(B) meets the requirements of this section.
(2) Treatment of applicants.--For purposes of this section,
an applicant for Lawful Prospective Immigrant status shall be
treated as an applicant for admission to the United States.
(b) Eligibility Requirements.--
(1) In general.--To be eligible for status as a Lawful
Prospective Immigrant an alien shall the requirements of this
section including the following:
(A) Ineligibility.--The alien shall not ineligible
for such status under paragraph (2).
(B) Inadmissibility.--Except as provided in
paragraph (3), the alien shall not be inadmissible
under section 212(a) of the Immigration and Nationality
Act (hereinafter in this subtitle referred to as ``the
Act'') (8 U.S.C. 1182(a)).
(C) Physical presence.--The alien shall--
(i) be physically present in the United
States on the date of application for status as
a Lawful Prospective Immigrant;
(ii) have been present in the United States
before September 30, 2010; and
(iii) have maintained continuous physical
presence in the United States from September
30, 2010 to the date on which the alien is
granted status as a Lawful Prospective
Immigrant under this title;
(2) Grounds of ineligibility.--
(A) In general.--An alien is ineligible for Lawful
Prospective Immigrant status if the Secretary
determines that the alien--
(i) has been convicted of any offense under
Federal or State law punishable with a maximum
term of imprisonment of more than 1 year;
(ii) is a person described in sections
237(a)(2)(A)(iii), (a)(2)(E)(i), or
(a)(2)(E)(ii) of the Act;
(iii) has ordered, incited, assisted, or
otherwise participated in the persecution of
any person on account of race, religion,
nationality, membership in a particular social
group, or political opinion;
(iv) is entering, has entered or has
attempted to enter the United States illegally
on or after September 30, 2010; or
(v) is on September 30, 2010--
(I) an alien lawfully admitted for
permanent residence;
(II) an alien granted asylum under
section 208 of the Act or admitted as a
refugee under section 207 of the Act;
(III) an alien who, according to
the records of the Secretary, is in a
period of authorized stay in any
nonimmigrant status (other than an
alien considered to be in a
nonimmigrant status solely by reason of
section 244(f)(4) of the Act),
notwithstanding any unauthorized
employment or other violation of
nonimmigrant status;
(IV) an alien paroled into the
United States under section 212(d)(5)
of the Act for purposes of prosecution
or of serving as a witness in
proceedings being, or to be, conducted
by judicial, administrative, or
legislative bodies in the United
States; or
(V) an alien paroled into the
Commonwealth of the Northern Mariana
Islands.
(B) Construction.--For purposes of determining
ineligibility under this paragraph, section 101(a)(48)
of the Act shall apply to determinations of conviction
or sentencing for an offense.
(3) Grounds of inadmissibility.--
(A) In general.--In determining an alien's
admissibility under paragraph (1)(B)--
(i) Section 212(a)(5) of the Act shall not
apply, and paragraphs (6)(A), (6)(B), (6)(C),
(6)(D), (6)(F), (6)(G), (7), (9), and (10)(B)
of section 212(a) of the Act shall not apply
with regard to conduct or unlawful presence
occurring before the date of application;
(ii) the Secretary may not waive--
(I) subparagraphs (B), (C),
(D)(ii), (E), (H), (I), or (J) (as
amended by this Act) of section
212(a)(2) of the Act (relating to
criminals);
(II) section 212(a)(3) of the Act
(relating to security and related
grounds);
(III) subparagraphs (A), (C), or
(D) of section 212(a)(10) of the Act
(relating to polygamists and child
abductors); or
(IV) paragraph (6)(A)(i) of section
212(a) of the Act (with respect to any
entries occurring on or after September
30, 2010); and
(iii) the Secretary may in her discretion
waive the application of any provision of
section 212(a) of the Act not listed in clause
(ii) on behalf of an individual alien for
humanitarian purposes, to ensure family unity,
or if such waiver is otherwise in the public
interest.
(B) Construction.--Nothing in this paragraph shall
be construed as requiring the Secretary to commence
removal proceedings against an alien. Nothing in this
paragraph shall be construed as affecting the authority
of the Secretary other than under this paragraph to
waive the provisions of section 212(a) of such Act.
(4) Continuous physical presence.--For purposes of this
subsection, any absence from the United States without
authorization pursuant to subsection (d)(1)(A)(ii) of this
section shall constitute a break in continuous physical
presence.
(5) Applicability of other provisions.--Section 240B(d) of
the Act and section 208(d)(6) of the Act shall not apply to an
alien with respect to an application for status under this
section.
(c) Application Procedures.--
(1) Filing of application.--
(A) In general.--In accordance with the rulemaking
procedures described in section 608 of this title--
(i) the Secretary shall prescribe by
interim final rule published in the Federal
Register--
(I) the procedures for an alien in
the United States to apply for status
as a Lawful Prospective Immigrant;
(II) the procedures for an alien
granted Lawful Prospective Immigrant
status to petition for a spouse or
child outside the United States to be
classified as a Lawful Prospective
Immigrant; and
(III) the evidence required to
demonstrate eligibility for such
status, or otherwise required as part
of the application, including, but not
limited to, information about the
alien's spouse or children; and
(ii) the Secretary of State shall prescribe
by regulation published in the Federal
Register--
(I) the procedures for an alien
overseas who is the beneficiary of an
approved petition for status as a
Lawful Prospective Immigrant to apply
at a consulate for a visa or other
appropriate documentation authorizing
travel to a United States port of
entry; and
(II) the evidence required to
demonstrate eligibility for such
documentation.
(B) Receipt of applications.--The Secretary shall
accept applications from aliens in the United States
for Lawful Prospective Immigrant status for a period of
1 year starting the first day of the tenth month that
begins after the date of enactment of this Act. If,
during the 1 year initial period for the receipt of
applications for Lawful Prospective Immigrant status,
the Secretary determines that additional time is
required to process applications for such status or for
other good cause, the Secretary may in her discretion
extend the period for accepting applications by up to 6
months.
(C) Application by aliens apprehended before start
of application period.--If an alien is apprehended
between the date of enactment of this Act and the date
on which the period for application under subparagraph
(B) of this paragraph closes, and the alien can
establish prima facie eligibility for status as a
Lawful Prospective Immigrant under this section, the
Secretary shall provide the alien with a reasonable
opportunity to file an application under this section
after regulations implementing this section are
promulgated.
(D) Application by aliens in removal proceedings.--
Notwithstanding any provision of the Act--
(i) if the Secretary determines that an
alien, between the date of enactment of this
Act and the date on which the period for
application under subparagraph (B) of this
paragraph closes, is in removal, deportation,
or exclusion proceedings before the Executive
Office for Immigration Review and is prima
facie eligible for Lawful Prospective Immigrant
status under this section, the Secretary shall
affirmatively communicate such determination to
the Executive Office for Immigration Review.
Upon consent of the alien, the Executive Office
for Immigration Review shall terminate such
proceedings without prejudice to future
proceedings on any basis and permit the alien a
reasonable opportunity to apply for such
status;
(ii) if the Executive Office for
Immigration Review determines that an alien,
between the date of enactment of this Act and
the date on which the period for application
under subparagraph (B) of this paragraph
closes, is in removal, deportation, or
exclusion proceedings before the Executive
Office for Immigration Review and is prima
facie eligible for Lawful Prospective Immigrant
status the Executive Office of Immigration
Review shall notify the Secretary. If the
Secretary does not dispute the determination of
prima facie eligibility within 14 days, upon
consent of the alien, the Executive Office for
Immigration Review shall terminate such
proceedings without prejudice to future
proceedings on any basis and permit the alien a
reasonable opportunity to apply for such
status.
(E) Application by aliens with certain orders.--
(i) In general.--An alien who is present in
the United States and has been ordered
excluded, deported, or removed, or ordered to
depart voluntarily from the United States under
any provision of the Act--
(I) notwithstanding such order or
section 241(a)(5) of the Act, may apply
for Lawful Prospective Immigrant status
under this title, provided all other
conditions set forth in this section
are met; and
(II) shall not be required to file
a separate motion to reopen,
reconsider, or vacate the exclusion,
deportation, removal, or voluntary
departure order.
(ii) Application granted.--If the Secretary
grants the application described in
subparagraph (A) of this paragraph, the order
described in clause (i) shall be rendered null
and void by operation of law.
(iii) Application denied.--If the Secretary
renders a final administrative decision to deny
the application described in subparagraph (A)
of this paragraph, the order described in
clause (i) of this subparagraph shall be
effective and enforceable to the same extent as
if the application had not been made.
(2) Application form.--
(A) In general.--The Secretary shall create an
application form that an alien shall be required to
complete as a condition of Lawful Prospective Immigrant
status.
(B) Language and assistance.--The Secretary shall
make available forms and accompanying instructions in
the most common languages spoken by persons in the
United States, as determined by the Secretary in the
Secretary's discretion. The Secretary shall create a
plan for providing reasonable accommodation to
individuals with disabilities consistent with
applicable law.
(C) Application information.--The application form
shall request such information as the Secretary deems
necessary and appropriate. The application, and all
information submitted as part of the application
process, shall be submitted in English.
(3) Security and law enforcement background checks.--
(A) Submission of biometric and biographic data.--
The Secretary may not accord status as a Lawful
Prospective Immigrant unless the alien submits
biometric and biographic data in accordance with
procedures established by the Secretary, or, with
respect to overseas applications for visas or other
documentation of status submitted pursuant to
regulations promulgated under section 601(c)(1)(A)(ii),
by the Secretary of State. The Secretary shall provide
an alternative procedure for applicants who cannot
provide the standard biometric data because of a
physical impairment.
(B) Background checks.--The Secretary shall utilize
biometric, biographic, and other data that the
Secretary deems appropriate to conduct security and law
enforcement background checks and to determine whether
there exist any criminal, national security, or other
factors that would render the alien ineligible for
status under this section. Such security and law
enforcement background checks must be completed to the
satisfaction of the Secretary before status as a Lawful
Prospective Immigrant may be granted.
(4) Fees and penalties.--
(A) Processing fees.--
(i) In general.--Aliens over the age of 14
making an application for status as a Lawful
Prospective Immigrant, an application for
extension of such status, or a petition for
classification of a spouse or child outside the
United States as a Lawful Prospective
Immigrant, shall be required to pay a
processing fee to the Department of Homeland
Security. Spouses or children of Lawful
Prospective immigrants applying at U.S.
embassies or consulates for a visa or other
documentation of status pursuant to regulations
promulgated under paragraph (1)(A)(ii) of this
subsection shall, regardless of age, be
required to pay a processing fee to the
Department of State. There shall be no waiver
of these fees.
(ii) Amount.--The amount of the respective
fees shall be set by regulation at a level
sufficient to recover the full cost of
processing the application.
(B) Penalties.--An alien 21 years of age or older
filing an initial application for the first extension
of the initial period of Lawful Prospective Immigrant
status shall be required to pay a penalty of $500 in
addition to the processing fee in subparagraph (A) of
this paragraph.
(C) Deposit and spending of fees.--The processing
fees described in subparagraph (A) of this paragraph
shall be deposited as an offsetting collection in the
appropriate account of the relevant agency identified
in subparagraph (A)(i) of this paragraph and shall
remain available until expended.
(D) Deposit, allocation, and spending of
penalties.--The penalty described in subparagraph (B)
of this paragraph shall be deposited and remain
available as provided by section 550 of this Act.
(5) Interview.--The Secretary may interview an applicant
for Lawful Prospective Immigrant status to determine
eligibility for such status.
(6) Adjudication of application filed by alien.--
(A) In general.--The Secretary may approve the
issuance of documentation of Lawful Prospective
Immigrant status, or documentation extending such
status, as described in paragraph (7) of this
subsection, to an applicant who establishes to the
satisfaction of the Secretary that the applicant is
eligible for such status, including provision of such
documentary or other evidence of eligibility as the
Secretary may require and only upon the completion of
all background and security checks to the satisfaction
of the Secretary.
(B) Burden of proof.--An alien who is applying for
Lawful Prospective Immigrant status under this section
must prove, by a preponderance of the evidence, that
the alien has satisfied the requirements of this
section and is eligible to receive such status.
(C) Denial of application.--
(i) An alien who fails to satisfy the
eligibility requirements for status as a Lawful
Prospective Immigrant, or extension of such
status, shall have his application for such
status or extension denied and any subsequent
applications filed by the alien for Lawful
Prospective Immigrant status shall be denied.
(ii) The Secretary shall deny the
application of an alien who fails to submit
requested initial evidence, including requested
biometric data, or any requested additional
evidence by the date required by the Secretary.
(iii) An alien whose application for status
under this section was denied under clause (ii)
of this subparagraph is not precluded from
filing a new application, including the payment
of all required fees and penalties, provided
that the new application is filed within the
period allowed under paragraph (1)(B) of this
subsection.
(7) Evidence of lawful prospective immigrant status.--
(A) In general.--Documentary evidence of status as
a Lawful Prospective Immigrant shall be issued to each
alien whose application for such status has been
approved.
(B) Features of documentation.--Documentary
evidence of status as a Lawful Prospective Immigrant--
(i) shall be machine-readable and tamper-
resistant, and shall contain a digitized
photograph and at least one other biometric
identifier that can be authenticated;
(ii) shall, during the alien's authorized
period of admission under subsection (e)(3) of
this section and any extension of such
authorized period of admission under subsection
(e)(4) of this section, serve as a valid travel
and entry document for the purpose of applying
for admission to the United States;
(iii) may be accepted during the period of
its validity by an employer as evidence of
employment authorization and identity under
section 274A(b)(1)(B) of the Act;
(iv) shall be issued to a Lawful
Prospective Immigrant by the Secretary after
final adjudication of such alien's application
for such status or, in the case of an alien
outside the United States, after admission to
the United States as a Lawful Prospective
Immigrant; and
(v) shall include such other features and
information as the Secretary determines.
(d) Lawful Prospective Immigrant Dependents.--
(1) In general.--The Secretary may classify an alien not
present in the United States as a Lawful Prospective Immigrant
if--
(A) the alien is the spouse or child, as defined in
section 101(a)(35) of the Act (relating to spouse) and
101(b)(1) of the Act (relating to child), of a Lawful
Prospective Immigrant;
(B) the spouse or child meets the eligibility
requirements under subsection (b) (other than the
physical presence requirements under section
(b)(1)(C)), except that section 212(a)(7) of the Act
shall apply; and
(C) the Lawful Prospective Immigrant files a
petition in the United States for status as a Lawful
Prospective Immigrant on behalf of the spouse or child.
(2) Revocation or denial of status.--A petition for
classification as a Lawful Prospective Immigrant filed on
behalf of a spouse or child described in paragraph (1) of this
subsection shall be denied, an approved petition for
classification as a Lawful Prospective Immigrant for such
spouse or child shall be revoked, and any Lawful Prospective
Immigrant status granted to such spouse or child shall be
revoked, if the alien who filed the petition on behalf of the
spouse or child was not eligible for Lawful Prospective
Immigrant status at the time the alien filed an application
under section 501(a) of this title.
(e) Terms and Conditions of Lawful Prospective Immigrant Status.--
(1) Benefits pending adjudication of application.--
(A) In general.--Until a final decision on the
application for Lawful Prospective Immigrant status, an
alien in the United States who files an application
under this section for Lawful Prospective Immigrant
status--
(i) may in the Secretary's discretion
receive advance parole to re-enter the United
States, but only when urgent humanitarian
circumstances compel such travel; and
(ii) may not be detained by the Secretary
or removed from the United States, unless the
Secretary determines in her discretion that
such alien is or has become--
(I) ineligible for Lawful
Prospective Immigrant status under
section (b)(2) of this section;
(II) inadmissible under section
(b)(1)(B) of this section, without
regard to the possibility of a waiver
under section (b)(3)(A)(iii); or
(III) removable under subsection
(a)(2)(A)(iii), (a)(2)(E)(i), or
(a)(2)(E)(ii) of section 237 of the
Act;
provided that nothing in this section shall
prevent the Secretary from detaining an alien
for up to 48 hours on the basis of probable
cause that the alien is a person described in
clause (ii) of this subparagraph. Thereafter,
detention is authorized in accordance with the
provisions of the Immigration and Nationality
Act governing the removal process.
(B) Evidence of application filing.--A document
shall be issued by the Secretary showing receipt of an
application for Lawful Prospective Immigrant status.
(C) Continuing employment.--An employer who knows
that an alien employee is an applicant for Lawful
Prospective Immigrant status is not in violation of
section 274A(a)(2) of the Act if the employer continues
to employ the alien pending adjudication of the
application.
(D) Applicability of other provisions.--Section
101(g) of the Act shall not apply to an alien granted
advance permission under subparagraph (A)(ii) of this
paragraph to re-enter the United States.
(2) Benefits of lawful prospective immigrant status.--
(A) Employment.--Notwithstanding any other
provision of law, including section 241(a)(7) of the
Act, Lawful Prospective Immigrants shall be granted
employment authorization incident to their Lawful
Prospective Immigrant status.
(B) Travel outside the united states.--
(i) In general.--A Lawful Prospective
Immigrant may travel outside of the United
States and may be admitted (if otherwise
admissible) upon return to the United States
without having to obtain a visa if--
(I) the alien is the bearer of
valid, unexpired documentary evidence
of Lawful Prospective Immigrant status
that satisfies the conditions set forth
in subsection (c)(7) of this section;
(II) the alien's absence from the
United States was not for a period
exceeding 6 months; and
(III) the alien is not subject to
the bars on extension described in
paragraph (4)(C) of this subsection.
(ii) Admissibility.--On seeking readmission
to the United States after travel outside the
United States a Lawful Prospective Immigrant
shall establish that he or she is not
inadmissible in accordance with section 235 of
the Act, except as provided by subsection
(b)(3) of this section.
(iii) Effect on period of authorized
admission.--Time spent outside the United
States under clause (i) of this subparagraph
shall not extend the most recent period of
authorized admission in the United States under
paragraph (3) of this subsection.
