[Congressional Record Volume 164, Number 28 (Tuesday, February 13, 2018)]
[Senate]
[Pages S924-S927]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
SA 1956. Mr. JOHNSON submitted an amendment intended to be proposed
by him to the bill H.R. 2579, to amend the Internal Revenue Code of
1986 to allow the premium tax credit with respect to unsubsidized COBRA
continuation coverage; which was ordered to lie on the table; as
follows:
At the appropriate place, insert the following:
SECTION __. STATE-SPONSORED VISA PILOT PROGRAM.
(a) Short Title.--This section may be cited as the ``State
Sponsored Visa Pilot Program Act of 2018''.
(b) State-sponsored Nonimmigrant Program.--Section
101(a)(15) of the Immigration and Nationality Act (8 U.S.C.
1101(a)(15)) is amended--
(1) in subparagraph (U)(iii), by striking the ``or'' at the
end;
(2) in subparagraph (V), by striking the period at the end
and inserting ``; or''; and
(3) by adding at the end the following:
``(W)(i) an alien who is sponsored by a State and who is
coming temporarily to the United States to reside in the
State to perform services, provide capital investment, direct
the operations of an enterprise, or otherwise contribute to
the economic development agenda of the State in a manner
determined by the State; and
``(ii) the alien spouse and minor children of any alien
described in clause (i).''.
(c) Admission of State-sponsored Nonimmigrants.--
(1) Requirements for state-sponsored nonimmigrants.--
Section 214 of the Immigration and Nationality Act (8 U.S.C.
1184) is amended--
(A) in subsection (h), by striking ``(H)(i)(b) or (c), (L),
or (V)'' and inserting ``(H)(i)(b), (H)(i)(c), (L), (V), or
(W)''; and
(B) by adding at the end the following:
``(s) Requirements Applicable to State-Sponsored
Nonimmigrant Visas.--
``(1) Definitions.--In this subsection:
``(A) Reside.--The term `reside' means to live and
establish a residence in a State for a consecutive period of
more than 14 days (not including any period after the
approval of the resident's petition for immigrant status).
``(B) Secretary.--Except as otherwise specifically provided
in this subsection, the term `Secretary' means the Secretary
of Homeland Security.
``(C) State.--Notwithstanding section 101(a)(36), the term
`State' means a State of the United States and the District
of Columbia.
``(D) State-sponsored nonimmigrant.--The term `State-
sponsored nonimmigrant' means an alien who has been sponsored
by a State for admission under section 101(a)(15)(W).
``(E) State-sponsored nonimmigrant program.--The term
`State-sponsored nonimmigrant program' means a nonimmigrant
program to regulate the employment, investment, and residence
of State-sponsored nonimmigrants.
``(F) State-sponsored nonimmigrant status.--The term
`State-sponsored nonimmigrant status' means status granted to
an alien admitted as a nonimmigrant pursuant to section
101(a)(15)(W).
``(2) State-sponsored nonimmigrant program.--Any State may
submit an application to the Secretary to participate in the
State-sponsored nonimmigrant program by sponsoring aliens for
admission to the United States.
``(3) State-sponsored nonimmigrant program approval.--The
Secretary shall approve any application submitted by a State
(or compact of States) under paragraph (2) for a State-
sponsored nonimmigrant program that--
``(A) was approved by the legislature of the State;
``(B) regulates, in a manner determined by the State, the
employment and residence of State-sponsored nonimmigrants;
``(C) implements procedures, in a manner determined by the
Secretary, to inform the Secretary of the failure of a
nonimmigrant to comply with the terms of State-sponsored
nonimmigrant status when the State is made aware of such
failure;
``(D) allows, in a manner determined by the State, a State-
sponsored nonimmigrant who has been admitted to seek
employment with an employer other than the employer with
which the nonimmigrant was initially employed; and
``(E) implements procedures, in a manner determined by the
Secretary, to annually inform the Secretary of the address
and employment of all State-sponsored nonimmigrants residing
in the State.
``(4) State petition.--
``(A) In general.--A State that participates in the State-
sponsored nonimmigrant program shall submit a petition in
such form and containing such information as the Secretary
shall specify to sponsor an alien under this subsection.