(C) Protection from detention or removal.--A Lawful
Prospective Immigrant may not be detained by the
Secretary or removed from the United States, unless--
(i) the Secretary determines in her
discretion that such alien is or has become--
(I) ineligible for Lawful
Prospective Immigrant status under
subsection (b)(2) of this section;
(II) inadmissible under subsection
(b)(1)(B) of this section; or
(III) removable under subsection
(a)(2)(A)(iii), (a)(2)(E)(i), or
(a)(2)(E)(ii) of section 237 of the
Act; or
(ii) the alien's Lawful Prospective
Immigrant status has expired or has been
revoked under paragraph (6) of this subsection,
provided that nothing in this section shall prevent the
Secretary from detaining a Lawful Prospective Immigrant
for up to 48 hours on the basis of probable cause that
the alien is a person described in clause (i) of this
subparagraph. Thereafter, detention is authorized in
accordance with the provisions of the Act governing the
removal process.
(D) Admission.--An alien granted status as a Lawful
Prospective Immigrant shall be considered to have been
admitted in Lawful Prospective Immigrant status as of
the date of approval of the alien's application or (in
the case of an alien outside the United States) on the
date such alien is admitted to the United States,
whichever is later. An alien in Lawful Prospective
Immigrant status is lawfully admitted, but is not a
nonimmigrant or an alien who has been lawfully admitted
for permanent residence.
(3) Initial period of authorized admission.--Except as
provided under paragraph (4) of this subsection, the initial
period of authorized admission for a Lawful Prospective
Immigrant may not exceed 4 years from the date on which such
status is conferred. The Secretary may in her discretion
provide for shorter expiration dates among subsets of Lawful
Prospective Immigrants, based upon date of filing or other
appropriate factors, in order to encourage early filing, vary
expiration dates, or otherwise improve the administration of
the program.
(4) Extension.--
(A) In general.--The Secretary may extend a Lawful
Prospective Immigrant's period of lawful admission
beyond the initial period described in paragraph (3) of
this subsection only where the Lawful Prospective
Immigrant has filed, in the United States, a timely
application for extension. In no case, however, may the
period of authorized admission provided in any such
extension extend past the date that is 11 years after
the date of enactment of this Act.
(B) Eligibility.--In order to be eligible for an
extension of the period of authorized admission under
this paragraph, an alien must demonstrate continuing
eligibility for status as a Lawful Prospective
Immigrant and not be subject to any of the bars to
extension in subparagraph (C) of this paragraph.
(C) Bars to extension.--A Lawful Prospective
Immigrant shall not be eligible to extend such status
if--
(i) the alien has violated any term or
condition of his or her Lawful Prospective
Immigrant status; or
(ii) the period of authorized admission of
the Lawful Prospective Immigrant has expired or
been revoked for any reason.
(D) Filing of application for extension.--
(i) In general.--Except as provided in
clause (ii) of this subparagraph, an extension
of status under this subparagraph shall not be
approved where status as a Lawful Prospective
Immigrant expired or was revoked before the
date on which the application was filed.
(ii) Exception.--Failure to file before the
period of previously authorized admission
expired or was revoked may be excused in the
discretion of the Secretary, with any extension
granted from the date the previously authorized
period of admission expired, where it is
demonstrated at the time of filing that--
(I) the delay was due to
extraordinary circumstances beyond the
control of the applicant, and the
Secretary finds the delay commensurate
with the circumstances; and
(II) the alien has not otherwise
violated the terms or conditions of his
or her status as a Lawful Prospective
Immigrant.
(E) Security and law enforcement background
checks.--An alien applying for extension of status as a
Lawful Prospective Immigrant shall be required to
submit to renewed security and law enforcement
background checks that shall be completed to the
satisfaction of the Secretary before such extension may
be granted.
(F) Denial of application for extension.--A denial
of an application for extension of status as a Lawful
Prospective Immigrant shall be considered a revocation
of such status for purposes of this title.
(5) Registration requirement.--Part VII of the Act
(relating to registration of aliens) shall apply to Lawful
Prospective Immigrants, except that the Secretary may in her
discretion excuse a delay of up to 90 days in complying with
the requirement under section 265 of the Act to file notice of
change of address. An alien whose failure to timely file such
notice of an address change has been excused by the Secretary
shall not be subject to the penalty under section 266(b) of the
Act for that failure.
(6) Revocation.--
(A) In general.--At any time after an alien has
been granted Lawful Prospective Immigrant status but
has not yet adjusted from such status to that of an
alien lawfully admitted for permanent residence under
section 502 of this title, the Secretary may revoke the
alien's status following appropriate notice to the
alien and exhaustion or waiver of all applicable
administrative review procedures under section 503 of
this title, if--
(i) the alien is or has become inadmissible
under subsection (b)(1)(B) of this section or
ineligible for such status under subsection
(b)(2) of this section;
(ii) the alien knowingly used documentation
issued under this section for unlawful or
fraudulent purposes; or
(iii) the alien is or was absent from the
United States for any single period of more
than six months since the grant of Lawful
Prospective Immigrant status.
(B) Additional evidence.--In considering
revocation, the Secretary may require the alien to
submit additional evidence or to appear for an
interview. A failure to comply with such requirements
will result in revocation except where the alien
demonstrates to the Secretary's satisfaction that such
failure was reasonably excusable and not willful.
(C) Invalidation of documentation.--Any
documentation that is issued by the Secretary under
subsection (c)(7) of this section to any alien shall
automatically be rendered invalid for any purpose
except departure, if the alien's status as a Lawful
Prospective Immigrant is revoked under subparagraph (A)
of this paragraph.
(7) Medical examination.--A Lawful Prospective Immigrant is
required to undergo medical observation and examination. The
Secretary, with the concurrence of the Secretary of Health and
Human Services, shall prescribe policies and procedures for the
nature, frequency, and timing of such observation and
examination.
(8) Construction.--Nothing in this Act shall be construed
to--
(A) require the Secretary to revoke status as a
Lawful Prospective Immigrant before commencing removal
proceedings with respect to an alien described in
subsection (a) of this section who has been granted
such status, or in any way prohibit the initiation of
such proceedings against a Lawful Prospective Immigrant
where such proceedings are authorized under this Act;
or
(B) authorize the Attorney General to adjudicate or
grant any application for status as a Lawful
Prospective Immigrant, to receive or consider an appeal
from a denial or revocation of Lawful Prospective
Immigrant status, or to adjust the status of any Lawful
Prospective Immigrant to an alien lawfully admitted for
permanent residence, unless the Secretary has delegated
such authority to the Attorney General in appropriate
cases pursuant to section 103(a)(6) of the Act.
(f) Dissemination of Information on Lawful Prospective Immigrant
Program.--After the enactment of this Act, the Secretary, in
cooperation with entities approved by the Secretary, and in accordance
with a plan adopted by the Secretary in the Secretary's discretion,
shall broadly disseminate information regarding Lawful Prospective
Immigrant status, the rights and benefits that flow from such status,
and the requirements to be satisfied to obtain this status. Such
information shall be disseminated in the top five principal languages,
as determined by the Secretary in the Secretary's discretion, spoken by
aliens who would qualify for status under this section, including to
television, radio, and print media to which such aliens would have
access.
SEC. 502. ADJUSTMENT OF STATUS FOR LAWFUL PROSPECTIVE IMMIGRANTS.
(a) In General.--Notwithstanding any other provision of law,
including section 244(h) of the Act, the Secretary may adjust the
status of a Lawful Prospective Immigrant to that of an alien lawfully
admitted for permanent residence if the Lawful Prospective Immigrant
satisfies, in addition to all other requirements imposed by law, the
eligibility requirements under this section.
(b) Eligibility Requirements.--
(1) Lawful prospective immigrant status.--
(A) In general.--The alien must be in a period of
authorized admission as a Lawful Prospective Immigrant
and must continue to satisfy--
(i) the eligibility requirements for such
status under section 601(b) of this title; and
(ii) the terms and conditions of such
status under section 601(d) of this title.
(B) Maintenance of waivers of admissibility.--
(i) In general.--The grounds of
inadmissibility under section 212(a) of the Act
that are made inapplicable or previously waived
for the alien under section 501(b)(3) of this
title shall also be considered inapplicable for
purposes of the alien's adjustment pursuant to
this section.
(ii) Exception for post-filing conduct.--No
waiver previously granted shall apply to any
inadmissibility under section 501(b)(1)(B) of
this title arising out of conduct occurring
after the date on which the application for
Lawful Prospective Immigrant status was filed.
(C) Pending revocation proceedings.--If the
Secretary has sent the applicant a notice of intent to
revoke the applicant's Lawful Prospective Immigrant
status under section 501(e)(6)(A)(i) of this Act, an
application for adjustment under this section may not
be approved until the Secretary has made a final
determination on whether to revoke the applicant's
status.
(2) Basic citizenship skills.--
(A) In general.--Except as provided under
subparagraph (C) of this paragraph, a Lawful
Prospective Immigrant who is 14 years of age or older
shall establish that he or she--
(i) meets the requirements under section
312 of the Act; or
(ii) is satisfactorily pursuing a course of
study, pursuant to standards established by the
Secretary of Education, in consultation with
the Secretary, to achieve such an understanding
of English and knowledge and understanding of
the history and Government of the United
States.
(B) Relation to naturalization examination.--A
Lawful Prospective Immigrant who demonstrates that he
or she meets the requirements under section 312 of the
Act may be considered to have satisfied the
requirements of that section for purposes of becoming
naturalized as a citizen of the United States under
title III of the Act.
(C) Exceptions.--
(i) Mandatory.--Subparagraph (A) of this
paragraph shall not apply to any person who is
unable to comply with those requirements
because of a physical or developmental
disability or mental impairment as described in
section 312(b)(1) of the Act.
(ii) Discretionary.--The Secretary may
waive all or part of subparagraph (A) of this
paragraph for a Lawful Prospective Immigrant
who is at least 65 years of age on the date on
which an application is filed for adjustment of
status under this section.
(3) Payment of taxes.--
(A) In general.--Not later than the date on which
the application for adjustment of status under this
section is filed, the applicant shall satisfy any
applicable Federal tax liability.
(B) Applicable federal tax liability.--For purposes
of subparagraph (A) of this paragraph, the term
``applicable Federal tax liability'' means liability
for unpaid assessed Federal taxes, including penalties
and interest, owed.
(4) Continuous physical presence.--The alien shall
establish that the alien did not have a single absence from the
United States of more than 6 months during the period of
admission as a Lawful Prospective Immigrant.
(5) Military selective service.--The alien shall establish
that the alien has registered under the Military Selective
Service Act (50 U.S.C. App. 451 et seq.), if the alien is
subject to such registration under that Act.
(c) Application Procedures.--
(1) In general.--In accordance with the procedures
described in section 508 of this title, the Secretary shall
prescribe by regulation the procedures for an alien in the
United States to apply for adjustment of status under this
section and the evidence required to demonstrate eligibility
for such adjustment.
(2) Filing of application.--
(A) Back of the line.--An alien may not adjust
status to that of an alien lawfully admitted for
permanent residence under this section until the
earlier of--
(i) 30 days after an immigrant visa has
become available for all approved petitions
filed under sections 201 and 203 of the Act
that were filed before the date of enactment of
this Act; or
(ii) 8 years after the date of enactment of
this Act.
(B) Acceptance of applications.--No application to
adjust status under this section may be filed before
the date that is 6 years after the initial grant of
Lawful Prospective Immigrant status, regardless of
whether such date is after the date on which, pursuant
to subparagraph (A) of this paragraph, an alien may
adjust status under this section.
(3) Fees and penalties.--
(A) Processing fees.--The Secretary shall impose a
processing fee on applications for adjustment filed
under this section which shall be sufficient to recover
the full cost of adjudicating the application,
including the cost of taking and processing biometrics,
and the cost of expenses relating to prevention and
investigation of fraud.
(B) Penalties.--An alien 21 years of age or over
who is filing an application for adjustment of status
under this section shall pay a $1000 penalty to the
Secretary, in addition to the processing fee required
under subparagraph (A) of this paragraph.
(C) Deposit, allocation, and spending of fees and
penalties.--Fees and penalties collected under
subparagraph (B) of this paragraph shall be deposited
and remain available as provided under section 501 of
this Act.
(4) Interview.--The Secretary may interview an applicant
for adjustment under this section to determine eligibility for
such adjustment.
(5) Security and law enforcement background checks.--An
alien applying for adjustment under this section shall be
required to submit to a renewed security and law enforcement
background check that must be completed to the satisfaction of
the Secretary before such adjustment may be granted.
(6) Adjudication of adjustment application.--
(A) Evidence of continuous physical presence.--The
Secretary shall determine continuous physical presence
based upon the Secretary's records of admission to the
United States or such other relevant information as the
Secretary may require.
(B) Evidence of payment of taxes.--
(i) In general.--The alien may demonstrate
compliance with the requirement under paragraph
(b)(3) of this section by submitting
documentation, in accordance with regulations
promulgated by the Secretary, that establishes
that--
(I) no such unpaid assessed Federal
tax liability exists;
(II) all such outstanding
liabilities have been met; or
(III) the alien has entered into,
and is in compliance with, an agreement
for payment of all outstanding
liabilities with the Internal Revenue
Service.
(ii) IRS cooperation.--The Secretary of the
Treasury, in consultation with the Secretary,
shall establish procedures pursuant to
applicable provisions of section 6103 of title
26, U.S. Code, under which the Commissioner of
Internal Revenue shall provide documentation
whereby the Secretary or the applicant may
establish the payment of all taxes required
under this subsection, to verify that the
individual meets the requirements of clause (i)
of this subparagraph.
(C) Burden of proof.--An alien who is applying for
adjustment of status under this section must prove, by
a preponderance of the evidence, that the alien has
satisfied the requirements of this section.
SEC. 503. ADMINISTRATIVE REVIEW, REMOVAL PROCEEDINGS, AND JUDICIAL
REVIEW FOR ALIENS WHO HAVE APPLIED FOR LAWFUL PROSPECTIVE
IMMIGRANT STATUS.
(a) Administrative Review.--
(1) Exclusive administrative review.--Administrative review
of a determination respecting an application for status as a
Lawful Prospective Immigrant under section 501(b) of this title
or respecting an application for adjustment of status under
section 502 of this title shall be conducted solely as provided
in this subsection.
(2) Administrative appellate review.--
(A) Establishment of administrative appellate
authority.--The Secretary shall establish or designate
an appellate authority to provide for a single level of
administrative appellate review of a determination
respecting an application for status or revocation of
status as a Lawful Prospective Immigrant under section
501(b) of this title or respecting an application for
adjustment of status under section 502 of this title.
Any such application is not renewable in any proceeding
before the Attorney General.
(B) Single appeal.--
(i) Lawful prospective immigrant.--An alien
in the United States whose application for
status as a Lawful Prospective Immigrant under
section 501(b) of this title has been denied or
whose status as a Lawful Prospective Immigrant
has been revoked, may file with the Secretary
not more than 1 appeal of the denial or
revocation.
(ii) Adjustment of status.--An alien in
Lawful Prospective Immigrant status whose
application under section 502 of this title for
adjustment of status to that of an alien
lawfully admitted for permanent residence has
been denied may file with the Secretary not
more than 1 appeal of the denial.
(iii) Notice of appeal.--A notice of appeal
filed under this subsection must be filed not
later than 60 calendar days after the date of
service of the decision of denial or
revocation.
(C) Secretarial review.--Nothing in this subsection
shall be construed to limit the authority of the
Secretary, in the Secretary's sole and unreviewable
discretion, from certifying appeals to himself or
herself for review and final administrative decision.
(D) Denial of petitions for dependents.--Appeals of
a decision to deny a petition filed by a Lawful
Prospective Immigrant pursuant to regulations
promulgated under section 501(c)(1)(A)(i) of this title
to classify a spouse or child of such alien as a Lawful
Prospective Immigrant shall be to the administrative
appellate authority described in subsection (A) of this
paragraph.
(E) Stay of removal.--Aliens seeking administrative
review under this section shall not be removed from the
United States until a final decision is rendered
establishing ineligibility under this title, unless
such removal is based on criminal or national security
grounds.
(3) Record for review.--Administrative appellate review
referred to in paragraph (2) of this subsection shall be based
solely upon the administrative record established at the time
of the determination on the application and upon such
additional newly discovered or previously unavailable evidence
as the administrative appellate review authority may in its
discretion decide to consider.
(4) Limitation on motions to reopen and reconsider.--
(A) No motion to reopen or reconsider initial
decision.--An alien may not file a motion to reopen or
reconsider the denial of an application for status as a
Lawful Prospective Immigrant or for adjustment of
status under this title, or the revocation of an
alien's status as a Lawful Prospective Immigrant under
this title.
(B) One motion to reopen or reconsider appellate
decision.--An alien may not file more than one motion
to reopen or to reconsider the decision of the
administrative appellate authority under this section.
Such motions must be filed not later than 60 days after
the date of service of the administrative appellate
decision. The Secretary's decision whether to consider
any such motion is committed to the Secretary's sole
and unreviewable discretion and shall not be subject to
any judicial review.
(b) Self Initiated Removal and Notice Preserving Judicial Review.--
(1) In general.--Except as provided in subparagraphs (2)
and (3) of this subsection, any alien who receives a denial of
an administrative appeal filed under subsection (a) may
request, not later than 60 calendar days after the date of
service of the administrative appellate decision, that the
Secretary place the alien in removal proceedings. That request
shall serve as a notice preserving judicial review of the
denial. The Secretary shall place such alien in removal
proceedings to which the alien would otherwise be subject,
provided that no court shall have jurisdiction to review the
timing of the Secretary's initiation of such proceedings. If
removal proceedings are not commenced within one year of the
timely filing of the request specified in this section, the
alien may petition for review as if an order of removal was
filed within one year of the request.
(2) Aliens in removal proceedings.--Any alien who is in
removal, deportation, or exclusion proceedings that are not
administratively final and who receives a denial of an
administrative appeal filed under subsection (a) of this
section, may file with the Secretary, not later than 60
calendar days after the date of service of the administrative
appellate decision, a notice to preserve judicial review of
that appeal.
(3) Aliens with a final removal order.--Any alien who is
subject to an administratively final, unexecuted order of
removal, deportation, or exclusion and who receives a denial of
an administrative appeal filed under subsection (a) of this
section, may file with the Secretary, not later than 60
calendar days after the date of service of the administrative
appellate decision, a notice to preserve judicial review of
that appeal. Nothing in this subsection shall be construed to
authorize motions to reopen or reconsider the removal order not
otherwise permitted under statute or regulation.
(4) Effect of motions to reopen or reconsider.--The 60-day
period described in paragraphs (1), (2), and (3) of this
subsection shall not be affected or extended by the filing of a
motion to reopen or reconsider.
(5) Effect of service by mail.--If the administrative
appellate decision described in paragraphs (1), (2), and (3) of
this subsection is served by mail, the date of mailing shall be
considered the date of service, and 3 days shall be added to
the prescribed period that the alien has to file the request or
notices under such paragraphs.
(c) Judicial Review.--Section 242 of the Act is amended--
(1) in subsection (b)(2), by striking ``completed the
proceedings'' and inserting ``or the Secretary of Homeland
Security completed the removal proceedings'';
(2) by amending subsection (d)(1) to read:
``(1) the alien has exhausted all administrative remedies
available to the alien as of right, except that the alien need
not file an administrative appeal of an order of an immigration
judge if the alien seeks review solely of a denial or
revocation of Lawful Prospective Immigrant status pursuant to
subsection (i)(3), and''; and
(3) by adding at the end the following:
``(i) Judicial Review of Determinations Relating to Lawful
Prospective Immigrant Status.--
``(1) Direct review.--A person whose application for
classification or adjustment of status under this section is
denied after administrative appellate review under Title V of
the CIR Act of 2010 may seek review of such denial, in
accordance with chapter 7 of title 5, United States Code,
before the United States district court for the district in
which the person resides.
``(2) Review after removal proceedings.--There shall be
judicial review in the Federal courts of appeal of the denial
of an application for adjustment of status under Title V of the
CIR Act of 2010 in conjunction with judicial review of an order
of removal, deportation, or exclusion, but only if the validity
of the denial has not been upheld in a prior judicial
proceeding under paragraph (1).
``(3) Standard for judicial review.--Judicial review of a
denial of an application under Title V of the CIR Act of 2010
shall be based upon the administrative record established at
the time of the review, but the court may remand the case to
the Secretary for consideration of additional evidence where
the court finds that the evidence is material and there were
reasonable grounds for failure to adduce the evidence before
the Secretary. Notwithstanding any other provision of law,
judicial review of all questions arising from a denial of an
application under Title V of the CIR Act of 2010 shall be
governed by the standard of review set forth in chapter 7 of
title 5, United States Code.
``(4) Remedial powers.--Notwithstanding any other provision
of law, the district courts of the United States shall have
jurisdiction over any cause or claim arising from a pattern or
practice of the Secretary of Homeland Security in the operation
or implementation of Title V of the CIR Act of 2010 that is
arbitrary, capricious, or otherwise contrary to law, and may
order any appropriate relief. The district courts may order any
appropriate relief in accordance with the preceding sentence
without regard to exhaustion, ripeness, or other standing
requirements (other than constitutionally-mandated
requirements), if the court determines that resolution of such
cause or claim will serve judicial and administrative
efficiency or that a remedy would otherwise not be reasonably
available or practicable.
``(5) Stay of removal.--Aliens seeking judicial review
under section 503 of the CIR Act of 2010 shall not be removed
from the United States until a final decision is rendered
establishing ineligibility under this title.
``(6) No review for late filings.--An alien may not file an
application for Lawful Prospective Immigrant status, under
title V of the CIR Act of 2010 beyond the period for receipt of
such applications established by section 501(e)(1) of such Act.
The denial of any application filed beyond the expiration of
the period established by that subsection shall not be subject
to judicial review or remedy, including under paragraph (5).
``(7) Challenges on validity of the system established by
title v of the cir act of 2010.--
``(A) In general.--Any claim that title V of the
CIR Act of 2010, or any regulation, guideline,
directive, or procedure issued to implement that title,
violates the Constitution of the United States or is
otherwise in violation of law is available exclusively
in an action instituted in the United States District
Court for the District of Columbia in accordance with
the procedures prescribed in this paragraph. No claims
challenging the validity of the system established by
title V of the CIR Act of 2010 may be initiated after
the period for receipt of such applications established
by subsection 501(c)(1) of title VI of the CIR Act of
2010 by or on behalf of an alien who did not timely
file for Lawful Prospective Immigrant status.
``(B) Deadlines for bringing actions.--Any action
instituted under this paragraph shall, if it asserts a
claim that this title or any regulation, guideline,
directive, or procedure issued by or under the
authority of the Secretary to implement that title
violates the Constitution or is otherwise unlawful, be
filed no later than one year after the date of the
publication or promulgation of the challenged
regulation, policy or directive or, in cases
challenging the validity of the Act, within one year of
enactment.
``(C) Subject to subparagraph (D), nothing in
subparagraph (A) or (B) shall preclude an applicant for
Lawful Prospective Immigrant status under title VI of
the CIR Act of 2010 from asserting that an action taken
or decision made by the Secretary with respect to his
status under that title was contrary to law in a
proceeding under section 503 of title V of the CIR Act
of 2010.
``(D) Class actions.--Any claim described in
subparagraph (A) that is brought as a class action
shall be brought in conformity with the Class Action
Fairness Act of 2005, Public Law 109-2, and the Federal
Rules of Civil Procedure. After the expiration of the
period for receipt of such applications established by
section 501(c)(1) of title V of the CIR Act of 2010, an
alien who did not timely file for Lawful Prospective
Immigrant status may not be a class member of or
otherwise benefit from a class action described in
subparagraph (A).
``(E) Exhaustion and stay of proceedings.--No claim
brought under this paragraph shall require the
plaintiff to exhaust administrative remedies under
section 503 of title V of the CIR Act of 2010, but
nothing shall prevent the court from staying
proceedings under this paragraph to permit the
Secretary to evaluate an allegation challenging a
policy or practice or to take corrective action. In
issuing such a stay, the court shall take into account
any harm the stay may cause to the claimant and to the
government. This subsection conveys no authority to
stay proceedings initiated under any other section of
the Act.
``(F) Expeditious consideration of cases.--It shall
be the duty of the District Court, the Court of
Appeals, and the United States Supreme Court to advance
on the docket and to expedite to the greatest possible
extent the disposition of any case considered under
this section.''.
SEC. 504. CONFIDENTIALITY OF INFORMATION.
(a) In General.--Except as otherwise provided in this section and
in section 507 of this title, no Federal agency or bureau, or any
officer or employee of such agency or bureau, may, without the written
consent of the applicant--
(1) use the information furnished by the applicant pursuant
to an application filed under section 501 or 502 of this title,
for any purpose, other than to make a determination on the
application, including revocation of an application previously
approved;
(2) make any publication through which the information
furnished by any particular applicant can be identified; or
(3) permit anyone other than the sworn officers, employees
or contractors of such agency or bureau, to examine individual
applications that have been filed.
(b) Required Disclosures.--
(1) The Secretary shall provide the information furnished
pursuant to an application filed under section 501 or 502 of
this title, and any other information derived from such
furnished information, to--
(A) a Federal, state, tribal, or local law
enforcement agency, intelligence agency, national
security agency, component of the Department of
Homeland Security, court, or grand jury in connection
with a criminal investigation or prosecution, a
background check conducted pursuant to the Brady
Handgun Violence Protection Act, or for homeland
security or national security purposes, in each
instance about an individual, when such information is
requested by such entity or consistent with an
information sharing agreement or mechanism; or
(B) an official coroner for purposes of
affirmatively identifying a deceased individual,
whether or not the death of such individual resulted
from a crime.
(2) Nothing in this section shall be construed as
prohibiting any entity described in paragraph (1)(A) of this
subsection from disseminating information provided to such
entity under this subsection by the Secretary for any
authorized purpose.
(c) Inapplicability After Denial, Revocation, or Abandonment.--The
limitations under subsection (a) of this section--
(1) shall apply only until an application filed under
section 501 or 502 of this title is denied and all
opportunities for administrative appeal of the denial have been
exhausted;
(2) shall not apply to the use of the information furnished
pursuant to such application in any removal proceeding or other
criminal or civil case or action, including administrative
action, relating to an alien whose application has been granted
that is based upon any violation of law committed or discovered
after such grant; and
(3) shall not apply in a case in which--
(A) the Secretary has revoked the alien's status as
a Lawful Prospective Immigrant, or
(B) the alien's Lawful Prospective Immigrant status
has expired.
(d) Fraud in Application Process or Criminal Conduct.--
Notwithstanding any other provision of this section, information
concerning whether the applicant has engaged in fraud in the
application for Lawful Prospective Immigrant status or for adjustment
of status from Lawful Prospective Immigrant status or at any time
committed a crime may be used or released for immigration enforcement,
law enforcement, or national security purposes.
(e) Auditing and Evaluation of Information.--
(1) The Secretary may audit and evaluate information
furnished as part of any application filed under section 501 or
502 of this title for purposes of identifying fraud or fraud
schemes, and may use any evidence of fraud detected by means of
audits, evaluations, or other means for purposes of
investigating, prosecuting or referring for prosecution,
denying, or terminating immigration benefits.
(2) Nothing in this section shall be construed as limiting
the authority of the relevant Offices of Inspector General from
conducting reviews, audits, oversight, and administrative,
civil or criminal investigations.
(f) Use of Information in Immigration Matters Subsequent to
Adjustment of Status.--If the Secretary has adjusted an alien's status
to that of an alien lawfully admitted for permanent residence pursuant
to section 502 of this title, then at any time thereafter the Secretary
may use the information furnished by the alien in the application for
adjustment of status or in the applications for status pursuant to
sections 501 of this title in any subsequent immigration matter.
(g) Other Authorized Disclosures.--The Federal Bureau of
Investigation may disclose information derived from biometric and
biographic checks of the applicant to assist in the apprehension of a
person who is the subject of a warrant of arrest, or to notify
intelligence agencies of the location of a known or suspected
terrorist.
(h) Civil Penalty.--Whoever willfully uses, publishes, or permits
information to be disclosed in violation of this section shall be
subject to appropriate disciplinary action and subject to a civil
monetary penalty of not more than $5,000.
(i) Construction.--Nothing in this section shall be construed to
limit the use or release for immigration enforcement purposes of
information contained in files or records of the Secretary or Attorney
General pertaining to an application filed under section 501 or 502 of
this title, 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.
(j) Interagency Fraud Prevention Coordination.--The Secretary or
the Secretary's designee shall convene an interagency committee to
address issues relating to the identification, prevention,
investigation, and prosecution of fraud and related conduct in
connection with this program.
SEC. 505. ALIENS NOT SUBJECT TO DIRECT NUMERICAL LIMITATIONS.
Section 201(b)(1) of the Act (8 U.S.C. 1151(b)(1)), is amended by
adding at the end the following:
``(N) Aliens whose status is adjusted from that of
a Lawful Prospective Immigrant under section 502 of CIR
Act of 2010.''.
SEC. 506. EMPLOYER PROTECTIONS.
(a) Use of Employment Records.--Copies of employment records or
other evidence of employment provided by an alien or by an alien``s
employer in support of an alien''s application for Lawful Prospective
Immigrant status under section 601 of this title shall not be used in a
prosecution or investigation (civil or criminal) of that employer under
section 274A of the Act or the tax laws of the United States for the
prior unlawful employment of that alien, regardless of the adjudication
of such application or reconsideration by the Secretary of such alien's
prima facie eligibility determination. This section does not apply to
employment records submitted by aliens or employers that are deemed to
be fraudulent.
(b) Applicability of Other Law.--Nothing in this section may be
used to shield an employer from liability under section 274B of the Act
or any other labor or employment law.
SEC. 507. ASSIGNMENT OF SOCIAL SECURITY NUMBER.
The Commissioner of the Social Security Administration, in
coordination with the Secretary, shall implement a system to allow for
the assignment of a Social Security number and issuance of a Social
Security card after the Secretary has granted an alien status as a
Lawful Prospective Immigrant. The Secretary shall provide to the
Commissioner of Social Security information from the application filed
under section 501(a) of this title and such other information as the
Commissioner of Social Security deems necessary to assign a Social
Security account number. The Commissioner of Social Security may use
such information to assign such Social Security account numbers and to
administer the programs for which the Commissioner of Social Security
has responsibility. The Commissioner of Social Security may maintain,
use, and disclose such information only as permitted by the Privacy Act
and other federal law.
Subtitle B--Implementation
SEC. 511. RULEMAKING.
(a) In General.--The Secretary and Attorney General separately
shall issue interim final regulations within nine months of the date of
enactment of this title to implement this title and the amendments made
by this title. Such interim final regulations shall become effective
immediately upon publication in the Federal Register.
(b) Exemption From National Environmental Policy Act.--Any decision
by the Secretary concerning any rulemaking action, plan or program
described in this section shall not be considered to be a major Federal
action subject to review under the National Environmental Policy Act of
1969 (42 U.S.C. 4321 et seq.).
SEC. 512. EXEMPTION FROM GOVERNMENT CONTRACTING AND HIRING RULES.
(a) Exemption From Government Contracting Rules.--
(1) Procurement competition exemption.--Any Federal
agency's determination to use a procurement competition
exemption under section 253(c) of title 41, United States Code,
or to use the authority granted in paragraph (2) of this
subsection, for the purpose of implementing this title is not
subject to challenge by protest to either the Government
Accountability Office, under sections 3551 through 3556 of
title 31, United States Code, or to the Court of Federal
Claims, under section 1491 of title 28, United States Code. An
agency shall immediately advise Congress of the exercise of the
authority granted in this subsection.
(2) Waiver of competition requirements.--The competition
requirement of section 253(a) of title 41, United States Code
may be waived or modified by a Federal agency for any
procurement conducted to implement this title pursuant to a
determination and finding, approved by the senior procurement
executive for the agency conducting the procurement, that
explains why the waiver or modification is necessary; provided
that such a determination and finding is furnished to the
Committee on Homeland Security and Governmental Affairs of the
Senate and the Committee on Oversight and Government Reform of
the House of Representatives.
(b) Exemption From Government Hiring Rules.--Notwithstanding any
other provision of law, the Secretary shall have authority to make
term, temporary, limited, and part-time appointments for purposes of
implementing this title without regard to the number of such employees,
their ratio to permanent full-time employees, and the duration of their
employment. Nothing in chapter 71 of title 5, United States Code, shall
affect the authority of any Department management official to hire
term, temporary, limited, or part-time employees under this subsection.
SEC. 513. AUTHORITY TO ACQUIRE LEASEHOLDS.
Notwithstanding any other provision of law, the Secretary may
acquire a leasehold interest in real property, and may provide in a
lease entered into under this subsection for the construction or
modification of any facility on the leased property, if she determines
that the acquisition of such interest, and such construction or
modification, are necessary in order to facilitate the implementation
of this title.
SEC. 514. PRIVACY AND CIVIL LIBERTIES.
(a) Protection of Privacy.--Consistent with section 504 of this
title, the Secretary shall require appropriate administrative and
physical safeguards to protect the security, confidentiality, and
integrity of personally identifiable information collected, maintained,
and disseminated pursuant to sections 501 and 502 of this title.
(b) Requirement for Impact Assessments.--Notwithstanding privacy
requirements under section 222 of the Homeland Security Act and the E-
Government Act of 2002, the Secretary shall conduct a privacy impact
assessment and a civil liberties impact assessment of the legalization
program established in sections 501 and 502 of this title during the
pendency of the interim final rule.
SEC. 515. STATUTORY CONSTRUCTION.
Except as specifically provided otherwise, nothing in this title,
or any amendment made by this title, shall be construed to create any
substantive or procedural right or benefit that is legally enforceable
by any party against the United States or its agencies or officers or
any other person.
Subtitle C--Miscellaneous
SEC. 521. CORRECTION OF SOCIAL SECURITY RECORDS.
(a) In General.--Section 208(e)(1) of the Social Security Act (42
U.S.C. 408(e)(1)) is amended--
(1) in subparagraph (B)(ii), by striking ``or'' at the end;
(2) by inserting after subparagraph (C) the following:
``(D) who is granted status as a Lawful Prospective
Immigrant pursuant to section 501 of the CIR Act of
2010; or
``(E) whose status is adjusted to that of lawful
permanent resident under section 502 of the CIR Act of
2010,''; and
(3) by striking ``1990.'' and inserting ``1990, or in the
case of an alien described in subparagraph (D) or (E), if such
conduct is alleged to have occurred before the date on which
the alien submitted an application under section 501 of the CIR
Act of 2010 for classification as a Lawful Prospective
Immigrant.''.
(b) Effective Date.--The amendments made by subsection (a) shall
take effect on the first day of the tenth month that begins after the
date of the enactment of this Act.
SEC. 522. FRAUD PREVENTION PROGRAM.
(a) In General.--The head of each Department responsible for the
administration of a program related to this title or with authority to
confer an immigration benefit, relief, or status under the immigration
laws shall develop an administrative program to prevent fraud within or
upon such program or authority. Subject to such modifications as the
head of the Department may direct, the program shall provide for--
(1) fraud prevention training for the relevant
administrative adjudicators within the Department;
(2) the regular audit of pending and approved applications
for examples and patterns of fraud or abuse;
(3) the receipt and evaluation of reports of fraud or
abuse;
(4) the identification of deficiencies in administrative
practice or procedure that encourage fraud or abuse;
(5) the remedy of any identified deficiencies; and
(6) the referral of cases of identified or suspected fraud
or other misconduct for investigation.