``(B) Approval.--A visa may not be granted to an alien
described in subparagraph (A) until the Secretary approves a
petition submitted pursuant to subparagraph (A). Such
approval does not, of itself, establish that the alien is a
nonimmigrant.
``(C) Fee.--A State that submits a petition under
subparagraph (A) shall pay a fee in amount determined by the
Secretary to cover the cost of the adjudication of the
application.
``(5) State-sponsored nonimmigrants.--The Secretary of
State shall approve a nonimmigrant visa for an alien and the
Secretary of Homeland Security shall admit the alien to the
United States as a State-sponsored nonimmigrant or grant
State-sponsored nonimmigrant status to the alien if the
alien--
``(A) is otherwise admissible under this Act;
``(B) has not been convicted of a felony, any crime of
violence (as defined in section 16 of title 18, United States
Code), or any crime of reckless driving or of driving while
intoxicated or under the influence of alcohol or of
prohibited substances;
``(C) is petitioned for by a State that participates in the
State-sponsored nonimmigrant program approved by the
Secretary under paragraph (3);
``(D) has not previously violated any term or condition of
State-sponsored nonimmigrant status; and
``(E) has paid any bond that the State may require under
paragraph (13).
``(6) Period of authorized status.--
``(A) In general.--The period of authorized status for a
State-sponsored nonimmigrant shall be a period determined by
the State, but may not exceed 3 years.
``(B) Renewal.--
``(i) Location.--Subject to clause (ii), the period of
authorized status under subparagraph (A) shall be renewable
inside or outside of the United States.
``(ii) Condition.--Renewals under clause (i) may be granted
only if--
``(I) the sponsoring State requests such renewal; and
``(II) the State-sponsored nonimmigrant has resided
continuously in such sponsoring State, or States subject to
an interstate compact (not including any period of residence
after the approval of a petition for immigrant status of
which the alien is a beneficiary).
``(C) Termination.--The Secretary shall terminate the
period of authorized status if--
``(i) the State-sponsored nonimmigrant resides or works
outside of the State, or States subject to an interstate
compact under paragraph (7), that sponsored the alien;
``(ii) the State-sponsored nonimmigrant fails to follow all
rules and regulations required by the State, as determined by
the State (following any appeals process the State may
create); or
``(iii) the State that sponsored the nonimmigrant requests
that the status of the nonimmigrant be terminated (following
any appeals process the State may create) unless another
State sponsors the nonimmigrant.
``(D) Employment authorization.--
``(i) In general.--All aliens admitted as State-sponsored
nonimmigrants under section 101(a)(15)(W)--
``(I) shall be authorized for employment for purposes of
section 274A; and
``(II) shall be issued appropriate documentation evidencing
such authorization.
``(ii) State regulation.--Notwithstanding clause (i), the
employment of State-sponsored nonimmigrants may be regulated
in a manner determined by each State that participates in the
State-sponsored nonimmigrant program.
``(7) State compacts.--
``(A) In general.--States may enter into interstate
compacts for the joint implementation or administration of
the State-sponsored nonimmigrant program in such States.
``(B) Consideration.--A State-sponsored nonimmigrant shall
be considered to be sponsored by a State if the State-
sponsored nonimmigrant is sponsored by any State subject to
an interstate compact under subparagraph (A) and resides in
any such State.
``(8) Appeals.--
``(A) Federal appeals.--The denial of an application by a
State to be a State-sponsored nonimmigrant or the request to
terminate the period of authorized status by a State--
``(i) is not reviewable by any Federal department, agency,
or court; and
``(ii) may not be grounds for an appeal of a termination of
a visa or status for a State-sponsored nonimmigrant.
``(B) State appeals.--At the sole discretion of the State
and in a manner determined by the State, a State that
participates in the State-sponsored nonimmigrant program may
create a process for a State-sponsored nonimmigrant or an
alien that has applied for participation in the State-
sponsored nonimmigrant program in the State to appeal an
adjudication of an application by the State or determination
by the State that the State-sponsored nonimmigrant violated
the terms or conditions that were created by the State for
the participation of the alien in the State-sponsored
nonimmigrant program in the State.
``(9) Waiver of rights prohibited.--
``(A) In general.--Except as provided in subparagraph (C),
a State-sponsored nonimmigrant may not be required to waive
any substantive rights or protections under this Act.