(b) Implementation.--Except as the head of the Department shall
otherwise provide, the implementation of the administrative program
referred to in subsection (a) shall be assigned to and made part of the
component or agency within the Department that is responsible for
conferring the relevant immigration benefit, relief, or status under
the immigration laws.
(c) Coordination.--The heads of relevant Departments shall
coordinate their respective efforts under this subsection.
(d) Authorization of Appropriations.--There are authorized to be
appropriated such sums as may be necessary for this section.
SEC. 523. DATA COLLECTION REQUIREMENTS.
(a) In General.--The head of each department or agency of the
United States shall ensure that general demographic data provided by
applicants under this title shall be made available in the aggregate in
a searchable public database.
(b) Demographic Data.--General demographic data including gender,
country of origin, age, education, annual earnings, employment, State
of residence, marital status, date of arrival in the United States,
method of entry into the United States, number and ages of children,
and birthplace of children shall be made available to the public.
(c) Protection of Confidentiality.--Data collected and gathered in
the aggregate for purposes of research shall not be recorded in such a
way that it violates confidentiality provisions under this title.
Subtitle D--Dream Act
SEC. 531. SHORT TITLE.
This subtitle may be cited as the ``Development, Relief, and
Education for Alien Minors Act of 2010'' or the ``DREAM Act of 2010''.
SEC. 532. DEFINITIONS.
In this subtitle:
(1) Institution of higher education.--The term
``institution of higher education'' has the meaning given that
term in section 101 of the Higher Education Act of 1965 (20
U.S.C. 1001).
(2) Uniformed services.--The term ``uniformed services''
has the meaning given that term in section 101(a) of title 10,
United States Code.
SEC. 533. RESTORATION OF STATE OPTION TO DETERMINE RESIDENCY FOR
PURPOSES OF HIGHER EDUCATION BENEFITS.
(a) In General.--Section 505 of the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (8 U.S.C. 1623) is repealed.
(b) Effective Date.--The repeal under subsection (a) shall take
effect as if included in the enactment of the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996 (division C of Public
Law 104-208; 110 Stat. 3009-546).
SEC. 534. CANCELLATION OF REMOVAL AND ADJUSTMENT OF STATUS OF CERTAIN
LONG-TERM RESIDENTS WHO ENTERED THE UNITED STATES AS
CHILDREN.
(a) Special Rule for Certain Long-term Residents Who Entered the
United States as Children.--
(1) In general.--Notwithstanding any other provision of law
and except as otherwise provided in this subtitle, the
Secretary may cancel removal of, and adjust to the status of an
alien lawfully admitted for permanent residence, subject to the
conditional basis described in section 5, an alien who is
inadmissible or deportable from the United States, if the alien
demonstrates that--
(A) the alien has been physically present in the
United States for a continuous period of not less than
5 years immediately preceding the date of enactment of
this subtitle, and had not yet reached the age of 16
years at the time of initial entry;
(B) the alien has been a person of good moral
character since the time of application;
(C) the alien--
(i) is not inadmissible under paragraph
(2), (3), (6)(E), or (10)(C) of section 212(a)
of the Immigration and Nationality Act (8
U.S.C. 1182(a)); and
(ii) is not deportable under paragraph
(1)(E), (2), or (4) of section 237(a) of the
Immigration and Nationality Act (8 U.S.C.
1227(a));
(D) the alien, at the time of application, has been
admitted to an institution of higher education in the
United States, or has earned a high school diploma or
obtained a general education development certificate in
the United States;
(E) the alien has never been under a final
administrative or judicial order of exclusion,
deportation, or removal, unless the alien--
(i) has remained in the United States under
color of law after such order was issued; or
(ii) received the order before attaining
the age of 16 years; and
(F) the alien had not yet reached the age of 35
years on the date of the enactment of this subtitle.
(2) Waiver.--Notwithstanding paragraph (1), the Secretary
may waive the ground of ineligibility under section
212(a)(6)(E) of the Immigration and Nationality Act and the
ground of deportability under paragraph (1)(E) of section
237(a) of that Act for humanitarian purposes or family unity or
when it is otherwise in the public interest.
(3) Procedures.--The Secretary shall provide a procedure by
regulation allowing eligible individuals to apply affirmatively
for the relief available under this subsection without being
placed in removal proceedings.
(b) Termination of Continuous Period.--For purposes of this
section, any period of continuous residence or continuous physical
presence in the United States of an alien who applies for cancellation
of removal under this section shall not terminate when the alien is
served a notice to appear under section 239(a) of the Immigration and
Nationality Act (8 U.S.C. 1229(a)).
(c) Treatment of Certain Breaks in Presence.--
(1) In general.--An alien shall be considered to have
failed to maintain continuous physical presence in the United
States under subsection (a) if the alien has departed from the
United States for any period in excess of 90 days or for any
periods in the aggregate exceeding 180 days.
(2) Extensions for exceptional circumstances.--The
Secretary may extend the time periods described in paragraph
(1) if the alien demonstrates that the failure to timely return
to the United States was due to exceptional circumstances. The
exceptional circumstances determined sufficient to justify an
extension should be no less compelling than serious illness of
the alien, or death or serious illness of a parent,
grandparent, sibling, or child.
(d) Exemption From Numerical Limitations.--Nothing in this section
may be construed to apply a numerical limitation on the number of
aliens who may be eligible for cancellation of removal or adjustment of
status under this section.
(e) Regulations.--
(1) Proposed regulations.--Not later than 180 days after
the date of enactment of this subtitle, the Secretary shall
publish proposed regulations implementing this section. Such
regulations shall be effective immediately on an interim basis,
but are subject to change and revision after public notice and
opportunity for a period for public comment.
(2) Interim, final regulations.--Within a reasonable time
after publication of the interim regulations in accordance with
paragraph (1), the Secretary shall publish final regulations
implementing this section.
(f) Removal of Alien.--The Secretary may not remove any alien who
has a pending application for conditional status under this subtitle.
SEC. 535. CONDITIONAL PERMANENT RESIDENT STATUS.
(a) In General.--
(1) Conditional basis for status.--Notwithstanding any
other provision of law, and except as provided in section 6, an
alien whose status has been adjusted under section 534 to that
of an alien lawfully admitted for permanent residence shall be
considered to have obtained such status on a conditional basis
subject to the provisions of this section. Such conditional
permanent resident status shall be valid for a period of 6
years, subject to termination under subsection (b).
(2) Notice of requirements.--
(A) At time of obtaining permanent residence.--At
the time an alien obtains permanent resident status on
a conditional basis under paragraph (1), the Secretary
shall provide for notice to the alien regarding the
provisions of this section and the requirements of
subsection (c) to have the conditional basis of such
status removed.
(B) Effect of failure to provide notice.--The
failure of the Secretary to provide a notice under this
paragraph--
(i) shall not affect the enforcement of the
provisions of this subtitle with respect to the
alien; and
(ii) shall not give rise to any private
right of action by the alien.
(b) Termination of Status.--
(1) In general.--The Secretary shall terminate the
conditional permanent resident status of any alien who obtained
such status under this subtitle, if the Secretary determines
that the alien--
(A) ceases to meet the requirements of subparagraph
(B) or (C) of section 4(a)(1);
(B) has become a public charge; or
(C) has received a dishonorable or other than
honorable discharge from the uniformed services.
(2) Return to previous immigration status.--Any alien whose
conditional permanent resident status is terminated under
paragraph (1) shall return to the immigration status the alien
had immediately prior to receiving conditional permanent
resident status under this subtitle.
(c) Requirements of Timely Petition for Removal of Condition.--
(1) In general.--In order for the conditional basis of
permanent resident status obtained by an alien under subsection
(a) to be removed, the alien must file with the Secretary, in
accordance with paragraph (3), a petition which requests the
removal of such conditional basis and which provides, under
penalty of perjury, the facts and information so that the
Secretary may make the determination described in paragraph
(2)(A).
(2) Adjudication of petition to remove condition.--
(A) In general.--If a petition is filed in
accordance with paragraph (1) for an alien, the
Secretary shall make a determination as to whether the
alien meets the requirements set out in subparagraphs
(A) through (E) of subsection (d)(1).
(B) Removal of conditional basis if favorable
determination.--If the Secretary determines that the
alien meets such requirements, the Secretary shall
notify the alien of such determination and immediately
remove the conditional basis of the status of the
alien.
(C) Termination if adverse determination.--If the
Secretary determines that the alien does not meet such
requirements, the Secretary shall notify the alien of
such determination and terminate the conditional
permanent resident status of the alien as of the date
of the determination.
(3) Time to file petition.--An alien may petition to remove
the conditional basis to lawful resident status during the
period beginning 180 days before and ending 2 years after
either the date that is 6 years after the date of the granting
of conditional permanent resident status or any other
expiration date of the conditional permanent resident status as
extended by the Secretary in accordance with this subtitle. The
alien shall be deemed in conditional permanent resident status
in the United States during the period in which the petition is
pending.
(d) Details of Petition.--
(1) Contents of petition.--Each petition for an alien under
subsection (c)(1) shall contain information to permit the
Secretary to determine whether each of the following
requirements is met:
(A) The alien has demonstrated good moral character
during the entire period the alien has been a
conditional permanent resident.
(B) The alien is in compliance with section
534(a)(1)(C).
(C) The alien has not abandoned the alien's
residence in the United States. The Secretary shall
presume that the alien has abandoned such residence if
the alien is absent from the United States for more
than 365 days, in the aggregate, during the period of
conditional residence, unless the alien demonstrates
that alien has not abandoned the alien's residence. An
alien who is absent from the United States due to
active service in the uniformed services has not
abandoned the alien's residence in the United States
during the period of such service.
(D) The alien has completed at least 1 of the
following:
(i) The alien has acquired a degree from an
institution of higher education in the United
States or has completed at least 2 years, in
good standing, in a program for a bachelor's
degree or higher degree in the United States.
(ii) The alien has served in the uniformed
services for at least 2 years and, if
discharged, has received an honorable
discharge.
(E) The alien has provided a list of each secondary
school (as that term is defined in section 9101 of the
Elementary and Secondary Education Act of 1965 (20
U.S.C. 7801)) that the alien attended in the United
States.
(2) Hardship exception.--
(A) In general.--The Secretary may, in the
Secretary's discretion, remove the conditional status
of an alien if the alien--
(i) satisfies the requirements of
subparagraphs (A), (B), and (C) of paragraph
(1);
(ii) demonstrates compelling circumstances
for the inability to complete the requirements
described in paragraph (1)(D); and
(iii) demonstrates that the alien's removal
from the United States would result in
exceptional and extremely unusual hardship to
the alien or the alien's spouse, parent, or
child who is a citizen or a lawful permanent
resident of the United States.
(B) Extension.--Upon a showing of good cause, the
Secretary may extend the period of conditional resident
status for the purpose of completing the requirements
described in paragraph (1)(D).
(e) Treatment of Period for Purposes of Naturalization.--For
purposes of title III of the Immigration and Nationality Act (8 U.S.C.
1401 et seq.), in the case of an alien who is in the United States as a
lawful permanent resident on a conditional basis under this section,
the alien shall be considered to have been admitted as an alien
lawfully admitted for permanent residence and to be in the United
States as an alien lawfully admitted to the United States for permanent
residence. However, the conditional basis must be removed before the
alien may apply for naturalization.
SEC. 536. RETROACTIVE BENEFITS UNDER THIS SUBTITLE.
If, on the date of enactment of this subtitle, an alien has
satisfied all the requirements of subparagraphs (A) through (E) of
section 534(a)(1) and section 535(d)(1)(D), the Secretary may adjust
the status of the alien to that of a conditional resident in accordance
with section 534. The alien may petition for removal of such condition
at the end of the conditional residence period in accordance with
section 535(c) if the alien has met the requirements of subparagraphs
(A), (B), and (C) of section 535(d)(1) during the entire period of
conditional residence.
SEC. 537. EXCLUSIVE JURISDICTION.
(a) In General.--The Secretary shall have exclusive jurisdiction to
determine eligibility for relief under this subtitle, except where the
alien has been placed into deportation, exclusion, or removal
proceedings either prior to or after filing an application for relief
under this subtitle, in which case the Attorney General shall have
exclusive jurisdiction and shall assume all the powers and duties of
the Secretary until proceedings are terminated, or if a final order of
deportation, exclusion, or removal is entered the Secretary shall
resume all powers and duties delegated to the Secretary under this
subtitle.
(b) Stay of Removal of Certain Aliens Enrolled in Primary or
Secondary School.--The Attorney General shall stay the removal
proceedings of any alien who--
(1) meets all the requirements of subparagraphs (A), (B),
(C), and (E) of section 534(a)(1);
(2) is at least 12 years of age; and
(3) is enrolled full time in a primary or secondary school.
(c) Employment.--An alien whose removal is stayed pursuant to
subsection (b) may be engaged in employment in the United States
consistent with the Fair Labor Standards Act (29 U.S.C. 201 et seq.)
and State and local laws governing minimum age for employment.
(d) Lift of Stay.--The Attorney General shall lift the stay granted
pursuant to subsection (b) if the alien--
(1) is no longer enrolled in a primary or secondary school;
or
(2) ceases to meet the requirements of subsection (b)(1).
SEC. 538. PENALTIES FOR FALSE STATEMENTS IN APPLICATION.
Whoever files an application for relief under this subtitle and
willfully and knowingly falsifies, misrepresents, or conceals a
material fact or makes any false or fraudulent statement or
representation, or makes or uses any false writing or document knowing
the same to contain any false or fraudulent statement or entry, shall
be fined in accordance with title 18, United States Code, or imprisoned
not more than 5 years, or both.
SEC. 539. CONFIDENTIALITY OF INFORMATION.
(a) Prohibition.--Except as provided in subsection (b), no officer
or employee of the United States may--
(1) use the information furnished by the applicant pursuant
to an application filed under this subtitle to initiate removal
proceedings against any persons identified in the application;
(2) make any publication whereby the information furnished
by any particular individual pursuant to an application under
this subtitle can be identified; or
(3) permit anyone other than an officer or employee of the
United States Government or, in the case of applications filed
under this subtitle with a designated entity, that designated
entity, to examine applications filed under this subtitle.
(b) Required Disclosure.--The Attorney General or the Secretary
shall provide the information furnished under this section, and any
other information derived from such furnished information, to--
(1) a duly recognized law enforcement entity in connection
with an investigation or prosecution of an offense described in
paragraph (2) or (3) of section 212(a) of the Immigration and
Nationality Act (8 U.S.C. 1182(a)), when such information is
requested in writing by such entity; or
(2) 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) Penalty.--Whoever knowingly uses, publishes, or permits
information to be examined in violation of this section shall be fined
not more than $10,000.
SEC. 540. EXPEDITED PROCESSING OF APPLICATIONS; PROHIBITION ON FEES.
Regulations promulgated under this subtitle shall provide that
applications under this subtitle will be considered on an expedited
basis and without a requirement for the payment by the applicant of any
additional fee for such expedited processing.
SEC. 541. HIGHER EDUCATION ASSISTANCE.
Notwithstanding any provision of the Higher Education Act of 1965
(20 U.S.C. 1001 et seq.), with respect to assistance provided under
title IV of the Higher Education Act of 1965 (20 U.S.C. 1070 et seq.),
an alien who adjusts status to that of a lawful permanent resident
under this subtitle shall be eligible only for the following assistance
under such title:
(1) Student loans under parts B, D, and E of such title IV
(20 U.S.C. 1071 et seq., 1087a et seq., 1087aa et seq.),
subject to the requirements of such parts.
(2) Federal work-study programs under part C of such title
IV (42 U.S.C. 2751 et seq.), subject to the requirements of
such part.
(3) Services under such title IV (20 U.S.C. 1070 et seq.),
subject to the requirements for such services.
SEC. 542. GAO REPORT.
Not later than seven years after the date of enactment of this
subtitle, the Comptroller General of the United States shall submit a
report to the Committee on the Judiciary of the Senate and the
Committee on the Judiciary of the House of Representatives setting
forth--
(1) the number of aliens who were eligible for cancellation
of removal and adjustment of status under section 534(a);
(2) the number of aliens who applied for adjustment of
status under section 534(a);
(3) the number of aliens who were granted adjustment of
status under section 534(a); and
(4) the number of aliens whose conditional permanent
resident status was removed under section 535.
Subtitle E--Funding for the Department of Homeland Security
SEC. 550. EFFECTIVE FUNDING.
(a) Department of Homeland Security Legalization Program Account.--
(1) In general.--There is established in the general fund
of the Treasury a separate account, which shall be known as the
``Department of Homeland Security Legalization Program
Account''.
(2) Source of funds.--Immediately upon the enactment of
this Act, such sums as the Secretary determines shall be
necessary shall be transferred from the general fund of the
Treasury to the Department of Homeland Security Legalization
Program Account.
(3) Appropriations.--
(A) There are hereby appropriated such sums as are
provided under paragraph (2) to remain available for
obligation for ten years after enactment.
(B) These sums shall be authorized for the
Secretary to implement and operate the legalization
programs described in title V of this Act, including
but not limited to--
(i) infrastructure, staffing, and
adjudication;
(ii) outreach;
(iii) grants to community and faith-based
organizations; and
(iv) anti-fraud programs and actions
relating to such legalization programs.
(4) Reporting.--The Secretary shall provide to the
Committees on the Judiciary and Appropriations of the Senate
and the House of Representatives a plan for expenditure of the
funds under paragraph (2) within 90 days of enactment of this
Act, and update the plan annually, that--
(A) identifies one-time and on-going costs;
(B) identifies the level of funding for each
program, project, and activity, and if that funding
will supplement an appropriated program, project, or
activity; and
(C) identifies the amount of funding to be
obligated in each fiscal year, by program, project, and
activity.
(b) Department of State Legalization Program Account.--
(1) In general.--There is established in the general fund
of the Treasury a separate account, which shall be known as the
``Department of State Legalization Program Account''.
(2) Source of funds.--Immediately upon the enactment of
this Act, such sums as the Secretary of State determines shall
be necessary shall be transferred from the general fund of the
Treasury to the Department of State Legalization Program
Account.
(3) Appropriations.--
(A) There are hereby appropriated such sums as are
provided under paragraph (2) to remain available until
ten years after enactment.
(B) These sums shall be available for the Secretary
of State to implement and operate the legalization
programs described in title V of this Act, including
but not limited to--
(i) infrastructure, staffing, and
adjudication;
(ii) outreach; and
(iii) anti-fraud programs and actions
relating to such legalization programs.
(4) Reporting.--The Secretary of State shall provide to the
Committees on the Judiciary and Appropriations of the Senate
and the House of Representatives a plan for expenditure of the
funds under paragraph (2) within 90 days of enactment of this
Act, and update the plan annually, that--
(A) identifies one-time and on-going costs;
(B) identifies the level of funding for each
program, project, and activity, and if that funding
will supplement an appropriated program, project, or
activity; and
(C) identifies the amount of funding to be
obligated in each fiscal year, by program, project, and
activity.
(c) Immigration Reform Penalty Account.--
(1) In general.--There is established in the general fund
of the Treasury a separate account, which shall be known as the
``Immigration Reform Penalty Account''. Notwithstanding any
other section of this Act, there shall be deposited into the
account all civil penalties collected under section 274A of the
Immigration and Nationality Act (8 U.S.C. 1324a) and title V of
this Act, except as specifically provided otherwise in such
title of this Act.
(2) Use of funds.--Funds deposited into the Immigration
Reform Penalty Account shall remain available to the Secretary
until expended solely for the following purposes--
(A) for any costs of implementing and operating the
immigration services programs described in title V of
this Act that are not covered by funds in the
Department of Homeland Security Legalization Program
Account or processing fees described in section
601(c)(4)(A) of this Act;
(B) after the amounts needed to cover the costs
described in subparagraph (A) of this paragraph have
been expended, funds remaining from this account shall
be deposited into the general fund of the Treasury as
repayment of funds transferred into the Department of
Homeland Security Legalization Program Account under
subsection (a)(2) of this section;
(C) after the amounts needed to reimburse the
Treasury under subparagraph (B) of this paragraph have
been deposited into the general fund of the Treasury,
as follows--
(i) \1/3\ to the Secretary to carry out
investigation and prevention of fraud in--
(I) the legalization programs
established under title V of this Act;
and
(II) the employment verification
programs established under title III of
this Act;
(ii) \1/3\ to the Secretary for immigrant
integration programs, including English-
language and U.S. civics instruction; and
(iii) \1/3\ to the Secretary, to be spent
as follows--
(I) \1/2\ to carry out immigration
services; and
(II) \1/2\ to carry out immigration
enforcement.
(d) Construction.--Nothing in this section shall be construed to
modify or limit any authority to collect and use immigration fees as
provided by this Act, section 286 of the Immigration and Nationality
Act (8 U.S.C. 1356) or any other law.
TITLE VI--IMMIGRANT INTEGRATION AND OTHER REFORMS
Subtitle A--Strengthen and Unite Communities With Civics Education and
English Skills
CHAPTER 1--EXPANDING ENGLISH LITERACY, UNITED STATES HISTORY, AND
CIVICS EDUCATION
SEC. 601. INCREASED INVESTMENT IN ENGLISH LITERACY, UNITED STATES
HISTORY, AND CIVICS EDUCATION UNDER THE ADULT EDUCATION
AND FAMILY LITERACY ACT.
(a) Integrated English Literacy and Civics Education Program.--
Section 203 of the Adult Education and Family Literacy Act (20 U.S.C.
9202) is amended--
(1) by redesignating paragraphs (12) through (18) as
paragraphs (13) through (19), respectively; and
(2) by inserting after paragraph (11), the following:
``(12) Integrated english literacy, united states history,
and civics education program.--The term `integrated English
literacy, United States history, and civics education program'
means a program of instruction designed to help an English
language learner achieve competence in English through
contextualized instruction on the rights and responsibilities
of citizenship, naturalization procedures, civic participation,
and United States history and Government to help such learner
acquire the skills and knowledge to become an active and
informed parent, worker, and community member.''.
(b) State Leadership Activities.--Section 223(a) of the Adult
Education and Family Literacy Act (20 U.S.C. 9223(a)) is amended by
inserting after paragraph (11) the following:
``(12) Technical assistance for grant applications of
faith- and community-based organizations.''.
(c) National Institute for Literacy.--Section 242(c)(1) of the
Adult Education and Family Literacy Act (20 U.S.C. 9252(c)(1)) is
amended--
(1) by redesignating subparagraphs (G), (H), and (I), as
subparagraphs (I), (J), and (K), respectively; and
(2) by inserting after subparagraph (F) the following:
``(G) to coordinate and share information with
national organizations and associations that are
interested in integrated English literacy, United
States history, and civics education programs;
``(H) to study the effectiveness of distance
learning or self-study programs in assisting the
English language learner population achieve competence
in English;''.
(d) Report.--Section 242(k) of the Adult Education and Family
Literacy Act (20 U.S.C. 9252(k)) is amended--
(1) in paragraph (2), by striking ``and'' at the end;
(2) by redesignating paragraph (3) as paragraph (4); and
(3) by inserting after paragraph (2) the following:
``(3) a separate analysis of--
``(A) national and State adult English instruction
needs;
``(B) data on the composition of recent immigration
flows and immigration settlement patterns throughout
the United States; and
``(C) estimated instructional needs based on the
English ability and educational attainment of English
language learners under recent migration patterns;
and''.
(e) National Leadership Activities.--Section 243 of the Adult
Education and Family Literacy Act (20 U.S.C. 9253) is amended--
(1) in paragraph (1)--
(A) in subparagraph (A), by inserting ``and
integrated English literacy, United States history, and
civics education programs'' before the semicolon at the
end; and
(B) in subparagraph (B), by inserting ``and
integrated English literacy, United States history, and
civics education programs'' before ``, based on
scientific evidence''; and
(2) in paragraph (2)--
(A) in subparagraph (B), by inserting ``and
integrated English literacy, United States history, and
civics education programs'' before the semicolon at the
end;
(B) in subparagraph (D)(ii), by inserting
``integrated English literacy, United States history,
and civics education programs,'' before ``and workplace
literacy programs''; and
(C) in subparagraph (E)--
(i) in clause (i), by inserting ``and
integrated English literacy, United States
history, and civics education programs'' before
the semicolon at the end;
(ii) in clause (iii), by striking ``and''
at the end;
(iii) in clause (iv)--
(I) by striking ``section 231'' and
inserting ``sections 231 and 244''; and
(II) by adding ``and'' at the end;
and
(iv) by adding at the end the following:
``(v) the extent to which integrated
English literacy, United States history, and
civics education programs carried out under
section 244 lead participants in such programs
to increase their civic participation and, if
applicable, lead such participants to become
United States citizens;''.
(f) Integrated English Literacy, United States History, and Civics
Education.--Chapter 4 of subtitle A of the Adult Education and Family
Literacy Act (20 U.S.C. 9251 et seq.) is amended by adding at the end
the following:
``SEC. 244. INTEGRATED ENGLISH LITERACY, UNITED STATES HISTORY, AND
CIVICS EDUCATION PROGRAMS.
``(a) Program Authorized.--The Secretary shall award grants to
States, from allocations under subsection (b), for integrated English
literacy, United States history, and civics education programs.
``(b) Allocations.--
``(1) In general.--Subject to paragraph (2), the Secretary
shall allocate for each fiscal year, from the amount
appropriated pursuant to subsection (c) for such fiscal year--
``(A) 65 percent of such amount to States on the
basis of a State's need for integrated English, United
States history, and civics education programs, as
determined by calculating each State's share of a 10-
year average of the data compiled by the Office of
Immigration Statistics of the Department of Homeland
Security, for immigrants admitted for lawful permanent
residence during the 10 most recent fiscal years; and
``(B) 35 percent of such amount to the States on
the basis of whether the State experienced growth, as
measured by the average of the 3 most recent years for
which data compiled by the Office of Immigration
Statistics of the Department of Homeland Security are
available, for immigrants admitted for lawful permanent
residence.
``(2) Minimum.--Each State shall receive an allocation
under paragraph (1) in an amount that is not less than $60,000.
``(c) Authorization of Appropriation.--There are authorized to be
appropriated to carry out this section--
``(1) $200,000,000 for fiscal year 2011;
``(2) $250,000,000 for fiscal year 2012; and
``(3) $300,000,000 for fiscal year 2013.''.
SEC. 602. DEFINITIONS OF ENGLISH LANGUAGE LEARNER.
(a) Adult Education and Family Literacy Act.--The Adult Education
and Family Literacy Act (20 U.S.C. 9201 et seq.) is amended--
(1) in section 203 (20 U.S.C. 9202)--
(A) by redesignating paragraphs (6), (7), (8), (9),
and (10), as paragraphs (7), (8), (9), (10), and (6),
respectively;
(B) in paragraph (6), as redesignated--
(i) in the paragraph heading, by striking
``Individual of limited english proficiency''
and inserting ``English language learner''; and
(ii) in the matter preceding subparagraph
(A), by striking ``individual of limited
English proficiency'' and inserting ``English
language learner''; and
(C) in paragraph (7), as redesignated, by striking
``individuals of limited English proficiency'' and
inserting ``English language learners'';
(2) in section 224(b)(10)(D) (20 U.S.C. 9224(b)(10)(D)), by
striking ``individuals with limited English proficiency'' and
inserting ``English language learners''; and
(3) in section 243(2)(D)(ii) (20 U.S.C. 9253(2)(D)(ii)), by
striking ``individuals with limited English proficiency who are
adults'' and inserting ``adult English language learners''.
(b) Elementary and Secondary Education Act of 1965.--
(1) Amendment.--Section 9101(25) of the Elementary and
Secondary Education Act of 1965 (20 U.S.C. 7801(25)) is amended
by striking the matter preceding subparagraph (A) and inserting
the following:
``(25) English language learner.--The term `English
language learner' means an individual--''.
(2) References.--Any reference in the Elementary and
Secondary Education Act of 1965 (20 U.S.C. 6301 et seq.) to an
individual who is limited English proficient shall be construed
to refer to an English language learner.
SEC. 603. CREDITS FOR TEACHERS OF ENGLISH LANGUAGE LEARNERS.
(a) In General.--Subpart A of part IV of subchapter A of chapter 1
of the Internal Revenue Code of 1986 (relating to nonrefundable
personal credits) is amended by inserting after section 25D the
following new section:
``SEC. 25E. TEACHERS OF ENGLISH LANGUAGE LEARNERS.
``(a) In General.--In the case of an eligible teacher, there shall
be allowed a credit against the tax imposed by this chapter for the
taxable year an amount equal to--
``(1) $750, for each of the first 5 taxable years for which
the taxpayer is allowed a credit under this section; and
``(2) $500, for any other taxable year.
``(b) Credit Allowed Only for 10 Taxable Years.--No credit shall be
allowed under this section with respect to a taxpayer for any taxable
year after the 10th taxable year for which such taxpayer is allowed a
credit under this section.
``(c) Eligible Teacher.--For purposes of this section--
``(1) In general.--Except as provided in paragraph (2), the
term `eligible teacher' means, with respect to a taxable year,
any individual who is--
``(A) a full-time teacher of English as a second
language or bilingual instruction for the academic year
ending in such taxable year, or
``(B) an eligible part-time teacher of English as a
second language or bilingual instruction for the
academic year ending in such taxable year.
``(2) Eligible part-time teacher.--The term `eligible part-
time teacher' means, with respect to a taxable year, an
individual who teaches at least 20 hours per week during the
academic year ending in such taxable year. Such term does not
include any individual who is a full-time teacher of English as
a second language during such academic year.
``(3) Special rule.--In the case of an eligible part-time
teacher, subsection (a) shall be applied by substituting
`$375'for `$750' and by substituting `$250' for `$500'.''.
(b) Clerical Amendment.--The table of sections for such subpart is
amended by inserting after the item relating to section 25D the
following new item:
``Sec. 25E. Teachers of English language learners.''.
(c) Teacher Certification Expenses.--Part VII of subchapter B of
chapter 1 of the Internal Revenue Code of 1986 (relating to additional
itemized deductions for individuals) is amended by redesignating
section 224 as section 225 and by inserting after section 223 the
following new section:
``SEC. 224. CERTIFICATION EXPENSES FOR TEACHERS OF ENGLISH LANGUAGE
LEARNERS.
``(a) In General.--In the case of an individual, there shall be
allowed a deduction for eligible teacher certification expenses paid or
incurred by the taxpayer for the taxable year.
``(b) Eligible Teacher Certification Expenses.--The term `eligible
teacher certification expenses'--
``(1) means the tuition and fees required for the
enrollment or attendance of the taxpayer at an eligible
educational institution (as defined in section 25A) for a
course which is required for certification or licensure of such
individual as qualified to provide English as a second language
or bilingual instruction to elementary or secondary school
students who are limited English proficient (as defined in
section 9901 of the Elementary and Secondary Education Act of
1965); and
``(2) shall not include any amounts that are--
``(A) used for a course that is part of the
individual's degree program; or
``(B) funded by another person or any governmental
entity.
``(c) Denial of Double Benefit.--No deduction shall be allowed
under this section for any expense for which a deduction or credit is
allowed under any other provision of this chapter.
``(d) Termination.--This section shall not apply to expenses paid
or incurred after December 31, 2014.''.
(d) Certification Deduction Allowed Whether or Not Taxpayer
Itemizes Other Deductions.--Subsection (a) of section 62 of such Code
is amended by inserting after paragraph (21) the following new
paragraph:
``(22) Teacher certification expenses.--The deduction
allowed by section 224.''.
(e) Clerical Amendment.--The table of sections for part VII of
subchapter B of chapter 1 of such Code is amended by striking the last
item and inserting the following new items:
``Sec. 224. Certification expenses for teachers of English language
learners.
``Sec. 225. Cross reference.''.
(f) Regulations.--Not later than 180 days after the date of the
enactment of this Act, the Secretary of the Treasury shall promulgate
regulations implementing the provisions of this section.
(g) Effective Date.--The amendments made by this section shall
apply to taxable years beginning after the date of the enactment of
this Act.
SEC. 604. RESEARCH IN ADULT EDUCATION.
(a) In General.--Section 133(c)(2)(A) of the Education Sciences
Reform Act of 2002 (20 U.S.C. 9533(c)(2)(A)) is amended by inserting
``education and'' before ``literacy''.
(b) National Research and Development Center.--
(1) In general.--The Secretary of Education shall direct
the Commissioner for Education Research of the National Center
for Education Research established pursuant to section 131 of
the Education Sciences Reform Act of 2002 (20 U.S.C. 9531) to
establish a national research and development center for adult
education and literacy (as described in section 133(c)(2)(A) of
such Act).
(2) Provision for expansion of research.--If, as of the
date of the enactment of this Act, the Commissioner has
established a center for adult literacy in accordance with
section 133(c)(2)(A) of the Education Sciences Reform Act of
2002 (20 U.S.C. 9533(c)(2)(A)), the Commissioner shall expand
the topic of research of such center to include adult
education, in accordance with the amendment made by subsection
(a).
CHAPTER 2--SUPPORTING ENGLISH LANGUAGE ACQUISITION AND ADULT EDUCATION
IN THE WORKFORCE
SEC. 611. CREDIT FOR EMPLOYER-PROVIDED ADULT ENGLISH LITERACY AND BASIC
EDUCATION PROGRAMS.
(a) In General.--Subpart D of part IV of subchapter A of chapter 1
of the Internal Revenue Code of 1986 (relating to business related
credits) is amended by adding at the end the following:
``SEC. 45R. EMPLOYER-PROVIDED ADULT ENGLISH LITERACY AND BASIC
EDUCATION PROGRAMS.
``(a) In General.--For the purposes of section 38, the credit
determined under this section with respect to any employer for the
taxable year is an amount equal to 20 percent of qualified education
program expenses, but in no case shall the employer receive a credit in
an amount of more than $1,000 per full-time employee participating in
the qualified education program.
``(b) Qualified Education Program Expenses.--For purposes of this
section:
``(1) In general.--The term `qualified education program
expenses' means expenses paid or incurred by an employer to
make available qualified education to employees of the
employer, who--
``(A) are English language learners; and
``(B)(i) have not received a secondary school
diploma, or its recognized equivalent; or
``(ii) lack sufficient mastery of basic educational
skills, including financial literacy, to enable the
individuals to function effectively in society.
``(2) Qualified education.--The term `qualified education'
means adult education and literacy activities provided--
``(A) by an eligible provider which for the fiscal
year ending during the employer's taxable year receives
or is eligible to receive Federal funds under section
231 of the Adult Education and Family Literacy Act (20
U.S.C. 9241) for adult education and literacy
activities; or
``(B) in curriculum approved by the Department of
Education, the Employment and Training Administration
of the Department of Labor, or in current use by a
Federal agency.
``(3) Eligible provider; adult education and literacy
activities.--The terms `eligible provider' and `adult education
and literacy activities' have the respective meanings given to
such terms in section 203 of the Adult Education and Family
Literacy Act (20 U.S.C. 9202).
``(4) English language learner.--The term `English language
learner' has the same meaning given such term in section
9101(25) of the Elementary and Secondary Education Act of 1965.
``(c) Special Rules.--For purposes of this section:
``(1) Full-time employment.--An employee shall be
considered full-time if such employee is employed at least 30
hours per week for 25 or more calendar weeks in the taxable
year.
``(2) Aggregation rule.--All persons treated as a single
employer under subsection (a) or (b) or section 52, or
subsection (m) or (o) of section 414, shall be treated as 1
person.