``(B) Construction.--Nothing under this paragraph may be
construed to affect the interpretation of any other law.
[[Page S925]]
``(C) Exception.--Notwithstanding subparagraph (A) or any
other provision of law, an alien may not be provided State-
sponsored nonimmigrant status unless the alien has waived any
right--
``(i) to review or appeal under this Act of an immigration
officer's determination as to the admissibility of the alien
at the port of entry into the United States; or
``(ii) to contest or appeal, other than on the basis of an
application for asylum, any action for removal of the alien.
``(10) Tax responsibilities.--An employer shall comply with
all applicable Federal, State, and local tax laws with
respect to each State-sponsored nonimmigrant employed by the
employer.
``(11) Labor and tax laws.--State-sponsored nonimmigrants
shall be subject to all Federal, State, and local laws
regarding taxation, employment, or hiring of persons in the
State.
``(12) Federal public benefits.--
``(A) In general.--State-sponsored nonimmigrants--
``(i) are not entitled to the premium assistance tax credit
authorized under section 36B of the Internal Revenue Code of
1986;
``(ii) shall be subject to the rules applicable to
individuals who are not lawfully present set forth in
subsection (e) of such section; and
``(iii)(I) shall not be allowed any credit under section 24
or 32 of the Internal Revenue Code of 1986; and
``(II) in the case of a joint return, no credit shall be
allowed under either such section if both spouses are State-
sponsored nonimmigrants.
``(B) Employer fee.--For purposes of subsections (a)(2) and
(b)(1)(B) of 4980H of the Internal Revenue Code of 1986, a
State-sponsored nonimmigrant shall be treated as a full-time
employee certified as having enrolled in a qualified health
plan with respect to which an applicable premium tax credit
or cost-sharing reduction is allowed or paid with respect to
the employee.
``(C) Other benefits.--Notwithstanding any other provision
of law, a State-sponsored nonimmigrant shall not be eligible
for--
``(i) any assistance or benefits provided under a State
program funded under the temporary assistance for needy
families program under part A of title IV of the Social
Security Act (42 U.S.C. 601 et seq.);
``(ii) any medical assistance provided under a State
Medicaid plan under title XIX of the Social Security Act (42
U.S.C. 1396 et seq.) or under a waiver of such plan, other
than emergency medical assistance provided under paragraphs
(2) and (3) of section 1903(v), and any child health
assistance provided under a State child health plan under
title XXI of the Social Security Act (42 U.S.C. 1397aa et
seq.) or under a waiver of such plan;
``(iii) any benefits or assistance provided under the
supplemental nutrition assistance program established under
the Food and Nutrition Act of 2008 (7 U.S.C. 2011 et seq.);
``(iv) supplemental security income benefits provided under
title XVI of the Social Security Act (42 U.S.C. 1381);
``(v) Federal Pell Grants under section 401 of the Higher
Education Act of 1965 (20 U.S.C. 1070a);
``(vi) housing vouchers under section 8 of the United
States Housing Act of 1937 (42 U.S.C. 1437f);
``(vii) Federal old-age, survivors, and disability
insurance benefits under title II of the Social Security Act
(42 U.S.C. 401 et seq.);
``(viii) health insurance benefits for the aged and
disabled under the Medicare Program established under title
XVIII of the Social Security Act (42 U.S.C. 1395 et seq.); or
``(ix) assistance or benefits provided under the program of
block grants to States for social services under subtitle A
of title XX of the Social Security Act (42 U.S.C. 1397 et
seq.).
``(D) Employer payments.--An employer of a State-sponsored
nonimmigrant shall pay into the general fund of the Treasury
an amount equivalent to the Federal tax on the wages paid to
the nonimmigrants that the employer would be obligated to pay
under chapters 21 and 23 of the Internal Revenue Code of 1986
had the nonimmigrants been subject to such chapters, subject
to the same penalties as provided for failure to pay such
tax.
``(E) Inclusion of nonimmigrants in save.--Not later than
30 days after the date of the enactment of the State
Sponsored Visa Pilot Program Act of 2018, the Secretary shall
modify the Systematic Alien Verification for Entitlements
Program of the United States Citizenship and Immigration
Services to add any status under section 101(a)(15)(W) as an
alien category that is ineligible for any benefit program
listed in subparagraph (C).