``(d) Denial of Double Benefit.--No deduction or credit shall be
allowed under any other provision of this chapter for any amount taken
into account in determining the credit under this section.
``(e) Election to Have Credit Not Apply.--A taxpayer may elect (at
such time and in such manner as the Secretary may by regulations
prescribe) to have this section not apply for any taxable year.
``(f) Termination.--This section shall not apply to expenses paid
or incurred after December 31, 2014.''.
(b) Credit to Be Part of General Business Credit.--Subsection (b)
of section 38 of such Code (relating to the current year business
credit) is amended--
(1) by striking ``plus'' at the end of paragraph (34);
(2) by striking the period at the end of paragraph (35) and
inserting ``, plus''; and
(3) by adding at the end the following new paragraph:
``(36) the adult English literacy and basic education
programs credit determined under section 45R.''.
(c) Clerical Amendment.--The table of sections for subpart D of
part IV of subchapter A of chapter 1 of the such Code is amended by
adding at the end the following new item:
``Sec. 45R. Employer-provided adult English literacy and basic
education programs.''.
(d) Regulations.--Not later than 180 days after the date of the
enactment of this Act, the Secretary of the Treasury shall promulgate
regulations implementing the provisions of this section.
(e) Effective Date.--The amendments made by this section shall
apply to taxable years beginning after December 31 of the year after
enactment.
SEC. 612. PRESIDENTIAL AWARD FOR BUSINESS LEADERSHIP IN PROMOTING
UNITED STATES CITIZENSHIP.
(a) Establishment.--The Presidential Award for Business Leadership
in Promoting United States Citizenship (referred to in this section as
the ``Presidential Citizenship Award'') shall be awarded by the
President to companies and other organizations that make extraordinary
efforts in assisting their employees and members to learn English and
increase their understanding of United States history and civics.
(b) Selection and Presentation of Award.--
(1) Selection.--The President shall periodically select,
from a list of large and small companies and other
organizations that the Secretary determines to have met the
requirements under subsection (a), the recipients of the
Presidential Citizenship Award.
(2) Presentation.--The presentation of the Presidential
Citizenship Award shall be made by the President, or a designee
of the President, in conjunction with an appropriate ceremony.
CHAPTER 3--BUILDING STRONGER COMMUNITIES
SEC. 621. OFFICE OF CITIZENSHIP AND NEW AMERICANS.
(a) Renaming the Office of Citizenship.--
(1) In general.--Beginning on the date of the enactment of
this Act, the Office of Citizenship of United States
Citizenship and Immigration Services shall be referred to as
the ``Office of Citizenship and New Americans''.
(2) Conforming amendments.--Section 451(f) of the Homeland
Security Act of 2002 (6 U.S.C. 271(f)) is amended--
(A) in the subsection heading, by striking
``Citizenship.'' and inserting ``Citizenship and New
Americans.'';
(B) in paragraph (1), by inserting ``and New
Americans'' after ``Office of Citizenship''; and
(C) in paragraph (2), by inserting ``and New
Americans'' after ``Office of Citizenship''.
(3) References.--Any reference in a law, regulation,
document, paper, or other record of the United States to the
Office of Citizenship within United States Citizenship and
Immigration Services shall be deemed to be a reference to the
``Office of Citizenship and New Americans''.
(b) Functions.--Section 451(f)(2) of the Homeland Security Act of
2002 (6 U.S.C. 271(f)(2)), as amended by subsection (a)(2)(C), is
further amended by striking ``for promoting'' and all that follows
through the period at the end and inserting the following: ``for--
``(A) establishing national goals for introducing
new immigrants into the United States and measuring the
degree to which such goals are met;
``(B) assessing and coordinating Federal policies,
regulations, task forces, and commissions related to
introducing immigrants into the United States;
``(C) continuing with the efforts of the Task Force
on New Americans established under Executive Order
13404--
``(i) to facilitate a dialogue among
Federal agencies;
``(ii) make recommendations to the
President; and
``(iii) follow through with initiatives
administered by the Task Force under the
authority of such Executive Order;
``(D) serving as a liaison and intermediary with
State and local governments and other entities to
assist in establishing local goals, task forces, and
councils to assist in introducing immigrants into the
United States;
``(E) coordinating with other Federal agencies to
provide information to State and local governments on
the demand for English acquisition programs and best
practices in place on the Federal and State level for
immigrants who have recently arrived in the United
States;
``(F) assisting States in coordinating activities
with the grant program carried out under this subtitle;
and
``(G) promoting instruction and training on
citizenship responsibilities for aliens interested in
becoming naturalized citizens of the United States,
including the development of educational materials for
such aliens.''.
(c) Donations.--Section 451(f) of the Homeland Security Act of 2002
(6 U.S.C. 271(f)), as amended by this section, is further amended by
adding at the end the following:
``(3) Donations.--
``(A) Acceptance of donations.--The Chief of the
Office of Citizenship and New Americans may accept
monetary and in-kind donations to support the
activities described in paragraph (2).
``(B) Dedication of funds.--Notwithstanding any
other provision of law--
``(i) any amounts donated to the Office of
Citizenship and New Americans to support the
activities described in paragraph (2) shall be
deposited into an account dedicated for such
purpose;
``(ii) the amounts contained in the account
described in clause (i) shall be used solely to
support such activities; and
``(iii) amounts that were not donated for
the exclusive purpose of supporting such
activities may not be deposited into such
account.''.
(d) Report to Congress.--The Chief of the Office of Citizenship and
New Americans shall submit a biennial report to the appropriate
committees in Congress that describes the activities of the Office of
Citizenship and New Americans.
SEC. 622. GRANTS TO STATES.
(a) Authority To Provide Grants.--Subject to subsections (c) and
(d), the Chief of the Office of Citizenship and New Americans (referred
to in this section as the ``Chief'') is authorized to provide
competitive grants to States to form State New American Councils to
carry out the activities described in section 623.
(b) State New American Councils.--A State New American Council
shall--
(1) consist of not fewer than 15 individuals and not more
than 19 individuals from the State; and
(2) shall include, to the extent practicable,
representatives from--
(A) business;
(B) faith-based organizations;
(C) civic organizations;
(D) philanthropic organizations;
(E) nonprofit organizations, including those with
experience working with immigrant communities;
(F) key education stakeholders, such as State
educational agencies, local educational agencies,
community colleges, or teachers;
(G) State adult education offices;
(H) State or local public libraries; and
(I) State or local government officials.
(c) Waiver of Requirement.--
(1) Authority to grant.--The Chief may award a grant under
subsection (a) to a State without requiring the State to form a
State New American Council if the Chief determines that the
State is carrying out similar statewide initiatives to
introduce immigrants into the State and into the United States.
(2) Guidelines.--The Chief shall establish guidelines for
awarding grants to States described in paragraph (1).
(d) Grants to Local Governments.--The Chief may provide a grant
under subsection (a) to a local government.
(e) Application.--An applicant for a grant under this section shall
submit an application to the Chief at such time, in such manner, and
containing such information as the Chief may reasonably require,
including--
(1) if the applicant is a State seeking to form a State New
American Council, an assurance that such State New American
Council will meet the requirements under subsection (b);
(2) the number of immigrants in the State in which the
applicant is located; and
(3) a description of the challenges in introducing new
immigrants into the State and local community.
(f) Duration.--A grant awarded under subsection (a) shall be for a
period of 5 years.
(g) Priority.--Priority shall be given to grant applications that--
(1) use matching funds from non-Federal sources, which may
include in-kind contributions; and
(2) demonstrate collaboration with private entities to
achieve the goals of their comprehensive plan.
(h) Additional Consideration.--Additional consideration shall be
given to grant applications submitted by States that have experienced a
large increase in the population of immigrants during the most recent
10-year period relative to past migration patterns, based on data
compiled by the Office of Immigration Statistics.
(i) Grant Amount.--The amount of a grant awarded under subsection
(a) shall be not less than $500,000 and not more than $5,000,000 for
each fiscal year.
(j) Reservations.--
(1) National.--The Chief shall reserve not more than 1
percent of the amount appropriated to carry out this section
for the administration of the Office of Citizenship and New
Americans, including for the evaluation of funds distributed.
(2) States.--A State awarded a grant under subsection (a)
may reserve not more than 10 percent of such grant amount for
the creation and operation of a State New American Council.
SEC. 623. AUTHORIZED ACTIVITIES.
(a) Mandatory Activities.--A grant awarded under section 621(a)
shall be used--
(1) to develop, implement, expand, or enhance a
comprehensive plan to introduce new immigrants into the State,
including improving English literacy, knowledge of United
States history, and civics education;
(2) to provide subgrants to local communities in accordance
with subsection (c);
(3) if the grant is awarded to a State, to form a State New
American Council, which shall meet not less frequently than
once each quarter;
(4) to disseminate best practices and other information
compiled by the Office of Citizenship and New Americans that
pertains to effective programs for English acquisition and
civics education; and
(5) to convene public hearings not less frequently than
once each year to report on the activities carried out by such
grant.
(b) Permissible Activities.--A grant awarded under section 621(a)
may be used--
(1) to solicit and disseminate solutions and remedies to
the challenges of introducing new immigrants in the State or
municipality in which the grant is awarded;
(2) to provide technical assistance, training, or
coordination for State or local agencies to improve programs to
introduce new immigrants into the United States, such as
English literacy, United States history, and civics education;
(3) to review and develop strategies to expand distance
learning as a method of instruction for English literacy,
United States history, and civics education and available
technological programs that may supplement or supplant quality
classroom instruction;
(4) to coordinate with entities of other States engaged in
activities under this subtitle or other activities to introduce
new immigrants into the State or community;
(5) to develop materials focused on preparation for the
naturalization test;
(6) to engage in outreach and educational activities on the
naturalization process; and
(7) to provide assistance to immigrants with the
naturalization application, as appropriate.
(c) Subgrants to Local Communities.--
(1) Requirement to award.--A grant under section 108(a)
shall be used to award subgrants to entities of local
governments to assist communities with local efforts to
introduce new Americans into the community.
(2) Authorized activities.--Subgrants shall be awarded
under paragraph (1) to entities of local governments for use to
carry out activities in accordance with--
(A) a comprehensive plan described in subsection
(a)(1); and
(B) any guidance provided by the Chief of the
Office of Citizenship and New Americans.
(3) Subgrant amount.--The amount of a subgrant awarded
under this subsection shall be not less than $100,000 and not
more than $600,000 for a fiscal year.
SEC. 624. REPORTING AND EVALUATION.
(a) Reporting Requirement.--
(1) In general.--Each entity awarded a grant under section
108(a) shall submit a report annually to the Office of
Citizenship and New Americans that--
(A) describes the activities of the State New
American Council and subgrant recipients and how these
activities meet the goals of--
(i) the Chief of the Office of Citizenship
and New Americans; and
(ii) the comprehensive plan described in
section 109(a)(1); and
(B) describes the geographic areas being served,
the number of immigrants in such areas, and the primary
languages spoken there.
(2) Other requirements.--The Chief of the Office of
Citizenship may set out other requirements as the Chief sees
fit in order to--
(A) impose accountability; and
(B) measure the outcomes of the activities carried
out with grants awarded under section 1083(a).
(b) Annual Evaluation.--The Chief of the Office of Citizenship and
New Americans shall conduct an annual evaluation of the grant program
established under this title and use such evaluation--
(1) to improve the effectiveness of programs carried out by
the Chief;
(2) to assess future needs of immigrants and of State and
local governments related to immigrants;
(3) to determine the effectiveness of such grant program;
and
(4) to ensure that the grantees and subgrantees are acting
within the scope and purpose of this title.
SEC. 625. NEW CITIZENS AWARD PROGRAM.
(a) Establishment.--There is established a new citizens award
program to recognize citizens who--
(1) have made an outstanding contribution to the United
States; and
(2) are naturalized during the 10-year period ending on the
date of such recognition.
(b) Presentation Authorized.--
(1) In general.--The President is authorized to present a
medal, in recognition of outstanding contributions to the
United States, to citizens described in subsection (a).
(2) Maximum number of awards.--Not more than 10 citizens
may receive a medal under this section in any calendar year.
SEC. 626. RULE OF CONSTRUCTION.
Nothing in this title shall be construed to limit the authority of
the Secretary, acting through the Director of United States Citizenship
and Immigration Services or such other officials of the Department of
Homeland Security as the Secretary may direct, to manage, direct, and
control the activities of the Chief of the Office of Citizenship and
New Americans.
SEC. 627. AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be appropriated to carry out this title
$100,000,000 for each of the fiscal years 2011 through 2015.
CHAPTER 4--GRANTS
SEC. 631. GRANTS TO SUPPORT PUBLIC EDUCATION AND COMMUNITY TRAINING.
(a) Grants Authorized.--The Assistant Attorney General, Office of
Justice Programs, may award grants to qualified nonprofit community
organizations to educate, train, and support non-profit agencies,
immigrant communities, and other interested entities regarding the
provisions of this Act and the amendments made by this Act.
(b) Use of Funds.--
(1) In general.--Grants awarded under this section shall be
used--
(A) for public education, training, technical
assistance, government liaison, and all related costs
(including personnel and equipment) incurred by the
grantee in providing services related to this Act; and
(B) to educate, train, and support nonprofit
organizations, immigrant communities, and other
interested parties regarding this Act and the
amendments made by this Act and on matters related to
its implementation.
(2) Education.--In addition to the purposes described in
paragraph (1), grants awarded under this section shall be used
to--
(A) educate immigrant communities and other
interested entities regarding--
(i) the individuals and organizations that
can provide authorized legal representation in
immigration matters under regulations
prescribed by the Secretary; and
(ii) the dangers of securing legal advice
and assistance from those who are not
authorized to provide legal representation in
immigration matters;
(B) educate interested entities regarding the
requirements for obtaining nonprofit recognition and
accreditation to represent immigrants under regulations
prescribed by the Secretary;
(C) provide nonprofit agencies with training and
technical assistance on the recognition and
accreditation process; and
(D) educate nonprofit community organizations,
immigrant communities, and other interested entities
regarding--
(i) the process for obtaining benefits
under this Act or under an amendment made by
this Act; and
(ii) the availability of authorized legal
representation for low-income persons who may
qualify for benefits under this Act or under an
amendment made by this Act.
(c) Diversity.--The Assistant Attorney General shall ensure, to the
extent possible, that the nonprofit community organizations receiving
grants under this section serve geographically diverse locations and
ethnically diverse populations who may qualify for benefits under the
Act.
(d) Funding.--Fees and fines deposited in the Security and
Prosperity Account under section 286(w)(3)(B) of the Immigration and
Nationality Act may be used to carry out this section.
SEC. 632. GRANT PROGRAM TO ASSIST APPLICANTS FOR NATURALIZATION.
(a) Purpose.--The purpose of this section is to establish a grant
program within United States Citizenship and Immigration Services that
provides funding to community-based organizations, including community-
based legal service organizations, as appropriate, to develop and
implement programs to assist eligible applicants for naturalization.
(b) Definitions.--In this section:
(1) Community-based organization.--The term ``community-
based organization'' means a nonprofit, tax-exempt
organization, including a faith-based organization, whose staff
has experience and expertise in meeting the legal, social,
educational, cultural educational, or cultural needs of
immigrants, refugees, persons granted asylum, or persons
applying for such statuses.
(2) IEACA grant.--The term ``IEACA grant'' means an Initial
Entry, Adjustment, and Citizenship Assistance Grant authorized
under subsection (c).
(c) Establishment of Initial Entry, Adjustment, and Citizenship
Assistance Grant Program.--
(1) Grants authorized.--The Secretary, working through the
Director of United States Citizenship and Immigration Services,
may award IEACA grants to community-based organizations.
(2) Use of funds.--Grants awarded under this section may be
used for the design and implementation of programs to provide
the following services:
(A) Initial application.--Assistance and
instruction, including legal assistance, to aliens
making initial application for conditional nonimmigrant
or conditional nonimmigrant dependent classification
under Title 5 of this Act. Such assistance may include
assisting applicants in--
(i) screening to assess prospective
applicants' potential eligibility for
participating in such program;
(ii) filling out applications for such
program;
(iii) gathering proof of identification,
employment, residence, and tax payment;
(iv) gathering proof of relationships of
eligible family members;
(v) applying for any waivers for which
applicants and qualifying family members may be
eligible; and
(vi) any other assistance that the
Secretary or grantee considers useful to aliens
who are interested in filing applications for
treatment under title 5 of this Act.
(B) Adjustment of status.--Assistance and
instruction, including legal assistance, to aliens
seeking to adjust their status in accordance with title
5 of this Act or section 245 of the Immigration and
Nationality Act (8 U.S.C. 1255).
(C) Citizenship.--Assistance and instruction to
applicants on--
(i) the rights and responsibilities of
United States citizenship;
(ii) English as a second language;
(iii) civics; or
(iv) applying for United States
citizenship.
(3) Duration and renewal.--
(A) Duration.--Subject to subparagraph (B), each
grant awarded under this section shall be awarded for a
period of not more than 3 years.
(B) Renewal.--The Secretary may renew any grant
awarded under this section in 1-year increments.
(4) Application for grants.--Each entity desiring an IEACA
grant under this section shall submit an application to the
Secretary at such time, in such manner, and accompanied by such
information as the Secretary may require.
(5) Eligible organizations.--A community-based organization
applying for a grant under this section to provide services
described in subparagraph (A), (B), or (C)(iv) of paragraph (2)
may not receive such a grant unless the organization is--
(A) recognized by the Board of Immigration Appeals
under section 292.2 of title 8, Code of Federal
Regulations; or
(B) otherwise directed by a licensed attorney.
(6) Selection of grantees.--Grants awarded under this
section shall be awarded on a competitive basis.