``(13) Bonds.--
``(A) In general.--States may require State-sponsored
nonimmigrants to pay a bond in an amount determined by the
State to incentivize voluntary compliance with the terms and
conditions of the State-sponsored nonimmigrant program.
``(B) Study.--
``(i) In general.--At the end of each fiscal year, the
Inspector General of the Department of Homeland Security and
the Comptroller General of the United States shall each
independently submit a report to the congressional committees
specified in clause (iii) that identifies, for each State
that participates in the State-sponsored nonimmigrant
program, the percentage of State-sponsored nonimmigrants that
have resided or worked illegally in a State other than the
State that sponsored them (not including any State-sponsored
nonimmigrants who are beneficiaries of approved immigration
petitions).
``(ii) Assignment.--A State-sponsored nonimmigrant who
resides or works illegally in a State other than the State
that sponsored them shall be assigned to the percentage of
the State that initially sponsored the alien if the State
participates in an interstate compact.
``(iii) Congressional committees.--The congressional
committees specified in this clause are--
``(I) the Committee on Homeland Security and Governmental
Affairs of the Senate;
``(II) the Committee on the Judiciary of the Senate;
``(III) the Committee on Homeland Security of the House of
Representatives; and
``(IV) the Committee on the Judiciary of the House of
Representatives.
``(C) Mandatory bonds.--
``(i) In general.--During the first fiscal year following a
determination under subparagraph (B) by the Comptroller
General or the Inspector General of the Department of
Homeland Security that more than 3 percent of the State-
sponsored nonimmigrants sponsored by a State violated the
terms and conditions of State-sponsored nonimmigrant status
in the most recently completed fiscal year, the State shall
require each State-sponsored nonimmigrant in the State, as a
condition of participation in the State-sponsored
nonimmigrant program, to post a bond equal to not less than
$4,000.
``(ii) Subsequent bonds.--The bond amount under clause (i)
shall be raised by $1,000 during each fiscal year following a
subsequent determination under subparagraph (B) by the
Comptroller General or the Inspector General of the
Department of Homeland Security that more than 3 percent of
the State-sponsored nonimmigrants sponsored by the State
violated the terms and conditions of State-sponsored
nonimmigrant status in the most recently completed fiscal
year.
``(iii) Inflation adjustment.--Effective for the first
fiscal year that begins more than 6 months after the date of
the enactment of the State Sponsored Visa Pilot Program Act
of 2018, and for each fiscal year thereafter, the amounts
described in this subparagraph shall be increased by the
percentage (if any) by which the Consumer Price Index for the
month of June preceding the date on which such increase takes
effect exceeds the Consumer Price Index for all urban
consumers published by the Department of Labor for the same
month of the preceding calendar year.
``(D) Reimbursement of bonds.--
``(i) In general.--Bonds paid to a State under this
paragraph shall be reimbursed to any State-sponsored
nonimmigrant that has not worked or resided in a State other
than the State that sponsored the nonimmigrant or otherwise
resided in the United States without status under the
immigration laws in accordance with this subparagraph.
``(ii) Full reimbursement.--The full amount of the bond
shall be reimbursed in full immediately after--
``(I)(aa) the alien applies to the Secretary of State (or
the designee of such Secretary) at a United States embassy,
consulate, or, if specified by the Secretary, other locations
outside the United States; and
``(bb) in connection with the application, the State-
sponsored nonimmigrant confirms his or her identity, or
verifies his or her departure at such time from the United
States pursuant to a biometric entry and exit data system;
``(II) an approved petition for lawful permanent residency
is approved on behalf of the State-sponsored nonimmigrant; or
``(III) the State-sponsored nonimmigrant dies.
``(iii) Payee.--
``(I) Death of nonimmigrant.--Upon the death of a State-
sponsored nonimmigrant, payment shall be immediately paid to
such State-sponsored nonimmigrant's next of kin, as
designated by such State-sponsored nonimmigrant on the
application to be a State-sponsored nonimmigrant.
``(II) Bank account.--A State-sponsored nonimmigrant may
specify on the application to be a State-sponsored
nonimmigrant a bank account to which such amount be sent
after the satisfaction of a condition specified in clause
(ii).
``(iv) Denial of reimbursement.--Funds of a State-sponsored
nonimmigrant held under this paragraph may not be denied by a
State to the nonimmigrant unless the State demonstrates, by
clear and convincing evidence, that the nonimmigrant
knowingly violated a term or condition of State-sponsored
nonimmigrant status--
``(I) by failing to depart the United States at the end of
the period of authorized status; or
``(II) working or residing in a State that did not sponsor
the nonimmigrant.
``(v) Notice.--The Secretary of State, in conjunction with
the Secretary of Homeland Security, shall inform the State
that the State-sponsored nonimmigrant has complied with
clause (i).
``(14) Penalties.--If a State-sponsored nonimmigrant works
or resides outside of the State, or any of the States under
an interstate compact that sponsored the nonimmigrant or
fails to comply with any term or condition of State-sponsored
nonimmigrant status, the Secretary shall--
[[Page S926]]
``(A) revoke the employment authorization of such
nonimmigrant; and
``(B) initiate and expedited removal in accordance with
section 235.
``(15) State enforcement.--
``(A) In general.--A State that participates in the State-
sponsored nonimmigrant program may enforce all rules and
regulations of the State-sponsored nonimmigrant program in
the State against employers to the same extent as any other
labor laws under State law.
``(B) Apprehension.--As a condition of participation in the
State-sponsored nonimmigrant program, a State shall reimburse
any other State and any Federal agency that has apprehended
and detained a State-sponsored nonimmigrant sponsored by the
State for the full costs of apprehension, detention, or
removal of the nonimmigrant upon request of the apprehending
State or Federal agency.
``(C) Process.--The Secretary shall establish a process
through which a State may seek reimbursement under
subparagraph (B).
``(16) Suspension of program approval.--The Secretary shall
suspend admissions under the State-sponsored nonimmigrant
program for any State that fails--
``(A) to reimburse another State or a Federal agency under
paragraph (15)(B) not later than 1 year after a final
judgment against the State; or
``(B) to reimburse, in accordance with paragraph (13)(D), a
State-sponsored nonimmigrant who--
``(i) has departed the United States;
``(ii) did not seek employment without authorization in a
State that did not sponsor the nonimmigrant; and
``(iii) did not otherwise reside in the United States
without status under the immigration laws.
``(17) Fees.--
``(A) Federal fees.--A State shall pay a fee to the
Secretary for each year in which the State participates in
the State-sponsored nonimmigrant program in an amount
determined by the Secretary to be necessary to cover the
Federal costs of overseeing the State-sponsored nonimmigrant
program in the State.
``(B) State fees.--Nothing in this subsection may be
construed to limit or regulate fees required by the State for
State-sponsored nonimmigrants or employers of State-sponsored
nonimmigrants.
``(18) Numerical limitations.--
``(A) In general.--The total number of aliens who may be
issued visas or otherwise provided State-sponsored
nonimmigrant status under this subsection during any fiscal
year may not exceed the total number of visas computed under
subparagraph (B).
``(B) Distribution.--Subject to subparagraphs (C), (D), and
(E), the number of State-sponsored nonimmigrant visas made
available in a fiscal year to a State that participates in
the State-sponsored nonimmigrant program shall be the sum
of--
``(i) 5,000;
``(ii) the sum of the amounts computed under subparagraphs
(C) and (D) in the prior year; and
``(iii) the percentage of the total population in all
States participating in the State-sponsored nonimmigrant
program represented by the population of that State
multiplied by the sum of--
``(I) 245,000;
``(II) the number of nonparticipating States multiplied by
5,000; and
``(III) the total number of visas available in the previous
fiscal year that were revoked or not used.
``(C) Economic growth.--The amounts computed under
subparagraphs (A) and (B) for the prior fiscal year shall be
adjusted annually in proportion to the percentage increase or
decrease in the Gross Domestic Product of the United States
in the prior year, as determined by the Bureau of Economic
Analysis of the Department of Commerce.
``(D) Compliance.--
``(i) Increases.--The number of State-sponsored
nonimmigrant visas made available to a State under
subparagraph (C) shall be increased by 10 percent over the
prior fiscal year in each fiscal year immediately following a
fiscal year in which less than 3 percent of the State-
sponsored nonimmigrants sponsored by the State violated the
terms and conditions of State-sponsored nonimmigrant status,
as determined by the Inspector General of the Department of
Homeland Security or the Comptroller General of the United
States in the reports required under paragraph (13)(B).