(7) Geographic distribution of grants.--The Secretary shall
approve applications under this section in a manner that
ensures, to the greatest extent practicable, that--
(A) not less than 50 percent of the funding for
grants under this section are awarded to programs
located in the 10 States with the highest percentage of
residents who were born in foreign countries; and
(B) not less than 20 percent of the funding for
grants under this section are awarded to programs
located in States that are not described in
subparagraph (A).
(8) Ethnic diversity.--The Secretary shall ensure that
community-based organizations receiving grants under this
section provide services to an ethnically diverse population,
to the greatest extent possible.
(d) Liaison Between USCIS and Grantees.--The Secretary shall
establish a liaison between United States Citizenship and Immigration
Services and the community of providers of services under this section
to assure quality control, efficiency, and greater client willingness
to come forward.
(e) Reports to Congress.--Not later than 180 days after the date of
enactment of this Act, and July 1 of each subsequent year, the
Secretary shall submit a report to Congress that includes information
regarding--
(1) the status of the implementation of this section;
(2) the grants issued pursuant to this section; and
(3) the activities carried out with such grants.
(f) Source of Grant Funds.--
(1) Application fees.--The Secretary may use funds made
available under section 401(g)(2)(A) of this Act and section
218A(b)(3) of the Immigration and Nationality Act, as added by
this Act, to carry out this section.
(2) Funding.--Fees and fines deposited in the Security and
Prosperity Account under section 286(w)(3)(B) of the
Immigration and Nationality Act may be used to carry out this
section.
(g) Distribution of Conditional Nonimmigrant Visa Fees and Fines.--
Notwithstanding section 401(g)(2)(B), 2 percent of the fees and fines
collected under section 401 shall be made available for grants under
the Initial Entry, Adjustment, and Citizenship Assistance Grant Program
established under this section.
Subtitle B--Emergency Relief for Certain Populations
SEC. 641. ADJUSTMENT OF STATUS FOR CERTAIN HAITIAN ORPHANS.
(a) In General.--The Secretary may adjust the status of an alien
described in subsection (b) to that of an alien lawfully admitted for
permanent residence if the alien--
(1) subject to subsection (c), applies for such adjustment;
(2) is physically present in the United States on the date
the application for such adjustment is filed; and
(3) is admissible to the United States as an immigrant,
except as provided in subsection (d).
(b) Aliens Eligible for Adjustment of Status.--An alien is
described in this subsection if the alien was inspected and granted
parole into the United States pursuant to the humanitarian parole
policy for certain Haitian orphans announced on January 18, 2010, and
suspended as to new applications on April 15, 2010.
(c) Application.--In the case of a minor, an application under this
section may be submitted on behalf of the alien by--
(1) a parent; or
(2) a legal guardian.
(d) Grounds of Inadmissibility.--Paragraphs (4) and (7)(A) of
section 212(a) of the Immigration and Nationality Act (8 U.S.C.
1182(a)) shall not apply to adjustment of status under this section.
(e) Visa Availability.--When an alien is granted the status of
having been lawfully admitted for permanent residence under this
section, the Secretary of State shall not be required to reduce the
number of immigrant visas authorized to be issued under the Immigration
and Nationality Act (8 U.S.C. 1101 et seq.).
(f) Alien Deemed to Meet Definition of Child.--An alien described
in subsection (b) shall be deemed to satisfy the requirements
applicable to adopted children under section 101(b)(1) of the
Immigration and Nationality Act (8 U.S.C. 1101(b)(1)) if, before the
date on which the alien attains 18 years of age--
(1) the alien obtains adjustment of status under this
section; and
(2) a United States citizen adopts the alien, regardless of
whether the adoption occurs before, on, or after the date of
the decision-granting adjustment of status under this section.
(g) No Immigration Benefits for Birth Parents.--No birth parent of
an alien who obtains adjustment of status under this section shall
thereafter, by virtue of such parentage, be accorded any right,
privilege, or status under this section or the Immigration and
Nationality Act (8 U.S.C. 1101 et seq.).
SEC. 642. ADJUSTMENT OF STATUS FOR CERTAIN LIBERIAN NATIONALS.
(a) Adjustment of Status.--
(1) In general.--
(A) Eligibility.--Except as provided under
subparagraph (B), the Secretary shall adjust the status
of an alien described in subsection (b) to that of an
alien lawfully admitted for permanent residence, if the
alien--
(i) applies for adjustment before April 1,
2011; and
(ii) is otherwise eligible to receive an
immigrant visa and admissible to the United
States for permanent residence, except that, in
determining such admissibility, the grounds for
inadmissibility specified in paragraphs (4),
(5), (6)(A), and (7)(A) of section 212(a) of
the Immigration and Nationality Act (8 U.S.C.
1182(a)) shall not apply.
(B) Ineligible aliens.--An alien shall not be
eligible for adjustment of status under this section if
the Secretary determines that the alien has been
convicted of--
(i) any aggravated felony (as defined in
section 101(a)(43) of the Immigration and
Nationality Act (8 U.S.C. 1101(a)(43)); or
(ii) (ii) 2 or more crimes involving moral
turpitude.
(2) Relationship of application to certain orders.--
(A) In general.--An alien present in the United
States who has been subject to an order of exclusion,
deportation, or removal, or has been ordered to depart
voluntarily from the United States under any provision
of the Immigration and Nationality Act may,
notwithstanding such order, apply for adjustment of
status under paragraph (1) if otherwise qualified under
such paragraph.
(B) Separate motion not required.--An alien
described in subparagraph (A) may not be required, as a
condition of submitting or granting such application,
to file a separate motion to reopen, reconsider, or
vacate the order described in subparagraph (A).
(C) Effect of decision by secretary.--If the
Secretary grants an application under paragraph (1),
the Secretary shall cancel the order described in
subparagraph (A). If the Secretary makes a final
decision to deny the application, the order shall be
effective and enforceable to the same extent as if the
application had not been made.
(b) Aliens Eligible for Adjustment of Status.--
(1) In general.--The benefits provided under subsection (a)
shall apply to any alien--
(A) who is--
(i) a national of Liberia; and
(ii) has been continuously present in the
United States from January 1, 2009, through the
date of application under subsection (a); or
(B) who is the spouse, child, or unmarried son or
daughter of an alien described in subparagraph (A).
(2) Determination of continuous physical presence.--For
purposes of establishing the period of continuous physical
presence referred to in paragraph (1), an alien shall not be
considered to have failed to maintain continuous physical
presence by reasons of an absence, or absences, from the United
States for any period or periods amounting in the aggregate to
not more than 180 days.
(c) Stay of Removal.--
(1) In general.--The Secretary shall provide by regulation
for an alien who is subject to a final order of deportation or
removal or exclusion to seek a stay of such order based on the
filing of an application under subsection (a).
(2) During certain proceedings.--Notwithstanding any
provision in the Immigration and Nationality Act, the Secretary
shall not order an alien to be removed from the United States
if the alien is in exclusion, deportation, or removal
proceedings under any provision of such Act and has applied for
adjustment of status under subsection (a), except where the
Secretary has made a final determination to deny the
application.
(3) Work authorization.--
(A) In general.--The Secretary may--
(i) authorize an alien who has applied for
adjustment of status under subsection (a) to
engage in employment in the United States
during the pendency of such application; and
(ii) provide the alien with an `employment
authorized' endorsement or other appropriate
document signifying authorization of
employment.
(B) Pending applications.--If an application for
adjustment of status under subsection (a) is pending
for a period exceeding 180 days and has not been
denied, the Secretary shall authorize such employment.
(d) Record of Permanent Residence.--Upon the approval of an alien's
application for adjustment of status under subsection (a), the
Secretary shall establish a record of the alien's admission for
permanent record as of the date of the alien's arrival in the United
States.
(e) Availability of Administrative Review.--The Secretary shall
provide to applicants for adjustment of status under subsection (a) the
same right to, and procedures for, administrative review as are
provided to--
(1) applicants for adjustment of status under section 245
of the Immigration and Nationality Act (8 U.S.C. 1255); and
(2) aliens subject to removal proceedings under section 240
of such Act (8 U.S.C. 1229a).
(f) Limitation on Judicial Review.--A determination by the
Secretary regarding the adjustment of status of any alien under this
section is final and shall not be subject to review by any court.
(g) No Offset in Number of Visas Available.--If an alien is granted
the status of having been lawfully admitted for permanent residence
pursuant to this section, the Secretary of State shall not be required
to reduce the number of immigrant visas authorized to be issued under
any provision of the Immigration and Nationality Act (8 U.S.C. 1101 et
seq.).
(h) Application of Immigration and Nationality Act Provisions.--
(1) Definitions.--Except as otherwise specifically provided
in this Chapter, the definitions contained in the Immigration
and Nationality Act (8 U.S.C. 1101 et seq.) shall apply in this
section.
(2) Savings provision.--Nothing in this Chapter may be
construed to repeal, amend, alter, modify, effect, or restrict
the powers, duties, function, or authority of the Secretary in
the administration and enforcement of the Immigration and
Nationality Act or any other law relating to immigration,
nationality, or naturalization.
(i) Effect of Eligibility for Adjustment of Status.--Eligibility to
be granted the status of having been lawfully admitted for permanent
residence under this section shall not preclude an alien from seeking
any status under any other provision of law for which the alien may
otherwise be eligible.
Subtitle C--Wartime Treatment Studies
PART I--COMMISSION ON WARTIME TREATMENT OF EUROPEAN AMERICANS
SEC. 651. FINDINGS.
Congress makes the following findings:
(1) During World War II, the United States Government
deemed as ``enemy aliens'' more than 600,000 Italian-born and
300,000 German-born United States resident aliens and their
families, requiring them to carry Certificates of
Identification and limiting their travel and personal property
rights. At that time, these groups were the two largest
foreign-born groups in the United States.
(2) During World War II, the United States Government
arrested, interned, or otherwise detained thousands of European
Americans, some remaining in custody for years after cessation
of World War II hostilities, and repatriated, exchanged, or
deported European Americans, including American-born children,
to European Axis nations, many to be exchanged for Americans
held in those nations.
(3) Pursuant to a policy coordinated by the United States
with Latin American nations, thousands of European Latin
Americans, including German and Austrian Jews, were arrested,
relocated to the United States, and interned. Many were later
repatriated or deported to European Axis nations during World
War II and exchanged for Americans and Latin Americans held in
those nations.
(4) Millions of European Americans served in the Armed
Forces and thousands sacrificed their lives in defense of the
United States.
(5) The wartime policies of the United States Government
were devastating to the German American and Italian American
communities, individuals, and their families. The detrimental
effects are still being experienced.
(6) Prior to and during World War II, the United States
restricted the entry of Jewish refugees who were fleeing
persecution or genocide and sought safety in the United States.
During the 1930s and 1940s, the quota system, immigration
regulations, visa requirements, and the time required to
process visa applications affected the number of Jewish
refugees, particularly those from Germany and Austria, who
could gain admittance to the United States.
(7) The United States Government should conduct an
independent review to fully assess and acknowledge these
actions. Congress has previously reviewed the United States
Government's wartime treatment of Japanese Americans through
the Commission on Wartime Relocation and Internment of
Civilians. An independent review of the treatment of German
Americans and Italian Americans and of Jewish refugees fleeing
persecution and genocide has not yet been undertaken.
(8) Time is of the essence for the establishment of
commissions, because of the increasing danger of destruction
and loss of relevant documents, the advanced age of potential
witnesses and, most importantly, the advanced age of those
affected by the United States Government's policies. Many who
suffered have already passed away and will never know of this
effort.
SEC. 652. DEFINITIONS.
In this part:
(1) During world war ii.--The term ``during World War II''
refers to the period between September 1, 1939, through
December 31, 1948.
(2) European americans.--
(A) In general.--The term ``European Americans''
refers to United States citizens and resident aliens of
European ancestry, including Italian Americans, German
Americans, Hungarian Americans, Romanian Americans, and
Bulgarian Americans.
(B) German americans.--The term ``German
Americans'' refers to United States citizens and
resident aliens of German ancestry.
(C) Italian americans.--The term ``Italian
Americans'' refers to United States citizens and
resident aliens of Italian ancestry.
(3) European latin americans.--The term ``European Latin
Americans'' refers to persons of European ancestry, including
German or Italian ancestry, residing in a Latin American nation
during World War II.
(4) Latin american nation.--The term ``Latin American
nation'' refers to any nation in Central America, South
America, or the Caribbean.
SEC. 653. ESTABLISHMENT OF COMMISSION ON WARTIME TREATMENT OF EUROPEAN
AMERICANS.
(a) In General.--There is established the Commission on Wartime
Treatment of European Americans (referred to in this part as the
``European American Commission'').
(b) Membership.--The European American Commission shall be composed
of 7 members, who shall be appointed not later than 90 days after the
date of enactment of this Act as follows:
(1) Three members shall be appointed by the President.
(2) Two members shall be appointed by the Speaker of the
House of Representatives, in consultation with the minority
leader.
(3) Two members shall be appointed by the majority leader
of the Senate, in consultation with the minority leader.
(c) Terms.--The term of office for members shall be for the life of
the European American Commission. A vacancy in the European American
Commission shall not affect its powers, and shall be filled in the same
manner in which the original appointment was made.
(d) Representation.--The European American Commission shall include
2 members representing the interests of Italian Americans and two
members representing the interests of German Americans.
(e) Meetings.--The President shall call the first meeting of the
European American Commission not later than 120 days after the date of
enactment of this Act.
(f) Quorum.--Four members of the European American Commission shall
constitute a quorum, but a lesser number may hold hearings.
(g) Chairman.--The European American Commission shall elect a
Chairman and Vice Chairman from among its members. The term of office
of each shall be for the life of the European American Commission.
(h) Compensation.--
(1) In general.--Members of the European American
Commission shall serve without pay.
(2) Reimbursement of expenses.--All members of the European
American Commission shall be reimbursed for reasonable travel
and subsistence, and other reasonable and necessary expenses
incurred by them in the performance of their duties.
SEC. 654. DUTIES OF THE EUROPEAN AMERICAN COMMISSION.
(a) In General.--It shall be the duty of the European American
Commission to review the United States Government's wartime treatment
of European Americans and European Latin Americans as provided in
subsection (b).
(b) Scope of Review.--The European American Commission's review
shall include the following:
(1) A comprehensive review of the facts and circumstances
surrounding United States Government action during World War II
with respect to European Americans and European Latin Americans
pursuant to United States laws and directives, including the
Alien Enemies Acts (50 U.S.C. 21 et seq.), Presidential
Proclamations 2526, 2527, 2655, 2662, and 2685, Executive
Orders 9066 and 9095, and any directive of the United States
Government pursuant to these and other pertinent laws,
proclamations, or executive orders, including registration
requirements, travel and property restrictions, establishment
of restricted areas, raids, arrests, internment, exclusion,
policies relating to the families and property that excludees
and internees were forced to abandon, internee employment by
American companies (including a list of such companies and the
terms and type of employment), exchange, repatriation, and
deportation, and the immediate and long-term effect of such
actions, particularly internment, on the lives of those
affected. This review shall also include a list of--
(A) all temporary detention and long-term
internment facilities in the United States and Latin
American nations that were used to detain or intern
European Americans and European Latin Americans during
World War II (in this paragraph referred to as ``World
War II detention facilities'');
(B) the names of European Americans and European
Latin Americans who died while in World War II
detention facilities and where they were buried;
(C) the names of children of European Americans and
European Latin Americans who were born in World War II
detention facilities and where they were born; and
(D) the nations from which European Latin Americans
were brought to the United States, the ships that
transported them to the United States and their
departure and disembarkation ports, the locations where
European Americans and European Latin Americans were
exchanged for persons held in European Axis nations,
and the ships that transported them to Europe and their
departure and disembarkation ports.
(2) An assessment of the underlying rationale of the
decision of the United States Government to develop the
programs and policies described in paragraph (1), the
information the United States Government received or acquired
suggesting these programs and policies were necessary, the
perceived benefit of enacting such programs and policies, and
the immediate and long-term impact of such programs and
policies on European Americans and European Latin Americans and
their communities.
(3) A brief review of the participation by European
Americans in the United States Armed Forces, including the
participation of European Americans whose families were
excluded, interned, repatriated, or exchanged.
(4) A recommendation of appropriate remedies, including
public education programs and the creation of a comprehensive
online database by the National Archives and Records
Administration of documents related to the United States
Government's wartime treatment of European Americans and
European Latin Americans during World War II.
(c) Field Hearings.--The European American Commission shall hold
public hearings in such cities of the United States as it deems
appropriate.
(d) Report.--The European American Commission shall submit a
written report of its findings and recommendations to Congress not
later than 18 months after the date of the first meeting called
pursuant to section 103(e).
SEC. 655. POWERS OF THE EUROPEAN AMERICAN COMMISSION.
(a) In General.--The European American Commission or, on the
authorization of the Commission, any subcommittee or member thereof,
may, for the purpose of carrying out the provisions of this title, hold
such hearings and sit and act at such times and places, and request the
attendance and testimony of such witnesses and the production of such
books, records, correspondence, memorandum, papers, and documents as
the Commission or such subcommittee or member may deem advisable. The
European American Commission may request the Attorney General to invoke
the aid of an appropriate United States district court to require, by
subpoena or otherwise, such attendance, testimony, or production.
(b) Government Information and Cooperation.--The European American
Commission may acquire directly from the head of any department,
agency, independent instrumentality, or other authority of the
executive branch of the Government, available information that the
European American Commission considers useful in the discharge of its
duties. All departments, agencies, and independent instrumentalities,
or other authorities of the executive branch of the Government shall
cooperate with the European American Commission and furnish all
information requested by the European American Commission to the extent
permitted by law, including information collected under the Commission
on Wartime and Internment of Civilians Act (Public Law 96-317; 50
U.S.C. App. 1981 note) and the Wartime Violation of Italian Americans
Civil Liberties Act (Public Law 106-451; 50 U.S.C. App. 1981 note). For
purposes of section 552a(b)(9) of title 5, United States Code (commonly
known as the ``Privacy Act of 1974''), the European American Commission
shall be deemed to be a committee of jurisdiction.