``(ii) Decreases.--The number of State-sponsored
nonimmigrant visas made available to a State under
subparagraph (C) shall be decreased by 50 percent in each
fiscal year immediately following a fiscal year in which more
than 3 percent of the State-sponsored nonimmigrants sponsored
by the State complied with the terms and conditions of State-
sponsored nonimmigrant status, as determined by the Inspector
General of the Department of Homeland Security or the
Comptroller General of the United States in the reports
required under paragraph (13)(B).
``(iii) Suspension.--State-sponsored nonimmigrant visas
shall not be made available for a State during the 5-year
period following four consecutive fiscal years in which more
than 3 percent of the State-sponsored nonimmigrants sponsored
by the State violated the terms and conditions of State-
sponsored nonimmigrant status, as determined by the Inspector
General of the Department of Homeland Security or the
Comptroller General of the United States in the reports
required under paragraph (13)(B).
``(E) Principal aliens.--
``(i) In general.--The numerical limitations under this
paragraph shall apply only to principal aliens being admitted
to the United States from abroad and not to aliens
accompanying or following to join the principal alien under
section 101(a)(15)(W)(ii) or aliens previously admitted.
``(ii) State exclusion.--The Secretary may not grant a visa
or status to an alien who is not the principal alien
sponsored by a State if the State request that no such aliens
be admitted.
``(19) Admissibility determination.--
``(A) In general.--At the request of a State that
participates in the State-based nonimmigrant program, the
Secretary shall waive the grounds of inadmissibility under
subparagraphs (A), (B), (C), and (G) of section 212(a)(6),
paragraphs (7) and (9) of section 212(a), and sections
240B(d)(1)(B) and 241(a)(5) and the grounds of deportability
under subparagraphs (A) through (D) of section 237(a)(1) and
section 237(a)(3) on behalf of an alien described in
subparagraph (B).
``(B) Aliens described.--An alien described in this
subsection is an alien who--
``(i) was physically present in the United States on
December 31, 2016;
``(ii) is sponsored by a State under the State-based
nonimmigrant program;
``(iii) otherwise meets the requirements of State-based
nonimmigrant status under paragraph (4); and
``(iv) fulfills the requirements under paragraph (20).
``(C) Savings provision.--Nothing in this paragraph may be
construed to exempt an alien described in subparagraph (B) or
the State from the numerical limitation under paragraph (18).
``(20) Requirements.--
``(A) Application.--An alien may apply to the Secretary for
a waiver of inadmissibility or deportability under paragraph
(19) concurrently with an application for a visa or status
under section 101(a)(15)(W).
``(B) Evidence of presence or employment.--
``(i) Conclusive documents.--An alien may conclusively
demonstrate presence in the United States in compliance with
paragraph (19)(B)(i) by submitting records demonstrating such
presence that have been maintained by the Social Security
Administration, the Internal Revenue Service, or any other
Federal, State, or local government agency or educational
institution.
``(ii) Other documents.--An alien who is unable to submit a
document described in subparagraph (A) may satisfy the
requirements under this section by submitting at least three
other types of reliable documents that provide evidence of
presence, employment or study in the United States,
including--
``(I) bank or remittance records;
``(II) business or employer records;
``(III) records of any organization that assists workers in
employment;
``(IV) education records; and
``(V) deeds, mortgages, or contracts to which the alien has
been a party.
``(C) Fees.--
``(i) In general.--An alien submitting an application under
subparagraph (A) shall pay a fee in an amount determined by
the Secretary to be necessary to cover the cost of
adjudicating the application and reviewing the application
for fraud.
``(ii) Penalty.--In addition to the fee under clause (i),
an alien seeking a waiver under paragraph (19) shall pay a
penalty of not less than $1,000, which shall be deposited
into the Treasury of the United States after the approval of
the application under subparagraph (A).
``(D) Criminal penalty.--
``(i) Violation.--It shall be unlawful for any person to
knowingly--
``(I) file, or assist in filing, an application under this
paragraph if such application--
``(aa) falsifies, misrepresents, conceals, or covers up a
material fact;
``(bb) makes any false, fictitious, or fraudulent
statements or representations; or
``(cc) makes or uses any false writing or document knowing
the same to contain any false, fictitious, or fraudulent
statement or entry; or
``(II) create or supply a false writing or document for use
in making such an application.
``(ii) Penalty.--Any person who violates clause (i) shall
be fined in accordance with title 18, United States Code,
imprisoned not more than 5 years, or both.
``(iii) Inadmissibility.--An alien who is convicted of
violating clause (i) shall be considered to be inadmissible
to the United States on the ground described in section
212(a)(6)(C)(i) and subject to immediate removal from the
United States.
``(E) Fraud prevention program.--The Secretary and the
Attorney General shall jointly develop an administrative
program to prevent fraud with respect to applications
submitted under this paragraph that provides for--
``(i) fraud prevention training for administrative
adjudicators;
``(ii) the regular audit of pending and approved
applications for examples and patterns of fraud or abuse;
``(iii) the receipt and evaluation of reports of fraud or
abuse;
``(iv) the identification of deficiencies in administrative
practice or procedure that encourage fraud or abuse;
[[Page S927]]
``(v) the remedy of any identified deficiencies, and
``(vi) the referral of cases of identified or suspected
fraud or other misconduct for investigation.
``(F) Ineligible aliens.--
``(i) Removal authorized.--Except as provided in clause
(ii), if the Secretary makes a final determination to deny an
application under this section, the Secretary shall place the
applicant in removal proceedings to which the alien would
otherwise be subject.
``(ii) Aliens with prior orders.--If the final
determination to deny an application concerns an alien with
an existing order of exclusion, deportation, removal, or
voluntary departure from the United States, such order shall
be enforced to the same extent as if the application had not
been made.
``(G) 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 under
this subsection may not be used in a civil or criminal
prosecution or investigation of that employer under section
247A 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. Employers that provide unauthorized aliens
with copies of employment records or other evidence of
employment pursuant to an application under this title shall
not be subject to civil and criminal liability pursuant to
such section 274A for employing such unauthorized aliens. The
protections for employers and aliens shall not apply if the
aliens or employers submit employment records that are deemed
to be fraudulent.
``(H) Construction.--Nothing in this subsection may be
construed to limit the authority of the State to require
additional monetary penalties, other evidence of physical
presence, or any other requirement for aliens described in
paragraph (19)(B) to participate in the State-based
nonimmigrant program in such State.''.
(2) Judicial review.--Section 242(a)(2) of the Immigration
and Nationality Act (8 U.S.C. 1252(a)(2)) is amended by
adding at the end the following:
``(E) Judicial review of certain eligibility
determinations.--If an alien's application under section
214(s)(20) is denied or revoked, judicial review shall be
instituted in the United States District Court for the
District of Columbia and shall be limited to determinations
of the constitutionality of section 214(s), or any
regulations implemented pursuant to such section.''.
(3) Nonimmigrants with approved immigrant petitions.--
Section 245 of the Immigration and Nationality Act (8 U.S.C.
1255) is amended--
(A) in subsection (a)--
(i) by striking ``if (1) the alien'' and inserting the
following: ``if--
``(1) the alien'';
(ii) by striking ``adjustment, (2) the alien'' and
inserting the following: ``adjustment;
``(2) the alien'';
(iii) by striking ``residence, and (3) an immigrant visa''
and inserting the following: ``residence; and
``(3) an immigrant visa''; and
(iv) in paragraph (3), by striking ``him at the time his
application is filed'' and inserting ``the alien at the time
the alien's application is adjudicated''; and
(B) by adding at the end the following:
``(n) Adjustment of Status Application After an Approved
Immigrant Petition.--
``(1) Application.--An alien who has an approved immigrant
petition may file an adjustment of status application under
subsection (a), which shall remain pending until a visa
number becomes available.
``(2) Status.--An alien who has properly filed an
adjustment of status application under subsection (a) shall,
throughout the pendency of such application--
``(A) have a lawful status and be considered lawfully
present for purposes of section 212; and
``(B) following a biometric background check, be eligible
for employment and travel authorization incident to such
status.''.
(d) Effective Date.--The amendments made by this section
shall take effect on the first day of the first fiscal year
that begins after the date of the enactment of this Act.
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