SEC. 656. ADMINISTRATIVE PROVISIONS.
The European American Commission is authorized to--
(1) appoint and fix the compensation of such personnel as
may be necessary, without regard to the provisions of title 5,
United States Code, governing appointments in the competitive
service, and without regard to the provisions of chapter 51 and
subchapter III of chapter 53 of such title relating to
classification and General Schedule pay rates, except that the
compensation of any employee of the Commission may not exceed a
rate equivalent to the rate payable under GS-15 of the General
Schedule under section 5332 of such title;
(2) obtain the services of experts and consultants in
accordance with the provisions of section 3109 of such title;
(3) obtain the detail of any Federal Government employee,
and such detail shall be without reimbursement or interruption
or loss of civil service status or privilege;
(4) enter into agreements with the Administrator of General
Services for procurement of necessary financial and
administrative services, for which payment shall be made by
reimbursement from funds of the Commission in such amounts as
may be agreed upon by the Chairman of the Commission and the
Administrator;
(5) procure supplies, services, and property by contract in
accordance with applicable laws and regulations and to the
extent or in such amounts as are provided in appropriation
Acts; and
(6) enter into contracts with Federal or State agencies,
private firms, institutions, and agencies for the conduct of
research or surveys, the preparation of reports, and other
activities necessary to the discharge of the duties of the
Commission, to the extent or in such amounts as are provided in
appropriation Acts.
SEC. 657. AUTHORIZATION OF APPROPRIATIONS.
There is authorized to be appropriated $600,000 to carry out this
part.
SEC. 658. SUNSET.
The European American Commission shall terminate 60 days after it
submits its report to Congress.
PART II--COMMISSION ON WARTIME TREATMENT OF JEWISH REFUGEES
SEC. 661. ESTABLISHMENT OF COMMISSION ON WARTIME TREATMENT OF JEWISH
REFUGEES.
(a) In General.--There is established the Commission on Wartime
Treatment of Jewish Refugees (referred to in this subchapter as the
``Jewish Refugee Commission'').
(b) Membership.--The Jewish Refugee Commission shall be composed of
7 members, who shall be appointed not later than 90 days after the date
of enactment of this Act as follows:
(1) Three members shall be appointed by the President.
(2) Two members shall be appointed by the Speaker of the
House of Representatives, in consultation with the minority
leader.
(3) Two members shall be appointed by the majority leader
of the Senate, in consultation with the minority leader.
(c) Terms.--The term of office for members shall be for the life of
the Jewish Refugee Commission. A vacancy in the Jewish Refugee
Commission shall not affect its powers, and shall be filled in the same
manner in which the original appointment was made.
(d) Representation.--The Jewish Refugee Commission shall include
two members representing the interests of Jewish refugees.
(e) Meetings.--The President shall call the first meeting of the
Jewish Refugee Commission not later than 120 days after the date of
enactment of this Act.
(f) Quorum.--Four members of the Jewish Refugee Commission shall
constitute a quorum, but a lesser number may hold hearings.
(g) Chairman.--The Jewish Refugee Commission shall elect a Chairman
and Vice Chairman from among its members. The term of office of each
shall be for the life of the Jewish Refugee Commission.
(h) Compensation.--
(1) In general.--Members of the Jewish Refugee Commission
shall serve without pay.
(2) Reimbursement of expenses.--All members of the Jewish
Refugee Commission shall be reimbursed for reasonable travel
and subsistence, and other reasonable and necessary expenses
incurred by them in the performance of their duties.
SEC. 662. DUTIES OF THE JEWISH REFUGEE COMMISSION.
(a) In General.--It shall be the duty of the Jewish Refugee
Commission to review the United States Government's refusal to allow
Jewish and other refugees fleeing persecution or genocide in Europe
entry to the United States as provided in subsection (b).
(b) Scope of Review.--The Jewish Refugee Commission's review shall
cover the period between January 1, 1933, through December 31, 1945,
and shall include, to the greatest extent practicable, the following:
(1) A review of the United States Government``s decision to
deny Jewish and other refugees fleeing persecution or genocide
entry to the United States, including a review of the
underlying rationale of the United States Government''s
decision to refuse the Jewish and other refugees entry, the
information the United States Government received or acquired
suggesting such refusal was necessary, the perceived benefit of
such refusal, and the impact of such refusal on the refugees.
(2) A review of Federal refugee law and policy relating to
those fleeing persecution or genocide, including
recommendations for making it easier in the future for victims
of persecution or genocide to obtain refuge in the United
States.
(c) Field Hearings.--The Jewish Refugee Commission shall hold
public hearings in such cities of the United States as it deems
appropriate.
(d) Report.--The Jewish Refugee Commission shall submit a written
report of its findings and recommendations to Congress not later than
18 months after the date of the first meeting called pursuant to
section 109(e).
SEC. 663. POWERS OF THE JEWISH REFUGEE COMMISSION.
(a) In General.--The Jewish Refugee Commission or, on the
authorization of the Commission, any subcommittee or member thereof,
may, for the purpose of carrying out the provisions of this title, hold
such hearings and sit and act at such times and places, and request the
attendance and testimony of such witnesses and the production of such
books, records, correspondence, memorandum, papers, and documents as
the Commission or such subcommittee or member may deem advisable. The
Jewish Refugee Commission may request the Attorney General to invoke
the aid of an appropriate United States district court to require, by
subpoena or otherwise, such attendance, testimony, or production.
(b) Government Information and Cooperation.--The Jewish Refugee
Commission may acquire directly from the head of any department,
agency, independent instrumentality, or other authority of the
executive branch of the Government, available information that the
Jewish Refugee Commission considers useful in the discharge of its
duties. All departments, agencies, and independent instrumentalities,
or other authorities of the executive branch of the Government shall
cooperate with the Jewish Refugee Commission and furnish all
information requested by the Jewish Refugee Commission to the extent
permitted by law. For purposes of section 552a(b)(9) of title 5, United
States Code (commonly known as the ``Privacy Act of 1974''), the Jewish
Refugee Commission shall be deemed to be a committee of jurisdiction.
SEC. 664. ADMINISTRATIVE PROVISIONS.
The Jewish Refugee Commission is authorized to--
(1) appoint and fix the compensation of such personnel as
may be necessary, without regard to the provisions of title 5,
United States Code, governing appointments in the competitive
service, and without regard to the provisions of chapter 51 and
subchapter III of chapter 53 of such title relating to
classification and General Schedule pay rates, except that the
compensation of any employee of the Commission may not exceed a
rate equivalent to the rate payable under GS-15 of the General
Schedule under section 5332 of such title;
(2) obtain the services of experts and consultants in
accordance with the provisions of section 3109 of such title;
(3) obtain the detail of any Federal Government employee,
and such detail shall be without reimbursement or interruption
or loss of civil service status or privilege;
(4) enter into agreements with the Administrator of General
Services for procurement of necessary financial and
administrative services, for which payment shall be made by
reimbursement from funds of the Commission in such amounts as
may be agreed upon by the Chairman of the Commission and the
Administrator;
(5) procure supplies, services, and property by contract in
accordance with applicable laws and regulations and to the
extent or in such amounts as are provided in appropriation
Acts; and
(6) enter into contracts with Federal or State agencies,
private firms, institutions, and agencies for the conduct of
research or surveys, the preparation of reports, and other
activities necessary to the discharge of the duties of the
Commission, to the extent or in such amounts as are provided in
appropriation Acts.
SEC. 665. AUTHORIZATION OF APPROPRIATIONS.
There is authorized to be appropriated $600,000 to carry out this
part.
SEC. 666. SUNSET.
The Jewish Refugee Commission shall terminate 60 days after it
submits its report to Congress.
PART III--FUNDING SOURCE FOR THE WARTIME STUDIES
SEC. 671. FUNDING SOURCE.
Of the funds made available for the Department of Justice by the
Consolidated Security, Disaster Assistance, and Continuing
Appropriations Act, 2009 (Public Law 110-329), $1,200,000 is hereby
rescinded.
Subtitle D--State Court Interpreter Grant Program
SEC. 681. FINDINGS.
Congress finds that--
(1) the fair administration of justice depends on the
ability of all participants in a courtroom proceeding to
understand that proceeding, regardless of their English
proficiency;
(2) 19 percent of the population of the United States over
5 years of age speaks a language other than English at home;
(3) only qualified court interpreters can ensure that
persons with limited English proficiency comprehend judicial
proceedings in which they are a party;
(4) the knowledge and skills required of a qualified court
interpreter differ substantially from those required in other
interpretation settings, such as social service, medical,
diplomatic, and conference interpreting;
(5) the Federal Government has demonstrated its commitment
to equal administration of justice regardless of English
proficiency;
(6) regulations implementing title VI of the Civil Rights
Act of 1964, as well as the guidance issued by the Department
of Justice pursuant to Executive Order 13166, issued August 11,
2000, clarify that all recipients of Federal financial
assistance, including State courts, are required to take
reasonable steps to provide meaningful access to their
proceedings for persons with limited English proficiency;
(7) 40 States have developed, or are developing, qualified
court interpreting programs;
(8) robust, effective court interpreter programs--
(A) actively recruit skilled individuals to be
court interpreters;
(B) train those individuals in the interpretation
of court proceedings;
(C) develop and use a thorough, systematic
certification process for court interpreters; and
(D) have sufficient funding to ensure that a
qualified interpreter will be available to the court
whenever necessary; and
(9) Federal funding is necessary to--
(A) encourage State courts that do not have court
interpreter programs to develop them;
(B) assist State courts with nascent court
interpreter programs to implement them;
(C) assist State courts with limited court
interpreter programs to enhance them; and
(D) assist State courts with robust court
interpreter programs to make further improvements and
share successful programs with other States.
SEC. 682. STATE COURT INTERPRETER PROGRAM.
(a) Grants Authorized.--
(1) In general.--The Administrator of the Office of Justice
Programs of the Department of Justice (referred to in this
section as the ``Administrator'') shall make grants, in
accordance with such regulations as the Attorney General may
prescribe, to State courts to develop and implement programs to
assist individuals with limited English proficiency to access
and understand State court proceedings in which they are a
party.
(2) Technical assistance.--The Administrator shall
allocate, for each fiscal year, $500,000 of the amount
appropriated pursuant to section 4 to be used to establish a
court interpreter technical assistance program to assist State
courts receiving grants under this subchapter.
(b) Use of Grants.--Grants awarded under subsection (a) may be used
by State courts to--
(1) assess regional language demands;
(2) develop a court interpreter program for the State
courts;
(3) develop, institute, and administer language
certification examinations;
(4) recruit, train, and certify qualified court
interpreters;
(5) pay for salaries, transportation, and technology
necessary to implement the court interpreter program developed
under paragraph (2); and
(6) engage in other related activities, as prescribed by
the Attorney General.
(c) Application.--
(1) In general.--The highest State court of each State
desiring a grant under this section shall submit an application
to the Administrator at such time, in such manner, and
accompanied by such information as the Administrator may
reasonably require.
(2) State courts.--The highest State court of each State
submitting an application under paragraph (1) shall include in
the application--
(A) a demonstration of need for the development,
implementation, or expansion of a State court
interpreter program;
(B) an identification of each State court in that
State which would receive funds from the grant;
(C) the amount of funds each State court identified
under subparagraph (B) would receive from the grant;
and
(D) the procedures the highest State court would
use to directly distribute grant funds to State courts
identified under subparagraph (B).
(d) State Court Allotments.--
(1) Base allotment.--From amounts appropriated for each
fiscal year pursuant to section 4, the Administrator shall
allocate $100,000 to each of the highest State court of each
State, which has an application approved under subsection (c).
(2) Discretionary allotment.--From amounts appropriated for
each fiscal year pursuant to section 4, the Administrator shall
allocate $5,000,000 to be distributed among the highest State
courts of States which have an application approved under
subsection (c), and that have extraordinary needs that are
required to be addressed in order to develop, implement, or
expand a State court interpreter program.
(3) Additional allotment.--In addition to the allocations
made under paragraphs (1) and (2), the Administrator shall
allocate to each of the highest State court of each State,
which has an application approved under subsection (c), an
amount equal to the product reached by multiplying--
(A) the unallocated balance of the amount
appropriated for each fiscal year pursuant to section
4; and
(B) the ratio between the number of people over 5
years of age who speak a language other than English at
home in the State and the number of people over 5 years
of age who speak a language other than English at home
in all the States that receive an allocation under
paragraph (1), as those numbers are determined by the
Bureau of the Census.
(4) Treatment of district of columbia.--For purposes of
this section--
(A) the District of Columbia shall be treated as a
State; and
(B) the District of Columbia Court of Appeals shall
act as the highest State court for the District of
Columbia.
SEC. 683. AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be appropriated $15,000,000 for each of the
fiscal years 2010 through 2014 to carry out this subtitle.
Subtitle E--Other Matters
SEC. 691. ADJUSTMENT OF STATUS FOR CERTAIN VICTIMS OF TERRORISM.
(a) Adjustment of Status.--The status of any alien described in
subsection (b) may be adjusted by the Secretary to that of an alien
lawfully admitted for permanent residence, if the alien--
(1) applies for such adjustment not later than 1 year after
the date of the enactment of this Act;
(2) is not inadmissible to the United States under
paragraph (2) or (3) of section 212(a) of the Immigration and
Nationality Act (8 U.S.C. 1182(a)), or deportable under
paragraph (2) or (4) of section 237(a) of such Act (8 U.S.C.
1227(a)); and
(3) not later than the date on which the application under
paragraph (1) is submitted, satisfies any applicable Federal
tax liability by establishing that--
(A) no such tax liability exists; or
(B) all outstanding liabilities have been paid.
(b) Aliens Eligible for Adjustment of Status.--
(1) In general.--The benefit provided under subsection (a)
shall apply to any alien who--
(A) was, on September 10, 2001, the spouse, child,
unmarried son, or unmarried daughter of an alien who
died as a direct result of the terrorist activity
conducted against the United States on September 11,
2001;
(B) was deemed to be a beneficiary of, and by, the
September 11th Victim Compensation Fund of 2001 (49
U.S.C. 40101); and
(C) made a proffer of information to the Secretary
between April 24, 2008, and August 15, 2008, in
connection with a request for immigration relief.
(2) Exception.--An alien shall not be provided any benefit
under this section if the Secretary determines that the alien
has willfully made a material misrepresentation or material
omission in the proffer of information described in paragraph
(1)(C).
(c) Work Authorization.--The Secretary may authorize an alien who
has applied for adjustment of status under subsection (a) to engage in
employment in the United States during the pendency of such
application.
(d) Construction.--Nothing in this section shall be construed to
limit the existing authority of the Secretary on the date of the
enactment of this Act to require any form or other submission of
information or to perform any background or security check for the
purpose of determining the admissibility, or eligibility under this
section, of any alien.
(e) Waiver of Regulations.--Not later than 6 months after the date
of the enactment of this Act, the Secretary shall issue guidance to
carry out this section. The Secretary shall not be required to
promulgate regulations before implementing this section.
(f) No Offset in Number of Visas Available.--At the time an alien
is granted the status of having been lawfully admitted for permanent
residence under this section, the Secretary of State shall not be
required to reduce the number of immigrant visas authorized to be
issued under title II of the Immigration and Nationality Act (8 U.S.C.
1151 et seq.).
(g) Definitions.--
(1) Applicable federal tax liability defined.--In this
section, the term ``applicable Federal tax liability'' means
liability for Federal taxes, including penalties and interest,
owed for any year for which the statutory period for assessment
of any deficiency for such taxes has not expired.
(2) Incorporation by reference.--Except as otherwise
specifically provided in this section, the definitions used in
the Immigration and Nationality Act (8 U.S.C. 1101 et seq.)
(excluding the definitions applicable exclusively to title III
of such Act) shall apply in the administration of this section.
SEC. 692. DEVELOPMENT OF ASSESSMENT AND STRATEGY ADDRESSING FACTORS
DRIVING MIGRATION.
(a) Development of Assessment.--The General Accounting Office shall
develop a baseline assessment of the primary factors driving migration
in a prioritized group of ten countries with the highest rates of
irregular migration to the United States within six months of the date
of enactment of this Act. The report should, at a minimum, include
factors driving migration in the prioritized countries, and any current
impact of United States assistance, trade or foreign policy on
migration trends in the prioritized countries.
(b) Strategy Address Factors Driving Immigration.--The Secretary of
State, working with the Administrator of the United States Agency for
International Development, shall subsequently submit to the Committee
on Foreign Relations of the Senate and the Committee on Foreign Affairs
of the House of Representatives, a strategy which responds to the
identified economic, social and security factors driving high rates of
irregular migration from the prioritized countries identified. The
strategy should incorporate consultation with the Bureau of Population,
Refugees, and Migration of the Department of State, the Department of
Labor, and the Office of the United States Trade Representative.
(c) Elements of Strategy.--The strategy required by subsection (b)
shall include the following:
(1) A summary and evaluation of current assistance provided
by the Government of the United States to countries with the
highest rates of irregular migration to the United States. Each
country report should, at a minimum, identify regions and
municipalities experiencing the highest emigration rates and
the current level of United States aid or investment in these
areas.
(2) Recommendations for future United States Government
assistance and technical support to address key economic,
social and development factors identified in the prioritized
migration source countries. Such assistance should be designed
to ensure appropriate engagement of national and local
governments and civil society organizations.
SEC. 693. SENSE OF CONGRESS ON INCREASED UNITED STATES FOREIGN POLICY
COHERENCY IN THE WESTERN HEMISPHERE.
It is the sense of Congress that the Secretary of State should
review the United States foreign policy toward Latin America in order
to strengthen hemispheric security through the reduction of poverty and
inequality, expansion of equitable trade, support for democratic
institutions, citizen security and the rule of law, as essential
elements in consolidation of a well-managed regional migration policy.
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